ABC Defends 'Blue' Behind
Network is challenging FCC indecency fine over a 2003 episode containing Charlotte Ross's behind
By John Eggerton -- Broadcasting & Cable, 2/6/2009 6:13:51 PM
ABC got its day in court Thursday, defending NYPD Blue against an indecency fine, in the Second Circuit Court of Appeals in New York. By a couple of accounts, it went well for broadcasters.
Seth Waxman, former solicitor general in the Clinton administration, argued the case for ABC and its affiliates. He declined to comment. Matthew Berry, the FCC's General Counsel, argued for the FCC. An FCC spokesperson also had no comment.
ABC is challenging the FCC's million-dollar-plus indecency fine against ABC over a February 2003 broadcast of ABC's NYPD Blue that featured seven seconds worth of Charlotte Ross's behind.
ABC had submitted its brief in the appeal last June, focusing on the fact that a bare behind was by far not something shocking--it cited the Coppertone Girl billboards for example--and that it wasn't even a sexual organ. The brief even had some fun with the language (“Even assuming, arguendo [for the sake of argument], that buttocks are within the FCC's regulatory grasp,” the laywers wrote). (See video below)
But according to a source, oral argument was all business, and focused on the extent to which the First Amendment requires the government, when it is regulating speech based on content, to provide very clear notice, clear lines, and great restraint, none of which ABC argues the FCC did, but which it is required to do by the administrative procedures act.
ABC made the point that the scene came in the context of an acclaimed, scripted, content-rated drama that was in its tenth season. One of the judges even made the point that bare behinds were a signature feature of the show, a point that would be hard for anyone to dispute.
The judges also asked about the fact that the complaints had been computer-generated and that the complaints were that a young boy could see a naked woman from the front--the scene doesn't show it and the actress had been "taped" so the actor did not see it either.
The judges were said to have commented that they didn't see what was particularly offensive about the scene since it wasn't sexual [Ross is getting out of the shower as a young boy opens the door]. There were also comments about being in an era of cable and satellite and the Internet and the V-chip.
The Coppertone Girl did not come up.
ABC appealed the FCC's proposed NYPD Blue fine to the Court last February--the same court that said the FCC's fleeting profanity policy was arbitrary and capricious. But first it paid $1,237,500 in fines for its two owned stations and the 43 other affiliates cited.
The FCC had said that, "in context and on balance, the graphic, repeated, pandering, titillating and shocking nature of the scene’s visual depiction of a woman’s naked buttocks warrant a finding that it is patently offensive under contemporary community standards for the broadcast medium, notwithstanding any artistic or social merit and the presence of a parental advisory and rating."
It is unclear how long it will take the Second Circuit court to rule. Estimates from lawyers Friday ranged from as few as four weeks to as many as six months. It could wait for the Supreme Court decision in Fox's appeal of the FCC's indecency fining against profanities uttered by Nicole Richie and Cher in 2002 and 2003 during Fox broadcasts of the Billboard Music Awards.
That Fox decision will be rendered by June, when the current Supreme Court term ends.
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