Indecency cases stuck in legal limbo at FCC

WASHINGTON — As federal judges consider pivotal cases about what constitutes offensive TV and radio broadcasts, an expletive might best describe the state of the federal government's enforcement of indecency rules.

It's all bleeped-up.

Thousands of viewer and listener complaints about programs are backed up at the Federal Communications Commission, where officials acknowledge the legal limbo has tied their hands. The FCC is reluctant to rule on these cases until the U.S. Supreme Court hands down a decision on indecency standards -- its first in three decades.

"The FCC finds itself in a very difficult position," said Jeremy Lipschultz, director of the school of communication at the University of Nebraska at Omaha and author of a book on indecency regulation. "They're in the cross hairs of this battle, and I think they're trying to navigate as carefully as they can."

Just last month, a Fox station in St. Louis dodged a proposed $27,500 fine for a 2003 broadcast of the movie "The Pursuit of D.B. Cooper," riddled with variants of the s-word, because the FCC did not act on the network's appeal within five years of the airing, as required by law.

Since a federal court struck down the FCC's aggressive policy on unscripted expletives in June, commissioners have handed out only two indecency fines (by contrast, seven were issued in 2006). Both cases were facing statutory deadlines. Apparently emboldened by their court victory last year, broadcasters have chosen to fight both of them.

ABC has taken the FCC to federal court over a $1.24-million fine for a 2003 episode of "NYPD Blue" that included a scene of a woman's naked buttocks. Fox went a step further.

Whereas ABC paid the fine before filing the appeal, five Fox-owned stations and three affiliates owned by Sinclair Broadcast Group took the unusual step of refusing to pay their portion of a $91,000 fine the FCC ordered against 13 stations for a 2003 reality program, "Married by America." That broadcast featured blurred images of naked strippers.

"The FCC, and many viewers, may find it personally reviling to contemplate bachelor and bachelorette parties taking place with strippers in Las Vegas," Fox said in a 39-page appeal that the FCC rejected Friday for being too long. "Subjective assessments about the morality of a program should not however be used as the foundation for an indecency finding."