Court drops ABC fine over nudity in NYPD Blue

NEW YORK (Reuters) - A federal appeals court threw out a $1.21 million penalty against 44 ABC television stations for violating broadcast indecency standards by airing an “NYPD Blue” episode that showed a woman’s nude buttocks.

Tuesday’s decision followed the New York court’s ruling last July that the indecency policy under which the U.S. Federal Communications Commission had assessed the penalty was unconstitutionally vague.

The FCC had imposed in February 2008 a $27,500 fine against each of the 44 ABC affiliates for showing the “NYPD Blue” episode five years earlier. Walt Disney Co owns ABC.

“We are extremely gratified at the court’s clearly correct ruling,” said Seth Waxman, a partner at law firm WilmerHale and former U.S. solicitor general, who represents ABC.

Austin Schlick, the FCC general counsel, in a statement said Tuesday’s decision confirms that the earlier ruling was “excessively broad in rejecting the FCC’s ability to use context to evaluate indecency cases.”

The FCC had tightened its indecency policy in 2004 after the on-air use of profanity by U2 lead singer Bono and Janet Jackson’s breast-baring at the 2004 Super Bowl.

But the 2nd U.S. Circuit Court of Appeals, in a case involving News Corp’s Fox Television, CBS Corp and others, said in July that policy violated the First Amendment and created “a chilling effect” on broadcasts.

It later rejected an FCC request to reconsider the case.

The “NYPD Blue” episode showed Connie McDowell, a character who had moved in with detective Andy Sipowicz, disrobing as she prepared to shower and being seen by Sipowicz’s young son.

Both characters were embarrassed, and ABC said the scene was intended to show the awkwardness between a child and his father’s new romantic partner.

In Tuesday’s ruling, the appeals court found “no significant distinction” between the “NYPD Blue” case and the “fleeting expletives” at issue in the Fox case.

Tim Winter, president of the Parents Television Council watchdog group, in a statement called the latest ruling “devoid of common sense” and said it “will only serve to embolden the networks to air even more graphic material.”

The case is ABC Inc et al v. FCC, 2nd U.S. Circuit Court of Appeals, No. 08-0841.

Reporting by Jonathan Stempel; additional reporting by Jeremy Pelofsky in Washington, D.C.; editing by Derek Caney, Andre Grenon, Gary Hill