The American Civil Liberties Union called the decision "paternalism at its worst," but the Federal Communications Commission today denied the ABC television network's appeal of a proposed $1.4 million dollar fine for an NYPD Blue program that briefly showed a woman's naked behind. And the agency went further in categorically defining the derrière as a sexual/excretory part of the human anatomy, rejecting ABC's argument that it has no sexual or excretory function.

"If we interpreted these terms in the narrow physiological sense advocated by ABC and the ABC Affiliates, the airwaves could be filled with naked buttocks and breasts during daytime and prime time hours because they would be outside the scope of indecency regulation," the FCC declared.

On Friday, January 25, the Commission proposed the penalty against 51 ABC-owned or -affiliated stations for airing a February 2003 NYPD Blue scene—broadcast at 9 PM in the Central and Mountain Time zones—in which a pre-adolescent boy accidentally walks in on an older woman undressing in the bathroom. Viewers get a glance at the woman's naked behind before he backs out and apologizes.

The FCC declared the scene indecent "because it depicts sexual organs and excretory organs in a lewd and titillating way—specifically an adult woman's buttocks." ABC attorneys defended the show, arguing that buttocks do not constitute a sexual organ. But the FCC declared that this defense "runs counter to both case law and common sense," citing the agency's "two-pronged indecency analysis" defining "sexual or excretory organs or activities" as offensive.

In its February 9 appeal, attorneys for ABC and its affiliates revisited these arguments in their appeal. They offered the FCC medical textbooks that defined sexual organs as "biologically defined," arguing that "[t]he only external organs or structures of the excretory system are the penis in males, and the urethral opening in females, which appears between the walls of the labia."

The agency today again turned down this reasoning. "The Commission has consistently interpreted the term 'sexual or excretory organs' in its own definition of indecency as including the buttocks," the FCC declared, "which, though not physiologically necessary to procreation or excretion, are widely associated with sexual arousal and closely associated by most people with excretory activities."

Not even a g-string?

Since the late 1950s, courts have ruled that "patently offensive" material must be defined as "utterly without redeeming social value" to be classified as obscene or indecent. ABC's response to the FCC's proposed fine pointed to the "outstanding artistic and social merit" of NYPD Blue, and the adult advisory and parental rating that appeared at the beginning of the episode. The network reminded the FCC of its deference to artistic judgment in the case of the movies Schindler's List and Saving Private Ryan, which included nudity or profane language. ABC also argued that the "fleeting" nature of the woman's exposure exempted the program from punishment.

But the FCC reiterated the "clear and unmistakable" visual depiction in question. "Here, the scene in question shows a female actor naked from behind, with her buttocks fully visible at close range," the Commission concluded. "She is not wearing a g-string or other clothing, nor are the shots of her buttocks pixelated or obscured."

The Commission lifted the fine on some ABC affiliates for technical reasons. 44 ABC stations must pay $27,500 each for airing the program, a total penalty of $1.211 million, by the end of this Thursday.

Shortly after the FCC's January 25th announcement, the ACLU called the move "another government attempt to trump our own good judgment and determine what we're mature enough to see."

"NYPD Blue aired well past the bedtime of most children–at 10:00 PM in most markets," ACLU Policy Counsel James Tucker said. "Only those affiliates that aired the program between the hours of 6:00-10:00 PM would be subject to the fine, which just goes to show the fickle nature of the FCC's rules. By their logic, airing a shot of a bare behind at 10:30 PM is fine, but the same shot at 9:30 PM is worth millions in fines and penalties."