FCC Says NYPD Blue Fines Will Stick

Federal Communications Commission Gives About 40 ABC Affiliates Until Feb. 21 to Pay Their $27,500 Fines

By John Eggerton -- Broadcasting & Cable, 2/19/2008 8:00:00 PM

The Federal Communications Commission gave about 40 ABC affiliates two days, until Feb. 21, to pay their fine -- $27,500 apiece -- for airing a bare behind in an episode of NYPD Blue, but it canceled the fines for about one-dozen stations initially cited.

In the process, the FCC reaffirmed its commitment to indecency regulation, saying that the "broadcast media continue to have a uniquely pervasive presence” in American life and remain "uniquely accessible to children."

The FCC late Tuesday issued its forfeiture order, rejecting an appeal from the majority of affiliates but canceling the fines for Northeast Kansas Broadcast Service's KTKA-TV; KFBB for KFBB-TV; Louisiana Television Broadcasting for WBRZ-TV; WXOW-WQOW Television for WXOW-TV; KMBC Hearst-Argyle Television for KMBC-TV; KHBS Hearst-Argyle Television for KHOG-TV; and Forum Communications for WDAY-TV.

The FCC cited a statute of limitations that had expired for a pair of stations because they had gotten license renewals in the intervening years, and others were let off apparently because the complaints had not come from the market in which the station was located.

It was only a little over three weeks ago -- Jan. 25 -- that the FCC issued the notice of apparent liability for the Feb. 25, 2003, airing of a show that has been off the air for three years. It was running up against a five-year statute of limitations on taking action against the stations if they failed to pay the fine, which likely explains why it asked the stations to pay up by Feb. 21, or only about 52 hours after the order is being released.

Rejecting the ABC affiliates, and ABC-owned stations' appeal of the Jan. 25 proposed fine, the FCC concluded Tuesday again that "the depiction of an adult woman’s naked buttocks was sufficiently graphic and explicit to support an indecency finding."

The FCC continued: "She is not wearing a g-string or other clothing, nor are the shots of her buttocks pixillated or obscured. Thus, the material is sufficiently graphic and explicit to support an indecency finding. Although the partial views of her naked breast from behind and from the side are not sufficiently graphic and explicit in and of themselves to support an indecency finding, they also add somewhat to the first factor’s weight here."

"In context and on balance," the FCC concluded, "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. Therefore, it is actionably indecent."

The FCC said it was not persuaded by arguments that it had not given the stations enough time to respond to the complaint -- 17 days -- and that although it customarily provides 30 days, it is not required to do so, adding that the stations had ample opportunity to respond, demonstrated by the fact, the agency added, that they did respond with their appeal, noting, "20 law firms and/or companies coordinated and responded to the NAL in one consolidated, 70-page brief, with exhibits, on behalf of the majority of ABC-affiliated stations."

The FCC rejected an argument by Gray Television that its translator station should not be fined in addition to the station providing the signal that it was essentially retransmitting, but the FCC said translators are not de facto immune from the fines.

If stations refuse to pay the fine, the FCC can either do nothing or go to individual district courts to try to force them to pay up.

"The decision is disappointing," said Wade Hargrove, counsel for the ABC affiliates. "I'm sure that affiliates will assess the options now available to them. It is encouraging that the commission dismissed a number of complaints for failure to comply with the commission's requirements for the submission of complaints against broadcast stations."