• by David Kaplan , November 1, 2004

Fox Broadcasting affiliates are fighting an FCC penalty for airing an episode of the reality series "Married by America" that was deemed unfit for prime time by the Washington, D.C. agency.

The FCC is proposing a $7,000 fine against Fox and each Fox affiliate station that broadcast the episode dated April 7, 2003, which featured scenes from bachelor and bachelorette parties in a Las Vegas hotel. "Married by America" is an unscripted reality series that follows five singles and asks the viewing public to play matchmaker and choose the respective spouses.

The episode in question allegedly violates the FCC prohibition against "depicting or describes sexual or excretory organs or activities." In papers filed with the FCC, Fox contends that there is no violation of the rule, arguing that its editing of the broadcast avoided any such depictions.

"We reject Fox's claim," said a statement from the FCC. "Even with Fox's editing, the episode includes scenes in which party-goers lick whipped cream from strippers' bodies in a sexually suggestive manner. Another scene features a man on all fours in his underwear as two female strippers playfully spank him. Although the episode electronically obscures any nudity, the sexual nature of the scenes is inescapable, as the strippers attempt to lure party-goers into sexually compromising situations."

Accordingly, we conclude that the broadcast satisfies the first prong of our indecency analysis and warrants further scrutiny to determine whether it was patently offensive as measured by contemporary community standards for the broadcast medium."

In the FCC's view, merely obscuring or "pixilating" sexual organs does not necessarily remove a broadcast from being classified as indecent. Further, the commission claims to have received 159 complaints about the episode.

A representative for some of the affiliate owners--Kurt Wimmer, an attorney with Washington, D.C. law firm Covington & Burling--noted that affiliates stand with Fox in disagreeing with the FCC conclusions about the episode's indecency. In addition, he said that it would be unfair to blanket all 140 Fox affiliates being affected by this charge, because many of the complaints didn't even stem from their areas.

But for the most part, Wimmer believes the CBS Super Bowl imbroglio with Janet Jackson last year provides further precedent for leaving the affiliates out of the complaint.

"Because this was in essence 'a live broadcast,' in that the stations did not get to pre-screen the show and that it is beamed in via satellite, there was no chance for the affiliates to prevent it from being broadcast," Wimmer said.

The FCC counters that a request could have been made, given the adult nature of the show.

Wimmer and Fox are asking that the FCC reconsider its decision. If it does not, the case could go to court, or the FCC could refer the matter to the Department of Justice.

"We'll know in a few weeks where this is going to go," Wimmer said.