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                           Before the
                Federal Communications Commission
                     Washington, D.C. 20554


In the Matter of                 )
                                )
Industry Guidance On the         )    File No. EB-00-IH-0089
Commission's                     )
Case Law Interpreting 18 U.S.C.  )
 1464                           )
and Enforcement Policies         )
Regarding
Broadcast Indecency


                        POLICY STATEMENT

   Adopted: March 14, 2001              Released:  April 6, 2001  

By the Commission:  Commissioners Ness and Furchtgott-Roth 
issuing separate statements;  Commissioner Tristani dissenting 
and issuing a statement.

                        I.   INTRODUCTION

The Commission issues this Policy Statement to provide guidance 
to the broadcast industry regarding our case law interpreting 18 
U.S.C.  1464 and our enforcement policies with respect to 
broadcast indecency.  This document is divided into five parts. 
Section I gives an overview of this document.  Section II 
provides the statutory basis for indecency regulation and 
discusses the judicial history of such regulation.  Section III 
describes the analytical approach the Commission uses in making 
indecency determinations.   This section also presents a 
comparison of selected rulings intended to illustrate the various 
factors that have proved significant in resolving indecency 
complaints.  The cited material refers only to broadcast 
indecency actions and does not include any discussion of case law 
concerning indecency enforcement actions in other services 
regulated by this agency such as cable, telephone, or amateur 
radio.  Section IV describes the Commission's broadcast indecency 
enforcement process.  Section V is the conclusion.

              II.  STATUTORY BASIS/JUDICIAL HISTORY

It is a violation of federal law to broadcast obscene or indecent 
programming.  Specifically, Title 18 of the United States Code, 
Section 1464 (18 U.S.C.  1464), prohibits the utterance of ``any 
obscene, indecent, or profane language by means of radio 
communication."1  Congress has given the Federal Communications 
Commission the responsibility for administratively enforcing 18 
U.S.C.  1464.  In doing so, the Commission may revoke a station 
license, impose a monetary forfeiture, or issue a warning for the 
broadcast of indecent material.2  See 47 U.S.C. Sections 
312(a)(6) and 503(b)(1)(D).

The FCC's enforcement policy under Section 1464 has been shaped 
by a number of judicial and legislative decisions.  In 
particular, because the Supreme Court has determined that obscene 
speech is not entitled to First Amendment protection, obscene 
speech cannot be broadcast at any time. 3 In contrast, indecent 
speech is protected by the First Amendment, and thus, the 
government must both identify a compelling interest for any 
regulation it may impose on indecent speech and choose the least 
restrictive means to further that interest. 4  Even under this 
restrictive standard, the courts have consistently upheld the 
Commission's authority to regulate indecent speech, albeit with 
certain limitations.

FCC v. Pacifica Foundation, 438 U.S. 726 (1978), provides the 
judicial foundation for FCC indecency enforcement.  In that case, 
the Supreme Court held that the government could constitutionally 
regulate indecent broadcasts.5  In addition, the Court quoted the 
Commission's definition of indecency with apparent approval.6  
The definition, ``language or material that, in context, depicts 
or describes, in terms patently offensive as measured by 
contemporary community standards for the broadcast medium, sexual 
or excretory activities or organs,'' has remained substantially 
unchanged since the time of the Pacifica decision.7  Moreover, 
the definition has been specifically upheld against 
constitutional challenges in the Action for Children's Television 
(ACT) cases in the D.C. Circuit Court of Appeals.8  Further, in 
Reno v. ACLU, 521 U.S. 844 (1997), the U.S. Supreme Court struck 
down an indecency standard for the Internet but did not question 
the constitutionality of our broadcast indecency standard.  
Rather, the Court recognized the ``special justifications for 
regulation of the broadcast media that are not applicable to 
other speakers.''  Reno v. ACLU, 521 U.S. at 868.9

