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A coalition of broadcasters has appealed indecency fines, saying they violate the First Amendment. From the Spring 2006 issue of…

A coalition of broadcasters has appealed indecency fines, saying they violate the First Amendment.

From the Spring 2006 issue of The News Media & The Law, page 23.

Broadcasters are protesting a spate of recent federal indecency fines, arguing in several federal courts that a March 15 ruling finding several television programs indecent is inconsistent, vague and unconstitutional.

After combing through hundreds of thousands of complaints, many filed by members of the Parents Television Council, for more than 50 non-cable broadcasts aired between February 2002 and March 2005, the Federal Communications Commission called for fining six programs. Those include an episode of “The Surreal Life 2,” a reality show about minor celebrities, which aired in 2004.

The FCC found indecency and profanity in four programs, including the 2002 and 2003 Billboard Music Awards, but did not issue fines.

That leaves broadcasters “hanging by their fingernails” since satellite and cable television are not subject to content regulation that governs the free airwaves, said Judith Harris, a Washington, D.C., attorney who concentrates on telecommunications matters before federal agencies, including the FCC.

“It adds yet another challenge to the broadcasters’ ability to stay competitive with the array of shows on cable and available through satellite,” she said, noting that the networks push the envelope to stay competitive. FCC regulations force broadcasters to “balance out the need to keep certain shows edgy versus the need to deal with fines.”

Live television programming presents a particular challenge because it is difficult to anticipate when a four-letter word might be uttered.

Broadcasters now face deciding whether to continue to broadcast material that pushes the envelope during the “safe harbor” of 6 a.m. to 10 p.m. when obscene or profane material is limited.

“The big threat is does it at some point affect their license?” Harris said.

The networks are fighting back.

ABC, NBC, CBS and Fox, and their network affiliates of more than 800 individual stations along with Hearst-Argyle Television Inc., filed notices of appeal in federal courts around the country, including in Washington, D.C., and New York.

The group issued a joint statement, calling the rulings “unconstitutional and inconsistent with two decades of previous FCC decisions.”

“The FCC overstepped its authority in an attempt to regulate content protected by the First 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.

Dan Isett, director of corporate and government affairs for the Parents Television Council, praised the rulings.

“We think its utterly shameless that they’re fighting for the unfettered ability to air profanity on the public airwaves,” Isett said.

The organization, whose members filed nearly 66,000 complaints against CBS for the Janet Jackson breast-baring incident during the 2004 Super Bowl halftime show, submits thousands of viewers’ complaints to the FCC through an Internet-based complaint form on its Web site.

The number of complaints received by the FCC has steadily increased &#151 from 111 in 2000 to more than 1.4 million in 2004. The Parents Television Council claims its members filed more than 270,000 in 2004-2005.

Among the March 15 FCC findings that the networks are protesting are:

&#149 A $27,500 fine against WBDC Broadcasting Inc., an affiliate of the WB Network, for an episode of “The Surreal Life 2” showing several pixelated views of nude female guests.

&#149 A record $3.6 million fine against CBS and its affiliates for a 2004 episode of “Without a Trace,” which depicts “a series of shots of a number of teenagers engaged in various sexual activities,” although no nudity was actually shown. The FCC ruled that the scene was explicit and graphic, and is “portrayed in such a manner that a child watching the program could easily discern that the teenagers shown in the scene were engaging in sexual activities, including apparent intercourse.” Each of the more than 100 station affiliates that aired the episode was fined the maximum $32,500.

&#149 A ruling that Cher, who said, “So fuck ’em,” and Nicole Ritchie, who said “shit” and “fuck” at the Billboard Music Awards in 2002 and 2003, respectively, used profanity. The FCC issued no fines for those incidents or for various episodes of ABC’s “NYPD Blue” in 2003 partly because the incidents occurred before a 2004 ruling that virtually any use of certain expletives would be considered indecent.

&#149 A ruling upholding an earlier $550,000 proposed fine against CBS over the 2004 Jackson breast-baring incident.

The FCC also found that a March 2004 broadcast of “The Oprah Winfrey Show” where guests explicitly discussed teen sexual activities was found not to be indecent because “it is designed to inform viewers about an important topic” and was not used to titillate the audience.

An episode of NBC’s “The Today Show” showing scenes of mudslides in California, including one where a man is pulled from water and his penis is exposed, was not found to be indecent because the brief shot did not dwell on that image and the shock value is from the “overall action portrayed.”

FCC Commissioner Michael Copps said in a statement that one reason for the large number of complaints is that people feel divorced from their local media. “As media conglomerates grow ever larger and station control moves farther away from the local community, community standards seem to count for less when programming decisions are made,” he wrote.

A 2005 survey by the Pew Research Center found that 75 percent of those surveyed support stricter government enforcement on TV content during “safe harbor” hours. However, 48 percent also said the greater danger is in the government imposing “undue restrictions” on the industry rather than the industry making harmful content.

At the same time, 86 percent of those surveyed believe that parents &#151 not the government &#151 are responsible for keeping their children from viewing inappropriate material. The survey of 1,505 adults, age 18 and older, was conducted by telephone in March 2005.