According to an attorney familiar with the case, the Second Circuit Court of Appeals set a new briefing schedule in the challenge by ABC and its affiliates of the FCC’s $1 million-plus fine against them for a 2003 episode of NYPD Blue that showed too much of a woman’s backside and side for the FCC’s liking.
Briefs by ABC and the stations are now due June 20. Those briefs had been due at the end of this week -- May 23 -- but the court had to consolidate challenges by other individual stations in other circuits, which required the court to come up with a single briefing schedule.
ABC paid a fine of $1,237,500 in February -- a step it said it needed to take so that it could go immediately to court in the U.S. Court of Appeals for the Second Circuit. That is the same court that found the FCC’s fleeting indecency policy arbitrary and capricious, but the FCC said the issue is not fleeting, but lingering, nudity.
The scene is described in the FCC ruling, portions of which were printed in the Jan. 29 Turner Report:
The complaints refer to a scene at the beginning of the program, during which a
woman and a boy, who appears to be about seven or eight years old, are involved in an incident that includes adult female nudity. As confirmed by a tape of the program provided by ABC, during the scene in question, a woman wearing a robe is shown entering a bathroom, closing the door, and then briefly looking at herself in a mirror hanging above a sink. The camera then shows her crossing the room, turning on the shower, and returning to the mirror. With her back to the camera, she removes her robe, thereby revealing the side of one of her breasts and a full view of her back. The camera shot includes a full view of her buttocks and her upper legs as she
leans across the sink to hang up her robe. The camera then tracks her, in profile, as she walks from the mirror back toward the shower. Only a small portion of the side of one of her breasts is visible. Her pubic area is not visible, but her buttocks are visible from the side.
The scene shifts to a shot of a young boy lying in bed, kicking back his bed
covers, getting up, and then walking toward the bathroom. The camera cuts back to the woman, who is now shown standing naked in front of the shower, her back to the camera. The frame consists initially of a full shot of her naked from the back, from the top of her head to her waist; the camera then pans down to a shot of her buttocks, lingers for a moment, and then pans up her back. The camera then shifts back to a shot of the boy opening the bathroom door. As he opens the door, the woman, who is now standing in front of the mirror with her back to the door, gasps, quickly turns to face the boy, and freezes momentarily. The camera initially focuses on the woman’s face but then cuts to a shot taken from behind and through her legs, which serve to frame the boy’s face as he looks at her with a somewhat startled expression. The camera then jumps to a front view of the woman’s upper torso; a full view of her breasts is obscured,
however, by a silhouette of the boy’s head and ears. After the boy backs out of the bathroom and shuts the door, the camera shows the woman facing the door, with one arm and hand covering her breasts and the other hand covering her pubic area. The scene ends with the boy’s voice, heard through the closed door, saying “sorry,” and the woman while looking embarrassed, responds, “It’s okay. No problem.” The complainants contend that such material is indecent and request that the Commission impose sanctions against the licensees responsible for broadcasting this material.