Although the D.C. Circuit approved the FCC's definition of 
indecency in the ACT cases, it also established several 
restrictive parameters on FCC enforcement.  The court's decisions 
made clear that the FCC had to identify the compelling government 
interests that warranted regulation and also explain how the 
regulations were narrowly tailored to further those interests.  
In ACT I, the court rejected as inadequately supported the 
Commission's determination that it could reach and regulate 
indecent material aired as late as 11:00 p.m., and remanded the 
cases involved to the Commission for proceedings to ascertain the 
proper scope of the ``safe harbor'' period, that is, the time 
during which indecent speech may be legally broadcast.  Before 
the Commission could comply with the court's remand order, 
however, Congress intervened and instructed the Commission to 
adopt rules that enforced the provisions of 18 U.S.C.  1464 on a 
``24 hour per day basis.''10  The rule adopted to implement this 
legislative mandate was stayed and was ultimately vacated by the 
court in ACT II as unconstitutional.  In 1992, responding to the 
decision in ACT II, Congress directed the Commission to adopt a 
new ``safe harbor'' - generally 12 midnight to 6:00 a.m., but 
10:00 p.m. to 6:00 a.m. for certain noncommercial stations.  The 
Commission implemented this statutory scheme in January 1993.11  
Before this rule could become effective, however, the court 
stayed it pending judicial review.  In 1995, the D.C. Circuit, en 
banc, held in ACT III that there was not a sufficient 
justification in the record to support a preferential ``safe 
harbor'' period for noncommercial stations and that the more 
restrictive midnight to 6:00 a.m. ``safe harbor'' for commercial 
stations was therefore unconstitutional.  The court concluded, 
however, that the less restrictive 10:00 p.m. to 6:00 a.m. ``safe 
harbor'' had been justified as a properly tailored means of 
vindicating the government's compelling interest in the welfare 
of children and remanded the case to the Commission ``with 
instructions to limit its ban on the broadcasting of indecent 
programs to the period from 6:00 a.m. to 10:00 p.m.''  ACT III, 
58 F.3d at 669-70.  The Commission implemented the court's 
instructions by appropriately conforming Section 73.3999 of its 
rules.12  These changes became effective on August 28, 1995.13

Thus, outside the 10:00 p.m. to 6:00 a.m. safe harbor, the courts 
have approved regulation of broadcast indecency to further the 
compelling government interests in supporting parental 
supervision of children and more generally its concern for 
children's well being.  Act III, 58 F.3d at 661 (and cases cited 
therein).14  The principles of enforcement articulated below are 
intended to further these interests. 


               III.      INDECENCY DETERMINATIONS

     I.A.      Analytical Approach

  Indecency findings involve at least two fundamental 
determinations.  First, the material alleged to be indecent must 
fall within the subject matter scope of our indecency definition 
- that is, the material must describe or depict sexual or 
excretory organs or activities. WPBN/WTOM License Subsidiary, 
Inc. (WPBN-TV and WTOM-TV), 15 FCC Rcd 1838, 1840-41 (2000).

Second, the broadcast must be patently offensive as measured by 
contemporary community standards for the broadcast medium. In 
applying the "community standards for the broadcast medium" 
criterion, the Commission has stated:

          The determination as to whether certain 
          programming is patently offensive is not a local 
          one and does not encompass any particular 
          geographic area.  Rather, the standard is that of 
          an average broadcast viewer or listener and not 
          the sensibilities of any individual complainant.

WPBN/WTOM License Subsidiary, Inc., 15 FCC Rcd at 1841.15
 
In determining whether material is patently offensive, the full 
context in which the material appeared is critically important.16  
It is not sufficient, for example, to know that explicit sexual 
terms or descriptions were used, just as it is not sufficient to 
know only that no such terms or descriptions were used.  Explicit 
language in the context of a bona fide newscast might not be 
patently offensive,17 while sexual innuendo that persists and is 
sufficiently clear to make the sexual meaning inescapable might 
be.18 Moreover, contextual determinations are necessarily highly 
fact-specific, making it difficult to catalog comprehensively all 
of the possible contextual factors that might exacerbate or 
mitigate the patent offensiveness of particular material. 19  An 
analysis of Commission case law reveals that various factors have 
been consistently considered relevant in indecency 
determinations.  By comparing cases with analogous analytical 
structures, but different outcomes, we hope to highlight how 
these factors are applied in varying circumstances and the impact 
of these variables on a finding of patent offensiveness.

