Appeals court tosses FCC fine for nudity on 'NYPD Blue'

The Second Circuit Court of Appeals has thrown out a $1.4 million fine against ABC for airing a 2003 episode of "NYPD Blue" that contained nudity.

The court issued a nonprecedential summary judgment on Tuesday that found the Federal Communications Commission (FCC) relied on an "unconstitutionally vague" indecency policy for determining when nudity should be considered obscene when it fined 52 ABC affiliates for the incident.

The same court struck down the FCC's indecency rule in July in response to a lawsuit from Fox, arguing the commission's policy of fining broadcasters for expletives uttered on live television results in self-censorship.

ABC responded to the July ruling by asking the court to throw out the fine leveled against its affiliates for airing a 2003 episode of "NYPD Blue" that contained a shot of actress Charlotte Ross's bare behind. ABC issued a statement praising the decision on Tuesday.

In August the FCC filed a brief with the court acknowledging the Fox decision would likely apply to scripted shows such as "NYPD Blue."

The FCC is already appealing the Fox decision and expects the case to reach the Supreme Court, making it unlikely they will pursue the "NYPD Blue" case separately. The Supreme Court upheld the FCC's policy in 2009 on procedural grounds but did not address the constitutional issues at stake.

TV Watch, a coalition of networks (not including ABC) and advocacy groups that opposes the government's crackdown on indecency, cheered the decision.

“Today’s decision by the court is further evidence that the highest authority on family television viewing is parents and not the government. Eighty-seven percent of parents agree according to our research," said TV Watch Executive Director Jim Dyke.

"Parents already have tools such as the V-Chip and content ratings to help them make decisions based on their own taste, values and style.”

The Parents Television Council, which has been the driving force behind the Commission's push to regulate "fleeting" expletives and nudity on television, told Broadcasting and Cable that the decision was disappointing, if not unexpected.

"I am not sure if it is a surprise [given the Fox decision], but certainly it is disappointing," PTC director of public policy Dan Isett said. "I think it lays bare what we have been saying about the [Fox] fleeting expletive case, which was that what was at stake was not the narrow issue of fleeting profanity but the whole indecency regime."

The Commission's appeal of Fox will likely focus on the Court's decision in FCC v. Pacifica Foundation, which gave the FCC the power to regulate broadcasts during hours children are likely to be watching or listening.

That case concerned a broadcast of comedian George Carlin's famous "Seven Dirty Words" routine, which formed the basis for much of the FCC's enforcement policy during the next decade.

The Pacifica decision also found context is vital to determining when content is indecent, while the FCC's brief claimed the appeals court's decision would force the commission to return to a list of banned words or something similar that ignores context when deeming something profane.