Test of Decency Rules Likely

Seeking to force federal regulators to more clearly define indecency violations, broadcasters are expected to bring a legal test case as early as next month, according to industry officials.

Broadcasters hope a lawsuit could bring a ruling that would force the Federal Communications Commission to change its ways. The agency has drawn criticism for its allegedly inconsistent enforcement of indecency rules and for yielding to pressure from public interest groups.

“I think the government is more vulnerable to an indecency challenge than they’ve ever been before,” said Kurt A. Wimmer, a Washington communications lawyer.

The push to bring a new legal challenge comes as Congress is seeking to boost indecency penalties at least tenfold to as much as $500,000 an incident. It also coincides with a pending change in leadership at the FCC, where Republican Kevin J. Martin, considered tough on indecency, is the leading candidate to replace Chairman Michael K. Powell, who is stepping down.

Broadcasters haven’t brought a major indecency or obscenity case since 1978, when the U.S. Supreme Court upheld the FCC’s authority to issue indecency fines. That case involved a Pacifica radio station’s airing in 1973 of comedian George Carlin’s “Seven Words You Can Never Say on Television” routine.

FCC officials currently define broadcast indecency as “patently offensive” material that depicts “sexual or excretory organs or activities.” Shows that are aired between 6 a.m. and 10 p.m., when children are likely to be in the broadcast audience, are subject to enforcement.

Broadcasters have long argued that indecency laws are vague, and thus unconstitutionally restrict free speech. They say the restrictions are especially unfair given that similar rules do not apply to areas such as cable, satellite and the Internet.

The murky rules also provide an opening, broadcasters believe, for such groups as the Parents Television Council, a Los Angeles organization responsible for the vast majority of indecency complaints received by the FCC. Critics say the group exerts undue clout in prodding regulators to act on specious cases.

Industry lawyers who are spearheading the possible legal action say they are focusing on two promising cases.

One is a reprimand NBC received for airing U2 singer Bono’s use of a sexual expletive during an acceptance speech at the 2003 Golden Globe awards show.

The lawyers, who requested anonymity, said they were considering making an argument that the FCC was driven more by public outcry than by an application of federal rules.

No fine was levied. But the FCC reversed its own staff in issuing the reprimand, warning that going forward it would treat airings of the word as an indecency violation. The move was considered significant because until then regulators had often overlooked isolated instances when the same expletive was used in a nonsexual manner.

In a pleading filed last year, NBC affiliates told the FCC that the agency “dramatically changed the ground rules by which all broadcasters must operate” when it determined that even “fleeting and isolated examples” could result in fines.

NBC would not say whether it planned to sue, but in a statement said it was “troubled by inconsistent FCC regulation and an out-of-control federal censorship bureaucracy.”

The second case involves $1.18 million in fines levied in October against Fox affiliates for airing a racy program called “Married by America.” The bachelor party-themed episode showed digitally obscured nudity, men in underwear being spanked by two strippers and whipped cream being licked off the chest of a woman.

According to sources, Fox is considering using the “Married by America” case to press the broader constitutional issue of whether broadcasters should be subjected to special limits.

Fox appears to want to challenge the idea that “broadcasters can be treated differently from other media,” said Bruce Fein, a former general counsel for the FCC who is not involved in the strategy discussions.

Executives from Fox parent News Corp. declined to comment.

Sources said that the Bono and Fox cases have won the strongest industry backing because many affiliate stations were affected and thus could be willing to help finance any legal challenge.

One gambit being considered is to leapfrog any pending administrative procedures by appealing directly to the federal courts. Lawyers for broadcasters, frustrated with the FCC’s lengthy reviews of indecency cases, say they hope such a tactic would speed up future hearings. Currently, they argue, the FCC is violating broadcasters’ constitutional rights to due process and free speech by not resolving disputes in a timely manner.

“Ordinarily it is very hard to get a court to agree to hear something if you haven’t exhausted your administrative remedies,” said Andrew Schwartzman, president of Media Access Project, a Washington watchdog group. “But here I think the argument can be made that [broadcasters] are being deprived of a fundamental constitutional right.”

For their part, FCC officials said they expected an eventual legal challenge.

“There’s no question that the courts are going to bring clarity one way or the other,” said John Cody, a top aide to Powell.