The FCC released a new indecency decision on Friday evening, reaching back to a 2003 episode of NYPD Blue to find 52 ABC affiliates "apparently liable" for over $1.4 million in fines.  Before Friday, the FCC had not released a new indecency decision in over a year, apparently waiting for the courts or Congress to clarify its authority on indecent material.  Indeed, after the Second Circuit overturned the FCC’s "Omnibus Indecency Order, FCC Chairman Martin complained that the Second Circuit had all but tied the FCC’s hands in enforcing indecency cases.  Unfortunately for ABC and its affiliates, however, the material in the Omnibus Indecency Order involved naughty words, while the episode of NYPD in question involved naughty body parts. The NYPD Blue episode at issue – the unfortunately-titled episode "Nude Awakening" – included a scene in which a woman disrobes before a shower, exposing her naked buttocks and the side of one breast.

The FCC’s "Notice of Apparent Liability" (or "NAL" in FCC-slang) offers several insights for broadcasters, the first being that the FCC has not ceased its enforcement of its indecency rules.  While there may be some uncertainty over what words may be prohibited and when, the FCC is decidedly less conflicted over televised nudity.  Second, the "safe harbor" time period remains a critical factor in indecency decisions.  The FCC’s rules prohibit indecent material between 6:00 a.m. and 10:00 pm.  ABC stations in the Eastern and Pacific Time zones aired the episode after 10:00 pm and, thus, were beyond the rule’s reach.  However, ABC stations in the Central and Mountain Time zones, which aired exactly the same material in sync with the east coast (and therefore before 10:00 pm local time), got hit with proposed forfeitures of $27,500 per station.  Third, complaints count.  The FCC did not propose to fine all of ABC affiliates in the Central and Mountain time zones (even though they all presumably aired the same program at the same time), just those about which the FCC received complaints.  Finally, while the $1.4 million proposed forfeiture ($27,500 times 52 stations) may seem high, it could have been worse. The FCC proposed the highest fine it could, but was limited by the maximum fines in effect at the time the program aired.  If FCC took the same approach to a program airing in 2008, the total bill would be closer to $17 million (the current maximum is $325,000 per station). ABC and its affiliates have until February 11, 2008, to pay the fine or file a response to the NAL. Press reports indicate that ABC intends to fight.  Keep watching this space for updates as they happen.