Second Circuit tosses FCC fine against ABC stations for bathroom scene featuring Charlotte Ross’s buttocks

The U.S. Court of Appeals for the Second Circuit has handed the FCC another set-back on the indecency front. A unanimous panel of the Court has issued a Summary Order vacating the $1.2 million in fines that the Commission sought to impose on ABC and its affiliates for a 2003 episode of NYPD Blue. According to the Court, the FCC effectively conceded away its case.

As indecency cognoscenti will recall, the FCC got its knickers all in a twist about the show’s opening scene, which featured the comely Charlotte Ross disrobing in a bathroom as she prepared to shower. The scene included shots of Ms. Ross’s buttocks for slightly less than seven seconds, total. But that was enough for the FCC, which determined that the “lingering shot” of her derriere was “shocking, pandering and titillating”. (The Commission was not, however, similarly disturbed by the fleeting image of the side of one of her breasts.) The penalty? A $27,500 fine against each of 44 ABC affiliated stations.

ABC appealed the action to the Second Circuit, which had in 2007 invalidated the Commission’s indecency policy on non-constitutional grounds in the Fox case. Action on the ABC appeal was put on hold while the Fox case headed to the Supreme Court (in 2008) only to get bounced back to the Second Circuit (in 2009), which then held the policy to be unconstitutional in July of last year. (The FCC asked the Second Circuit to reconsider its Fox decision, but the Court declined the opportunity, as most of us expected it would.)

In pleadings filed in the ABC case, the FCC acknowledged that the 2010 Fox decision “invalidated the [FCC]’s indecency policy in its entirety.”  That is, there was nothing left of the indecency policy after Fox. And while there may be some arguable factual distinctions between the Fox case and the ABC case – for example, Fox involved mere unscripted language, while NYPD Blue involved “scripted nudity” – the FCC effectively conceded that those were immaterial because the legal principle announced in the Fox case didn’t depend on any particular factual distinctions. (For what it’s worth, the ABC Court expressly rejected the notion that there were in fact any significant distinctions between Fox and ABC.)

Since the ABC case involved the FCC’s application of its indecency policy, and since that policy had already been held to be unconstitutional (in the Fox case), the Second Circuit had little difficulty in concluding that the NYPD Blue fine should be vacated.

According to a brief notation in the decision, the Summary Order does not have any “precedential” effect, which means that the ABC decision itself will not be binding on the Court in any other cases that may arise. But that probably doesn’t make much difference, because it’s clear that Fox is binding. And given the ABC panel’s emphatic affirmation of the broad reach of the Fox decision, the FCC should not expect any different result out of the Second Circuit any time soon. So while the ABC decision may not add any new dimension to the indecency debate, it certainly suggests that the Second Circuit remains solidly committed to the rationale set out in Fox.

Where do we go from here? There are now three separate cases – Fox, ABC and CBS’s continuing saga relative to the Janet Jackson/Super Bowl matter – that could go to the Supreme Court sooner rather than later. Fox and CBS are not quite yet teed up to go straight to the Supremes, and in view of its total reliance on Fox, it seems unlikely that the FCC would attempt to take ABC up by itself. Whether the issue of the FCC’s indecency policy is ultimately brought back to the Supreme Court – and, if it is, whether the Supremes will agree to look at it – is anybody’s guess. But if the issue does make it up there, we could end up with a decision that fundamentally changes FCC jurisprudence as we have known it for decades: not just the law of indecency, but the extent to which the FCC may permissibly regulate any broadcast content.

Stay tuned.

[Blogmeister’s Note: This post has been updated to reflect that the Second Circuit denied the FCC’s petition for rehearing (on November 22, 2010).  The decision was largely unpublicized and unreported, and we found out about it only through our old friend Andy Schwartzman, who kindly brought it to our attention.]