     I.B.      Case Comparisons

  The principal factors that have proved significant in our 
decisions to date are: (1) the explicitness or graphic nature of 
the description or depiction of sexual or excretory organs or 
activities; (2) whether the material dwells on or repeats at 
length descriptions of sexual or excretory organs or activities; 
(3) whether the material appears to pander or is used to 
titillate, or whether the material appears to have been presented 
for its shock value.  In assessing all of the factors, and 
particularly the third factor, the overall context of the 
broadcast in which the disputed material appeared is critical.  
Each indecency case presents its own particular mix of these, and 
possibly other, factors, which must be balanced to ultimately 
determine whether the material is patently offensive and 
therefore indecent.  No single factor generally provides the 
basis for an indecency finding.  To illustrate the noted factors, 
however, and to provide a sense of the weight these 
considerations have carried in specific factual contexts, a 
comparison of cases has been organized to provide examples of 
decisions in which each of these factors has played a 
particularly significant role, whether exacerbating or 
mitigating, in the indecency determination made. 

It should be noted that the brief descriptions and excerpts from 
broadcasts that are reproduced in this document are intended only 
as a research tool and should not be taken as a meaningful 
selection of words and phrases to be evaluated for indecency 
purposes without the fuller context that the tapes or transcripts 
provide.  The excerpts from broadcasts used in this section have 
often been shortened or compressed.  In order to make the 
excerpts more readable, however, we have frequently omitted any 
indication of these ellipses from the text.  Moreover, in cases 
where material was included in a complaint but not specifically 
cited in the decision based on the complaint, we caution against 
relying on the omission as if it were of decisional significance.  
For example, if portions of a voluminous transcript are the 
object of an enforcement action, those portions not included are 
not necessarily deemed not indecent. The omissions may be the 
result of an editing process that attempted to highlight the most 
significant material within its context.  No inference should be 
drawn regarding the material deleted.

          III.A.1.  Explicitness/Graphic Description Versus 
               Indirectness/Implication

The more explicit or graphic the description or depiction, the 
greater the likelihood that the material will be considered 
patently offensive.  Merely because the material consists of 
double entendre or innuendo, however, does not preclude an 
indecency finding if the sexual or excretory import is 
unmistakable.

Following are examples of decisions where the explicit/graphic 
nature of the description of sexual or excretory organs or 
activities played a central role in the determination that the 
broadcast was indecent.

     WYSP(FM), Philadelphia, PA                   ``Howard Stern 
Show''


     God, my testicles are like down to the floor . . . you could 
     really have a party with these . . . Use them like Bocci 
     balls.

     (As part of a discussion of lesbians)  I mean to go around 
     porking other girls with vibrating rubber products . . .

     Have you ever had sex with an animal?  Well, don't knock it.  
     I was sodomized by Lambchop.

     Indecent - Warning Issued.  Infinity Broadcasting 
     Corporation of Pennsylvania (WYSP(FM)), 2 FCC Rcd 2705 
     (1987), aff'd 3 FCC Rcd 930 (1987), aff'd in part, vacated 
     in part on other grounds, remanded sub nom.  Act I, 852 F.2d 
     1332 (D.C. Cir. 1988) (subsequent history omitted).  
     Excerpted material (only some of which is cited above) 
     consisted of ``vulgar and lewd references to the male 
     genitals and to masturbation and sodomy broadcast in the 
     context of . . . `explicit references to masturbation, 
     ejaculation, breast size, penis size, sexual intercourse, 
     nudity, urination, oral-genital contact, erections, sodomy, 
     bestiality, menstruation and testicles.'''  3 FCC Rcd at 
     932.  

     WSUC-FM, Cortland, NY                   ``I'm Not Your 
Puppet'' Rap Song
 
     The only thing that was on my mind, was just shoving my dick 
     up this bitch's behind.  I looked at the girl and said, 
     babe, your ass ain't nothing but a base hit.  I'm going to 
     have to get rid of your ass, yeah, 'cause you're on my dick, 
     dick, ding-a-ling.  Popped my dick in her mouth, and we 
     rocked it back and forth.  Now that she sucked my dick and 
     Tony fuck you in the ass.  I pulled out my dick, popped it 
     in her mouth, and she sucked it.

