4 TV Networks Challenge FCC on Indecency

In a move that seems certain to force a showdown over what constitutes indecency on the airwaves, four TV broadcast networks and their affiliates announced Friday that they had united to challenge a Federal Communications Commission ruling that deemed language used in several of their shows indecent.

CBS, Fox, ABC and Hearst-Argyle Television Inc. filed notices of appeal in federal court in New York and Washington late Thursday and early Friday.

They are seeking to overturn a March 15 ruling that found some broadcasts of the CBS News program “The Early Show,” “Billboard Music Awards” on Fox and ABC’s drama “NYPD Blue” to be indecent because they contained variations on two obscenities: what people on both sides of the issue refer to as the “F-word” and the “S-word.”

Of the offending incidents, which all aired between 2002 and 2004, those on CBS and Fox involved words that the networks said were blurted out spontaneously. Those on ABC were scripted.

None of the incidents involved NBC, but the network filed a petition to intervene on behalf of the three other networks and their affiliates. NBC is waiting to resolve its own FCC complaints, including one involving U2 lead singer Bono, who uttered an obscenity while accepting an award at the 2003 Golden Globes.

The networks want the FCC to not only reverse its ruling but also to establish clearer guidelines about what is indecent.

In addition to going to court, the networks and affiliate groups representing more than 800 of the nation’s TV stations issued an unusual joint statement Friday, calling the ruling unconstitutional and arguing that any obscenities contained in the programs were “fleeting, isolated -- and in some cases unintentional.”

“The FCC overstepped its authority in an attempt to regulate content protected by the 1st Amendment, acted arbitrarily and failed to provide broadcasters with a clear and consistent standard for determining what content the government intends to penalize,” the statement said.

The FCC quickly defended its ruling, saying it was supported by legal precedent.

“Over 20 years ago, the Supreme Court upheld the FCC’s ruling that George Carlin’s monologue about the ‘Seven Dirty Words You Can’t Say on Television and Radio’ was indecent,” FCC spokeswoman Tamara Lipper said. “Today, Disney, CBS and Fox challenged that precedent and said that they should be able to say two of those words.”

Walt Disney Co. owns ABC, News Corp. owns Fox Broadcasting, CBS Corp. owns CBS, and General Electric Co. owns NBC. Hearst-Argyle is ABC’s largest affiliate group.

Ever since Janet Jackson exposed her breast during CBS’ broadcast of the 2004 Super Bowl halftime show, some parent groups have been lobbying the government to crack down on what they see as immoral conduct shown in a positive light on television.

Since then, station owners have struggled to understand what exactly will provoke an FCC fine, said one station executive who asked not to be named for fear of angering agency officials.

For example, dozens of ABC affiliate stations preempted the broadcast of the film “Saving Private Ryan” in 2004 because it contained two obscenities. The stations, this executive said, sought clarification from the FCC, but when the agency didn’t offer a definitive ruling, the stations pulled the movie rather than risk a fine.

Hollywood too has adopted an informal policy of self-censorship. Veteran television producer Tom Fontana, who tangled with the WB network over his provocative new series “The Bedford Diaries” this year, notes that there has been a discernible chilling effect as network executives attempt to tone down programming that they fear the FCC might find objectionable.

When reached Friday, Fontana applauded the networks and stations’ attempt to push back. Without such a move, he asked, “are we one step away from the FCC telling NBC’s Brian Williams that he can’t do a story about teen sex because it’s indecent?”

Privately, network executives vowed that this week’s filings were the first of what will be many challenges they intend to file against the FCC in the coming months.

TV station executives said Friday that they signed on to the effort because they had the most to lose. Stations, not networks, are the entities that are fined by the FCC, and they risk the ultimate punishment: having their broadcast licenses revoked.

At the same time, TV stations and networks are competing with other forms of entertainment that are not regulated by the FCC. One station owner said that compared with violent video games, pornography and Viagra e-mails proliferating on the Internet and far more racy fare shown every night on cable channels, occasional use of an obscenity on network TV was tame.

But L. Brent Bozell, president of the Parents Television Council, which spearheaded an Internet campaign to petition the FCC about several programs, said such arguments -- and the appeals filed this week -- only prove that the heads of networks and TV stations “are even slimier than I thought.”

“The broadcast networks are spitting in the faces of millions of Americans by saying they should be allowed to air the F-word and S-word on television,” Bozell said. “The networks are showing the degree to which they are determined to go to pollute our airwaves.”

University of Washington communications professor David Domke said Friday that until the 2004 Super Bowl incident, the FCC had failed to aggressively enforce indecency standards. When Jackson’s bustier was ripped open, he said, it created a “perfect storm.”

“This is just the latest development in a cultural change that has been taking place,” Domke said. “It’s the conservativeliberal polarization and the post-9/11 rise of pro-Americanism that has set the stage for the FCC to enforce a more traditional code of decency. Conservatives have wanted tougher enforcement for some time.”

The cases cited by the networks in this week’s court papers garnered little attention when the FCC released its March 15 rulings, which also included a record $3.6-million fine (since trimmed to $3.3 million) for the airing of a simulated orgy in CBS’ hit drama “Without a Trace.”

The network-cited incidents, by contrast, prompted no fines. The one on CBS’ “The Early Show” occurred in December 2004, when a contestant from “Survivor: Vanuatu” referred to another contestant as a “bullshitter” during an interview. The FCC found the use of the word indecent but did not fine the CBS stations, saying the agency had not established a precedent for an isolated use of the S-word at the time of the telecast.

In the case of “NYPD Blue,” the agency found at least six episodes of the Steven Bochco drama in early 2003 had used the S-word. The FCC found the use indecent when the show ran at 9 p.m. in the Central and Mountain time zones, but not when the series aired at 10 p.m. on the East and West coasts.

Bochco declined to comment Friday.

The Fox incident involved a 2003 exchange between Paris Hilton and Nicole Richie, who were presenting a trophy on “Billboard Music Awards,” which was broadcast before 10 p.m. At the time, the pair were promoting their Fox series, “The Simple Life,” and Richie asked, “Have you ever tried to get cow [expletive] out of a Prada bag. It’s not so [expletive] simple.”

Network executives, who asked not to be identified because the matter was being litigated, said Friday that they had intentionally chosen to appeal incidents that were considered resolved by the FCC. The networks feared that if they made an issue of a case that was still working its way through the administrative process, a federal court might refuse to hear it.

The University of Washington’s Domke called that tactic “savvy.”

“They are banking that the American public is going to say that these are really not indecencies,” he said.

Domke also said the networks’ decision to present a unified front was noteworthy. Usually, the big four networks are more consumed with fighting over ratings and the advertising dollars they help generate.

“To get these four networks to come together shows the need for a common enemy,” Domke said. “And that common enemy is the FCC.”