SpectrumTalk

Who Says FCC Web Site is Dull?

While FCC seems to have lost most interest in spectrum policy, it still has time for other parts of its "product line".

Here are some titillating quotes from a decision last week. (Trust me, I couldn't make this up.)

"9. The complaints refer to a scene at the beginning of the program, during which a woman and a boy, who appears to be about seven or eight years old, are involved in an incident that includes adult female nudity. As confirmed by a tape of the program provided by ABC, during the scene in question, 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. The camera then shows her crossing the room, turning on the shower, and returning to the mirror. With her back to the camera, 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. The camera then tracks her, in profile, as 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.

10. 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 camera cuts back to the woman, who is now shown standing 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. As he opens the 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. 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." The complainants contend that such material is indecent and request that the Commission impose sanctions against the licensees responsible for broadcasting this material.

11. Indecency Analysis. As an initial matter, 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.

12. We also 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."

If you want to see stills from the scene in question, surf over to
http://www.celebrityvideo.ru/screenshot/r/Ross_Charlotte_NYPD_Blue_640_480.jpg
courtesy, oddly, of a Russian website. (Make sure your virus checker is up to date before you surf over to such a website.)

Now I don't mind the 8th Floor spending time on the broadcast indecency "product line", that is part of the FCC's job. But it would be nice if they would remember that spectrum policy is also part of its jobs and spend some time on it also, rather than the minimum required by law.

Now a positive comment about the above quote: Note that they got the video from ABC. Until a few years ago there were indecency rules but the Commission played a "shell game" with respect to complaints. All complaints were dismissed on some technicality or other and the burden was on the filer to produce a video of the episode in question. This has now changed and the Commission is looking at indecency complaints on their merits.

However, the old "shell game" is now used in the ex parte complaint enforcement process where the OGC staff searches for technicalities to dismiss complaints -- without examining their merits. I note that OGC has never examined the issue of the 16 ex parte filings by a certain party that seem to violate the rules that was posted in my 10/13/06 OGC letter in this blog. 8th Floor readers might wish to ask OGC about their continued disinterest in the matter and why a certain trade organization is able to violate the ex parte rules multiple times with impunity.
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UPDATE

If you can't get enough of this from FCC, here is the 2/19/08 Forfeiture Order for the NYPD Blue episode in question. Frankly, I don't understand the procedural issue of why there are two separate documents a few weeks apart. But I guess it shows 8th Floor interest in the matter. I just wish they were as interested in other parts of their jurisdiction also.

2nd UPDATE
From FCC website:

2/22/08
FCC Releases Forfeiture Order for 'Married by America' Episode.
Order: Word | Acrobat

In this case, FCC just squeezed under the 5 year deadline for deciding on a fine. The Washington Post commented,

"The FCC has a five-year statute of limitations on indecency enforcement; had the agency waited until after April 8 to rule, it could not have collected any fines.

...

It took nearly five years from broadcast to FCC decision, but less than a month for the FCC to turn down ABC's response and order a reduced payment of $1.24 million against 45 stations, again omitting markets that had not complained about the program".