Broadcasters fight back

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US television broadcasters Fox and CBS Corp. this week argued that a Federal Communications Commission crackdown on fleeting TV profanity and nudity was unconstitutional and a big change in how the agency handled similar cases. The networks laid out their strategies in legal briefs filed in two appeals courts to fight FCC decisions that found that expletives and a flash of Janet Jackson's bare breast violated government decency standards. News Corp.'s Fox is fighting FCC rulings that expletives uttered during the 2002 and 2003 Billboard Music Awards broadcasts were indecent, arguing that the government's standard was unclear and that the decisions contradicted findings in past similar cases. "The FCC's ban on broadcast indecency is unconstitutionally vague," Fox said in court documents Wednesday. "Indeed, the FCC's standard is substantively identical to the indecency restrictions in the Communications Decency Act that the Supreme Court struck down on vagueness grounds." No fines were issued in the Billboard incidents, but the FCC put broadcasters on notice that they would not be so lucky in the future. Oral arguments are slated for December 20 in the US appeals court in New York. The FCC decided in 2004 that the use of one expletive by U2 rock star Bono during a 2003 NBC broadcast was indecent, a stricter standard for violations that partially underpinned the Billboard rulings. "We believe there should be some limits on what can be shown on television when children are likely to be watching," said FCC spokesman David Fiske. The FCC earlier this month backed down from two other cases involving fleeting profanity. It decided an expletive on a CBS morning program did not violate its rules because it was a news interview and dropped another case against an ABC station because the complaint came from outside the viewing area. The government did fine 20 CBS television stations $550,000 for pop singer Jackson's bare breast flash during its 2004 Super Bowl broadcast, drawing a challenge in another court. CBS argued that it had no advance knowledge that Jackson was going to bare her breast, and therefore the indecency ruling and fines were unconstitutional. "The FCC's adoption of what amounts to a zero-tolerance approach is a direct repudiation of governing constitutional principles set forth by the Supreme Court," CBS said in its documents filed Monday with the US Court of Appeals for the Third Circuit in Philadelphia. No date for oral arguments has yet been set in that case. CBS said the FCC decision changed long-standing decency policy with no warning to broadcasters and applied it retroactively, and it violated past precedent. The network also noted the unscripted flash lasted nine-sixteenths of a second. After the incident, the FCC was flooded with thousands of complaints from viewers. The agency embarked on a crackdown after other complaints against broadcasters for sexually suggestive shows and programs with profanities. The Jackson incident prompted Congress to pass a new law boosting maximum fines tenfold to as much as $325,000 per incident. US regulations limit broadcast stations to airing indecent material, such as profanity, between 10 p.m. and 6 a.m. when children are less likely to be in the audience.