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US Court of Appeals for Second Circuit Throws out FCC Fines Against ABC Over Nudity

By Erich E. Schuttauf, J.D.

AANR Executive Director

Those of you who have read The Bulletin for some years may recall my editorial criticizing the Federal Communications Commission for levying a fine against ABC broadcasting and a number of affiliates over airing a nude shower scene during an episode of NYPD Blue.  This week, one of the most-respected US Appeals courts issued a ruling dismissing the fines and, in a phrase, telling the FCC to lighten up about nudity.

The case began when the network and numerous stations ran a show in which a female police officer who has spent the night at a colleague’s apartment prepares to shower the next morning. The woman’s bare breast and buttocks are briefly seen from the side. Seconds later  she is seen fully nude from the rear before a door to the bathroom opens and a young boy, who has awakened from sleep and entered the unlocked room encounters the woman. Apologetically he backs out of the bathroom closing the door.

That brief sequence was to have cost ABC over $1 million  in fines had the SecondCircuit not lifted the penalty.

In addition to commenting about the FCC’s overstep in AANR’s Bulletin, members of your association discussed concerns about growing powers of the FCC and, in particular, its vague rules banning nudity in some contexts but not in others. AANR’s Government Affairs team specifically addressed these issues with Representatives, Senators, and staff during visits to the nation’s capitol. We urged those same lawmakers to vote against a pending bill that would have further expanded FCC’s role, while citing the NYPD Blue case as an example.  While we received assurances then that the bill would not pass and it did not, the Second Circuit’s decision this week is especially welcome for several reasons.

First, the Circuit commands much respect within legal and judicial circles that goes beyond the rulings it makes in cases appealed from federal district courts in New York and other Northeast states.  Second, the decision criticizes FCC’s vague rules against nudity based on “context,” noting that fleeting nudity caused no more harm than the occasional expletives which the court also ruled were not actionable in a case last year.

It is our hope that this week’s decision will lead to media being more willing to depict natural nudity such as the shower scene at issue in the case.  Please know that your support for AANR and its regions made it possible to raise a strong voice for nude recreation on this subject.

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