     Indecent - NAL Issued.  State University of New York (WSUC-
     FM), 8 FCC Rcd 456 (1993), forfeiture reduced 13 FCC Rcd 
     23810 (1998) (forfeiture paid).  The Commission concluded 
     that the language used in this broadcast ``describes sexual 
     activities in patently offensive terms and is therefore 
     indecent.''  8 FCC Rcd at 456.     

     WQAM(AM), Miami, FL                ``Uterus Guy'' Song

     I don't want to grow up, I'm a uterus guy.  I want to spend 
     a week or so right here between your thighs.  Inhale your 
     clam, with my head jammed by your quivering, crushing gams.  
     No, I don't want to get up or get a towel to dry, cause I 
     wouldn't be a uterus guy.  I don't want to get up, I'm a 
     uterus guy and I know where to lick and chew exactly where 
     you like.  You'll have more fun when I make you come, with 
     my nose between your thighs.

     Indecent - NAL Issued.  WQAM License Limited Partnership 
     (WQAM(AM)), 15 FCC Rcd 1475 (1999), aff'd 15 FCC Rcd 2518 
     (2000), recon. denied FCC 00-266, released July 26, 2000.  
     The Commission held that the ``song's sexual import is lewd, 
     inescapable and understandable.''  15 FCC Rcd at 2520.

     KROQ(FM), Los Angeles, CA                    ``You Suck'' 
     Song

     I know you're really proud cause you think you're well hung 
     but I think its time you learn how to use your tongue.  You 
     say you want things to be even and you want things to be 
     fair but you're afraid to get your teeth caught in my pubic 
     hair.  If you're lying there expecting me to suck your dick, 
     you're going to have to give me more than just a token lick. 
     . . . Go down baby, you suck, lick it hard and move your 
     tongue around.  If you're worried about babies, you can 
     lower your risk, by giving me that special cunnilingus kiss. 
     . . . you can jiggle your tongue on my clit.  Don't worry 
     about making me have an orgasm. . . . You asshole, you shit.  
     I know it's a real drag, to suck my cunt when I'm on the 
     rag. . . . You tell me it's gross to suck my yeast 
     infection.  How do you think I feel when I gag on your 
     erection.

     Indecent - NAL Issued.  Infinity Broadcasting Corporation of 
     Los Angeles (KROQ(FM)), 13 FCC Rcd 25349 (MMB 1998), aff'd 
     15 FCC Rcd 10667 (EB 2000), petition for reconsideration 
     pending (graphically and explicitly describes sexual and 
     excretory organs or activities).

     WXTB(FM), Clearwater, FL                ``Bubba, The Love 
     Sponge''

     Most women don't like swallowing, but I do.  The trick is 
     you need to swallow at the right time.  Do it when you're 
     deep throating. . . . I like pleasure giving, I like a 
     pleasure giving woman who really, really likes to enjoy 
     giving oral. . . . She does more than just go up and down, 
     she's creative by licking, nibbling and using overall 
     different techniques. . . . The sexy turn on for me is when 
     I . . . expel into my partner's mouth. . . . I don't mind 
     giving BJs . . . if a man doesn't get off, that means he 
     wasn't quite excited by my techniques.

     Indecent - NAL Issued.  Citicasters Co. (WXTB(FM)), 13 FCC 
     Rcd 22004 (1998), aff'd FCC 00-230, released June 27, 2000 
     (forfeiture paid).

Less explicit material and material that relies principally on 
innuendo to convey a sexual or excretory meaning have also been 
cited by the Commission as actionably indecent where the sexual 
or excretory meaning was unmistakable.

     KLOL(FM), Houston, TX                   ``Stevens and Pruett 
Show''

     The doctor was talking about size.  The man complained 
     earlier that he was so large that it was ruining his 
     marriages.  Big is good if the guy knows how to use it.  She 
     is so big she could handle anything.  Some of these guys, a 
     very few of them, a hand full are like . . . two hands full.  
     Twelve inches, about the size of a beer can in diameter.  
     So, now could you handle something like that? It's actually 
     ruined marriages.   A big organ for a big cathedral.  
     Somebody big is just going to have to find somebody that's 
     big.

