I really do mean to get these out on the weekend but they seem to pile up until I get something that I really want to talk about and then I sort of spew them out like opinions from a FOX News employee. So here goes.
Prosecutor, judge, jury, appellate court: That's a perfect definition of the FCC. They decide which complaints will be considered and which rejected (prosecutor), determine the guilt of the parties on those cases (jury), determine the penalty (judge), and then hear the appeals of those found guilty (appellate court). And worst of all, it seems like they're making it up as the go along.
Broadcast & Cable reports on the latest incident of this, the results of the "appeal" over the NYPD Blue Indecency Fine. The FCC issued their finding which upheld the fines for 40 of the 52 ABC stations on February 19th, with the requirement that the fine be paid by February 21st. This has apparently been done in such a rapid manner as to avoid the five year statute of limitations on findings in cases like this. This explains why the stations had a mere seventeen days to prepare their appeal instead of the customary thirty days, and also why the stations were given a mere 52 hours to pay the fine once the order was upheld.
As I mentioned, the FCC upheld the fines on 40 of the 52 stations cited in the original case, which means that twelve stations were exempted. In two of those cases, according to Broadcast & Cable the fact that the stations had received license renewals in the years between the original incident and the original decision on the fines meant that the statute of limitations for those stations had expired. In the case of most of the other stations, the fine was rescinded because "because the complaints had not come from the market in which the station was located." I'm not sure exactly what that's supposed to mean. Is it that "community standards" weren't offended in those markets because there were no complaints from them but were in markets where there was one PTC form letter was sent?
In defending the episode the ABC affiliates went into great detail to explain why the buttocks are neither a sexual nor an excretory organ. They also pointed out the flaws in the FCC's procedures: "the stations pointed out that the FCC proposed levying the maximum fine then allowable -- $27,500 per station -- for 'broadcasting a depiction of buttocks, for fewer than seven seconds, during the 10th season of one of the most lauded shows in television history.' They also argued that the FCC action is 'rife with procedural infirmities; is predicated on form complaints that do not satisfy the commission's own policies; proscribes material outside the scope of the commission's indecency-enforcement authority; misapplies the commission's own multifactor test for patent offensiveness; is inconsistent with the commission's governing precedent at the time of broadcast; and reaches a result that is plainly unconstitutional.'"
In response to the stations' arguments about the nature of the buttocks, the FCC made the following statement:
the depiction of an adult woman's naked buttocks was sufficiently graphic and explicit to support an indecency finding.
She is not wearing a g-string or other clothing, nor are the shots of her buttocks pixillated or obscured. Thus, the material is sufficiently graphic and explicit to support an indecency finding. Although the partial views of her naked breast from behind and from the side are not sufficiently graphic and explicit in and of themselves to support an indecency finding, they also add somewhat to the first factor's weight here.
In context and on balance, the graphic, repeated, pandering, titillating and shocking nature of the scene's visual depiction of a woman's naked buttocks warrant a finding that it is patently offensive under contemporary community standards for the broadcast medium, notwithstanding any artistic or social merit and the presence of a parental advisory and rating. Therefore, it is actionably indecent.
The American Civil Liberties Union has called the original FCC fine "paternalism at its worst." Their statement, issued at the time of the original fines stated that:
This is just another government attempt to trump our own good judgment and determine what we're mature enough to see. NYPD Blue aired well past the bedtime of most children -- at 10 p.m. in most markets. Only those affiliates that aired the program between the hours of 6 p.m.-10 p.m. would be subject to the fine, which just goes to show the fickle nature of the FCC's rules. By their logic, airing a shot of a bare behind at 10:30 p.m. is fine, but the same shot at 9:30 p.m. is worth millions in fines and penalties.
It's also worth noting that ABC included a warning before NYPD Blue indicating that the program was intended for mature audiences only. Such warnings allow audiences to decide for themselves whether they want to see the content or permit their children to see the content. Instead, the government is stepping in to chill free speech and the free expression of ideas by 'parenting the parents.'
