Monday, January 28, 2008

Fine For A Five Year Old Show

Warning: At the conclusion of this post I will be including a YouTube clip of the scene from NYPD Blue which caused 50 ABC stations to be fined a total of $1.43 million. This scene includes nudity, specifically Charlotte Ross's bare buttocks and the side of one of her breasts. It is presented here not to titillate but to illustrate. Obviously do not click on the play button if you are under the age of majority where you live, or feel that you might be offended by nudity.

I am absolutely incensed at the most recent absurdity to come from the American Federal Communications Commission. On Friday the Commission, levied a fine against fifty-two ABC stations in the Central and Mountain Time Zones for airing an episode of NYPD Blue which included a nude scene featuring Charlotte Ross. The scene was deemed to be "indecent" according to the existing regulations which defines material as being indecent if it, "in context depicts or describes sexual or excretory activities or organs in a patently offensive manner as measured by contemporary community standards for the broadcast medium." The fine levied was the 2003 maximum of $27,500 per station for a total fin of $1,430,000. Based on the current allowable fines, ABC would have been fined nearly $17 million if the episode in question ran today.

In their decision the Commission stated:

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.

FCC commissioner Deborah Taylor Tate wrote in a statement that accompanied the announcement of the fine that:

Our action today should serve as a reminder to all broadcasters that Congress and American families continue to be concerned about protecting children from harmful material and that the FCC will enforce the laws of the land vigilantly. In fact, pursuant to the Broadcast Decency Act of 2005, Congress increased the maximum authorized fines tenfold. 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.

In response to the FCC fine an ABC press release stated:

'NYPD Blue,' which aired on ABC from 1993-2005, was an Emmy Award-winning drama, broadcast with appropriate parental warnings as well as V-chip-enabled program ratings from the time such ratings were implemented. When the brief scene in question was telecast almost five years ago, this critically acclaimed drama had been on the air for a decade and the realistic nature of its storylines was well known to the viewing public. ABC feels strongly that the FCC's finding is inconsistent with prior precedent from the Commission, the indecency statute and the First Amendment, and we intend to oppose the proposed fine.

According to the New York Times report on this, "Obscene speech has no constitutional protection, but indecent speech does. Under the law, FCC rules and court decisions, the commission can fine broadcasters for airing indecent speech outside of the 10 p.m.-6 a.m. safe harbor."


Okay, that was the "newsy" part of this, now the editorial part. The FCC is yet again kowtowing to social conservative special interest groups like the Parents Television Council and the American Family Association while using what can best be described as an elastic yardstick to determine what is and is not acceptable. As ABC pointed out in their press release, the FCC finding is "inconsistent with prior precedent from the Commission" which has not in the past found episodes where bare buttocks were shown to be "indecent." And there have been plenty of those episodes starting with the very first episode of the series in which we saw Sherry Stringfield in a nude scene with David Caruso. This was almost ten years before the Charlotte Ross nude scene, and let's just say that the Stringfield-Caruso nude scene would probably be considered a lot closer to most people's definition of indecency than the Charlotte Ross scene (Caruso's character John Kelly and his ex-wife – Stringfield's character – make love). That is ten years of precedent saying that it is acceptable to broadcast images like that, and not just after 10 p.m. Why? Because throughout the show's TV lifetime, NYPD Blue has always aired at 10 p.m. Eastern and Pacific and 9 p.m. Central and Mountain, and while there have been findings with regard to the show on the grounds of language there have not been such findings in terms of nudity.. Are we to believe that it is only the 2003 episode, titled "Nude Awakenings" that has ever been actionable? Or are we to believe that the FCC has, in an arbitrary manner, changed its policy without bothering to tell anyone until it was time to hand out fines?

The episode of NYPD Blue aired in the US had both an appropriate ratings icon, V-Chip information, and an announcement about the content of the episode before the show started. I had a quote (but for the life of me I can't find it anywhere anymore) in which the FCC acknowledged the warning but added that anyone who tuned in late would not know to expect nudity. The big problem I have with this claim is that the particular clip cited came immediately after the announcement was made; it was part of the teaser for the episode and was shown just after the announcement and just before the opening credits. It is difficult to believe that someone could have such split second timing as to see all or part of this scene, which runs for about one minute and forty five seconds, without hearing the warning. And again what about the ten years of shows that preceded this one where nudity was shown well after the announcement occurred?

I also find the timing of this to be more than a little strange. The episode of the show first aired in February 2003, and the decision on the matter has taken the Commission nearly five years to make? Let me just remind you that the commission (then headed by Michael Powell) made their decision on the Janet Jackson case quickly. In the Without A Trace "teen orgy" case the show was broadcast in December 2004 and the decision was released in March 2006, a gap of fifteen months. Why did it take the FCC near 60 months to make a decision on the NYPD Blue nudity situation.

