Fox has a message for the FCC: We're sick and tired of your indecency enforcement regime and we shouldn't have to take it anymore.
That was the gist of the company's response to the FCC Tuesday opposing the commission's $25,000 fine on Fox TV stations over an indecency inquiry into American Dad.
"The NAL [Notice of Proposed Liability] is unconstitutional, violates established Commission policy, and exceeds the Bureau's delegated authority," Fox said.
Last month, the FCC said it planned to fine the Fox stations for not providing it with all the information it asked for in its inquiry into a Jan. 3 episode of American Dad. The fine is not for airing the show (and its suggestion of pleasuring a horse), but against the group for not supplying a list of all the stations that aired the show and other information the FCC asked for.
Saying it was a "courtesy" to Fox, the FCC had supplied it with a copy of a complaint against Fox's KDFW-TV Dallas, but with the request for information on all of the stations that might have aired the show and for the content rating information for Dallas. Fox instead responded with information about KDFW's airing only. Fox argued that the FCC needed to first produce the complaints from those other markets and that the information requests for group information on airings or parental guidelines was beyond the FCC's authority. The FCC disagreed, and said in its notice proposing the fine that "parties must comply with Bureau orders even if they believe them to be outside the Commission's authority."
Fox holds a different view.
"The Commission's investigatory authority, routinely used in cases that do not implicate free speech rights, cannot exceed the constitutional limitations imposed by the First," it argued. "The Bureau's expansive inquiry, unmoored from specific complaints against particular stations, clearly breaks from the First Amendment and Commission policy, and the Bureau's attempt to penalize Fox for its alleged failure to comply with the underlying LOI (letter of inquiry seeking information about a complaint) both exceeds the Bureau's delegated authority and magnifies the constitutional defects inherent in the current approach to indecency investigations."
Fox also said that the follow-up letters of inquiry the commission sent to all Fox owned-and-affiliated stations simply attached copies of the KDFW complaint and did not include bona fide complaints from those individual markets. Since the FCC fines individual stations, not networks, it needs complaints from individual markets in order to act.
Fox argued that over the years some investigations remain open. More than a million complaints remain in the pipeline, in part because of the legal limbo the FCC's enforcement regime found itself in after challenges from Fox and CBS over that regime.
It also talked about the hundreds of license renewals the FCC has held up -- including at least four of its own stations -- pending resolution of indecency complaints, or the tolling agreements it has required sellers, including Fox, to sign to complete deals. Those have been to either extend the statute of limitations on FCC indecency inquiries or waive them altogether, which Fox said simply perpetuates the chill on speech.
Fox suggested that the FCC should quit while it is behind: "To avoid any further constitutional violations flowing from the Bureau's investigatory practices that exceed its delegated (and constitutional) authority, the Fox NAL must be cancelled."