Fox Television has informed the Federal Communications Commission that it will not pay the agency’s proposed $91,000 fine for a pixelated strip show on Married in America, broadcast in 2003. “FOX believes that the FCC’s decision in this case was arbitrary and capricious, inconsistent with precedent, and patently unconstitutional,” the network declared in a press release.
But the media company’s detailed, 49-page Petition for Reconsideration, submitted to the agency at the same time, goes far beyond the terse press release. It all but wonders if the FCC’s indecency analysts are projecting their own sexual fantasies into the programming that they evaluate. And the Petition sets the stage for yet another legal confrontation as the Supreme Court prepares to hear the FCC’s appeal on its “fleeting expletive” rulings, struck down by a lower court in New York City.
The FCC first proposed a fine against the now defunct Married in 2004 after it received complaints about a 2003 scene in which several engaged couples party at a strip club. According to the FCC’s analysis, couples kiss, and lick whip cream off on-stage performers, whose naughty bits are pixelated. But pixelation was not enough for the FCC. “The fact that isolated body parts were ‘pixelated’ did not obscure the overall graphic character of the depiction,” the agency concluded in denying Fox’s appeal last month. “The mere pixelation of sexual organs is not necessarily determinative under our analysis because the material must be assessed in its full context. Here, despite the obscured nature of the nudity, it is unmistakable that the party goers are participating in sexual activities and that sexual organs are being exposed.”
FCC spends too much time imagining what’s under the pixelation
In its petition, Fox challenges the FCC’s description of the program, insisting that many of the agency’s key complaints are inaccurate. At one point the FCC’s analysis of the show claims that one performer places himself close to a woman in a miniskirt, “apparently to lick off the whipped cream” from her body. But nobody actually licked whip cream off anyone’s body in the program, Fox protests. The agency’s summary charges that at another moment two performers wear tops “but their buttocks are pixilated, presumably to obscure portions of their buttocks as well as the g-strings that cover their genitals.” But, as Fox attorneys note, the episode “never showed the women without clothes or without pixelation, so there is no way for the Commission to know what undergarments they were wearing.”
Actually, this is not the first time the g-string question has come up. About a month earlier, the FCC fined a slew of ABC affiliates for an episode of NYPD Blue that displays a woman’s derriere, which the agency defined as “sexual” body part. “Here, the scene in question shows a female actor naked from behind, with her buttocks fully visible at close range,” the FCC complained. “She is not wearing a g-string or other clothing, nor are the shots of her buttocks pixelated or obscured.”
As Fox notes in its response to the Married decision, the word “apparently” constantly appears in the agency’s analysis, one participant “apparently about to kiss” a stripper; two strippers “apparently kissing one another…” But none of these actions actually take place. “The Commission repeatedly relies upon these assumptions about what it presumes is occurring off-camera to justify its description of the program as ’sexually oriented’,” Fox argues. “In no event does [indecency] regulation extend to an imaginative viewer’s or regulator’s assumptions about what may be occurring between characters off-screen.”
And finally, Fox asks, how can it be “unmistakable that the party goers are participating in sexual activities and that sexual organs are being exposed” if all the performers’ “sexual” body parts are obscured by pixelation? Between this case and the NYPD Blue decision, in which ABC cited medical textbooks to challenge the agency’s sexual classifications, the country is coming dangerously close to a trial in which Federal judges will be asked not just for a general definition of indecency, but to decide what constitutes a sexual activity, a sexual organ, or sex.
Fox has filed its appeal to defend 13 stations that broadcast the show, including stations owned by Sinclair Broadcast Group and Mountain Licenses, L.P. All three companies have refused to pay the FCC’s fine.
– Matthew Lasar