Fox, NBC Universal Lob Volley at FCC on Indecency Case

Jun 20, 2008  •  Post A Comment

Media companies including Fox, NBC Universal, ABC and CBS on Friday fired back at the Federal Communications Commission’s campaign against indecent broadcasting in filings with the U.S. Court of Appeals for the 2nd Circuit.
Fox Television Stations and NBC Universal on Friday attacked what they called a “dramatic expansion” of the campaign. ABC and CBS filed separate briefs later Friday in the case, which centers on a February 2008 FCC order of forfeiture of $27,500 against 45 ABC-affiliated local stations over the Feb. 25, 2003 broadcast of an “NYPD Blue” episode.
CBS characterized the FCC’s enforcement record as being driven by “fickle whim.”
The regulatory agency deemed the show’s display of a woman’s naked buttocks indecent. Fox and NBC argued the finding was inappropriate saying the agency received no “bona fide” complaints from viewers, but rather form complaints generated by activist groups nearly six months after the episode aired.
In a statement, ABC called the FCC order “arbitrary and capricious.” The network pointed out that it had paid the total of $1,237,500 sought from two of its owned stations and 43 affiliates so it could go ahead and appeal the case.
The Fox-NBCU filing calls the FCC order “starkly unlawful” and an another “unexplained departure from the FCC’s traditional policy (which was adopted after multiple promises to the courts that it would act with restraint).”
The Fox-NBC brief said the FCC forfeiture was unconstitutional, a violation of the First Amendment, as well as unlawful.
The Fox-NBC brief argues that the FCC order should be reversed on the lack of viewer complaints alone.
It cites Supreme Court precedents from the last eight years in arguing that because parents are able to block objectionable programming from coming into the home with the V-Chip, there is no constitutional justification to ban broadcasts of so-called indecent material.
The FCC declined to comment.
In its filing, CBS said: “The program at issue included a brief scene that displayed a woman’s bare buttocks in a non-sexual and non-excretory context. Despite the fact that the scene was an integral part of the program’s serious story line, was preceded by parental warnings and appropriate ratings, was aired in the final hour of prime time at 10 p.m. Eastern, and generated no complaints from the public other than a number of cookie-cutter submissions from non-viewers of the show orchestrated by activist groups, the Commission concluded, in a rushed and unorthodox proceeding, that the brief scene was “patently offensive as measured by contemporary community standards for the broadcast medium. On this basis, the FCC, assuming the role of programming director and chief editor, raced to beat the deadline of a five-year statute of limitations and imposed one of the largest forfeitures in the history of broadcasting.”
CBS said in its brief that the FCC’s policy on indecency doesn’t provide broadcasters enough guidance.
“As a predictable consequence, the new approach has had a profound chilling effect on broadcasters, who are left guessing as to where the FCC next will draw the line of indecency,” the network said.
ABC, in its brief, suggested that the FCC determination violated the Fifth Amendment as well as the First Amendment.
ABC’s brief included a long list of major awards and accolades “NYPD Blue” had earned during its 12-year run, as well as a detailed description of the content of the episode in question, which began with a viewers’ advisory about adult material.
The buttocks in question belong to a woman with whom the widowed character of Andy Sipowicz, a single father, was trying to establish a relationship. The Sipowicz character’s young son caught a brief glimpse of Mr. Sipowicz girlfriend’s buttocks in a display that was neither sexual nor excretory, two of the standards on which FCC rulings had long been based.
“Almost a year after the episode aired, FCC staff sent ABC a letter of inquiry stating that the episode had been the subject of unspecified and undisclosed indecency complaints. ABC promptly sent the Commission a tape and transcript of the episode, along with letters explaining why the episode contained no indecent material,” the ABC brief said.
Four years later, the forfeiture order was issued.
ABC said in its filing Friday: “The Commission was able to conclude that the episode was indecent only by misapplying its longstanding indecency test. First, the Commission concluded that the episode depicted “sexual or excretory organs”—the test’s threshold requirement—because the scene included shots of a woman’s buttocks.”
(Editor: Baumann. Updated 4:30 p.m. West Coast to add ABC, CBS in second paragraph and throughout.)


  1. I agree with everything you said there, keep up the good writing

  2. Great stuff, though there are a few points I would query.

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