FCC levies 'NYPD' indecency fine

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WASHINGTON -- In a sign that the federal airwaves police may ratchet up their campaign against racy programming, the FCC on Friday determined that a woman's naked butt is indecent enough to net ABC a proposed fine of $1.43 million.

The fine proposal, announced late Friday, comes as much of the regulatory regime the commission uses to fine stations is under judicial review.

Commissioner Deborah Taylor Tate said Friday's action puts broadcasters on notice.

"Our action today should serve as a reminder to all broadcasters that Congress and American families continue to be concerned about protecting children from harmful material and that the FCC will enforce the laws of the land vigilantly," she wrote in a statement accompanying the fine notice. "In fact, pursuant to the Broadcast Decency Act of 2005, Congress increased the maximum authorized fines ten-fold. The law is simple. If a broadcaster makes the decision to show indecent programming, it must air between the hours of 10 p.m. and 6 a.m. This is neither difficult to understand nor burdensome to implement."

In its decision the FCC ruled that the February 25, 2003 episode of the ABC program "NYPD Blue" in which a nude woman is surprised by a young boy as she prepares to shower is too much for broadcast TV.

"We find that the programming at issue is within the scope of our indecency definition because it depicts sexual organs and excretory organs -- specifically an adult woman's buttocks," the FCC wrote. "Although ABC argues, without citing any authority, that the buttocks are not a sexual organ, we reject this argument, which runs counter to both case law and common sense."

The commission levied the maximum fine it could at the time against ABC. It then multiplied the $27,500 fine by the 52 ABC stations that aired the episode during Central Standard Time and Mountain Standard Time.

ABC said the FCC's erred on Friday.

"'NYPD Blue,' which aired on ABC from 1993-2005, was an Emmy Award-winning drama, broadcast with appropriate parental warnings as well as V-chip enabled program ratings from the time such ratings were implemented," the company said. "When the brief scene in question was telecast almost five years ago, this critically acclaimed drama had been on the air for a decade and the realistic nature of its storylines was well known to the viewing public. ABC feels strongly that the FCC's finding is inconsistent with prior precedent from the Commission, the indecency statute, and the First Amendment, and we intend to oppose the proposed fine."

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 "notice of apparent liability" the FCC issued on Friday does not deal with a "fleeting incident." The commission has been noticeably silent on indecency since the court rebuke.

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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