Television Challenges FCC Indecency Authority and Implementation

The ABC Television Affiliates Association told a federal court Friday that the Federal Communications Commission was wrong to levy indecency fines on 45 stations for airing a fleeting scene of a nude actress in a 2003 episode of NYPD Blue. The stations were joined by ABC, Fox and NBC in filing briefs at the court Friday and inside all were arguments that fleeting glimpses of "buttocks" are not indecent and a raft of arguments, constitutional and procedural, for overturning the FCC's decision. As had ABC, Fox and NBC in their filings with the court Friday, the affiliates argued that backsides do not meet the FCC's indecency criteria because they are neither sexual nor excretory organs but part of the muscular system. The brief even includes a picture of the iconic 'Coppertone Girl,' the child whose own briefs are lowered by a puppy "on billboards all over America," to illustrate the historical lack of community shock over behinds. But, "even assuming that buttocks are within the FCC's regulatory grasp," the brief said, the FCC was out of line in numerous other ways. They included: that the broadcast was not patently offensive because it was neither explicit or graphic, that it did not dwell upon or repeat it to titillate or shock. "It is impossible to see how the non-sexualized depiction of buttocks for fewer than seven seconds could ever be patently offensive per FCC requirements as measured by contemporary community standards," the they argued. But there was more. The FCC was inconsistently enforcing its rules.
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