ABC prevails over FCC in another indecency case


An episode of NYPD Blue aired back in 2003 included a segment with a woman’s unclad buttocks, which the FCC found indecent. A number of affiliates were rung up with the top-drawer fine available at that time. But now the Second Circuit Court has tossed the fine due to the unconstitutionally vague nature of the FCC’s indecency rules.

Actress Charlotte Ross was the owner of the offending derriere, which earned 44 stations a $27.5K notice of apparent liability for airing indecent content before safe harbor for a total levy of $1.21M. The program aired on 2/25/03, at 9PM in the Central and Mountain time zones. The original FCC order named 52 stations.
WilmerHale attorney Seth Waxman, representing ABC, said, “We are extremely gratified at the court’s clearly correct ruling.”

TV Watch Executive Director Jim Dyke added, “Today’s decision by the court is further evidence that the highest authority on family television viewing is parents and not the government. Eighty-seven percent of parents agree according to our research. Parents already have tools such as the V-Chip and content ratings to help them make decisions based on their own taste, values and style. We will continue to educate parents about such resources.”

The Second Circuit held that previous vacations of FCC fines levied against Fox that found the enforcement of indecency unconstitutionally vague applied in this case as well. It mentioned specifically the case involving the over-air utterance of fleeting expletives.

The Court also noted that the FCC said itself that “nudity is not per se indecent,” to which the Court said, “The FCC, therefore, decides in which contexts nudity is permissible and in which contexts it is not pursuant to an indecency policy that a panel of this Court has determined is unconstitutionally vague.”

Here is the FCC description of the NYPD Blue scene in question, from the previously issued NAL.

 “The scene shifts to a shot of a young boy lying in bed, kicking back his bed covers, getting up, and then walking toward the bathroom. The camera cuts back to the woman, who is now shown standing naked in front of the shower, her back to the camera. The frame consists initially of a full shot of her naked from the back, from the top of her head to her waist; the camera then pans down to a shot of her buttocks, lingers for a moment, and then pans up her back. The camera then shifts back to a shot of the boy opening the bathroom door. As he opens the door, the woman, who is now standing in front of the mirror with her back to the door, gasps, quickly turns to face the boy, and freezes momentarily. The camera initially focuses on the woman’s face but then cuts to a shot taken from behind and through her legs, which serve to frame the boy’s face as he looks at her with a somewhat startled expression. The camera then jumps to a front view of the woman’s upper torso; a full view of her breasts is obscured, however, by a silhouette of the boy’s head and ears. After the boy backs out of the bathroom and shuts the door, the camera shows the woman facing the door, with one arm and hand covering her breasts and the other hand covering her pubic area. The scene ends with the boy’s voice, heard through the closed door, saying ‘sorry,’ and the woman while looking embarrassed, responds, ‘It’s okay. No problem.’ The complainants contend that such material is indecent and request that the Commission impose sanctions against the licensees responsible for broadcasting this material.”

RBR-TVBR observation: It is time for the FCC to stop wasting taxpayer money pursuing this impossible case through the upper reaches of the judicial system, go back to the drawing board, and attempt to craft simple, bright-line indecency rules that can be understood and followed, and can withstand judicial scrutiny.

We have contended that the FCC indecency rules were impossibly vague for years. Relatively early in his tenure, former FCC Chair Michael Powell went to the trouble of attempting to spell out what was and was not considered indecent. One of the things spelled out explicitly was what exactly constituted a fleeting expletive.

Powell himself reversed course on that after the Janet Jackson Super Bowl incident, an indecency crackdown kicked into overdrive, and the result has been a series of reversals in the courts for the FCC and a series of victories for the First Amendment.

The restriction of speech in a nation where freedom of speech is a first principle is at best extremely difficult. Even when it is restricted, clever writers have no problem whatsoever going around the rules anyway.

If there must be restrictions on broadcast speech, make them simple and put them down in the blackest ink and on the whitest paper possible. Put them out for comment. Then perhaps we can perhaps put this grotesque over-reaction to a split-second wardrobe malfunction behind us for good.