Court: TV can’t be fined for ‘NYPD Blue’ nude shot

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NEW YORK (AP) - The Federal Communications Commission cannot fine broadcasters for showing a woman’s nude buttocks on a 2003 episode of “NYPD Blue,” a federal court ruled Tuesday, citing its earlier decision to strike down FCC rules regarding fleeting expletives uttered on live broadcasts as unconstitutionally vague.

The 2nd U.S. Court of Appeals in Manhattan decided Tuesday to nullify a $27,500 penalty that the FCC imposed on ABC and 45 of its affiliate stations after the image was broadcast on the police drama for less than seven seconds in February 2003. The combined fine was greater than $1.2 million.

The appeals court said its finding was consistent with its decision last year that TV stations can no longer be fined for fleeting, unscripted profanities uttered during live broadcasts.

The FCC had created its fleeting-expletive policy after a January 2003 NBC broadcast of the Golden Globe Awards in which U2 lead singer Bono uttered the phrase “f–– brilliant.” The FCC said that word in any context “inherently has a sexual connotation” and can lead to enforcement.

Fox Television Stations, owned by Rupert Murdoch’s News Corp., and other networks challenged the policy in 2006 after the FCC cited the use of profanity during awards programs that were aired in 2002 and 2003. The FCC has appealed that ruling.

In its Tuesday ruling, a three-judge 2nd Circuit panel wrote that there was “no significant distinction” between its decision in the expletives case and its findings in the “NYPD Blue” case.

“According to the FCC, ‘nudity itself is not per se indecent,’” the judges wrote. “The FCC, therefore, decides in which contexts nudity is permissible and in which contexts it is not pursuant to an indecency policy that a panel of this court has determined is unconstitutionally vague.”

In a statement, FCC lawyer Austin Schlick said the ruling confirms that the 2nd Circuit’s decision in the earlier case was “excessively broad in rejecting the FCC’s ability to use context to evaluate indecency cases.” The FCC said it has not yet decided whether to appeal.

“Children and families are the real victims today. This ruling will only serve to embolden the networks to air even more graphic material,” said Tim Winter, president of The Parents Television Council, a group that supports strong broadcast-indecency rules and which filed papers with the court before it ruled.

“In this instance, ABC intentionally chose to air a scripted visual depiction of a fully naked woman before 10 p.m. There was absolutely nothing fleeting or accidental about it,” Winter said in a statement. “The inclusion of the lengthy and ogling scene was intended to pander and titillate. This was a clear breach of the decency law. And now, nearly eight years after the episode aired, ABC is told it doesn’t have to abide by the law.”

David Kushner, a Raleigh, N.C., lawyer who represented ABC affiliates in the case, said the decision was a “nice New Year’s present” for the stations but not the end of the litigation.

“This case is far from over. I would be surprised if the FCC does not seek rehearing,” he said.

He predicted the decision would not lead to more nudity on network television, just as the decision in the fleeting expletives case has not created an avalanche of controversies over profanities on network television.

“No broadcasters are anxious to go out there and step their foot close to the line,” Kushner said.

He noted that the “NYPD Blue” episode led to fines only for stations in the Central and Mountain time zones because the show was aired on the East Coast at 10 p.m., when the rules are more relaxed, rather than 9 p.m., when it aired elsewhere.

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