In papers filed yesterday in the U.S. Court of Appeals for the 2nd Circuit, the network called the "arbitrary and capricious" and said it was contrary to past decisions. A network spokeswoman said the ABC affiliates Association will support the suit.
The FCC announced the fine for the nearly 5-year-old episode Feb. 12, just as the statute of limitations for taking action was about to run out.
The FCC had proposed fining 52 stations in the Central and Mountain time zones $1.43 million for airing the program, but the FCC cut the number to 45. Of those, WLS-TV in Chicago and KTRK-TV in Houston are ABC owned-and-operated stations. Each station was fined a $27,500 maximum.
The offending episode contained a scene in which the young son of a widowed dective enters the bathroom and runs into a partially unclothed female.
ABC and the affiliates, responding to the FCC, said the scene wasn't indecent and explored maturely some of the problems adults with young children have when embarking on relationships. They also contended that buttocks are not a "sexual organ."
"Never before has the commission deemed the depiction of naked buttocks 'patently offensive' unless they were presented in a highly sexualized or scatological fashion," ABC said in its filing on behalf of both the network and the two owned-and-operated stations cited.
Camera's extended focus
The FCC rejected that claim, saying the scene repeatedly focused on the woman's nudity, going so far as to have a camera pan her back as she went into the shower to reveal a second shot of her buttocks.
"We simply conclude here that the disputed material's clear, unobscured close-range visual depiction of a woman's naked buttocks was sufficiently graphic and explicit to support an indecent finding," the agency said. "We find that in context and on balance the material is patently offensive as measured by contemporary community standards for the broadcast medium."
The FCC said the scene should not have aired before 10 p.m., which it did in the central and mountain time zones.
Whether ABC's appeal gets heard could rest on two other cases challenging the FCC's indecency enforcement. The FCC is asking the Supreme Court to hear a case in which an appeals court overturned its finding that statements made by Cher and Nicole Richie on two live Billboard Music Awards shows were indecent. Separately, CBS is challenging the FCC's ruling that Janet Jackson's "wardrobe malfunction" during the 2004 Super Bowl halftime show was indecent.
An FCC spokeswoman defended the agency's action. "The commission will defend the forfeiture order. We continue to believe it was inappropriate content aired at a time when children are watching TV," she said.