Fox, FCC Square Off Over Indecency

Bush administration argues before Supreme Court for tougher rules By John Eggerton
be Bush administration, through the Solicitor General's office, is mounting a broad defense of the FCC's right to levy fines for language or actions it deems indecent. Meanwhile, Fox last week went to another court to argue the FCC overstepped its boundaries and violated Fox's First Amendment rights. According to one prominent First Amendment attorney, if the administration gets its way in the Supreme Court case involving swearing on Fox's Billboard Awards broadcast (by Cher in 2002 and by Nicole Richie in 2003). it would be almost impossible to challenge an FCC indecency decision going forward. On June 2, the Solicitor General's office, essentially the Justice Department lawyers who argue high-profile government cases, lilod the opening brief in the FCC's Supreme Court challenge of a lower-court decision smacking down its crackdown on cussing. That lower court called the FCC findings arbitrary and capricious.
FCC OBJECTS TO THE F-WORD

Fox doesn't bave a monopoly on indecency fights. Briefs from ABC and its affiliates are due June 20 in the Second Circuit Court of Appeals in New York in their challenge of tbe FCC's $1 millionplus line foi- a 2003 episode of NYPD Blue Ibat showed too much of a woman's backside and side for the FCC's liking. And there's no word yet out of the Third Circuit in Philadelphia on CBS's challenge lo Janci Jackson's Super Bowl infamous wardrobe malfunction in 2004. Et

Sassa Bulks Up Uber.com Venture

Uber.cDtn. the Los Angeles-based company founded in part by NBC and Friendster alum Scott Sassa, has added three new-media veterans to its board. It hopes to grow its business devoted to producing tools that make it easy for fans to build good-looking Websites or blogs around existing media franchises or specific art forms. Joining tbe board arc Josh Freeman. EVP. digital media, of" Discovery Communications; former Overture CEO Ted Meisel; and former MTV Networks president and COO Micbael Wolf. Discovery and Universal Music Group arc among investors. Besides providing Website-building tools for the public, the 24-person company also is creating sites around the TLC shows Miami Ink and LA Ink and plans to build t)ther communities around TLC shows. A recent promotion with Hollywood Records led to fans of tbe Jonas Brothers to create 10,000 sites over Memorial Day weekend. Sassa hopes those numbers will lead to more deals with media companies wanting to spur viral online growth, but says that appealing to fans is his first priority. "When things like the Jonas Biolhers or LA Ink work, then 1 hope it will attract other networks," he says. "We are talking to some other companies, but that's nol our key focus."

Cher's use of the f-word during the 2002 Billboard Awards broadcast landed Fox in hot water.

Solicitor General Paul Clement defended the FCC's determination that the fword has a sexual connotation even wben it is used in a nonsexual wayas, say, an intensitier or an insult. "The commission, after having studied tbe issue, is in a better position to evaluate the connotations of" language.*" the brief said. That reasoning troubles attorney John Crigier. a partner witb Garvey Schubert Barer and a veteran defender of broadcast content. The Bush administration's argument "requires us to assume that the FCC's expertise extends to 'contemporary values.' not only for the broadcast medium, but for

the general population," Crigier says. "That would make it virtually impossible to challenge any FCC indecency ruling because the rulings would turn on 'expert' administrative opinions entitled to deference and not susceptible to disproof." Fox has until July 2 to counter the FCC's arguments in the court, but a source says it will ask for and likely will be granted an extension until Aug. 2. But Fox already put in its two cents' worth and more in the U.S. Court of Appeals. D.C. Circuit. It last week requested the court to dismiss the FCC's $91,000 fine against Fox stations for airing pixilated nudity on the 2003 reality show. Married hy America. The FCC would have no power to regulate indecent images if Fox wins its argument in that case, but it may be a long shot. Fox says the FCC's indecencyenforcement power applies only to

indecent "language" since that is what the statute says. The relevant statute, the company notes, prohibits broadcasters from using the airwaves to "utter...indecent... language, not to trans nit indecent pictures."
FCC ARGUMENT USUALLY SUCCESSFUL

Getting a court to buy tbat will be a stretch, says one vetenin communications attorney who as ced not to be named. "The commission up nitil now has always been successful in extending the statutory language ir the Communications Act [which datis back to tbe pre-TV days of the l92Ot | to television and images," he says. Fox also argues that ibe show was not indecent anyway since the FCC did not allege that it depictrd any sexual activity, and what nudity there was had been pixilated. Fox also says the F C " ruling violated the First Amendment.

YouTuhe/GOP Contest
Continued from page 3 says, "but giving tbe electorate the opportunity to actually create content around John McCain's candidacy." Obviously YouTube is no stranger to politics, as tbe "YouTube moment" has arguably changed political discourse in America. The gotcha videos of candidates or their surrogates "misspeaking." "misremembering'" and simply making a "mistake" are vast, varied and available in perpetuity. It was former Sen. George Allen (R-

Va.) wbo started it all by calling an Indian-American high school student who was videotaping him at a campaign stop during the 2006 mid-term elections "macaca," a racial slur Allen went on to lose to Democrat Jim Webb, and suddenly YouTtibe was a political powerhouse. "We consider that the birth of YouTube politics," Grove says.
MORE THAN BLOOPERS

Two years later. YouTube is much more than an aggregator of embarrassing moments. Seven of the 16 original
BROADCASTING S CABLE

candidates for president announced their candidacy on their respective YouTube channels. YcuTube's You Choose '08 platform {\i'ww.youluhc. com/youchoose) includes the candidate's political channels as well as debate recaps and inde )endent news content. YouTube has partnered with the New Orleans Consortiu n for a presidential forum on Sept. 18. Grove is hopeful that presumpt ve nominees John McCain and Barack Obama will participate, but has yet to hear from eitber.
l U N E 9. 2 0 0 8

But if the viral nature of sensationalistic video snippets occasionally overshadows the debate on substantive issues, perhaps it's all in tbe service of democracy. Grove says. "I don't think there's any situation in wbich transparency is a bad thing." he says. "We want our public figures to be transparent. I think holding them accountable is important. I think today's generation understands transparency in a new way. Everyone has skeletons in their closet. People on the Web understand that we're all human." El