     Indecent - NAL Issued.  The Rusk Corporation (KLOL(FM)), 8 
     FCC Rcd 3228 (1993) (forfeiture paid).  As to the use of 
     innuendo in the cited passages, the Commission said: 
     "[W]hile [the licensee] may have substituted innuendo and 
     double entendre for more directly explicit sexual references 
     and descriptions in some instances, unmistakable sexual 
     references remain that render the sexual meaning of the 
     innuendo inescapable."  8 FCC Rcd at 3228. 

     KGB-FM, San Diego, CA                   ``Candy Wrapper'' 
     Song

     I whipped out my Whopper and whispered, Hey, Sweettart, 
     how'd you like to Crunch on my Big Hunk for a Million Dollar 
     Bar?  Well, she immediately went down on my Tootsie Roll and 
     you know, it was like pure Almond Joy.  I couldn't help but 
     grab her delicious Mounds, ... this little Twix had the Red 
     Hots. ... as my Butterfinger went up her tight little Kit 
     Kat, and she started to scream Oh, Henry!  Oh, Henry!  Soon 
     she was fondling my Peter Paul, and Zagnuts and I knew it 
     wouldn't be long before I blew my Milk Duds clear to Mars 
     and gave her a taste of the old Milky Way. ... I said, Look 
     ... why don't you just take my Whatchamacallit and slip it 
     up your Bit-O-Honey.  Oh, what a piece of Juicy Fruit she 
     was too.  She screamed Oh, Crackerjack.  You're better than 
     the Three Musketeers! as I rammed my Ding Dong up her Rocky 
     Road and into her Peanut Butter Cup.  Well, I was giving it 
     to her Good 'n Plenty, and all of a sudden, my Starburst. 
     ... she started to grow a bit Chunky and ... Sure enough, 
     nine months later, out popped a Baby Ruth.

     Indecent - NAL Issued.  KGB, Inc. (KGB-FM), 7 FCC Rcd 3207 
     (1992), forfeiture reduced 13 FCC Rcd 16396 (1998) 
     (forfeiture paid).  See also Great American Television and 
     Radio Company, Inc. (WFBQ(FM)/WNDE(AM)), 6 FCC Rcd 3692, 
     3693 (MMB 1990) (forfeiture paid) ("While the passages 
     arguably consist of double entendre and indirect references, 
     the language used in each passage was understandable and 
     clearly capable of a specific sexual meaning and, because of 
     the context, the sexual import was inescapable."); and WIOD, 
     Inc. (WIOD(AM)), 6 FCC Rcd 3704 (MMB 1989) (forfeiture paid) 
     (``notwithstanding the use of candy bar names to symbolize 
     sexual activities, the titillating and pandering nature of 
     the song makes any thought of candy bars peripheral at 
     best'').

     KSJO(FM), San Jose, CA                  Song to Tune of 
     ``Beverly Hillbillies'' 

     Come a listen to a story about a man named Boas, a poor 
     politician that barely kept his winky fed, then one day he's 
     poking a chick and up from his pants came a bubbling crude.  
     Winky oil. Honey pot.  Jail Bait. . . . So, he loaded up his 
     winky and he did it with Beverly.  Big Breasts.  Only 15 
     years old.

     Indecent - NAL Issued.  Narragansett Broadcasting Company of 
     California, Inc. (KSJO(FM)), 5 FCC Rcd 3821 (1990) 
     (forfeiture paid).  ``Even in the cases of double entendre, 
     not only was the language understandable and clearly capable 
     of a specific sexual or excretory meaning but, because of 
     the context, the sexual and excretory import was 
     inescapable.''  5 FCC Rcd at 3821.

     KMEL(FM), San Francisco, CA             ``Rick Chase Show''; 
     ``Blow Me'' Song

     Blow me, you hardly even know me, just set yourself below me 
     and blow me, tonight.  Hey, a handy would certainly be 
     dandy, but it's not enough to slow (unintelligible) me, hey, 
     you gotta blow me all night.  Hey, when you pat your lips 
     that way, I want you night and day, when you squeeze my 
     balls so tight.  I want to blow my love, hey, with all my 
     might.