I personally find a lot of things wrong with the FCC's ruling in the original case starting with the original definition of the buttocks as a "sexual" organ, but for me the big one has always been that the decision flew in the face of precedent, specifically the fact that the show had shown similar examples of nudity – male as well as female – in previous season without being the subject of an FCC fine. This doesn't even mention other incidents of nudity in previous years, including Meredith Baxter's bare breast in the CBS TV movie My Breast (1994). The determination to void precedent continued into the appeals process when the FCC arbitrarily chose to hold the appeals process to a total of slightly more than half the normal time (17 days as opposed to 30) – which they justified by claiming (according to Broadcast & Cable) that, "the stations had ample opportunity to respond, demonstrated by the fact, the agency added, that they did respond with their appeal, noting, '20 law firms and/or companies coordinated and responded to the NAL in one consolidated, 70-page brief, with exhibits, on behalf of the majority of ABC-affiliated stations.'" And surely the requirement that the 40 stations pay the fines within 52 hours surely has to be without precedent.
What I, as an outside observer find particularly galling though is that it is the FCC itself that is hearing the appeal of its own decision rather than some outside body that is not a party to the case. Because make no mistake about it, the FCC is a party to this case. The Commission was the organization that served as prosecutor and adjudicator in this matter. It seems the height of insanity that the FCC gets to determine that an offense occurred and then decide whether they themselves were mistaken in determining that a mistake had been made. And remember that organizations such as the PTC maintain that the television networks should not be allowed to take the appeals process beyond the FCC to the courts. There is something inherently wrong about this. Apparently someone at ABC agrees, because according to MediaWeek the network and its affiliates have launched an appeal of the FCC decision before the Second Circuit Court of Appeals in New York. No doubt the PTC will rail against ABC for appealing and the Second Circuit Court for the "fleeting obscenities" decision.
More touchiness: On a far less serious, but no less moronic note, the American Family Association – on of the PTC's running buddies on trying to sanitize the airwaves ("sanitized" being the equivalent of "do what we tell you to do or face a boycott") initiated a protest against the US TVLand network after the network began a promotion for a weekend of 1980s movies which the network was calling the "'Ohmigod That's So '80s' movie weekend." The AFA, which is notoriously anti-Gay (they are urging members to boycott Ford for "supporting homosexual groups which are pushing homosexual marriage," and call Proctor and Gamble "the top pro-homosexual sponsor on television") and pro-God, objected to the repeated use of the phrase "Ohnigod." Their press release at the time even stated that "I can't tell you how offensive it is to listen to the advertisement for this new show as they must say 'OHMIGOD' five times in thirty seconds." The press release even contained a warning that the ad aired automatically when you visited the website. The press release concluded "Disrespect for Christians and God have gone on for some time with this phrase, but now we have a network that feels it appropriate to name an entire program series with this phrase." In response TVLand changed the phrase on their website to "Ohmygosh" and deleted the offensive audio clip... from their website. As reported by website Good As You (a Gay and Lesbian site obviously opposed to the AFA and its head Donald Wildmon) what the network didn't do was to actually change the promo for the weekend on their TV commercials for it although they did pull it of the air. For all of one day (February 15th).
Yet more touchiness: The advocacy group Autism United has demanded that CBS cancel the current run of Big Brother because of a statement by contestant Adam Jasinski. At the very least they want Jasinski removed from the show. In the show's second episode Adam stated that if he won he intended to use some of the money to fund a hair salon for autistic kids saying that it would be a place where, "retards can get it together and get their hair done." When one of the other houseguests, Sheila, told him not to call them that, Adam responded by saying, "Disabled kids. I can call them whatever I want. I work with them all day, okay?" In a letter to CBS quoted by TMZ, Autism United executive director John Gilmore wrote, "Just as we are confident that CBS would not tolerate the use derogatory epithets regarding race, ethnicity, religion or sexual orientation we hope that the use of derogatory Terms for people with disabilities in [sic] also unacceptable in your programming.... While Jasinski's displayed gross ignorance, the producers of the show chose to use his comments to forward the show's storyline. This displays a conscious choice on their part to demean and hurt a large group of people to further their own commercial goals." Gilmore added in a rather bizarre paragraph that "It is appropriate I believe to note that the Holocaust began with the extermination of developmental disabled children in a secret program called Aktion T-4. The techniques, organization and personnel for Aktion T-4 went directly to run the extermination camps at Treblinka, Sobibor and others. All extermination campaigns begin with the dehumanization of the target group. And referring to developmental disabled people and people with autism as "retards" indeed fails to recognize the humanity of people with these disorders." I'm not entirely sure why it was "appropriate" to mention the Holocaust in this context. It is worth noting that this is not the first time such comments have caused controversy on the show. Last season contestant Amber Siyavus made anti-Semitic remarks directed in part against one of her fellow houseguests. She was not removed from the house. Indeed there have only been two occasions when houseguests have been removed from the show; both cases were related to violent behaviour by contestants.
