FCC Races Statute of Limitations Clock in Indecency Case
The FCC must in less than two weeks issue a forfeiture order formalizing $1.5 million in fines against 52 ABC stations because it’s racing against a statute of limitations deadline, a commission official and industry executives said. To beat the deadline, the commissioners must vote on the order by Feb. 25, they said. That’s only two weeks after replies to the FCC about its Jan. 25 notice of apparent liability over an episode of NYPD Blue were due. The notice concerned the agency’s second-largest indecency fine and sat on the eighth floor for almost two years between the time Chairman Kevin Martin circulated it and he and three other commissioners voted for it (CD Jan 28 p1). Commissioner Deborah Tate voted for the order when it came to the eighth floor in March 2006, agency officials have said.
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ABC, owner of two of the stations fined, and a group of the other 50 affiliates that broadcast a Feb. 25, 2003, episode of the show that showed a woman’s buttocks filed the replies late Monday with the agency. The broadcaster and its affiliates group said in separate filings that the seven- second shot wasn’t indecent because it came during a much longer scene that didn’t dwell on the body part or show sex or excretion. The scene wasn’t patently offensive, as it had to be for the FCC to penalize a broadcaster for indecent content, said ABC. “Never before has the commission deemed the depiction of naked buttocks ‘patently offensive’ or indecent unless they were presented in a highly sexualized or scatological fashion,” the network’s filing said. “The commission departed from its standards and its precedent by failing to properly consider the context and nature of the scene,” in which a boy surprises his father’s girlfriend in the shower and both are startled.
The ABC affiliates criticized the commission for waiting almost five years to issue the liability notice in what it called “a rush to judgment to avoid the running of a statute of limitations.” It said the commission gave the stations 17 days to reply to the notice, instead of the typical 30 days. The FCC cut the response period to avoid missing the Feb. 25 deadline, said agency and industry officials. It failed to act on requests from many of the stations for more time to reply, broadcast lawyers said. Such a failure to act essentially denied the requests, they said. An agency spokeswoman declined to comment.
It will be virtually impossible for the FCC to meet the deadline because the agency must also sue stations that fail to pay the fine by Feb. 25, industry lawyers said. That would require the agency to convince a U.S. Attorney to sue the broadcasters in U.S. District Court near the stations, they said. The FCC has never done that, they said.