Of the seven dirty words not allowed on broadcast radio and television, "litigation" isn't one of them.
As lawmakers embark on an election-year push to clean up the airwaves, federal regulators' zero-tolerance policy against indecent programming is resulting in a backlash, with broadcasters showing a new willingness to take the fight to the courthouse. That could be problematic for the Federal Communications Commission, which has interpreted the law inconsistently over the years.
Last month, the networks and some 800 affiliates displayed unusual unity in challenging the FCC's March ruling that a number of TV episodes were indecent, mostly for graphic sexual content or the use of four-letter words during a live program. In announcing the lawsuit, the networks argued in a lawsuit that the FCC has overstepped its authority in proposing fines, which they say are inconsistent with two decades of previous decisions.
Another legal challenge is expected soon, when the FCC denies CBS Corp.'s appeal of the $550,000 fine it received for Janet Jackson's 2004 Super Bowl breast-flashing "wardrobe malfunction" incident. The denial could be announced as soon as today. Once appeals to the FCC have been exhausted, broadcasters can challenge fines in federal court.
Historically, the FCC's approach to fines was "predicated on regulatory restraint and really only going after the most clear-cut cases. This is moving to a whole new level," said one network executive, who declined to be identified for fear of annoying regulators.
In a signal that the networks are ready for a fight, they have retained some big legal guns, including Seth P. Waxman, a former solicitor general, and Carter G. Phillips, who has argued more than 50 cases before the Supreme Court.
Lawmakers and FCC officials say they need to crack down on the airing of indecent programming because the public is complaining more. Last year, the FCC received 233,531 complaints about indecent broadcasts, compared with 346 in 2001.
Broadcasters say the numbers are inflated because a majority of complaints received by the FCC appear to be email campaigns organized by Christian or pro-family interest groups, like the Parents Television Council.
PTC complaints were behind the record $3.6 million fine proposed in March against CBS affiliates for an episode of "Without a Trace," which featured a brief scene of a teen sex orgy. Of about 6,500 complaints filed against stations that received fines, all but three appeared to originate as computer-generated form letters, a Wall Street Journal review of the complaints found.
"We provide a conduit for people to petition their government for redress," says Tim Winter, the PTC's executive director. "When you look at the reasons why the industry is now filing suit, their backs are against the wall....They have nothing to lose at this point."
The Journal requested the complaints under the Freedom of Information Act. Only 2% of the people who filed complaints, or about 135, added personal comments. The FCC may have received more complaints from individuals not associated with an organized protest campaign. However, those complaints were either against stations that didn't draw a fine or didn't contain enough information to be considered as part of the complaint.
Until 2003, indecency fines were relatively rare and usually low. In 2002, for example, the FCC proposed fines in seven radio complaints for a total of $99,400. That changed in 2003, however, when the FCC began responding to an increasing number of complaints, particularly about raunchy morning radio programs, by levying six-figure fines. The following year, both Clear Channel Communications Inc. and Viacom Inc. settled multiple indecency complaints with seven-figure consent decrees.
FCC Chairman Kevin Martin, who took over in 2005, has shown little patience for questionable programming. Consequently, the FCC is expected to continue proposing multimillion-dollar fines, and industry executives say it now makes financial sense to challenge them in court. They also worry Mr. Martin's FCC will expand its efforts to dictate standards, pointing to the commission's willingness in March to propose fines for graphic sexual content or the use of expletives that it deemed not "essential" to a show. Industry executives argue that the FCC is injecting itself deeper into content decisions than has historically been the case.
Enforcing indecency laws ultimately comes down to a judgment call, but two cases demonstrate how inconsistent the FCC's indecency decisions can appear. One involved U2 singer Bono's use of an expletive during NBC's live broadcast of the 2003 Golden Globes Awards. The FCC initially deemed the singer's swearing acceptable but later reversed itself amid political pressure. The other case involved a $1.2 million fine for an episode of Fox Television's "Married by America," which featured scenes of partygoers licking whipped cream off strippers. In that case, the FCC diverged from previous policy and fined every Fox affiliate that broadcast the show, instead of just those stations that drew complaints.
In March, however, FCC officials reverted to fining only stations that drew complaints. FCC officials said its more "limited approach" was made to show its "commitment to an appropriately restrained enforcement policy."
"There are two theories of appealing a content-related decision. One is on the First Amendment, and the other is that the FCC is acting in an arbitrary and capricious way," says John Crigler, a Washington-based First Amendment lawyer who isn't involved in the networks' lawsuit. "The [indecency] standard is getting so contorted that this is a pretty good time to challenge just based on consistency."
The FCC hasn't responded to appeals by the networks to reconsider the Bono and "Married by America" decisions, which is necessary before they can be challenged in federal court. An FCC official, who declined to be named, said various cases are at different stages and that "the recent orders are consistent with the guidance given by the courts."