NBC, Fox Court Briefs Rip FCC Indecency Argument

NBC and FOX filed their reply briefs in the Second Circuit Court of Appeals indecency case, and NBC says the Commission has misapplied its own standards to ban fleeting profanity. Referring to CHER's use of the "f-word" to dismiss critics on FOX' telecast of the BILLBOARD MUSIC AWARDS, NBC's brief notes that "no reasonable observer could actually conclude that CHER was exhorting the audience to have 'sexual activities' with those critics, or that her comment related somehow to sexual organs." NBC points out that the rule bans talk that describes sexual or execretory activities in a patently offensive manner, and that the Commission has now pulled a fleeting reference that does not "describe or depict" sex into "a dragnet for words that neither depict nor describe sexual or excretory activity."

FOX' brief decries the FCC's "incurably arbitrary" enforcement of the rules to allow it to fine stations for "virtually any isolated use" of banned words, letting it go for some works (like "SAVING PRIVATE RYAN") but not in other contexts. It tells the court that the incidents in the present case would not have been held indecent under the previous thirty years of FCC policy, and the change in policy was "without adequate explanation or even acknowledgement."

Oral arguments in the case are scheduled for NOVEMBER 20.

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