In Depth

ABC Challenges FCC's 'NYPD Blue' Fine in Court

ABC is going to court to stop the Federal Communications Commission from fining it and 45 of its stations $1,237,500 for airing scenes that showed a woman’s naked buttocks on a 2003 episode of “NYPD Blue.”

The network today paid the fine before filing papers in the 2nd Circuit U.S. Court of Appeals challenging it as “arbitrary and capricious” and contrary to past commission decisions as well as to the First Amendment. A network spokeswoman said the ABC Affiliates Association will support the suit.

ABC had earlier indicated it would fight the fine.

The FCC announced the fine for the nearly 5-year-old episode Feb. 12, just as the statute of limitations for taking action was about to run out.

Originally the FCC proposed fining 52 stations in the Central and Mountain time zones a total of $1.43 million for airing the program; however, the agency later cut the number of stations.

Of the remaining stations, WLS-TV in Chicago and KTRK-TV in Houston are ABC owned-and-operated stations; the others are affiliates. Each station was fined the $27,500 maximum.

The FCC cited the opening shots in an episode in which the young son of widowed Det. Andy Sipowicz enters the bathroom in his house and encounters his father's partially unclothed detective girlfriend.

ABC and the affiliates association had urged the FCC to reject the fine, saying the scene wasn’t indecent but rather a mature exploration of some of the problems faced by single adults with young kids. They also contended the buttocks isn’t “a sexual organ.”

“Never before has the commission deemed the depiction of naked buttocks ‘patently offensive’ unless they were presented in a highly sexualized or scatological fashion,” ABC said in its filing on behalf of both the network and the two owned-and-operated stations cited.

The FCC rejected that claim, saying the scene repeatedly focused on the woman’s nudity, going so far as to have a camera pan down her back as she went into the shower to reveal a second shot of her buttocks.

“We simply conclude here that the disputed material’s clear, unobscured, close-range visual depiction ... of a woman’s naked buttocks was sufficiently graphic and explicit to support an indecent finding,” the agency said. “We find that in context and on balance the material is patently offensive as measured by contemporary community standards for the broadcast medium.”

An FCC spokeswoman defended the agency's action.

"The commission will defend the forfeiture order. We continue to believe it was inappropriate content aired at a time when children are watching TV," she said

Parents Television Council president Tim Winter ripped ABC's decision to appeal.

"I never thought I would see the day when Walt Disney's company appealed to a court of law for the right to air graphic sexual content in front of children," he said in a statement. "ABC's legal strategy is clearly at odds with its corporate parent and with the overwhelming majority of American families who believe that intentionally showing a graphic display of female nudity at 9 p.m is indecent and unacceptable."

Whether ABC’s challenge ever gets heard could depend on two other cases challenging the FCC’s indecency enforcement. The FCC is asking the Supreme Court to hear a case in which an appeals court overturned its finding that statements made by Cher and Nicole Richie on two live Billboard Music Awards shows were indecent. Separately, CBS is challenging the FCC’s ruling that Janet Jackson’s “wardrobe malfunction” during the 2004 Super Bowl halftime show was indecent.

9:45: Updated 2nd paragraph, added PTC comment