Showing seven seconds of gluteus maximus on TV doesn’t merit a maximum fine from the FCC, an appeals court ruled this morning.
The U.S. Second Circuit Court of Appeals unanimously tossed out the $27,500 penalty imposed on each of 44 ABC affiliates over a 2003 broadcast of “NYPD Blue.”
The episode, titled “Nude Awakening,” featured shots of actress Charlotte Ross’s rear end as she prepared to step into the shower.
Although ABC insisted the scene was “entirely nonsexual,” the FCC slapped the stations — all located in the Central and Mountain time zones — for broadcasting “indecent material” between 6 a.m. and 10 p.m.
Today’s ruling cited an decision earlier this year that struck down the indecency policy as “unconstitutionally vague” over a case involving Cher slamming her critics with the F-word during the 2002 Billboard Music Awards show on Fox.
“Although this case inolves scripted nudity, the case turns on an application of the same context-based indecency test,” the three-judge panel wrote in an unsigned opinion.
The judges also noted that the FCC has said that “nudity itself is not per se indecent.”
“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,” their ruling says.
In a statement, FCC General Counsel Austin Schlick said:
“By striking down the FCC’s NYPD Blue order on the basis of the Fox case, the Second Circuit’s decision confirms what we have already said: The court’s Fox decision was excessively broad in rejecting the FCC’s ability to use context to evaluate indecency cases.”



