Fox Indecency Reversal May Have Import for ‘NYPD Blue,’ FCC Says
An appeals court’s recent reversal of an FCC finding that unscripted curse words aired during prime time broadcasts are indecent could be applied to another case involving the appearance of a woman’s buttocks, the U.S. government said. The case on fleeting swear words reversed by the 2nd U.S. Circuit Court of Appeals in New York (CD July 14 p1) wasn’t on the subject of scripted airing of nude adults, as occurred in the 2003 NYPD Blue episode now at issue. Yet the three-judge panel’s decision on Fox v. FCC “does not turn on such distinctions,” said the government’s brief.
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The 2nd Circuit asked parties to weigh in on the impact of Fox on its consideration of ABC’s appeal of the commission’s fines in NYPD Blue. The fines against several dozen ABC affiliates totaled about $1.2 million. Responses to the court from the government and broadcasters were made late Monday. The government’s filing came as a disappointment to a group that asks members to make indecency complaints to the FCC, while a broadcast lawyer whose worked on other indecency cases said it shows the far-reaching impact of the Fox decision.
"Because the contextual framework the Commission applied in Fox is the same one it applied in this case, the Fox decision appears to suggest that the Commission’s indecency policy is unconstitutionally vague even as applied to the very different facts of this case,” said the government’s filing. “Because of the substantial adverse consequences of the Fox panel’s decision for federal broadcast indecency enforcement and the decision’s inconsistency with precedent of the Supreme Court, this Court, and other courts of appeals, the interested agencies of the Federal Government are considering whether to file a petition” for a rehearing, which is due Friday, the brief said. Signers included FCC General Counsel Austin Schlick and Assistant Attorney General Tony West. They asked the 2nd Circuit to not act on the merits of the ABC case until a rehearing petition in Fox is resolved.
The 2nd Circuit could overturn the NYPD Blue fines without weighing constitutional issues because of procedural errors the commission made, the ABC affiliates group and many broadcasting companies said jointly. They said the FCC order’s finding that showing the buttocks of a woman for seven seconds during an hour-long show in a non-sexualized way would be arbitrary and capricious even if the indecency policy was valid. The order is based on “nothing more than ‘form’ e-mail complaints generated by a political advocacy group several months (and, in some cases, several years) after the broadcast of the program -- ‘complaints’ that, on their face, revealed no basis for concluding that they were filed by bona fide viewers of the challenged program who had actually watched the program on the stations that were cited,” said the filing. When lawyers for Fox affiliates that aired a Jan. 3 episode of American Dad that received more than 100,000 viewer complaints asked the regulator for copies of complaints directed at specific stations, they were told to file a Freedom of Information Act request, the filing said. It also was signed by Gray Television, McGraw-Hill, Media General, Nexstar, Hearst-Argyle Television, the Washington Post Co.’s TV unit, Scripps Media, Tribune and Young Broadcasting.
"The FCC had assumed the mantle of ’super editor’ of scripted broadcast television programming by, among other things, attempting to assess ‘artistic necessity,'” said CBS. The 2nd Circuit should find in the NYPD Blue case as it did in Fox, the broadcast network said. The Fox case had been remanded to that court from the Supreme Court, which upheld the FCC’s fleeting expletive policy. Fox Television Stations (FTS) and NBC Universal also asked the court to overturn the FCC’s NYPD Blue order. “Although the specific broadcasts at issue in FTS involved the use of fleeting expletives, the court’s holding is not limited to such cases,” the broadcast networks said of the Fox ruling. “At a minimum, the FTS decision clearly extends to programs, like the NYPD Blue episode at issue here, that involve allegations of very brief visual indecency."
The government’s filing “is stunningly disappointing” primarily “because they make no effort to actually address the issues that the court asked to be briefed on,” which was the impact of Fox on ABC v. FCC, said Parents Television Council Policy Director Dan Isett. “Rather than answer that question, they essentially punt on the whole thing and say the first ruling controls this proceeding, when it doesn’t, because of the very different nature of the two cases.” Of broadcaster contentions that filings made at the behest of groups such as the council by people who didn’t watch the show live, “of all of the many specious arguments that the networks have made in these proceedings, which go back years now, this is probably the weakest one,” Isett said. “They are trying to contend that unless a communication happens in a way that they like, people don’t have a First Amendment right to petition the government."
The FCC seems to be “laying the groundwork for a petition for rehearing rather than addressing the impact” of Fox on the NYPD Blue case, said industry lawyer John Crigler of Garvey Schubert. “They were essentially conceding that the court’s decision would gut the entire indecency regime” rather “then arguing it’s just related to isolated utterances” of curse words, he continued. “It’s not too hard to assess its impact on NYPD Blue: I think they talked about that because otherwise there wasn’t anything to talk about.”