Five years later, FCC slaps ABC

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Ending a quiet period devoid of indecency findings, the Federal Communications Commission has grabbed attention again by fining 52 television stations a total of $1.4 million for the airing five years ago of an "NYPD Blue" episode containing female nudity.

The FCC said the Feb. 25, 2003, episode of the former ABC-TV cop drama, which showed a woman's buttocks and the side of her breast, was indecent because it showed sexual or excretory organs, and was "titillating and shocking."

"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 said in its ruling, issued late last week.

ABC is opposing the fine and defended the Emmy-winning drama, which aired from 1993-2005, saying episodes were preceded by parental warnings and known to have adult themes.

Television stations are barred from airing obscene and indecent material in the "safe harbor" between 6 a.m. and 10 p.m. In Pittsburgh and other East Coast markets, the episode was aired safely at 10 p.m., but the FCC got the 52 ABC affiliates on a technicality -- they were all in the Central and Mountain time zones and aired the show at 9 p.m. (It aired at 10 in the West.)

"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," said FCC commissioner Deborah Taylor Tate.

In a way, the stations were lucky to get fines of only $27,000 each, the maximum fine in 2003. In 2005, Congress raised the maximum fine to $325,000.

By reaching five years into the past to issue the fine, FCC critics said the agency is trying to flex its muscles and scare stations in middle America away from showing any possibly edgy material.

"In a lot of cases, these are very small TV stations, owned by local people in very small markets. These stations do the math [on the fines] and they have a very chilling effect -- they will tell ABC they do not want anything even near the line," said Jonathan Rintels, executive director of Washington, D.C.'s Center for Creative Voices in Media.

The ruling comes on the heels of wide-ranging FCC fines of CBS affiliates for showing Janet Jackson's breast flash during the 2004 Super Bowl, and of a PBS station in 2003 for airing an expletive during Martin Scorsese's 14-hour documentary, "Eyes on the Prize."

"The problem with the FCC is there is no line" on what exactly is indecent or profane, Rintels said. "It's a huge grey area. ... Nobody knows what is acceptable and what is not."

A federal appeals court ruled last year that the FCC could not fine stations for airing fleeting expletives, such as the language U2 singer Bono uttered during the live 2003 Golden Globes awards. (That ruling, which the government is appealing, may be stopping the FCC from fining ABC for a swear word Diane Keaton used recently on "Good Morning America.")

Nudity is another matter. The FCC said it received thousands of complaints from advocacy groups about the "NYPD Blue" episode, entitled "Nude Awakening," in which detective Andy Sipowicz's young son walks in on his father's girlfriend getting into the shower.

One of those groups is the Los Angeles-based Parents Television Council, which is "thankful that the FCC has finally taken a stand for children and families," said its president, Tim Winter. "The delay in getting here has been frustrating, but we are delighted by the decision."

That delay was due in part to court battles, but also the long history between the PTC and "NYPD Blue:" Complaints about nudity in the popular show partially led L. Brent Bozell III to form the parents TV council in 1995.

"NYPD Blue" co-creator and Carnegie Mellon University graduate Steven Bochco repeatedly thumbed his nose at would-be censors, saying before the show's 1993 premiere that it would be the first R-rated show on television. That spurred protests around the country, including one outside the studios of WTAE-TV.

Tim McNulty can be reached at or 412-263-1581.


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