ABC has had its say on behalf of its Central and Mountain time zone affiliates and O&Os, and the FCC isn’t buying what it’s saying. For showing a "woman’s naked buttocks and a portion of her breasts," 52 stations are being fined 27.5K apiece, or 1.43M in aggregate, in what has been upgraded from a notice of apparent liability to a full-fledged forfeiture order.
According to the FCC, ABC argued that the "buttocks are not a sexual or excretory organ," but it did so "without citing any authority." ABC cited the dramatic reasons for including the scene in question, argued that it was not presented in a "lewd, prurient, pandering or titillating way," and noted that "the modest number of complaints" generated by it despite its high ratings indicated that it was well within contemporary viewing standards.
The FCC noted that ABC consulted medical texts to support its claims that buttocks are not sexual or excretory in nature, but disagreed, saying "The Commission has consistently interpreted the term ‘sexual or excretory organs’ in its own definition of indecency as including the buttocks, which though not physiologically necessary to procreation or excretion, are widely associated with by most people with excretory activities." FCC supported this by referring to prior findings, including the infamous Janet Jackson incident, which featured an exposed breast, which is also not necessary for procreation but is commonly associated with procreation.
As for the sufficiency of the complaints, ABC noted that with one exception, all of the complaints were identical form letters sent in from a single source, and most did not even claim to have actually seen the scene. FCC said that did not matter, and they made sure there was a complainant in the markets of each of the cited ABC affiliates. FCC also noted that there was no time limit placed on submission of indecency complaints, answering ABC’s procedural objection to the length of time between airing the scene and issuance of the NAL.
TVBR/RBR observation: Maybe this is the key fear igniting the FCC to take this action. "Moreover, if we interpreted these terms in the narrow physiological sense advocated by ABC and ABC affiliates, the airwaves could be filled with naked buttocks and breast during daytime and prime time hours because they would be outside the scope of indecency regulation (at least if no sexual or excretory activities were shown or discussed.)"
We suppose the FCC has a point, although it’s hard to believe that this unsavory result will take place if the Commission backs off this incident. Indeed, shouldn’t canny producers have noticed that over four years have gone by, indicating the ABC "got away with it," and put out their own me-too butt-shots? Sorry, FCC, but in the absence of any meaningful public outcry other than the click-and-send national nanny crowd, we’re sticking with the First Amendment and opposing this fine.