Gone but Not Forgotten

ABC and its affiliates will appeal the FCC's proposed $1.4 million indecency fine against 52 owned and affiliated stations for a 2003 episode of ABC's NYPD Blue that all five FCC commissioners agreed was indecent. It is one of only a handful of TV fines the FCC has proposed, and adds another front in broadcasters' battle against the FCC's content crackdown.

The station owners could pay the fines and then take the FCC to court, but a court could throw out that move on procedural grounds. At presstime, ABC spokeswoman Julie Hoover said that the network was leaning toward appealing the fine to the FCC first. The commission gave ABC and the owners of 50 more TV stations until Feb. 11 to pay up—the then-maximum $27,500 fine for each station—or appeal the decision.

Going straight to court is risky, says one veteran First Amendment attorney, since it is unclear whether a proposed FCC fine is an appealable order.

ABC may get together with some other affiliate groups on the FCC appeal, though the majority of stations will file separately to the commission, according to attorney Wade Hargrove, who represents 18 of the stations as well as the ABC affiliate association. Hearst-Argyle took the biggest hit, with six stations fined a total of $165,000. Company spokesman Tom Campo would not comment on what the group owner would do, but some ABC affiliates are said to be contemplating bypassing the FCC and challenging the ruling in court.

The fine, which was the first indecency fine proposed since March 2005, felt like a shot across the bow to some programmers after the period of relative quiet. “It took a lot of people by surprise,” said one former top FCC official. The FCC has been hamstrung in its ability to enforce its fleeting-nudity and profanity policy, but this fine was for “lingering” views in a scripted show.

It was also running up against a statute of limitations for FCC action. “We were acting to preserve our ability to do a forfeiture order later should the commission determine that it is warranted,” said an FCC spokeswoman. Translation: It had to act if it wanted to fine the stations.

Democratic FCC Commissioner Michael Copps offered his opinion on what the industry's takeaway should be in a meeting with reporters last week, saying the message was that the commission “is not asleep at the switch on this issue, and we remain alive to our statutory responsibilities to be responsive to complaints.”

Some broadcasters were privately questioning last week whether the FCC's move was an attempt to appease the Parents Television Council, which has complained loudly about the relative lack of indecency enforcement. Most recently, the group complained about the F-word that actress Diane Keaton let slip in an interview.

The FCC, in an apparent attempt to play down the item, issued it late on a Friday and without the customary e-mail release. An FCC spokesman said there was a miscommunication over who would issue the release, but pointed out that the decision had been posted on the FCC Website.

In that decision, the commission concluded that that a “lingering” scene of a woman's naked behind and partially obscured breasts was indecent in context. NYPD Blue hasn't been on the network schedule since 2005, but when it did air, the show frequently pushed the envelope with bare behinds, male and female.

While Commissioner Copps, who has been one of the most vocal critics of sexual and violent TV content, said the FCC was still concerned about content, he didn't see the NYPD Blue fine as opening the floodgates. But he did pledge to act quickly on any fine proposals put before him.

The American Civil Liberties Union last week criticized the FCC over the decision, calling it “paternalism at its worst.”

The Parents Television Council and the American Family Association, which had complained to the FCC about the episode, were understandably pleased.

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