     Indecent - NAL Issued.  San Francisco Century Broadcasting, 
     L.P. (KMEL(FM)), 7 FCC Rcd 4857 (1992), aff'd 8 FCC Rcd 498 
     (1993) (forfeiture paid).  Commission found that the 
     language dwelled on descriptions of sexual organs and 
     activities, ``was understandable and clearly capable of a 
     specific sexual meaning and, because of the context, the 
     sexual import was inescapable.''  8 FCC Rcd at 498.
     
Compare the following case in which the material aired was deemed 
not to be actionably indecent.

     WFBQ(FM)/WNDE(AM), Indianapolis, IN          ``Elvis'' and 
     ``Power, Power, Power''

     As you know, you gotta stop the King, but you can't kill him 
     . . . So you talk to Dick Nixon, man you get him on the 
     phone and Dick suggests maybe getting like a mega-Dick to 
     help out, but you know, you remember the time the King ate 
     mega-Dick under the table at a 095 picnic . . . you think 
     about getting mega-Hodgie, but that's no good because you 
     know, the King was a karate dude . . . 

     Power! Power! Power! Thrust! Thrust! Thrust!  First it was 
     Big Foot, the monster car crunching 4x4 pickup truck.  Well, 
     move over, Big Foot!  Here comes the most massive power-
     packed monster ever!  It's Big Peter! (Laughter)  Big Peter 
     with 40,000 Peterbilt horsepower under the hood.  It's 
     massive!  Big Peter!  Formerly the Big Dick's Dog Wiener 
     Mobile.  Big Peter features a 75-foot jacked up monster 
     body.  See Big Peter crush and enter a Volvo.  (Laughter) . 
     . . strapped himself in the cockpit and put Big Peter 
     through its paces.  So look out Big Foot!  Big Peter is 
     coming!  Oh my God!  It's coming!  Big Peter! (Laughter)

     Not Indecent.  Great American Television and Radio Company, 
     Inc. (WFBQ(FM)/WNDE(AM)), 6 FCC Rcd 3692 (MMB 1990).  The 
     licensee provided a fuller transcript of the cited ``Elvis'' 
     excerpt and explained the context in which it was aired, 
     arguing that no sexual meaning was intended and that no such 
     meaning would be reasonably understood from the material 
     taken as a whole.  The licensee also explained the regional 
     humor of the Power, Power, Power excerpt and the context in 
     which it was broadcast.  The Mass Media Bureau held that the 
     material was not indecent because the ``surrounding contexts 
     do not appear to provide a background against which a sexual 
     import is inescapable.''  6 FCC Rcd at 3693.

In assessing explicitness, the Commission also looks to the 
audibility of the material as aired.  If the material is 
difficult or impossible to understand, it may not be actionably 
indecent.  However, difficulty in understanding part of the 
material or an attempt to obscure objectionable material will not 
preclude a finding of indecency where at least some of the 
material is recognizable or understandable.

     KGB-FM, San Diego, CA                   ``Sit on My Face'' 
Song

     Sit on my face and tell me that you love me.  I'll sit on 
     your face and tell you I love you, too.  I love to hear you 
     moralize when I'm between your thighs.  You blow me away.  
     Sit on my face and let me embrace you.  I'll sit on your 
     face and then I'll love you (?) truly.  Life can be fine, if 
     we both sixty-nine.  If we sit on faces (?) the ultimate 
     place to play (?).  We'll be blown away.

     Indecent - NAL Issued.  KGB, Inc. (KGB-FM), 7 FCC Rcd 3207 
     (MMB 1992), forfeiture reduced 13 FCC Rcd 16396 (1998) 
     (forfeiture paid).  The song was found to be actionably 
     indecent despite English accent and ``ambient noise'' 
     because the lyrics were sufficiently understandable.  7 FCC 
     Rcd at 3207.

     WWKX(FM), Woonsocket, RI           ``Real Deal Mike Neil 
     Show''

     Douche bag, hey what's up, fu(Bleep)ck head? . . . You his 
     fuck (Bleep) ho or what?  You his fuck (Bleep) bitch man, 
     where you suck his dick every night? . . . Suck some 
     di(Bleep)ck make some money for Howard and pay your pimp 
     okay?
     
