Fox to FCC: Get Out of Indecency Regulation (Updated)

Network takes hard line as other broadcasters urge the commission to lighten up on punitive measures

As other broadcasters urged the Federal Communications Commission to ease up on indecency regulations, Fox urged it to quit regulating broadcast indecency altogether.

“Fox urges the commission to conclude it is legally required and logically bound to cease attempting broadcast indecency limits once and for all,” Fox Entertainment Group and Fox Television Holdings said in a filing Wednesday.

“Time and technology have moved inexorably forward, but the commission’s untenable effort to define indecent content through a hodgepodge of inconsistent and uneven rulings remain stuck in a bygone era.”

Also read: An FCC Complaint Over 'X Factor' Flasher, But Was He Even Exposed?

Fox also said that if the FCC "defies the Constitution and common sense" and continues to regulate indecency, it should do so narrowly.

The comments were filed as the FCC considers how to revise its rules in light of a U.S. Supreme Court decision that rejected the agency’s attempt to step up its policing of potentially offensive content. Several broadcasters urged the FCC to exercise caution in indecency enforcement, but didn’t go quite as far as Fox.

CBS and NBC affiliates' associations in a joint filing questioned the FCC’s attempt to step up enforcement against fleeting expletives and nudity in live programming, saying the policy could threaten stations' abilities to carry live events.

Also read: Supreme Court Knocks Down FCC Indecency Rules in Fox Case, Ducks First Amendment Question

(Update: CBS in comments filed late Wednesday night also cited the FCC’s “disarray” in indecency enforcement and urged the FCC to abandon its zero tolerance approach and instead adopt one focused on egregious content.

(“More restrained enforcement is necessary if any order is to be brought to the chaotic state of indecency regulation,” the network said.

(“A government agency should not be distinguishing between the isolated words of bull**t in a police drama and much stronger language in an Academy Award winning movie or CBS’s Peabody Award winning documentary about Sept. 11,” said the network.

(It also warned the agency, that it needs to have a policy that withstands political pressure.

(“An appropriately restrained policy regarding indecency enforcement will also require the commission to resist the temptation—and political pressures—to act as the ultimate arbitrator of whether a program has been too frank in the depiction of sexuality.”

(And NBC Universal said the FCC’s indecency enforcement suffers from “fatal constitutional flaws.” It questioned whether the agency’s original justifications for the rules — because of broadcast TV’s “uniquely pervasive presence in the lives of Americans” and because of its unique use by children — is still true. NBCU also contended the commission’s rules are “vague.”

("Broadcast TV is not a uniquely pervasive presence in the lives of 21st Century Americans; it is just one among many methods by which viewers access the programming they prefer. Nor is broadcast television uniquely accessible to children. The Commission cannot ignore these fundamental changes. Unless it can establish any other legitimate basis for singling out broadcast for second-class constitutional protection, the Commission cannot continue to regulate broadcast indecency without demonstrating that its policy is the least restrictive means to achieve a compelling governmental interest,” said NBCU.)

(Also late Wednesday, Fox’s comments drew fire from the Parents Television Council.

(“It is pathetic that the best they can do is muster up the same arguments they lost on at the Supreme Court,” Dan Isett, director of public policy told TheWrap. “These guys need to accept reality and stop airing indecent content. Consumer groups TechFreedom, the Center for Democracy & Technology, Public Knowledge and the Electronic Frontier Foundation said that the FCC enforcement policy is hurting broadcast TV.

(“Broadcasting is no longer the cultural force it once was—or an “intruder in the home,” the consumer groups contended. They suggested that given the number of other places consumers can find similar content without restrictions, limiting content on broadcast TV “is neither sound policy, nor constitutionally defensible.”)

Though broadcasters urged the FCC to ease indecency rules, the FCC has received more than 100,000 comments urging it to step up enforcement. Several groups that want stepped-up enforcement have urged their members to write to the commission.

Also read: FCC Considers New Policy for Policing Broadcast Indecency

“I oppose the media’s request to loosen, reduce or eliminate the FCC’s programming decency standards,” said one viewer's comment. “The media has already effectively destroyed American society. I request that the FCC refuse to loosen its programming decency standards. America must recover its morality if our nation has any hope of surviving.”

The fight over the FCC’s indecency standards is an outgrowth of two recent trends — broadcasters' attempt to win back cable viewers by airing more edgy programming, and the FCC’s attempts restrict nudity and profanity on broadcast TV.

The Supreme Court last year rejected broadcasters' attempt to overturn the FCC’s indecency standards as outdated and a violation of the First Amendment. Instead, the court said the FCC hadn’t given broadcasters sufficient notice before starting to view “isolated” instances of nudity and profanity as violations of indecency rules.

Also read: Don't Relax TV Indecency Standards, Viewers Urge the FCC

The high court action stopped the FCC’s efforts to chastise Fox stations for the 2002 Billboard Music Awards show, in which Cher uttered an expletive. Nicole Richie did the same at the 2003 awards. The FCC also tried to punish ABC stations for airing pictures of actress Charlotte Ross’ bare buttocks on a 2003 episode of ABC’s “NYPD Blue.”

After the high court ruling, then-FCC Chairman Julius Genachowski dismissed nearly 70 percent of the FCC’s indecency complaints and sought comments on what new standard should be used to replace them. 

Among the questions the FCC’s Enforcement Bureau asked was whether the FCC should only pursue content that demonstrates “deliberate and repetitive" offensive material.

The agency won’t begin working on a response until it gets reaction next month to the initial comments.