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FCC Out of Control

Mark Kernes looks at FCC vs. Fox Brooadcasting

FCC Out of Control

WASHINGTON - Sometimes the arrogance of the Bush administration is just too blatant to be believed ... and when that arrogance threatens to diminish Americans' free speech rights, the adult industry should stand up and take notice.

Readers here will recall that the Second Circuit Court of Appeals recently slapped down the Federal Communications Commission for changing its rules on "fleeting expletives" without warning and without a reasonable explanation. At that time, the Court agreed to take another look at the case if the FCC furnished additional reasons for the sudden change, but the agency elected to take the case directly to the Supreme Court instead.

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But that didn't stop the FCC from imposing more fines for alleged "indecent" broadcasts, its latest high-profile victim being 13 Fox-owned or -affiliated stations for an April 7, 2003, airing of Married by America, which featured a pixilated "nude" woman riding cowgirl on a prospective beau. FCC thought the stations should pay $91,000 in fines for that.

Fox, of course, appealed the move, filing a lengthy brief explaining what its programming wasn't indecent, and even got it into the agency by the April 4, 2008 deadline.

Just one trouble: The appeal was 12 pages over the FCC's page limit on such filings, and while Fox had provided notice that it would be, it failed to file that notice at least 10 days before it sent in the appeal itself ... so the FCC denied the appeal based on the procedural failure. The FCC then proceeded to file a lawsuit in federal court to collect its money.

The rejection caused quite a bit of consternation, considering that Fox had made an earlier filing in that same controversy, which also exceeded the page limit and in which case it also failed to provide 10 days' notice that it would, and the FCC had no problem accepting that filing.

However, at a press conference held on Thursday, FCC Chairman Kevin J. Martin said he thought it was "reasonable" for the bureau "to consider the way that our rules, including the rules about filing pleadings, work. Sure."

Fox, however, responded that the decision was an arbitrary enforcement of a technicality that allowed the commission to avoid dealing with the substance of the network's complaint, and noted that since seven Fox-owned stations had been levied against, the network could have filed seven separate petitions, each of the allowed 25 pages, for a total of 175 pages that the FCC would have had to deal with.

The FCC is also in hot water over how quickly it pushed through a new rule allowing media conglomerates to own more newspapers and radio/TV stations in one market, announcing its decision to do so on Dec. 18, just two days after a New York Times op-ed piece by Martin announcing his support of the move - which itself was published just two days after the FCC had concluded its last public hearing on the matter.

But now the Senate Commerce Committee has passed a resolution, sponsored by Sen. Byron Dorgan (D-N.D.), aimed at blocking the rule change, and Dorgan said that the resolution would go directly onto the Senate calendar for a prompt vote. Dorgan said he believe that the bill had enough votes to pass the full Senate, and that the House would look favorably on it as well.

"I would expect the House and the Senate will vote to embrace the proposition that what [FCC chairman] Kevin Martin did by first of all publishing notice of a rule in The New York Times, then in about one month rushing to a vote, that this is a rule we should veto," Dorgan summarized.

Bill co-sponsor Sen. Barack Obama (D-Ill.) also spoke in opposition to the FCC's action, telling Broadcasting & Cable Online that, "The rules promoting the public interest and diversity in media ownership are too important for the FCC to accept an agenda supported by the Washington special interests that I have fought against for more than a year... I urge my colleagues to expeditiously move this bill to the Senate floor."






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Mark Kernes

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