I'm a Canadian, and in Canada this sort of incident would pass without notice. The Canadian Association of Broadcasters, described as the "national voice of Canada's private broadcasters" has established the Canadian Broadcast Standards Council as an independent, non-governmental organization to administer standards established by Canada's private broadcasters (in other words it does not deal with CBC or Societé Radio Canada). The national broadcast regulator – the Canadian Radio-television and Telecommunications Commission or CRTC – only becomes involved in censorship issues in the most egregious cases. Section 10a of the CBSC Code of Ethics says this:

Programming which contains sexually explicit material or coarse or offensive language intended for adult audiences shall not be telecast before the late viewing period, defined as 9 pm to 6 am. Broadcasters shall refer to the Voluntary Code Regarding Violence in Television Programming for provisions relating to the scheduling of programming containing depictions of violence.

That may seem to cover the situation in the case of NYPD Blue but precedent – specifically a decision on the airing of the movie Strip Tease by Quebec broadcaster TQS – is more explicit. In that decision the Quebec Regional Panel of the CBSC stated:

While acknowledging that the showing of bare breasts on strip tease dancers was intended by the filmmaker to be sexual, the Council considers that the absence of sexual contact or lovemaking in the film rendered it, to all intents and purposes, sufficiently innocent that there would not even be a requirement that its broadcast occur only in a post-watershed time frame. Moreover, by airing the film in a family-viewing period (at 8:00 p.m.) with appropriate advisories and the rating icon established by the Régie du Cinéma, the broadcaster had provided sufficient opportunity for those who might prefer not to see the film or not to have it available for their families to make that choice.

By this standard the NYPD Blue scene would not be considered indecent because there is an absence of "sexual contact or lovemaking." In fact this scene could probably be described as the most mundane thing in the world. This is a woman who gets up before her boyfriend (Andy Sipowicz, played by Dennis Franz, who had at least two nude scenes during the course of the series – talk about obscenity!) and his five year old son to have a shower before going off to work. She is surprised, shocked and visibly embarrassed – almost to the point of humiliation – when the son comes into the bathroom which she hasn't locked because she's used to living alone. She desperately tries to cover her nakedness. End of scene.

In addition to the earlier watershed hour that the Canadian system maintains, the CBSC maintains what I consider to be a sensible standard. In a 2001 decision related to Sue Johanson's Sunday Night Sex Show the Council stated:

While straightforward on one level, the scheduling issue is ultimately far more complex in the geographically huge Canadian context. The provisions in the Violence Code, which have been extended to be applicable to all forms of adult-oriented programming, are absolutely clear. On the one hand, programming intended for adult audiences must be shown post-Watershed. On the other hand, an exception is provided for signals originating in a time zone other than that in which it is received pre-Watershed. In such a case, the Code provides that the broadcaster is to be judged by the respect for the Watershed shown in the time zone in which the signal originates.

This decision applies primarily to cable channels. It puts the onus on the networks covered by the CBSC to hold shows with sexual content until after the Watershed period at the local station level. In the United States the networks do not and never have operated in this manner. Is it realistic to expect them to change the viewing habits of their audience by changing from "8 p.m. Eastern; 7 p.m. Central and Mountain" after sixty years of broadcasting? More really since this is a holdover from old time radio. But then again, the nudity in this episode of NYPD Blue wouldn't have been considered either sexually explicit in Canada.

Speaking as an outsider looking in at the US system of broadcast regulation, I have to say that it seems to be broken. Sensible precedents, developed over a course of fifty years have been discarded under pressure from social conservatives and a Federal Communications Commission packed with social conservatives (regardless of their party stripe) all appointed by an adherent to the social conservative agenda, George W. Bush. It is a commission where the definitions of "obscene" and "indecent" seems to be entirely that "it's indecent because we say that it's indecent and we say that it's indecent because it is obviously indecent." The only way in which the scene in question is indecent is if you consider any depiction of the human body to be indecent. There is certainly no sexual context in this particular sequence and certainly scenes that had more sexual context from this show were not fined by the FCC. But of course that was before the social conservatives took over the FCC. Now, the FCC takes that part of their mandate that speaks of "community standards" and takes it to mean the standards of the more conservative elements within the American community. And the rest of the industrialized world, Canada included, looks on in bewilderment and what the fuss is all about.

Warning: The YouTube clip that follows is scene from NYPD Blue discussed in this post, which caused 50 ABC stations to be fined a total of $1.43 million. This scene includes nudity, specifically Charlotte Ross's bare buttocks and the side of one of her breasts. It is presented here not to titillate but to illustrate. There is no sound with this clip (there was a broblem with the original poster). Obviously do not click on the play button if you are under the age of majority where you live, or feel that you might be offended by nudity.

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