ABC appeals FCC ruling

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WASHINGTON -- ABC appealed a $1.2 million government fine for airing a woman's bare butt during a 2003 episode of "NYPD Blue" on Thursday, arguing that the FCC action violates the nation's indecency laws and free-speech rights.

While the broadcaster paid the fine, it told the 2nd Circuit Court of Appeals in New York that the commission's decision is "arbitrary, capricious, and contrary to law; contrary to the Communications Act, the Administrative Procedure Act, and the commission's own rules, standards and precedents; and unconstitutional."

The FCC fined the network and the 45 stations that aired the show. It levied the maximum fine it could at the time against ABC.

Commission staff said the panel was prepared to go to the legal mat on the issue.

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

Last year, a federal appeals court in New York threw out the FCC's rule that said a fleeting reference gets broadcasters a fine for indecency. In its decision, the court told the commission that it failed to give a good reason for its decision and likely couldn't find a good reason if it had to. The Bush Administration has appealed the decision to the Supreme Court.

The Supreme Court justices are expected to meet on the last day of the month to consider the FCC's appeal, which has the support of the U.S. solicitor general, Paul Clement. Four of the nine Justices must vote to hear a case for the court to take it up.

While obscene speech has no constitutional protection, indecent speech does. Under the law, FCC rules and court decisions the commission can fine broadcasters for airing indecent speech outside of 10 p.m. to 6 a.m. safe harbor.

Material is indecent if it "in context, depicts or describes sexual or excretory activities or organs in a patently offensive manner as measured by contemporary community standards for the broadcast medium." Under current law, broadcasters face a fine of $325,000 per incident.
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