Arguing in a case that could ultimately reshape the future of over-the-air broadcasting, Fox told a federal appeals court that the FCC’s content policies have “reached too far and censored too much speech.”
In a filing with the Second Circuit Court of Appeals in New York, Fox attorneys said the FCC’s strict indecency policy means it could punish “virtually any isolated use of the words” with only “arbitrary exceptions when the word might be justified in context.”
The FCC’s rules regarding content are “incurably arbitrary” and vague, Fox argued, and that its selection of “occasional expletives” for enforcement is a violation of the U.S. Constitution. Fox is challenging an FCC ruling last March for on-air comments made by Cher and Nicole Richie during two Billboard Awards telecasts. The commission said the broadcasts had segments that were profane, and thus indecent, because they allowed curse words to be broadcast outside of the FCC’s 10 p.m. to 6 a.m. safe harbor window.
In response to the FCC, the network argued that neither of the broadcasts would have been found indecent under previous FCC indecency rules extending back 30 years. The attorneys said, “without adequate explanation or even acknowledgment, the FCC has abandoned the restrained understanding of indecency that served the public for three decades.”
Joining the cause, NBC told the court that the FCC’s policies are misapplied and contrary to “its own standard, common sense, conventional wisdom and ordinary usage.” The network argued that the FCC cannot “transform a standard that expressly requires material to ‘describe or depict’ sex into a dragnet for words that neither depict nor describe sexual or excretory activity.”
The broadcasters make their oral arguments before the court on Dec. 20.