Decision is another blow to FCC's indecency policies

A federal appellate court has thrown out the fines levied by the FCC against ABC stations that aired a 2003 episode of “NYPD Blue” in which a woman’s nude backside was glimpsed.

The order from a three-judge panel of the 2nd U.S. Circuit Court of Appeals was yet another signal that the federal government’s efforts to curb indecency on broadcast television is having trouble withstanding First Amendment scrutiny.

In 2008, the FCC issued $27,500 fines against each of 44 ABC-affiliated stations, but, like other broadcasters, ABC challenged the fines on the grounds that the government’s policies were arbitrary. The shot of the woman’s backside was onscreen for slightly less than seven seconds.

In July, a separate panel of the Second Circuit ruled that the FCC’s policy to punish broadcasters for airing “fleeting expletives” “fails constitutional scrutiny.” That case involved sanctions against Fox for airing separate utterances of the “f-bomb” by Cher and Nicole Richie during the live broadcast of the Billboard Music Awards.

Although the case of “NYPD Blue” involved scripted fare, the Second Circuit judges found similarities between the two cases, writing that the FCC “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.”

ABC issued a statement in which it said that it was “pleased with today’s decision.” “We have always believed that this 2003 episode of the long-running and acclaimed series ‘NYPD Blue’ was not indecent and that the fines were unwarranted and unconstitutional,” the network said.

FCC general counsel Austin Schlick said that “by striking down the FCC’s ‘NYPD Blue’ order, the Second Circuit’s decision confirms what we have already said: The court’s Fox decision was excessively broad in rejecting the FCC’s ability to use context to evaluate indecency cases.”

With the indecency rules in doubt, the recent decisions could have the effect of putting on hold FCC efforts to act on current complaints, media analysts say. The commission reportedly has a huge backlog of complaints, and its enforcement regime has slowed considerably when compared with the efforts of chairman Kevin Martin, an appointee of President George W. Bush.

Tim Winter, the president of the Parents Television Council, which has led many of the indecency complaints, said in a statement that the ruling “is as devoid of common sense as it was predictable. The Second Circuit’s three-judge panel has stated that it doesn’t like the concept of broadcast decency. The court is clearly on a quest to do everything in its power to impede the law — even if the judge’s rationale today conflicts with their prior reasoning for overturning FCC sanctions.”

He added that the broadcast decency law doesn’t prohibit the broadcast of indecent material — only that it not be aired during hours when children are likely to be watching.

“The inclusion of the lengthy and ogling scene was intended to pander and titillate,” Winter said. “This was a clear breach of the decency law.”

In 2009, the Supreme Court sided with the FCC in its sanctions against Fox for the Billboard Awards, but its decision largely had to do with the commission’s administrative authority while the weightier constitutional issues were kicked back to the lower court to decide.

The Third Circuit Court of Appeals, meanwhile, is reviewing the FCC’s sanctions against CBS for the broadcast of Janet Jackson’s infamous “wardrobe malfunction” during the Super Bowl halftime show in 2004. Part of its decision appears to weigh on the extent to which the network could have prevented the incident.

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