FCC Issues NAL Proposing Indecency Fines Against 52 ABC Affiliates: 2003 airing of “NYPD Blue” episode could cost stations $1.43 million

Even while its authority to penalize broadcast stations for “indecent” programming is under review, the Federal Communications Commission (FCC) late last week issued a Notice of Apparent Liability (NAL) proposing fines totaling $1.43 million against 52 ABC network TV stations, for showing a woman's buttocks in an episode of “NYPD Blue” nearly five years ago. The NAL tentatively found the stations violated the ban on “indecent” broadcasts in 18 U.S.C. § 1464 and under FCC rules, and are thus each subject to a $27,500 fine, for broadcasting a scene with brief nudity in the long-running ABC police drama. All of the stations are either owned by or affiliated with ABC and located in the Central and Mountain Time zones, where the program aired prior to 10 p.m.

The FCC issued the NAL even though its authority to punish “indecent” programming is under review in a Third Circuit appeal involving the “wardrobe malfunction” during the Super Bowl XXXVIII halftime show, and was curtailed somewhat in a recent Second Circuit decision involving “fleeting” expletives in broadcast programming. The FCC has asked the Supreme Court to review the Second Circuit decision, but the Court has not yet ruled on the petition.

No fines were proposed for stations in the Eastern and Pacific Time zones, because “NYPD Blue” airs there at the start of the 10 p.m. to 6 a.m. “safe harbor” during which the FCC cannot fine broadcasters for airing allegedly indecent material. The FCC also declined to impose fines against some ABC stations and affiliates in the Central and Mountain Time zones that it knew aired the episode, because the agency had not received complaints from viewers in those stations' markets.

The episode in question opened with a scene in which the elementary-school-aged son of a detective inadvertently walks in on his father's girlfriend as she prepares to shower after having spent the night. The NAL described views of the actress as including images of “the side of one of her breasts,” several brief shots providing a “full view of her buttocks,” and “a front view of [her] upper torso” with her breasts and lower half of her body obscured by the boy in the foreground. Notwithstanding an extended description of the scene and multiple references to various parts of the actress's body, the NAL found an indecency violation occurred because of images of “sexual organs and excretory organs—specifically an adult woman's buttocks.” The NAL also noted partial views of breasts and shots of the woman's upper torso from behind the boy's head also were relevant contextual factors heightening the “titillating and shocking nature” of the scene.

The FCC found the scene patently offensive as measured by contemporary community standards for the broadcast medium, under its three-part indecency standard. First, it found the scene included explicit and graphic depictions of sexual organs because it depicted multiple, close-range views of an adult woman's naked buttocks. Next, it held the material was “dwelled upon and repeated” because it “revolve[d] around the woman's nudity” and included several shots of her naked buttocks.” Finally, it found the scene was shocking and titillating, citing factors such as those quoted above.

The FCC rejected ABC's argument that a woman's buttocks are not “sexual organs” and that depicting them thus does not fall within the indecency definition. Rather, the Commission found that buttocks are a sexual organ, and it further rejected ABC's claims that because the nudity did not arise in the course of an attempted seduction nor sought to elicit a sexual response, it was not shocking or titillating, but rather sought to illustrate the “complexity and awkwardness involved when a single parent [has] a new romantic partner.”

The FCC also declined to consider the facts that at the time the episode in question aired, “NYPD Blue” was long known for dealing with such themes in a stark, frank, and mature way, and that the episode was preceded by warnings that it included partial nudity. Significantly, such warnings worked in ABC's favor when the FCC refused to issue fines for an unedited airing of “Saving Private Ryan” that included dozens of repeated expletives.

Finally, the FCC refused to factor into its consideration of whether the program was patently offensive under contemporary community standards, ABC's showing that it received very few complaints about the show and that the program receives generally high ratings, and was thus embraced by contemporary audiences. The FCC held instead that “the fact that the program is watched by a significant number of viewers serves to increase the likelihood that children were among those who may have seen the indecent broadcasts, thereby increasing the public harm” from the broadcast.

Because the episode at issue aired in 2003, the FCC could not impose on the ABC stations the heightened penalties authorized by the 2006 enactment of the Broadcast Indecency Enforcement Act, which raised potential FCC indecency fines to a maximum of $325,000 per violation. Instead, it imposed the maximum fine permissible for a broadcast airing in 2003, specifically $27,500 per station.

ABC and its affiliates cited in the NAL now have the choice of deciding by Feb. 11, 2008, either to file an opposition with the FCC arguing that the proposed fine should be withdrawn (or reduced), or to pay the fine, and if so desired, to seek review in a federal court of appeals. The FCC has afforded the stations a truncated time in which to make this decision, given that the FCC usually allows 30 days to respond to an NAL. In the wake of the NAL, press accounts indicated ABC will oppose the fine on behalf of its owned stations.