The broadcasts at issue took place prior to 10 p.m. — outside of the “safe harbor” the FCC provides for the broadcast of “indecent” speech over the airwaves. The FCC defines indecent speech as “material that, in context, depicts or describes sexual or excretory activities or organs in terms patently offensive as measured by contemporary community standards for the broadcast medium.”
According to the FCC’s description of the scene in question, the allegedly indecent depiction involved a scene in which a young boy surprises a woman as she prepares to take a shower.
“As an initial matter, we find that the programming at issue is within the scope of our indecency definition because it depicts sexual organs and excretory organs — specifically an adult woman’s buttocks,” the FCC stated in its notice published Monday.
The FCC rejected ABC’s argument that the buttocks “are not a sexual organ,” stating that ABC’s assertion “runs counter to both case law and common sense.”
The FCC further stated that it found the scene’s depiction of adult female nudity “titillating and shocking,” despite ABC’s contention that the scene was “not presented in a lewd, prurient, pandering, or titillating way.”
“ABC asserts that the purpose of the scene was to ‘illustrate the complexity and awkwardness involved when a single parent brings a new romantic partner into his or her life,’ and that the nudity was not included to depict an attempted seduction or a sexual response from the young boy,” the FCC stated in its notice. “Even accepting ABC’s assertions as to the purpose of the scene, they do not alter our conclusion that the scene’s depiction of adult female nudity is titillating and shocking. [T]he scene includes multiple, close-up views of the woman’s nude buttocks, with the camera at one point panning down her naked back for a lingering shot of her buttocks.”
In a statement that accompanied the FCC’s notice, commissioner Deborah Taylor Tate said that the FCC’s action “should serve as a reminder to all broadcasters that Congress and American families continue to be concerned about protecting children from harmful material and that the FCC will enforce the laws of the land vigilantly.”
“The law is simple,” Tate said. “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.”
While Tate might consider the law “simple,” Reed Lee, an attorney with J.D. Obenberger and Associates and a Free Speech Coalition board member, told XBIZ that the FCC’s application of the indecency standard to the NYPD Blue broadcast in question was “a stretch,” even under the FCC’s own definition of “indecent.”
“First of all, buttocks are not sex organs, and that’s a clear problem,” Lee said. “That’s the stretch they’re making; they have to fit it into their own language, and their own language doesn’t really match.”
Lee said that the problem lies in the fact that the FCC’s desire is to “impose a level of decorum on broadcasting that goes beyond what the 1st Amendment allows.”
Lee added that part of the problem confronting the FCC is that while its broadcast indecency provisions have long been “couched in the context of trying to restrict references to bodily functions and sexual activities,” in many of its recent actions it has tried to extend the rules to speech that clearly does not involve bodily functions or sexual activities.
“This is just like when [U2’s] Bono said ‘fucking brilliant’ on the air, and the FCC jumped up and said ‘Oh, that’s a reference to sexual activity,’” Lee said. “Well, clearly ‘fucking brilliant’ wasn’t a reference to sexual activity. We all know that in different contexts and at different times, the same word has different meanings. The truth is that what the FCC really wants is to maintain a level of decorum for broadcast content that doesn’t allow for those words to be uttered in any context — and that’s where they run into problems with the 1st Amendment.”