The excitable FCC

The Federal Communications Commission has decided to fine ABC stations that aired a 2002 episode of "NYPD Blue" the highest indecency fine possible at the time, meaning that 51 individual stations must pay $27,500 each. The stations include all those owned by ABC directly and affiliates that were the subject of a viewer complaint to the commission over the episode.

We know that the FCC is always anxious to play school-marm and punish broadcasters that it thinks act inappropriately, but two things stand out about this opinion.

First, the FCC finds that a view of a "naked buttock" is an indecent showing of a "sexual organ" and that arguing against that decision, as ABC did, "runs counter to both case law and common sense." (The case law in question actually never says that a buttock is a sexual organ, but why get technical?)

Second, the opinion shows that the FCC has learned how to ignore the First Amendment implications of directly regulating speech and expression and (probably) get away with it. The finding pays lip service to the notion that the First Amendment implications mean it should tread softly.

At the same time, however, the Commission must be mindful of the First Amendment to the United States Constitution and Section 326 of the Act, which prohibit the Commission from censoring program material or interfering with broadcasters’ free speech rights. As such, in making indecency determinations, the Commission proceeds cautiously and with appropriate restraint.

Having acknowledged this, clearly for the sole purpose of being able to tell an appellate court that those interests were taken into account, the commission is then free to take a standard meant to punish "explicit" depictions of "sexual or excretory organs or activities" that "pander," "titillate" and "shock" and apply them to an image of the back of a nude woman. The ability to take a very narrow standard and make it apply to any conduct the commission finds offensive shows just how far the FCC has overreached.