FCC's "NYPD Blue" fine: The inanity of the argument indicts the process

The most entertaining parts of FCC indecency rulings are often found in the fine print of footnotes.

Tuesday's decision upholding the $1.2 million in fines the Federal Communications Commission has levied against 45 ABC affiliate stations for a 2003 seg of "NYPD Blue" is no exception (click here to read it yourself).

The FCC works itself into a lather defending its decision regarding a roughly one-minute scene in the Feb. 25, 2003 seg "Nude Awakening" featuring a close-up and pan shot of actress Charlotte Ross' bare derriere and a more fleeting sideways shot of her breasts.

The context of the scene is the awkwardness of single parenthood, as the young son of Dennis Franz' long-suffering Det. Andy Sipowicz walks in on his paramour in the bathroom as she's about to take a shower.

Reasonable people can debate whether the dramatic moment demanded that the camera linger quite as long as it did on Ross' behind. (For the curious, clips of the scene in question are readily available on Internet vid sites.) But having a governmental body declare it "patently offensive" and "shocking and titillating," and then mete out punishment to stations that chose to air the seg is squirm-inducing for many of us on an entirely different level.

Of course, the FCC is quick to note that there is a First Amendment protection that allows broadcasters to air as much indecent material as they please between 10 p.m. and 6 a.m. The ABC affiliates in question were in Central and Mountain time zones, and they brought on the FCC's wrath by carrying the "NYPD Blue" installment in what has traditionally been the last hour of primetime in those regions, instead of after 10 p.m. when children are theoretically less likely to be channel surfing.

(Tuesday's ruling upheld a decision announced last month, though the commission did drop seven stations from the original group of 52 affils that were fined because of procedural violations.)

It's true that the FCC's rules on that timing are well established, and the stations might've reasonably expected that the nude scene would bring some viewer complaints, although the seg aired before the commission really cranked up its indecency crackdown following Janet Jackson's breast flash at the 2004 Super Bowl.

It's also true that the inanity of the case is amply illustrated in the details of the arguments and counterarguments between the legal reps for the ABC affils and the commission about what constitutes "sexual or excretory organs," or the body parts that fall under the FCC's definition of indecent material. (That definition also includes discussions of those organs and their activities.)

ABC's defense in part stemmed from the anatomical argument that the buttocks and breasts are not, strictly speaking, sexual or excretory organs. The commission strip-searched its record and replied: "The commission has consistently interpreted the term 'sexual or excretory organs' in its own definition of indecency as including the buttocks, which, though not physiologically necessary to procreate or excretion, are widely associated with sexual arousal and closely associated by most people with excretory activities."

The commission further belittles ABC's tortured logic of asserting that by the vagaries of the FCC's indecency definitions, depictions of skin of any sort would qualify as an excretory organ, because of its sweat function, but body parts involved in defecation would not (don't even ask..).

All of this would be kind of amusing if it wasn't so distressing. Is these kind of semantical sparring really the kind of thing that federal regulators need to worry about? If the disclaimer at the start of the episode flagging the nudity to come wasn't enough to warn the sensitive, do we really need a federally appointed nanny to weigh in and protect the fabled "community standards" from a television show -- a much-lauded and much beloved show that told the viewing public that it was designed for broad-minded lovers of hardboiled cop fiction?!?

At some point in every FCC indecency ruling, the argument always comes back to Pacifica, the landmark 1978 Supreme Court ruling on the commission's finger-wagging George Carlin's famed "Filthy Words" radio routine. In Tuesday's 32-page decision, that point arrives in Footnote 33.

"We note," the footnote notes, "for instance that according to the logic of ABC affiliates, two of the seven 'Filthy Words' in the Carlin monologue at issue in Pacifica -- 'shit' and 'tits' -- would not appear to fall within the subject-matter scope of our indecency definition." Perish the thought.

Elsewhere in the ruling, in hammering home the point that the ABC affils' stand on the technicalities of what constitutes a sexual or excretory organ is pretty darn silly, the commission does at least offer one reassuring statement about the limits of its mandate.

"The purpose of indecency regulation, obviously, is not to regulate procreation or excretion, so we do not think a technical physiological definition is appropriate."