While still smarting from an appeals court rebuke that stopped its attempt to regulate fleeting expletives, the Federal Communications Commission slapped ABC with a $1.4 million fine over a five-year-old episode of “NYPD Blue,” a show no longer on the air.
Episode, broadcast Feb. 25, 2003, included scenes of “adult female nudity,” as the FCC said in its finding, released late Friday. A woman was visibly naked with her back to the camera and a portion of one breast was seen in profile, the agency said. Later, she turned toward the front, “with one arm and hand covering her breasts and the other hand covering her pubic area,” the finding stated.
Regulators claimed that this and other portions of the scenes constituted “dwelling on sexual and/or excretory organs,” which falls under the purview of FCC indecency authority. Such material cannot be aired between the hours of 6 a.m. and 10 p.m., when children are likely to be in the viewing audience.
Fifty-two broadcasters in the Central and Mountain time zones were cited for the broadcast; Eastern and Pacific zones aired the episode after 10 p.m. and thus were not subject to fines.
The FCC calculated the fine by applying the fee of $27,500 per infraction — the fee operative in 2003 — to the 52 stations. Congress has since raised the per-infraction fee to $325,000.
“As an initial matter, we find that the programming at issue is within the scope of our indecency definition because it depicts sexual organs and excretory organs — specifically an adult woman’s buttocks,” the FCC said. “Although ABC argues, without citing any authority, that the buttocks are not a sexual organ, we reject this argument, which runs counter to both case law and common sense.”
The agency also rejected the Alphabet’s contention that its pre-show warning of partial nudity was insufficient, again referring to the “lingering” nature of the scenes. Regulators said they were meant to “titillate” and then described the relevant material in extensive detail:
“A woman wearing a robe is shown entering a bathroom, closing the door, and then briefly looking at herself in a mirror hanging above a sink,” the finding stated. “The camera then shows her crossing the room, turning on the shower, and returning to the mirror. With her back to the camera, she removes her robe, thereby revealing the side of one of her breasts and a full view of her back. The camera shot includes a full view of her buttocks and her upper legs as she leans across the sink to hang up her robe. The camera then tracks her, in profile, as she walks from the mirror back toward the shower. Only a small portion of the side of one of her breasts is visible. Her pubic area is not visible, but her buttocks are visible from the side.
ABC promised a fight, saying in a statement:
“NYPD Blue … was an Emmy Award-winning drama, broadcast with appropriate parental warnings as well as V-chip enabled program ratings from the time such ratings were implemented. When the brief scene in question was telecast almost five years ago, this critically acclaimed drama had been on the air for a decade, and the realistic nature of its storylines was well known to the viewing public. ABC feels strongly that the FCC’s finding is inconsistent with prior precedent from the commission, the indecency statute, and the First Amendment, and we intend to oppose the proposed fine.”