     Indecent - NAL Issued.  Back Bay Broadcasting (WWKX(FM)), 14 
     FCC Rcd 3997, 3998 (MMB 1999) (forfeiture paid).  Material 
     was found to be actionably indecent despite attempt to 
     obscure objectionable language because ``editing was 
     ineffective and merely resulted in a ``bleep'' in the middle 
     of clearly recognizable words (or in some cases a ``bleep'' 
     after the word).''  The Mass Media Bureau held that 
     ``[b]ecause the words were recognizable, notwithstanding the 
     editing,'' they were indecent within the context used in 
     this broadcast. 

          III.A.2.  Dwelling/Repetition versus Fleeting Reference

Repetition of and persistent focus on sexual or excretory 
material have been cited consistently as factors that exacerbate 
the potential offensiveness of broadcasts.  In contrast, where 
sexual or excretory references have been made once or have been 
passing or fleeting in nature, this characteristic has tended to 
weigh against a finding of indecency.

     WXTB(FM), Clearwater, FL                ``Bubba, The Love 
     Sponge''

     Could you take the phone and rub it on you Chia Pet?  Oh, 
     let me make sure nobody is around.  Okay, hang on a second 
     (Rubbing noise).  Okay I did it.  . . . Now that really your 
     little beaver?  That was mine.  Your what?  That was my 
     little beaver?  Oh I love when a girl says beaver.  Will you 
     say it again for me honey please?  It was my little beaver. 
     . . . Will you say, Bubba come get my beaver?  Bubba, would 
     come get my little beaver? . . . tell me that doesn't do 
     something for you.  That is pretty sexy. . . . bring the 
     beaver.  It will be with me.  We got beaver chow.  I can't 
     wait, will you say it for me one more time?  Say what?  My 
     little beaver or Bubba come get my little beaver?  Okay, 
     Bubba come get my beaver.  Will you say, Bubba come hit my 
     beaver?  Will you say it?  Bubba, come hit my beaver.  That 
     is pretty sexy, absolutely.  Oh, my God, beaver.

     Indecent - NAL Issued.  Citicasters Co. (WXTB(FM)), 13 FCC 
     Rcd 15381 (MMB 1998) (forfeiture paid).

     WXTB(FM), Clearwater, FL                ``Bubba, The Love 
Sponge''

     Well, it was nice big fart.  I'm feeling very gaseous at 
     this point but there, so far has been no enema reaction, as 
     far as.  There's been no, there's been no expelling?  No 
     expelling.  But I feel mucus rising. . . . Can't go like.  
     (Grunting sound)  Pushing, all I keep doing is putting out 
     little baby farts. . . . on the toilet ready to go. . . . 
     Push it, strain it.  It looks normal.  Just average, 
     average.  Little rabbit one.  Little rabbit pellets.  I 
     imagine maybe, we'll break loose.  Push hard Cowhead.  I'm 
     pushing, I got veins popping out of my forehead.  Go ahead, 
     those moles might pop right off.  You can tell he's pushing.  
     I'm out of breath.  One more, last one.  One big push.

     Indecent - NAL Issued.  Citicasters Co. (WXTB(FM)), 13 FCC 
     Rcd 22004 (1998), aff'd FCC 00-230, released June 27, 2000 
     (forfeiture paid).  The cited material dwells on excretory 
     activities and the Commission found it to be patently 
     offensive.

Compare the following cases where material was found not indecent 
because it was fleeting and isolated.

     WYBB(FM), Folly Beach, SC                    ``The Morning 
Show''

     The hell I did, I drove mother-fucker, oh. Oh.

     Not Indecent.  L.M. Communications of South Carolina, Inc. 
     (WYBB(FM)), 7 FCC Rcd 1595 (MMB 1992).  The ``broadcast 
     contained only a fleeting and isolated utterance which, 
     within the context of live and spontaneous programming, does 
     not warrant a Commission sanction.''  7 FCC Rcd at 1595.

     KPRL(AM)/KDDB(FM), Paso Robles, CA      News Announcer 
Comment

     Oops, fucked that one up.

