Networks Say Live TV Is at Stake in Fox Decency Case

By Frank Ahrens
Washington Post Staff Writer
Saturday, April 5, 2008

Major television networks are privately saying that if they have to worry about a fine every time someone utters a profanity on air, they may have to stop real-time broadcasting of live events such as the Academy Awards and Grammys.

At the same time, the head of the Federal Communications Commission and parents groups are saying that if the Supreme Court removes the threat, ABC, CBS, NBC and Fox will seize the opportunity to make the airwaves more coarse and profane.

The issue has come to a head because the high court is taking up broadcast indecency for the first time in 30 years. A ruling either way will have lasting repercussions on the networks and viewers .

The case, FCC v. Fox Television Stations, concerns two Fox programs that violated the FCC's indecency rules by airing profanities. Fox sued the FCC, saying the agency's ruling went against its own indecency regulations for punishing "fleeting," or one-time, use of profanities. A lower court sided with Fox; the FCC and administration appealed to the high court, which said last month it would take the case when it reconvenes the first Monday of October. Arguments might not be heard until early next year.

The case involves live awards shows in 2002 and 2003 that featured, respectively, singer Cher and celebrity Nicole Richie using variations of a profane four-letter word. More recently, actress Diane Keaton used a variation of the same word on ABC's "Good Morning America," and in February, Jane Fonda used a vulgarity for a part of female anatomy on NBC's "Today" show. Neither of the latter two has prompted an FCC fine.

Fox says it seeks a Supreme Court decision that would let the network continue to air live programming without fear of an FCC fine, which can run as high as $325,000 per profanity.

"A positive ruling from the court would simply acknowledge that no system is perfect and must allow for a small margin of human error," Fox spokesman Scott Grogin said.

With the networks having set up elaborate and costly systems to try to catch offensive language and images in live shows before they reach viewers, one executive said that if the court finds for the FCC, the networks may have little choice but to stop airing events live.

"I don't know how we could police it any more," said the executive, who spoke on the condition of anonymity for fear of angering the FCC and possibly endangering the network's station broadcast licenses. "I think you would drastically reduce if not eliminate live programming."

With the potential of fines reaching into the millions of dollars, a network may have a fiduciary duty to shareholders to cease most live broadcasts if the court rules against Fox, the executive said. The president's State of the Union address would probably still be safe to air live, the executive said, but a show like "American Idol" might not.

The head of an influential parents group and the chairman of the FCC said the networks are essentially asking the court to approve more vulgarity on the airwaves.

Tim Winter, a former NBC executive, is now president of the Parents Television Council, which has flooded the FCC with hundreds of thousands of viewer complaints in recent years about risque television shows. He said a pro-Fox decision by the court would start an inevitable decline in programming standards, eventually making shows on the major networks -- ABC, CBS, NBC and Fox -- look and sound more like the R-rated programs on HBO and Showtime.

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.

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