Zucker out of step: Remember how Jeff Zucker was all over the entertainment blogs (including this one) and the media saying that the "upfronts" – those extravaganzas where the networks reveal their new season line-ups and shows to the world, and more importantly to the advertising agencies – were passé. That they were "vestiges of an era that's gone by and won't return," and that he expected that the other networks would follow in NBC's lead. Well turns out that none of the other networks agreed with him. By February 14th the other four networks – CBS, ABC, FOX and The CW – had all announced that they would be doing upfront presentations for the ad agencies. One has to wonder how some of Zucker's other ideas are playing out with the competition. You remember, the stuff he announced at the NATPE meetings, like doing away with pilots, and trying to develop a year-round programming schedule strategy. These were all moves that Zucker said the other networks would follow once NBC was successful with them. There's a line from The West Wing that covers this situation: "A leader without any followers is just a guy taking a walk."
Speaking of NBC dropping upfronts: They aren't. Well they are and they aren't. Maybe. Sort of. In a way. Confused? Well so am I.
See here's what happened. On February 18th TVSquad had a headline quoting AdWeek which said that NBC would be holding an upfront event after all. The trouble is that, in order to see the Adweek article you have to be a subscriber. In order to confirm the TVSquad report, I Googled "NBC + Upfronts" in the News search. Here's what I got. MediaPost states that NBC will "still hold a gathering of advertisers and others in a large hall with top Hollywood talent on display. But what's being referred to as 'a multimedia, interactive' event will not be held at its long-standing venue, Radio City Music Hall, May 12--and it will focus less on NBC and more on NBCU." However, NBC will "lay out its prime-time schedule for the full 52 weeks ahead in April," after which NBCU's sales teams will meet with advertisers in New York, Los Angeles and Chicago for further meetings about the schedule and opportunities for advertising on the NBC-Universal family of channels. The upfront – which will occur on May 12th – won't actually be an upfront but a "spotlight event."
On the other hand the LA Times stated that "NBC Universal said Tuesday that it was abandoning its spring ritual of unveiling the network's fall schedule in an expensive, star-studded presentation at Radio City Music Hall in favor of smaller meetings with advertisers in three cities, including Los Angeles. 'We are taking what has been a one-way conversation and turning it into a two-way dialogue with advertisers,' said Marc Graboff, co-chairman of NBC Entertainment. The company also plans a trade show-like 'expo' in New York on May 12, the day that had been reserved for NBC's presentation. Last month, NBC Universal Chief Executive Jeff Zucker announced the company would probably scrap its annual presentation, which he dismissed as little more than a 'dog-and-pony show.'
So is this "Spotlight Event" really an Upfront or what? I'm inclined to think of it as an "or what." After all, the advertisers at the very least will know the actual primetime schedule for 52 weeks in advance sometime in April and I can't honestly see this not leaking out to the general public before the "spotlight event." But in that case, why hold the "spotlight event?" I can't help but wonder if what the NBCU sales teams will be presenting to the advertisers might be set in something less durable than stone so that if some aspects of the schedule are received less than favourably by the ad agencies shows can be moved, or dropped entirely – remember they're selling the new shows without pilots. What is clear is that so far at least Jeff Zucker and NBC are again "just a guy taking a walk." The other networks aren't cancelling their upfront presentations because, as the LA Times pointed out, "the presentations, although expensive, help generate interest in their programs and drive sales. The annual events had been marked by advanced peeks at the new fall shows, glitzy parties and opportunities for advertisers to get their photos snapped with stars." As well, presumably, they are an opportunity to present the details of the year's schedule to all of the agencies at the same time rather than in small groups. One thing that is apparent – if nothing else is – is that no matter how you present the shows to advertisers, nothing in either process is going to save crap shows from the ultimate "critic" in such things, the viewing audience.