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ABC: NYPD Blue 's Bare Behind Was Not Indecent

As expected, ABC weighed in Friday at the Second Circuit Court of Appeals, telling the court the FCC’s indecency fine against ABC stations for their airing of NYPD Blue in 2003 was arbitrary and capricious and a violation of the FCC's own standards as well as the First Amendment.

But ABC did not go so far as to suggest that the court needed to overturn the Pacifica case that helped establish the indecency standard, only that the current commission's indecency standard as applied was an unjustified break with precedent, arbitrary and capricious, and just plain wrong. "Indeed, it is the Commission that has broken faith with Pacifica by disregarding the narrowness of Pacifica’s holding and rejecting the restrained enforcement policy Pacifica demanded."

NBC and Fox weighed in Friday in support of ABC.

ABC also said that it was not asking the court to rule on the constitutionality of the Red Lion decision, which established the spectrum scarcity rationale for content regulation.

Filing on behalf of the network as well as two owned stations cited by the FCC--WLS Chicago and KTRK Houston--ABC took aim both that the individual decision and the constitutionality of the FCC's decision to punish fleeting nudity that, at least in this case, did not even meet its own standard of indecency.

ABC argued that broadcasters deserve the "strict scrutiny" standard for court reviews of content regulation applied to other media rather than the lesser protections they are now accorded. "[B]roadcast television today does not differ from other media in any way relevant to the constitutionality of indecency regulation." But ABC said the FCC's decision would fail any level of constitutional scrutiny.

ABC also argued that the decision to fine 45 ABC affiliates and owned stations that carried the program was arbitrary and capricious--and thus a violation of the Administrative Procedures Act--because the commission failed to provide "reasoned explanation" for its decision to fine "seven seconds worth of bare buttocks in a nonsexual context." ABC also repeated its earlier argument that bare behinds are not sexual or excretory organs.

ABC said the FCC's indecency was standard was unconstitutionally vague, saying that it set a clear standard--sexual or excretory organs--then "ignores that standard." Broadcasters do not know what is or is not permitted, ABC said.

ABC says the broadcast was not shocking, pandering or titillating and that it did not dwell on the depiction of a sexual or excretory organ.

ABC also pointed out that it put a content warning on the show and coded so it could have been blocked by a V-chip.