Fox to FCC: Get Out of Indecency Enforcement Biz

Says It Should Immediately Dismiss All Pending Complaints Given Supreme Court Decision on Lack of Notice

Fox has asked the FCC to dismiss all of its remaining indecency complaints -- several hundred thousand remained at last check -- and to get out of the business of regulating indecent content altogether.

It is not a new position for the network, which has long argued the FCC's enforcement regime was chilling and unconstitutional, but it was put rather forcefully in its latest input to the commission.

In comments June 19 on an FCC proposal to pursue only "egregious" complaints, Fox said that is the least it could do. And preferably, Fox said, the FCC should "conclude that it is legally required, and logically bound, to cease attempting to enforce broadcast indecency limits once and for all."

Given that the FCC's indecency enforcement power was rooted in the medium's unique access to children, and given that the FCC is now "just a small sliver of the panoply of video content available to an average consumer today," and thus less uniquely and pervasively available to children, the FCC should decide that it "no longer has any lawful grounds to 'police' broadcast speech on the basis that it is indecent" and admit that broadcasters should have the same First Amendment protections as any other medium.

And even if the FCC does not cease and desist entirely, it "should confine its interest, at most, to content that indisputably includes an explicit portrayal of sexual or excretory organs or activities. The Commission has no business attempting to regulate isolated or fleeting words or images, nor should the FCC concern itself with innuendo or entendre. And in no event should the Commission ever attempt to sanction content during live programming or during news or public affairs programming."

As to the remaining complaints? The Supreme Court did not throw out the FCC's indecency enforcement policy, but is said that the FCC had not given sufficient notice of just how that policy would be applied. Given that, said Fox, "regardless of the path it chooses to pursue going forward, the Commission owes it to broadcasters and the Supreme Court to dismiss whatever remains of the backlog of pending indecency cases."

Actually, the FCC asked for input on various options, including that scaled-back approach as well as continuing with the policy of pursuing fleeting nudity and adjectival profanity that stemmed from the Golden Globes decision on Bono swearing on that awards show and the Janet Jackson Super Bowl halftime show reveal on CBS.

FCC chairman Julius Genachowski adopted the "egregious" policy last fall in part as a way to work through over a million complaints that had backed up while the courts worked through various challenges to those indecency decisions and others.

Not surprisingly, that position was a red flag to the Parents Television Council, which has frequently complained about Fox programming, both to the FCC and to the media.

"Fox is trying to re-litigate the Supreme Court cases that it lost, rather than addressing the proposal by the FCC to focus only on 'egregious' instances of indecency," said Parents Television Council president Tim Winter. "Fox has been making the same arguments for 10 years and have [sic] already been rebuffed by the Supreme Court not once but twice. Why won't Fox and the other networks simply abide by the common sense decency law? If they can't, then they are unworthy of holding a license to use the public's airwaves."