UPDATE: 2d Cir. Overturns 'Cheeky' FCC Indeceny Fine Against ABC

Image via WikipediaIn ABC v. FCC (Case No. 08-0841), the U.S. Circuit Court of Appeals for the Second Circuit this week vacated a Forfeiture Order issued by the FCC in February 2008, against ABC and 44 of its affiliate stations that aired the naked buttocks of actress Charlotte Ross for seven seconds in a February 2003, episode of NYPD Blue.

Ia a 9-page decision, the appellate court followed up on its ruling last July in Fox Television Stations, Inc., v. FCC (Case No. 06-1760) that the FCC's indecency policy regarding "fleeting expletives" was unconstitutionally vague and violated the First Amendment. (See "TUOL" post 7/13/10.) Alluding to its earlier Fox ruling regarding the FCC's context-based indecency test, the Court 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 constitutionally vague."

The NYPD Blue episode, Nude Awakening, featured a scene in which Ross' Connie McDowell character is preparing to shower when her detective boy friend, Andy Sipowicz's (Dennis Franz) young son walks in on her, thereby getting a view of frontal nudity that the audience was denied. The FCC received complaints about the episode showing Ross' backside (none from the devoted "TUOL" staff) and imposed a $27,500 penalty-- $13,750 per buttock--against each of ABC's 44 affiliate stations that aired the 9 p.m. episode for an aggregate $1.21 million penalty. Under the FCC's so-called safe haven rule, indecent material may not be broadcast between 6 a.m. and 10 p.m.

The 2d Circuit, however, found the FCC's nudity policy that determined that showing a woman's naked buttocks was indecent was unconstitutionally vague and overturned the fine.