ABC NEEDS FULL-FRONTAL APPEAL OF 'BLUE' FINES

Ouch. ABC yesterday handed over $1,237,500 to the FCC to cover fines against two ABC O&Os and 43 affiliates for airing an episode of NYPD Blue in 2003 that the FCC had found indecent.

The network really didn’t want to, but said it had to so that it could challenge the fines in a U.S. Court of Appeals in New York, which it also did yesterday.

In its complaint, ABC contends that the FCC fines are “arbitrary and capricious, contrary to the commission’s own standards and past decisions, and in violation of the indecency statute and the First Amendment.” 

I applaud ABC and wish it well on the First Amendment appeal.

The FCC’s entire indecency regime is based on some mighty rickety notions, among them the Supreme Court’s 1978 Pacifica (“seven dirty words”) ruling.

It finds that broadcasting is a “uniquely pervasive presence” and that “it is impossible completely to avoid” broadcasts that are patently offensive.

TV and radio stations only wish their broadcasts were “impossible completely to avoid.”

The ABC lawyers will bill many, many hours at $500 per in making their case in the U.S. Court of Appeal and possibly the Supreme Court.

But all they really have to do is lift the entire dissenting opinion of Justice William Brennan in Pacifica. It’s a beautiful thing that I recommend to every broadcaster sick and tired of being treated as media’s naughty stepchild by the FCC.

Wrote Brennan: “Whatever the minimal discomfort suffered by a listener who inadvertently tunes into a program he finds offensive during the brief interval before he can simply extend his arm and switch stations or flick the ‘off’ button, it is surely worth the candle to preserve the broadcaster’s right to send, and the right of those interested to receive, a message entitled to full First Amendment protection.”

Amen, brother.

While I encourage such direct First Amendment arguments, I question others in which broadcasters pretend that they somehow don’t quite understand what the FCC means by indecency.

This is what ABC is doing when it says the NYPD Blue fines are “arbitrary and capricious” and “contrary to the commission’s own standards and past decisions.”

Such assertions ring false and undermine the real argument that it’s time for stations to be treated like the other grown-up media.

If you have not already seen it, take a look at the clip that drew the fines.

How could there possibly be anybody in ABC standards and practices who did not know that airing that clip at 9 p.m. might trigger complaints and fines?

We get two good voyeuristic shots of Ms. Ross’s rear end (the camera had to pan down for the second). And for extra measure, the director throws in Opie Taylor for a Mrs. Robinson moment.

ABC knew damn well it was pushing it.

Yet, you wait and see, the ABC lawyers will claim that they had no idea that the scene might disturb anybody at the FCC, let alone viewers of their affiliate in Tyler, Texas.

If only the FCC standards weren’t so vague and its precedents so confusing, they’ll say.

As the president might say, what a bunch of bull.

When the FCC issued the fine notices last month, Commissioner Deborah Taylor Tate told it like it is:

“The law is simple. If a broadcaster makes the decision to show indecent programming, it must air between the hours of 10 p.m. and 6 a.m. This is neither difficult to understand nor burdensome to implement.”

Yes, the law is simple. The problem is, it’s flat-out unconstitutional for the reasons that Justice Brennan laid out 30 years ago.

That’s the case that ABC must make.