Franz butt OK, but female behind rears up $1.4 million fine for NYPD Blue

By Alex Ben Block

HOLLYWOOD, CA (Hollywood Today) 1/25/08 – It’s Alice in Wonderland time again in Washington. An agency of the federal government has ruled that the female buttocks are a sex organ. On the basis of this absurd conclusion, along with an unrealistic view of community standards, and a handful of complaints drummed up by a conservative advocacy group, the Federal Communications Commission on Friday fined 51 local TV stations across the Midwest and West which are ABC affiliates $27,500 each, or a total of $1.43 million.

Dennis Franz may have made his name with the same stunt on the acclaimed drama, yet the GOP dominated federal agency ruled that a brief glimpse of a woman’s butt on NYPD Blue is obscene, and imposed the hefty fine on ABC, which says it will oppose the ruling.

Their crime was airing a brief glimpse of a woman’s rear end, in the context of a dramatic story, on an episode of the award-winning series “NYPD Blue” five years ago, even though ABC ran frequent on-screen warnings.

“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,” wrote the FCC in its decision. “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….We also find that the material is, in the context presented here, patently offensive as measured by contemporary community standards for the broadcast medium.”

This occurred Feb. 25, 2003, when about three quarters of American TV homes already had either cable TV or satellite TV, over which the FCC has no control. In those homes, shows air with a great deal more than a glimpse of butt, but it is beyond the control of the blue noses anointed by the Bush administration to carry out its social conservative agenda. So they take their frustration out on the broadcast networks.

This holier than thou B.S. is only the latest outrage from the FCC under a Republican majority led by Kevin Martin, a former White House aide who has offended many with his high handed manner. Only a few weeks ago Martin rammed through the FCC a rule change allowing cross-ownership of newspapers and TV stations in the same markets (at least in the 20 largest cities). The vote was called and taken with an unusually short comment period for those opposed to speak against the measure.

The FCC had sat on a number of indecency cases for months, after being chastised by a Federal Court for their ruling on brief bits of obscene language in programming.

This past June, the he FCC’s complaint against Fox have been thrown out and its “fleeting expletives” policy as currently defended found to be” arbitrary and capricious” by a federal court.

The court said the FCC’s “fleeting expletives” policy did not pass muster because the commission had failed “to articulate a reasoned basis for its change in policy.” The ruling was a reaction to the FCC’s action to fine Fox for incidents on two Billboard Awards show broadcasts that were found to be profane, and indecent, because they allowed versions of the words “fuck” and “shit” to air between 6 a.m. and 10 p.m. when the government believes children are watching.

Fox had made the case that under FCC policy from 1975 until 2004, neither of their broadcasts would have been considered obscene for the fleeting, unintended use of such words.

Now one week before broadcasters are to appeal to the Supreme Court a lower-court decision condemning the agency’s fleeting profanity enforcement, the FCC has made public the ABC ruling. It also comes only one week before the Super Bowl and the fourth anniversary of the show on which Janet Jackson bared her breast briefly, which resulted in dozens of CBS stations being fined. That case is also under appeal.

There is also irony in that the FCC in the past went after NYPD Blue for use of strong language. The FCC reversed itself in a profanity case brought against NYPD Blue for using the words “bullshit,” “dick,” and “dickhead.”

This time ABC is the target and the First Amendment is the victim. The network has every right to be outraged. Here is the statement ABC issued on Friday in response: “’NYPD Blue,’ which aired on ABC from 1993 to 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.”

An ABC spokeswoman said on Friday that they will appeal the ruling to the FCC before a deadline of Feb. 11, 2008. However, ABC declined to say whether they would go to the Federal courts for further appeal if the FCC upholds its own ruling, which is likely.

The scene in question is part of a story about the difficulty a single parent has when they date and have overnight guests in the same house as a child.

Here is an edited version of how the FCC almost breathlessly described the scene in the complaint: “A woman wearing a robe is shown entering a bathroom, closing the door, and then briefly looking at herself in a mirror hanging above a sink.…she removes her robe, thereby revealing the side of one of her breasts and a full view of her back. The camera shot includes a full view of her buttocks and her upper legs as she leans across the sink to hang up her robe.”

Sound like a passage from a romance novel? Read on, and remember, this is a Federal legal document.

“She walks from the mirror back toward the shower. Only a small portion of the side of one of her breasts is visible. Her pubic area is not visible, but her buttocks are visible from the side….

“The scene shifts to a shot of a young boy lying in bed, kicking back his bed covers, getting up, and then walking toward the bathroom. The … woman, who is …naked in front of the shower, her back to the camera. The frame consists initially of a full shot of her naked from the back, from the top of her head to her waist; the camera then pans down to a shot of her buttocks, lingers for a moment, and then pans up her back. The camera then shifts back to a shot of the boy opening the bathroom door…The woman, who is now standing in front of the mirror with her back to the door, gasps, quickly turns to face the boy, and freezes momentarily.”

You can almost hear the panting from the FCC screening room. The filing continues:

“The camera initially focuses on the woman’s face but then cuts to a shot taken from behind and through her legs, which serve to frame the boy’s face as he looks at her with a somewhat startled expression. The camera then jumps to a front view of the woman’s upper torso; a full view of her breasts is obscured, however, by a silhouette of the boy’s head and ears. After the boy backs out of the bathroom and shuts the door, the camera shows the woman facing the door, with one arm and hand covering her breasts and the other hand covering her pubic area. The scene ends with the boy’s voice, heard through the closed door, saying “sorry,” and the woman while looking embarrassed, responds, “It’s okay. No problem.”

