More Time for ABC, Affiliates in NYPD Blue Appeal

Second Circuit Court of Appeals Sets New Briefing Schedule for Challenge of Federal Communications Commission’s Indecency Crackdown

By John Eggerton -- Broadcasting & Cable, 5/22/2008 12:01:00 AM

ABC and its affiliate group will get more time to make their case against the Federal Communications Commission’s indecency crackdown.

According to an attorney familiar with the case, the Second Circuit Court of Appeals set a new briefing schedule in the challenge by ABC and its affiliates of the FCC’s $1 million-plus fine against them for a 2003 episode of NYPD Blue that showed too much of a woman’s backside and side for the FCC’s liking.

Briefs by ABC and the stations are now due June 20. Those briefs had been due at the end of this week -- May 23 -- but the court had to consolidate challenges by other individual stations in other circuits, which required the court to come up with a single briefing schedule.

ABC paid a fine of $1,237,500 in February -- a step it said it needed to take so that it could go immediately to court in the U.S. Court of Appeals for the Second Circuit. That is the same court that found the FCC’s fleeting indecency policy arbitrary and capricious, but the FCC said the issue is not fleeting, but lingering, nudity.

The ABC affiliates and owned stations appealed the decision, but the FCC rejected the appeal, concluding that “the depiction of an adult woman’s naked buttocks on Blue was sufficiently graphic and explicit to support an indecency finding.”

The FCC is fighting a court battle on at least three indecency fronts. It convinced the Supreme Court to review the Second Circuit’s smackdown of its profanity decision against Fox, and it is awaiting a federal appeals court decision (the Third Circuit) on CBS’ appeal of the Janet Jackson fine.