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 exceeded $1.2 million.
The appeals court said its finding was consistent with its decision last year that TV stations no longer can be fined for fleeting, unscripted profanities uttered during live broadcasts.
In its Tuesday ruling, a three-judge 2nd Circuit panel found "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."
"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.
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.
In the "NYPD Blue" episode, actress Charlotte Ross, playing character Connie McDowell, disrobes as she prepares to shower after she had recently moved in with Andy Sipowicz, another character on the show. After her buttocks and the side of one of her breasts are briefly shown, the camera pans down and reveals her nude buttocks while she faces the shower.
Then Sipowicz's young son enters the bathroom and sees McDowell naked from the front, though the son blocks the audience's view of McDowell's nudity, according to a description of the scene in the court record. Each character reacts with embarrassment. The child apologizes, and McDowell, covering her private areas, responds, "It's OK. No problem."
The court said ABC said the scene was included to portray the awkwardness between a child and his parent's new romantic partner and their difficulties in adjusting to life together.