NEW YORK — The Federal Communications Commission rushed to judgment in concluding that “NYPD Blue” and three other television programs violated rules governing the broadcast of indecent and profane material, an FCC lawyer said Tuesday.
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The lawyer, Eric D. Miller, asked an appeals court to delay hearing a challenge to the FCC’s findings for two months so its board can hear the opinions of the owners of the programs and reconsider its rulings, which carried no fines.
In court papers, the FCC said it skipped its usual process of soliciting responses from the broadcasters because it believed the orders responded to requests from broadcasters for guidance on what violates the FCC’s new indecency and profanity rules.
The FCC said it acted faster than usual and did not propose fines for any of the programs, concluding only that the programs “apparently” violated the statutory and regulatory prohibitions on indecency and profanity.
Lawyers for several broadcasting companies told the 2nd U.S. Circuit Court of Appeals they ultimately want to challenge the rules, which they say have spoiled their First Amendment rights, exposing them to hefty fines for accidental broadcasts of isolated and fleeting expletives.
ABC Television Network, NBC Universal Inc., CBS Broadcasting Inc., Fox and their network affiliate associations challenged a March 15 FCC order resolving indecency complaints based on television programs that aired between February 2002 and 2004.
The broadcasters said the enforcement of federal indecency rules is inconsistently applied since the FCC in 2004 decided that virtually any use of certain expletives would be considered profane and indecent. Millions of dollars in fines have been levied based on those rules.
The appeals challenged the FCC’s finding that profane language was used on the CBS program “The Early Show” in 2004, incidents involving Cher and Nicole Richie on the “Billboard Music Awards” shows broadcast by Fox in 2002 and 2003 and various episodes of the ABC show “NYPD Blue” that aired in 2003.
The FCC said it did not issue fines in those cases because the incidents occurred before the 2004 ruling.
While none of the cases involved NBC, the network filed a petition to intervene on behalf of the other networks and stations.
In an interview, attorney Carter G. Phillips, speaking on behalf of Fox Television Stations Inc., said the aim of the broadcasting companies was to have the appeals court declare that the March 15 orders regarding the four programs were unconstitutional.
He said the broadcasters want the FCC to return to the enforcement system that did not penalize accidental expletives.
In court papers, Phillips wrote that Fox’s principal concern is that a word that triggers an FCC fine, such as one uttered during a baseball game by an unhappy player or manager, might be inadvertently broadcast.
“The prospect of such massive fines obviously forces Fox to steer far clear of even constitutionally protected speech,” he wrote.
The appeals court reserved decision on whether to let the FCC take the case back.
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