ABC comes out swinging over Blue fine


ABC Television network, on behalf of itself and its affiliates, is dragging the FCC into the Second Circuit Court of Appeals to challenge the 1.43M in fines meted out by the FCC to affiliates and O&Os carrying a 2003 episode of "NYPD Blue." ABC said the FCC went beyond its own rules in issuing the fines, 27.5K each to 52 separate stations (the top going rate at the time the program ran — the top drawer rate has since been elevated to 325K), and that its decision was "arbitrary, capricious and contrary to law." ABC also argued that the fines were unconstitutional.

Meanwhile, Fox is getting hit with a similar FCC action, over another 2003 program, an episode of ephemeral reality show "Married by America." That case also involved nudity — and whipped cream — but the nudity was of the pixilated variety. The program aired in 2003, and the NAL didn’t show up until October 2004, for a total of 1.2M. 169 Fox affiliates were implicated for a total of 1.2M, a price which may have been considered a bargain in some quarters, at about 7K a pop rather than the maximum 27.5K in force back then, which would have elevated the total hit to about 4.65M. The FCC is still charging 7K a pop, but it has scaled the action down to only the 13 stations which actually drew a complaint, a total of only 91K. This is evidence that there was no groundswell of public outrage over the incident, other than a standard click-and-send campaign from nanny-watchdogs. Given the extremely brief run of the program, Fox may have been surprised anybody saw it at all.

With today’s 325K ceiling, a really angry FCC hitting all 169 stations could milk this for almost 55M.

TVBR/RBR observation: It is very interesting how this is playing out. A number of the big groups have settled hard-to-defend indecency charges via consent decrees that involve three key elements: They admit no guilt; agree to never do the thing they are not guilty of again and train their staffs to that end; and they agree to make a voluntary contribution to the US Treasury in a negotiated amount. The FCC can point to the second plank, the promise never to do it again, and go in for the regulatory kill on subsequent instances of alleged indecency.

Fringe cases are being contested now. Broadcasters one Round One on fleeting indecency, and we should know if the Supreme Court will hear one final rematch at the end of next week. Now we have a second round of skirmishes in the borderline or purely indecent nudity realm, where to friends of the First Amendment like us, it seems that the FCC is making up the rules as it goes along.

We are glad to see ABC stand and fight, hope that Fox will as well, and hope that the rest of the industry will back them up any way they can.