Fox, NBC and CBS have all weighed in with the US Second Circuit Court of Appeals in New York in support of ABC’s effort to have a $1.2 million fine overturned for an episode of “NYPD Blue” in which a woman was seen nude – but from the rear. “Buttocks are not a sexual or excretory organ,” said ABC in its argument to the appeals court.
The other networks sided with ABC in arguing that the FCC’s decision was wrong and also suggested that the Commission acted improperly in even taking up the case. The Fox/NBC joint brief noted that no actual viewer complaints were received from the Central and Mountain Time Zones, where the program aired outside the indecency safe harbor. Rather, the complaints were all the result of a campaign by the American Family Association launched after the show had aired. Since no one who actually saw the show complained about it, Fox/NBC said the FCC had no authority to take any action. As for the content itself, they also complained that the Commission’s “dramatic expansion” of its indecency definition.
CBS filed a separate brief also arguing that the FCC had exceeded it authority. It accused the Commission of trying to set itself up as a “super editor” to determine what material is appropriate for a particular program.
RBR/TVBR observation: The networks’ arguments to the appeals court are like re-reading what we wrote in January when this particularly silly decision was announced by the FCC – except that our tongue-in-cheek advice was for the unlucky government lawyers having to argue the other side of the case. Here’s what we said: “This is going to be a really tough one for the FCC to defend in court, so here is some free legal advice for the Commission’s lawyers. First, make certain the judge has no access to a dictionary. This is absolutely critical to upholding your position that a buttock is a ‘sexual organ.’ Secondly, don’t let the judge find out how arbitrary, vague and inconsistent your indecency standard has been over the past several decades. And finally, make sure he/she doesn’t learn that not a single one of the complainants actually saw the broadcast, as they certified to the FCC. The monitoring sites for these zealot groups are in the Eastern Time zone where the broadcast was within the safe harbor. But they ginned up complaints via email blasts that got followers to lie to the FCC and claim that they had viewed the broadcast in the Central and Mountain Time zones.”