In the filings, Fox — fined after its affiliates aired an episode of “Married By America” that showed bachelor and bachelorette parties — argued that the FCC’s 25-year-old indecency rules do not take into account the technological changes that have occurred in recent years.
The filings also cite Reno vs. ACLU, a 2003 Supreme Court decision that struck down a law that restricted Internet content because the government’s definition of indecency was unconstitutionally vague.
“Given the tremendous technological changes that have transformed the modern media environment, the commission simply cannot justify an intrusive, content-specific regulation of broadcasters,” wrote Fox attorneys in the filings. “The massive expansion of cable and satellite video programming, together with the advent of the Internet, renders obsolete the second-class treatment of broadcasters under the First Amendment.”
According to Fox, the program did not show nudity or sexual acts and should not be ruled indecent, but the FCC said that the “sexual nature” of the scenes shown was unavoidable.
Fox, though, points out that the FCC’s Indecency Policy Statement, which states how indecency should be identified and handled, doesn’t even contain the phrase “sexual nature,” and that no previous indecency case has ever used that standard.
“The Commission’s use of this new standard only serves to underscore the vagueness and its entire indecency regime,” Fox said in its filing. “There is simply no way that broadcasters could have been on notice that they would be held liable for scenes that are merely ‘sexual in nature.’”
“Indeed, programs too numerous to mention and fitting into widely divergent genres contain scenes that could be described as ‘sexual in nature,’” Fox said. “The commission’s new standard threatens to implicate much of the day-time and prime-time line-ups for nearly all of broadcast television — and it already is chilling protected speech.”
Fox also points out several inaccuracies in the notice of apparent liability and forfeiture filed by the FCC against the broadcasting giant and takes issue with
In the notice, the regulatory agency said that it had received 159 complaints about the program in question, but a Freedom of Information Act request revealed that only 90 complaints had been received and that those 90 complaints had been filed by 23 different people.
Also noted in the FOIA response was that, of those 90 complaints, all but four were identical because most were generated by a website, and that only one of the complainants said they had watched the program.
