FCC Fines 52 TV Stations for Airing “NYPD Blue” Episode

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.

As an initial matter, we find that the programming at issue is within the scope of our indecency definition because it depicts sexual organs and excretory organs –- specifically an adult woman’s  buttocks. Although ABC argues, without citing any authority, that the buttocks are not a sexual organ, we reject this argument, which runs counter to both case law and common sense. 

We also find that the material is, in the context presented here, patently offensive as measured by contemporary community standards for the broadcast medium. Turning to the first principal factor in our contextual analysis, the scene contains explicit and graphic depictions of sexual organs. The scene depicts multiple, close-range views of an adult woman’s naked buttocks. In this respect, this case is similar to other cases in which we have held depictions of nudity to be graphic and explicit.    

Turning to the second factor in our contextual analysis, although not dispositive, we find that the broadcast dwells on and repeats the sexual material. We have held that repetition and persistent focus on sexual or excretory material is a relevant factor in evaluating the potential offensiveness of broadcasts. Here, the scene in question revolves around the woman’s nudity and includes several shots of her naked buttocks.  The material is thus dwelled upon and repeated.

With respect to the third factor, we find that the scene’s depiction of adult female nudity, particularly the repeated shots of a woman’s naked buttocks, is titillating and shocking. ABC concedes that the scene included back and side nudity, but contends that it was “not presented in a lewd, prurient, pandering, or titillating way.” ABC asserts that the purpose of the scene was to “illustrate the complexity and awkwardness involved when a single parent brings a new romantic partner into his or her life,” and that the nudity was not included to depict an attempted seduction or a sexual response from the young boy. Even accepting ABC’s assertions as to the purpose of the scene, they do not alter our conclusion that the scene’s depiction of adult female nudity is titillating and shocking. As discussed above, the scene includes multiple, close-up views of the woman’s nude buttocks, with the camera at one point panning down her naked back for a lingering shot of her buttocks. The partial views of the woman’s breasts, as well as the camera shots of the boy’s shocked face from between her legs and of her upper torso from behind his head, are also relevant contextual factors that serve to heighten the titillating and shocking nature of the scene. Thus, we find that the scene in question, which included repeated and lingering images of a woman naked from the back, with close-up views of her naked buttocks, presented adult female nudity in a manner that shocks and titillates viewers.

Finally, we reject ABC’s argument that, because of the “modest number of complaints” the network received, and the program’s generally high ratings, the contemporary community standards of the viewing community embrace, rather than reject, this particular material. As a matter of clarification, while ABC may not have received many complaints about the program, the Commission received numerous complaints, including thousands of letters from members of various citizen advocacy groups. The Commission’s indecency determinations are not governed by the number of complaints received about a given program, however, nor do they turn on whether the program or the station that broadcast it happens to be popular in its particular market. Indeed, with respect to the latter factor, the fact that the program is watched by a significant number of viewers serves to increase the likelihood that children were among those who may have seen the indecent broadcasts, thereby increasing the public harm from the licensees’ misconduct.

In sum, although the broadcast of nudity is not necessarily indecent in all contexts,  taking into account the three principal factors in our contextual analysis, we conclude that the broadcast of the material at issue here is apparently indecent. As reviewed above, the material in this episode was explicit, dwelled upon, and shocking, pandering and titillating. The complained-of material was broadcast by the licensees listed in the Attachment within the 6 a.m. to 10 p.m. time frame relevant to an indecency determination under Section 73.3999 of the Commission’s rules. Although ABC included in the program a warning that “this police drama contains adult language and partial nudity,” the Supreme Court has ruled that such warnings are not necessarily effective because the audience is constantly changing stations. Therefore, notwithstanding the warning, there is a reasonable risk that children may have been in the audience and the broadcast is legally actionable.