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ABC Stations Challenge FCC Fine, Not Authority

The ABC Television Affiliates Association told a federal court Friday that the FCC was wrong to levy indecency fines on 45 stations for airing a fleeting scene of an actress' backside in a 2003 episode of NYPD Blue.

But they did not challenge the FCC's authority to regulate indecency under clearly defined rules applied with restraint. "The affiliates do not challenge Pacifica, and they accept the special treatment under Red Lion." Those were the Supreme Court cases that upheld the FCC's authority to regulate indecency content based on broadcasting's "unique" pervasiveness and the scarcity of spectrum.

The FCC had fined the ABC affiliates the then-maximum $27,500 a piece earlier this year after taking no action until the five-year statute of limitations had almost run out. ABC challenged the decision, but the FCC was unpersuaded. ABC then paid the fines so that it could take the commission to court.

The stations were joined by ABC, Fox and NBC in dropping their briefs at the court Friday and inside all were fleeting glimpses of "buttocks" they argued were not indecent and a raft of arguments, constitutional and procedural, for overturning the FCC's decision.

As had ABC, Fox and NBC in their filings with the court Friday, the affiliates argued that backsides do not meet the FCC's indecency criteria because they are neither sexual nor excretory organs but part of the muscular system. The brief even includes a picture of the iconic 'Coppertone Girl,' the child whose own briefs are lowered by a puppy "on billboards all over America," to illustrate the historical lack of community shock over behinds.

But, "even assuming that buttocks are within the FCC's regulatory grasp," the brief said, the FCC was out of line in numerous other ways. They included: that the broadcast was not patently offensive because it was neither explicit or graphic, that it did not dwell upon or repeat it to titillate or shock. "It is impossible to see how the non-sexualized depiction of buttocks for fewer than seven seconds could ever be patently offensive per FCC requirements as measured by contemporary community standards," the they argeud. But there was more. The FCC ws inconsistently enforcing its rules.

For example, it pointed out that in its finding that Savng Private Ryan had parental advisories, so "parents had ample warning taht this film contained material that might be unsuitable for chldren and could have exercised their judgment.." NYPD Blue viewers were provided with ample warning too, the stations said, both with a similar content warning and by 12 years of precedent on the adult drama.

They also argue that the broadcast was not indecent under the Pacfica test. But, like parent ABC, they do not argue for overturning Pacifica. The First Amendment and the Pacifica decision require a "restrained" approach to enforcement of the indecency standards. Instead, they told the court, the FCC based the fines on complaints Beyond the issues surrounding the actual content, the stations say the complaints were not from bona fide viewers to the stations in the markets cited, but were part of an online campaign coordinated by the American Family Association.

Finally, they say, the FCC did not give them ample time to respond to the proposed fine as it rushed to meet the statute of limitations. "The FCC sat on the complaints for five years and, faced with the imminent lapse of the statute, it suddenly accelerated the process, ignored its customary procedures and denied affilates an adequate opportunity to respond..." In short, said the stations, buttocks are not indecent, the compaints were not from real viewers to the broadcast at issue, the FCC misapplied its own standard, and it denied stations due process.

The FCC is fighting a court battle on at least three indecency fronts. The Supreme Court is reviewing the same Second Circuit's smackdown of its profanity decision against Fox and it is still waiting for a Third Circuit decision on CBS' appeal of the Janet Jackson fine.