ABC Affiliates Defend NYPD Blue Buttocks Scene

Lawyers for 50 ABC Affiliates Fined by the Federal Communications Commission for an NYPD Blue Episode Ask the FCC to Reverse the Decision

By John Eggerton -- Broadcasting & Cable, 2/11/2008 8:36:00 PM

The 50 ABC affiliates hit with indecency fines over a February 2003 episode of NYPD Blue filed an appeal with the Federal Communications Commission, telling it why it should rescind the fines, no butts about it.

According to a copy of the filing obtained by B&C, the stations argued that the bare female behind that prompted those fines -- which totaled about $1.4 million -- was a “simple depiction of nonsexual nudity,” and that mere nudity is not indecent either as a matter of law or as a matter of community standards.

In the Jan. 25 order, the FCC said ABC had not argued convincingly nor cited any authorities for why the buttocks was not a sexual or excretory organ, adding, “That runs counter to both case law and common sense."

Lawyers for the affiliates appeared to take that as a challenge and spent pages citing authorities.

But before launching into a lengthy anatomy lesson, the stations pointed out that the FCC proposed levying the maximum fine then allowable -- $27,500 per station -- for “broadcasting a depiction of buttocks, for fewer than seven seconds, during the 10th season of one of the most lauded shows in television history.”

They also argued that the FCC action is “rife with procedural infirmities; is predicated on form complaints that do not satisfy the commission’s own policies; proscribes material outside the scope of the commission’s indecency-enforcement authority; misapplies the commission’s own multifactor test for patent offensiveness; is inconsistent with the commission’s governing precedent at the time of broadcast; and reaches a result that is plainly unconstitutional.”

“The buttocks,” the stations lawyers said, “are neither a sexual nor an excretory organ,” explaining that the definition of buttocks is “either of the two rounded prominences on the human torso that are posterior to the hips and formed by the gluteal muscles and underlying structures,” rather than the familiar orifice at the “lower end of the digestive tract.”

The stations supplied numerous definitions of buttocks to back up their claim, as well as pointing out that the “excretory” definition in the FCC’s enforcement regime isn’t all it's cracked up to be since the skin, which excretes perspiration, and the lungs, which excrete carbon dioxide, are both excretory organs.

They also argued that the FCC did not examine the standards of any of the communities in which the stations were licensed, so the determination that the episode was patently offensive was not measured against those standards and was “arbitrary and unconstitutional.”

The affiliates also claimed that the FCC did not provide copies of the complaints for eight of the 50 markets cited and supplied others 10 days after the fine proposal and only after repeated requests and Freedom of Information Act filings.