Rare Indecency Collection Lawsuit Seen Facing Challenges
Department of Justice lawsuits against Fox and affiliates for not paying a combined $91,000 in FCC indecency fines (CD Feb 22 p1) are both unusual and perhaps ill-fated, broadcast attorneys said. Friday, DoJ sued in four U.S. District Courts against eight stations for not paying FCC fines levied for airing an April 7, 2003, Married by America episode. The suits came because station owners didn’t pay within 30 days of the fines’ Feb. 22 issuance.
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The FCC hasn’t sent the DoJ to sue for an indecency fine since 1993, when it went after Evergreen Media, said John Crigler and other broadcast lawyers. That case was settled in February 1994, Crigler said. “The Department of Justice doesn’t like instituting actions for small amounts of money,” he added, terming such action a poor use of resources and likely one taken at the FCC’s insistence. “They weren’t going to let Fox in a very high profile case thumb its nose at the Commission,” he said. “I think they were probably forced to take this action.” An FCC spokeswoman declined to comment.
The FCC sued licensees in Washington, D.C., Des Moines, Iowa, Nashville, and Charleston, W.Va., U.S. District Courts. “For four years, News Corp. has failed to take responsibility for airing indecent programming during Married by America,” an FCC spokeswoman said late Friday in a written statement. “It is long past time for the company to accept responsibility and pay its fines.” Fox looks forward “to the opportunity to present the full factual and legal arguments” in the case “to an impartial and open court of law,” a spokesman said.
The FCC may find favorable rulings scarce, since it must prove its case anew under Section 504 of the Communications Act. That part of the law says such cases must be made de novo, a different standard than used in federal appellate courts. Those bodies usually rely on documentation from the FCC, not requiring the agency to make a new showing of the facts, said two attorneys. Compared with appellate courts, a District Court has “a much freer hand to decide does it want more facts” than in the written record at the FCC, Crigler said. Other sources say the indecency collection suits may be no harder to pull off than any other FCC collection suit. Fox’s example may encourage other broadcasters to stand up against agency efforts to fine them, said Crigler and others.
The collection suits largely reprise arguments in an FCC forfeiture order against Fox. That filing said video on the program of stripteasers was indecent because it showed and dwelled on visuals of sexual and excretory organs. “The episode included scenes depicting or describing, among other things, the caressing of naked chests and stomachs, the thrusting of a male stripper’s crotch into a woman’s face, a topless female stripper performing a lap dance for a groom- to-be, a topless female stripper spanking with a whip or a belt the buttocks of a topless man who is on all fours, two topless female strippers apparently kissing while straddling a shirtless man and a female stripper cupping her own bare breasts and puckering her lips,” said the lawsuit filed in U.S. District Court in D.C. “The pixilation of the nude body partes in the scenes did not obscure the overall graphic nature.”