FCC Fines Far Fewer Fox Stations for Indecency

The total fell because the order excluded any station subject to complaints only from people who lived outside its reach. Some commissioners were upset that the order didn’t limit fines to stations drawing complaints from people who had watched the show as it aired, a commission official said. Fox said almost all the complaints it reviewed seemed to be from Parents Television Council members, who didn’t appear to have seen the show when aired. WTVT Tampa, Fla., was the only station named in a complaint by someone claiming to have seen the show when it ran, the network said. Fox argued that the fine violated its First Amendment rights. “We reject these arguments, but, for the reasons explained above, confine our forfeiture action to those stations about which we received indecency complaints,” said the FCC. “Consistent with our policy of restrained enforcement in indecency proceedings, we have limited the instant forfeiture order to stations in markets from which we received indecency complaints about the subject episode.”

The agency rejected Fox’s argument that the show wasn’t indecent. Fox said the scene in question was fleeting because the stripper footage ran 10.5 seconds. But related scenes ran 6 minutes, “which is not fleeting as we have construed that term,” the commission said. “Indeed, the scenes in question were imbued throughout with highly charged sexual content.” The show included scenes at Las Vegas bachelor parties whose participants licked whipped cream from strippers’ breasts and other body parts. Fox affiliates had said they shouldn’t be fined because the scenes didn’t show intercourse. “While it was true that the nude female breasts and buttocks shown were pixelated, the Commission has never held that the full exposure of sexual or excretory organs is required,” the order said.

“The party scenes were graphic in their depictions of strippers luring partygoers into engaging in sexual behavior,” the order said. “They included the thrusting of a male stripper’s crotch into a woman’s face, a topless female stripper performing a lap dance for one of the grooms-to-be, a topless female stripper spanking with a whip or a belt the buttocks of a topless man who is on all fours and a female stripper cupping her own bare breasts and puckering her lips.”

Fox stations have 30 days to pay the fines, as is standard in FCC indecency cases, which come under a five-year statute of limitations. Tuesday, that statute caused the FCC to give 45 ABC stations only two days to pay an indecency fine over a February 2003 episode of NYPD Blue. Under the law, the agency only had until Monday to collect the ABC fines and to sue any stations failing to pay. ABC paid the fine. In the Fox case, the FCC has until April 7 to find a U.S. Attorney to sue stations that don’t pay.

The difference between the cases lies in how long it took commissioners to approve the fines. The NYPD Blue forfeiture order sat on the eighth floor for almost two years before it was approved 5-0. In contrast, FCC Chairman Kevin Martin was able to get commissioners to vote quickly on the Married by America order he circulated Feb. 12 to ensure that the statute wouldn’t expire, said agency officials.

Fox “strongly disagrees” with the FCC’s conclusions in its Married by America order, said a spokesman. “We will be actively considering our options,” he added, declining to elaborate. -- Jonathan Make

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The Supreme Court should consider a challenge to FCC indecency policy because a lower court’s remand has far- reaching implications, wrote U.S. Solicitor General Paul Clement. In a recent filing with the high court for the federal government, he contended that the 2007 remand by the 2nd U.S. Circuit Court of Appeals in New York went beyond administrative issues. It said the FCC violated the Administrative Procedure Act by failing to inform broadcasters that the agency would fine them for airing a single curse during an entire program (CD June 5 p1). Because that ruling didn’t raise constitutional issues and instead focused on FCC procedures, broadcast lawyers have said they think the high court is unlikely to take up the case. But Clement wrote that the remand was “hardly a ‘garden variety’ ruling, as Fox argued, or “routine,” as NBC contended. The 2nd Circuit “made clear that it was not simply sending the case back to the Commission for some APA housekeeping,” Clement wrote. “Rather, it believed that the Commission’s regulation of indecent broadcasts… suffered from fundamental defects that no amount of explanation could cure.” The court has said it may decide Feb. 29 whether to hear oral arguments on FCC v. Fox.

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The Parents Television Council asked the FCC to fine NBC stations that aired a Feb. 15 episode of Las Vegas that included nudity. The group filed an indecency complaint against broadcasters that showed the episode starting at 9 p.m. Central and Mountain, it said Friday. In the show, three women at a casino stripped until they were naked, the group said. “Their buttocks are visible, and only shadows obscure their breasts and groins.” A spokeswoman for NBC Universal didn’t respond to messages seeking comment. Last week, the FCC fined 45 ABC stations $1.24 million total for showing footage of a woman’s buttocks during an episode of NYPD Blue. The network appealed the case to the 2nd U.S. Court of Appeals in New York (CD Feb 22 p2). Council President Tim Winter said Friday the network’s decision to appeal the case was at odds with the wholesome image put forth by its corporate parent: “I never thought I would see the day when Walt Disney’s company appealed to a court of law for the right to air graphic sexual content in front of children.”