The Second Circuit Court of Appeals has thrown out the FCC's fine against ABC for a shot of Charlotte Ross' bare back and behind on NYPD Blue. That means the court finds the FCC's pursuit of scripted nudity just as unjustifiable as that of fleeting profanity. Another court--the third circuit--is still pondering the FCC's pursuit of fleeting nudity (see below).
In a nonprecedential summary judgment, the Second Circuit held that since it found that the FCC's fine "for fleeting, unscripted utterances" in Fox music awards shows was unconstitutionally vague, and the NYPD Blue case, though dealing with scripted nudity, "turns on an application of the same context-based indecency test" it found impermissibly vague in Fox, the court agreed to vacate the NYPD Blue fine for the same reason of vagueness.
ABC back in August asked the court throw out the FCC's $1 million-plus fine against 52 ABC affiliates for a 2003 broadcast of NYPD Blue, citing the same court's decision a month before that the FCC's indecency enforcement regime is unconstitutionally vague.
In a supplemental brief to the court filed Aug. 23, ABC and co-petitioners KTRK Television and WLS Television said that the decision in Fox Television Stations was now binding law of the Circuit and "leaves no doubt that the [fine] cannot stand."
The court sought the briefs after ruling in the Fox case that the FCC's indecency enforcement regime was unconstitutionally vague, a case itt was reconsidering on remand from the Supreme Court. The high court had reversed the Second Circuit's initial ruling that the FCC indecency finding--there was not a fine issued in Fox--was arbitrary and capricious, but sent it back to the court. That allowed the Second Circuit to weigh in again on the constitutional issue, finding the policy void for vagueness.
The FCC had appealed that three-judge panel decision to the full court, but that re-hearing was denied. The FCC can now appeal the Fox case to the Supreme Court, though no decision has been made, said a spokesperson.
That is the more likely route for the FCC, if it chooses to appeal, than appealing Tuesday's summary judgement, since it was both nonprecedential and based on the Fox decision.
ABC had argued back in August that because it was challenging the same indecency enforcement policy that was struck down in Fox, the court should reach the same result on the constitutional question, which is that its fine should be equally voided for vagueness. The FCC had said the facts were differeing, and the Second Circuit conceded that, but said the case did not turn on the facts but on the indecency enforcement regime.
"According to the FCC, 'nudity itself is not per se indecent,'" the court pointed out. "The FCC, therefore, decides in which contexts nudity is permissible and in which contexts it is not pursuant to an indecency policy that a panel of this Court has determined is unconstitutionally vague."
That decision was binding ABC's case as well said the court. "Accordingly, we need not reach the administrative law or other constitutional challenges Petitioners raised."
"We are pleased with today's decision," ABC said in a statement. "We have always believed that this 2003 episode of the long-running and acclaimed series NYPD Blue was not indecent and that the fines were unwarranted and unconstitutional."
ABC had paid the fine, but only because it needed to do so in order to then appeal it. The fine went into the general treasury, but ABC likely won't see any of that money until the government's appeals process is exhausted.
"Today's decision by the court is further evidence that the highest authority on family television viewing is parents and not the government,"sa id Jim Dyke, executive director of TV Watch. "Eighty-seven percent of parents agree according to our research. Parents already have tools such as the V-Chip and content ratings to help them make decisions based on their own taste, values and style. We will continue to educate parents about such resources."
TV Watch (http://www.televisionwatch.org/) was launched by major TV networks--though not including ABC--to counter a congressional crackdown on indecency that stemmed in part from the Janet Jackson Super Bowl halftime show reveal and resulted in Congress boosting indecency fines ten-fold.
The Parents Television Council, whose complaints helped prompt the FCC's crackdown on fleeting profanity and nudity, will encourage the FCC to appeal the case to the High Court, according to PTC director of public policy, Dan Isett. "I am not sure if it is a surprise [given the Fox decision], but certainly it is disappointing," he said. "I think it lays bare what we have been saying about the [Fox] fleeting expletive case, which was that what was at stake was not the narrow issue of fleeting profanity but the whole indecency regime."
"By striking down the FCC's NYPD Blue order on the basis of the Fox case, the Second Circuit's decision confirms what we have already said," said FCC General Counsel Austin Schlick. "The Court's Fox decision was excessively broad in rejecting the FCC's ability to use context to evaluate indecency cases."
The Third Circuit Court of Appeals is still reviewing its earlier decision--on remand from the Supreme Court-- that the FCC's $550,000 fine against CBS stations for the 2004 Super bowl halftime show was arbitrary and capricious.
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Contributing editor John Eggerton has been an editor and/or writer on media regulation, legislation and policy for over four decades, including covering the FCC, FTC, Congress, the major media trade associations, and the federal courts. In addition to Multichannel News and Broadcasting + Cable, his work has appeared in Radio World, TV Technology, TV Fax, This Week in Consumer Electronics, Variety and the Encyclopedia Britannica.