And then everyone has a cigarette.

The FCC had to judge it based on the following criteria: (1) the explicitness or graphic nature of the material; (2) whether the material dwells on or repeats at length depictions or descriptions of sexual or excretory organs or activities; and (3) whether the material panders to, titillates, or shocks the audience.

Here is what the FCC ruled:

1. We find that the material is, in the context presented here, patently offensive as measured by contemporary community standards for the broadcast medium. Turning to the first principal factor in our contextual analysis, the scene contains explicit and graphic depictions of sexual organs. The scene depicts multiple, close-range views of an adult woman’s naked buttocks. In this respect, this case is similar to other cases in which we have held depictions of nudity to be graphic and explicit.

2. Turning to the second factor in our contextual analysis, although not dispositive, we find that the broadcast dwells on and repeats the sexual material. We have held that repetition and persistent focus on sexual or excretory material is a relevant factor in evaluating the potential offensiveness of broadcasts.[1] Here, the scene in question revolves around the woman’s nudity and includes several shots of her naked buttocks. The material is thus dwelled upon and repeated.

3. We find that the scene’s depiction of adult female nudity, particularly the repeated shots of a woman’s naked buttocks, is titillating and shocking. ABC concedes that the scene included back and side nudity, but contends that it was “not presented in a lewd, prurient, pandering, or titillating way.” ABC asserts that the purpose of the scene was to “illustrate the complexity and awkwardness involved when a single parent brings a new romantic partner into his or her life,” and that the nudity was not included to depict an attempted seduction or a sexual response from the young boy. Even accepting ABC’s assertions as to the purpose of the scene, they do not alter our conclusion that the scene’s depiction of adult female nudity is titillating and shocking.”

4.

Let’s start with number one. If you go to almost any American beach today, you will see women in thong bikinis showing a lot more than that out in public. To describe a brief glimpse of a woman’s rear as graphic and explicit, is to ignore how quickly it passes or how much it is part of the context of the plot of a show of known merit as a drama.

The second complaint is that she shows her butt more than once. To get the full dramatic impact of the scene, that was clearly necessary. The only surprise is that they didn’t find a way to fine the stations for each and every time her butt was glimpsed.

Third the government declares the scene “titillating and shocking,” which is very much a question of judgment, not a simple matter of law. There was no attempt by the woman to tease or seduce or make sexual overtones to the boy; in fact it was just the opposite, she was clearly embarrassed as well. To say this is titillating is absurd.

There is also another tricky bit here. To come under scrutiny, the show had to air between 6 am and 10 pm. As is the normal pattern, NYPD Blue started at 10 pm in the eastern and western time zones. That put it in the 9 o’clock hour in the Midwest and west. Even with that, ABC put up a clear warning at the top of each segment of the show that it contained nudity and other matter that might be offensive.

The FCC’s actions, and a reversal of the historic and court ordered mandate to give wide First Amendment latitude to shows of merit, such as when an expletive was used during a TV broadcast of “Shindler’s List,” which this same commission made an exception, takes the government further down a slippery slope of censorship and imposition of the values of one group on other groups.

There is another reason this should not have been a shock to viewers or the FCC. The show had a history of showing glimpses of nudity. There was even a standard clause in the contract both male and female actors had to sign to get on the show that acknowledged they might be asked to do some kind of nudity. It was almost a rite of passage on the show to do it. ‘

“In the second season, I had to get naked in the shower with Sharon Lawrence,” actor Dennis Franz said later. “I said, ”Okay, I got an ass just like everybody else. It ain’t beautiful, but the majority of ours aren’t. I’m just Everyman here.” I loved the way they approached it. A little embarrassing to watch it with my daughter, but nevertheless it was one of the most memorable things on the show.”

Franz also recalled that Rev. Donald Wildmon and the American Family Association led a protest against NYPD Blue. Franz says it was the best publicity they ever got: “That poor guy, he really heightened the curiosity factor in those markets that were showing us. Consequently we got huge numbers [23 million viewers for the Sept. 21, 1993, premiere] and the show was of such high caliber that it wasn’t looked at as just sensationalism.”

High caliber. A high minded, Emmy winning show. Instead, it’s just more fodder for the FCC, looking to prove that it is in lock step with conservative politicians, who love to use the so-called indecency on TV as a target when on a soap box out on the stump.

The commission was pushed down that slope by those like the late Donald Wildmon and a few other conservative advocacy groups I won’t give more publicity by mentioning them. The fact is ABC says it got very few complaints and that the show was highly rated. That left the organized campaigns that filed the complaints. The FCC says it agrees there were not a lot of complaints, but that the ones it received from the advocacy groups are enough for it to take action. The FCC can only act on a complaint, and chose the 52 ABC affiliates it is imposing fines on by whether or not they had a specific complaint in that market.

The FCC’s actions, and the over heated political rhetoric since Janet Jackson’s “costume malfunction” have put a chill on broadcast TV and driven even more grown up viewers to choose cable TV channels to watch, especially pay services HBO and Showtime, where it is common to see a lot more than a woman’s butt in a fleeting glimpse.

There is no solution to this until there is a different administration and a different party in charge in Washington, D.C., and the new President selects FCC commissioners and judges who are part of the community, part of the future, part of the real world and not living in the past.