Ars Technica readers may find the U.S. government's indecency rules laughable, but on Friday, the Department of Justice told Fox Television that it's not playing around. The DOJ sued Fox for refusing to pay a $56,000 Federal Communications Commission fine for a 2003 Married by America strip show that the agency called insufficiently pixelated. To be sure, there are insufficiencies involved in this matter, but they mostly rest with the lame nature of the FCC's rejection of Fox Television's appeal.

When it comes to first so-called indecency issues, apparently there's little patience at the FCC. Why did the FCC kick Fox's appeal? Because the 49-page document was too long, and Fox filed it too "late." Hold your breath and start reading:

"Petitioners acknowledge that their Petition for Reconsideration exceeds the applicable page limits for summaries and petitions for reconsideration set forth in the Commission’s rules, and ask for a waiver of those page limits," the Federal Communications Commission told Fox on Friday. "The Commission’s rules, however, explicitly require that requests for permission to file pleadings, such as petitions for reconsideration, in excess of the length prescribed by the Commission’s rules must be filed under these circumstances 'at least ten days before the filing date.' Petitioners neither complied with this rule nor sought a waiver of this rule."

Translation: Your appeal is too long, and while we're normally okay with that, you have to file it early if it's too long, so too bad. Please pay your hefty fine now, thanks.

This, coming from a government entity that defines tardiness—the FCC has yet to resolve the following: the proposed XM/Sirius merger after over a year; digital-must-carry rules after over three years; and bird safety rules for transmitter towers after almost half a decade. One can also point to broadband penetration, net neutrality issues, and more. Let's face it, the FCC isn't known for speed.

Spirit versus letter of the rule



It appears that the FCC does not feel that it is in court often enough on its indecency record. After all, the Commission only faces an impending Supreme Court review of its "fleeting expletive" decisions, punishing broadcasters for dirty words said on the fly. In addition, ABC has asked the Second Circuit Court of Appeals for relief from a hefty fine for a 2003 episode of NYPD Blue that showed a glimpse of a woman's naked bottom. Now the government has invited a third trial on its indecency policies.

To be fair, it may be that the FCC's clock and page length watchers sincerely felt that Fox's appeal of Married by America was too long and tardily filed. The agency also may not have wanted to deal with the uncomfortable questions that Fox attorneys asked in the document. These included whether the FCC's indecency analysts were reading their own fantasies into the Married strip show. As Fox noted, the agency's summary charged that at one point two performers wore tops "but their buttocks are pixelated, presumably to obscure portions of their buttocks as well as the g-strings that cover their genitals.” But, as Fox attorneys observed, the episode "never showed the women without clothes or without pixelation, so there is no way for the Commission to know what undergarments they were wearing."

The appeal throws the book at the FCC's decision every which way but loose. Some of the arguments represent a bit of a stretch, but they make for interesting reading. Here are two:

Playboy options

Fox TV's appeal invokes the Supreme Court's 2000 United States vs. Playboy Entertainment decision. In that ruling, the Supremes overturned a section of the Communications Decency Act (CDA) that required cable service operators "to fully scramble or otherwise fully block" sexually oriented programming broadcast outside of safe harbor hours: 10 PM to 6 AM. The high court argued that, given an array of possible ways to screen out indecency, the less restrictive provision contained in a law should always apply. And the CDA gave cable operators the option of waiting until a subscriber complained before scrambling a channel to which the consumer did not wish to have access.

Fox cites this decision as grounds for appealing the FCC's "Married" ruling, arguing that the V-Chip, which the FCC requires all manufacturers to put into their television sets, represents that less restrictive alternative called for in Playboy. The V-Chip allows parents to program their TV sets to filter out indecent content. "The Supreme Court in Playboy," Fox writes in its appeal, "made clear that the government bears the burden of proving that a less restrictive alternative is incapable of serving its intended function – a burden that the Commission, having advised Congress that the V-chip satisfied its statutory goals, cannot possibly meet."

Blame it on Reno

Fox also refers to Reno versus the ACLU, the 1997 Supreme Court ruling that bumped off another big chunk of the CDA, the part that sought to regulate indecent content on the Internet. The high court complained that the laws' use of "undefined terms" such as "indecent" and "patently offensive" could "provoke uncertainty among speakers about how the two standards relate to each other and just what they mean." The statute's language suffered from "vagueness," the court observed, which "undermines the likelihood that it has been carefully tailored to the congressional goal of protecting minors from potentially harmful materials."

In its now rejected appeal, Fox says Reno applies in the Married by America ruling: "Despite the Court’s warning that vagueness presents a serious threat because of its 'chilling effect on free speech,' the Commission simply brushes the Reno decision aside because it was not related to broadcasting," the TV networks' attorneys write.

Courtward bound

When this case gets to court, the challenge for Fox in Playboy will be demonstrating that the FCC's indecency rules and the V-Chip are somehow statutorily linked. And when invoking Reno, Fox will have to show that the FCC's now amazingly complex indecency rules—which go so far as to define which parts of the human anatomy are "sexual"—still suffer from a constitutionally questionable vagueness.

Whatever happens with the Married case, fleeting expletives and the NYPD Blue appeal, prepare to be weirded out by some truly strange Circuit and Supreme Court decisions.