Networks Say Live TV Is at Stake in Fox Decency Case

The FCC prohibits the airing of "patently offensive" material of a sexual or excretory nature on over-the-air radio and television between 6 a.m. and 10 p.m., when children are most likely to be among the audience. Cable and satellite channels, such as HBO and XM radio, are outside the FCC's jurisdiction.

"It would be unlikely to even see an immediate swift change, where all of a sudden you hear f-bombs on every show," Winter said. "But you would see an accelerated version of what you've seen over the last 20 years or so -- [profanity] has been used at first sparingly, then periodically, then occasionally, then regularly."

Winter cites the example of HBO's profanity-laced mobster series, "The Sopranos," which now appears slightly edited on A&E, a basic cable channel. Also, he points to CBS's grisly "CSI" crime series, which airs after 10 p.m. in its first run. In syndication, however, it airs slightly edited and in the afternoon, prime viewing time for schoolchildren.

"It's a creep argument," Winter said.

FCC Chairman Kevin J. Martin said the networks would welcome a pro-Fox ruling as a first step to throwing out all broadcast decency standards.

"Essentially, the networks believe there should be no standard at all, that they can air what they want when they want," Martin said. "At stake is not a dollar amount but whether or not we have the authority to find programs -- airing when children are watching -- inappropriate."

Each network has a broadcast standards and practices department that approves scripts, screens shows for advertisers and tries to catch offensive content in live shows.

Top executives at all four major networks spoke for this story about how they handle risky live programming, but none would comment for attribution. Each network's guidelines are closely guarded for competitive reasons.

However, background conversations allowed a rarely seen picture into how networks have tried, not always successfully, to prevent fine-worthy material from reaching viewers over the past six years, in the wake of several notorious broadcasts.

The increase in number and dollar amount of FCC fines has forced networks to ramp up -- in some cases, invent -- systems to prevent offensive content from reaching viewers.

After Janet Jackson's brief breast exposure during the halftime show of the 2004 Super Bowl, one network quickly threw together a system of audio and video tape and editing machines that was described as "Rube Goldbergesque" by an executive at that network.

Another network has four employees in four separate booths watching live programming as it airs, their fingers literally hovering over two delay, or "dump," buttons, one for video, one for audio.

The network also has a fifth staffer, who maintains an open phone line to two executives at the live event as it airs. The employees in the booths must undergo periodic "button training," during which they are shown mock broadcasts to test their reaction time and judgment.

During an actual broadcast, if any one of the staffers hears or sees something they feel could prompt an FCC fine and pushes their button, the show's audio will be dropped for as many seconds as necessary and the video shot will be switched away from the offending party, to thwart lip-readers.

Another network goes so far as to check the costumes of performers before a show airs, to make sure there isn't a "wardrobe malfunction" of the sort that brought a $550,000 fine to CBS for Jackson's exposure. The stakes are high for a slip-up.

"If a broadcaster fails one time out of a thousand, they could be vulnerable to millions in fines," said one network executive.

In addition to ruling on the specifics of the Fox case, there is the slight possibility that the Supreme Court will use the opportunity to crack open the broader issue of indecency, broadcast and First Amendment lawyers say. The court could overthrow decades-old rulings that give the FCC the authority to not only patrol the airwaves for indecency, but to set ownership limits for radio and television stations and require them to fulfill public interest obligations, essentially ending the special status granted to over-the-air broadcasting since its inception.

In a filing to the Supreme Court in the Fox case, NBC went so far as to call the two prior court decisions that grant the FCC authority over the broadcast airwaves "moth-eaten."

In a separate case, the FCC yesterday returned a Fox appeal for an indecency fine relating to a 2003 television show on procedural grounds. Last month, Fox refused to pay the fine and asked the FCC to reconsider. Yesterday, the agency said it would not reconsider the case because Fox did not meet an FCC deadline to request more pages for the appeal than are typically allowed.