     Not Indecent.  Lincoln Dellar, Renewal of License for 
     Stations KPRL(AM) and KDDB(FM), 8 FCC Rcd 2582, 2585 (ASD, 
     MMB 1993).  The ``news announcer's use of single expletive'' 
     does not ``warrant further Commission consideration in light 
     of the isolated and accidental nature of the broadcast.''

In contrast, even relatively fleeting references may be found 
indecent where other factors contribute to a finding of patent 
offensiveness.  Examples of such factors illustrated by the 
following cases include broadcasting references to sexual 
activities with children and airing material that, although 
fleeting, is graphic or explicit.

     KUPD-FM, Tempe, AZ                 Announcer Joke

     What is the best part of screwing an eight-year-old?  
     Hearing the pelvis crack.

     Indecent - NAL Issued.  Tempe Radio, Inc. (KUPD-FM), 12 FCC 
     Rcd 21828 (MMB 1997) (forfeiture paid).  Although fleeting, 
     the language clearly refers to sexual activity with a child 
     and was found to be patently offensive.

     WEZB-FM, New Orleans, LA                Announcer Joke

     What's the worst part of having sex with your brother? . . . 
     You got to fix the crib after it breaks and then you got to 
     clean the blood off the diaper.

     Indecent - NAL Issued.  EZ New Orleans, Inc. (WEZB(FM)), 12 
     FCC Rcd 4147 (MMB 1997) (forfeiture paid).
     KLBJ(FM), Austin, TX                    DJ Comments

     Suck my dick you fucking cunt.

     Indecent - NAL Issued.  LBJS Broadcasting Company, L.P. 
     (KLBJ(FM)), 13 FCC Rcd 20956 (MMB 1998) (forfeiture paid).  
     Although fleeting, the material is explicit and was found to 
     be indecent.

          III.A.3.  Presented in a Pandering or Titillating 
               Manner or for Shock Value

The apparent purpose for which material is presented can 
substantially affect whether it is deemed to be patently 
offensive as aired.  In adverse indecency findings, the 
Commission has often cited the pandering or titillating character 
of the material broadcast as an exacerbating factor.  
Presentation for the shock value of the language used has also 
been cited.  As Justice Powell stated in his opinion in the 
Supreme Court's decision affirming the Commission's determination 
that the broadcast of a comedy routine was indecent,  "[T]he 
language employed is, to most people, vulgar and offensive.  It 
was chosen specifically for this quality, and it was repeated 
over and over as a sort of verbal shock treatment."   FCC v. 
Pacifica Foundation, 438 U.S. 726, 757 (1978)  (Powell, J., 
concurring in part and concurring in the judgment).  On the other 
hand, the manner and purpose of a presentation may well preclude 
an indecency determination even though other factors, such as 
explicitness, might weigh in favor of an indecency finding.  In 
the following cases, the decisions looked to the manner of 
presentation as a factor supporting a finding of indecency.

     KLOL(FM), Houston, TX                   ``Stevens & Pruett 
     Show''

     Sex survey lines are open.  Today's question, it's a strange 
     question and we hope we have a lot of strange answers.  What 
     makes your hiney parts tingle?  When my husband gets down 
     there and goes (lips noise). ...  I love oral sex. ... Well, 
     my boyfriend tried to put Hershey kisses inside of me and 
     tried to lick it out and it took forever for him to do it.  

     Indecent - NAL Issued.  Rusk Corporation (KLOL(FM)), 5 FCC 
     Rcd 6332 (MMB 1990) (forfeiture paid). Explicit description 
     in a program that focused on sexual activities in a lewd, 
     vulgar, pandering and titillating manner.

     WEBN(FM), Cincinnati, OH                ``Bubba, The Love 
     Sponge''

     All I can say is, if you were listening to the program last 
     night you heard Amy and Stacy . . . come in here, little 
     lesbians that they are.  Little University of Cincinnati 
     ho's and basically that we could come over and watch them.  
     We got over to the house. . . . They start making out a 
     little bit. They go to bed.  They get, they start, they're 
     starting like a mutual 69 on the bed.  Guido all of a sudden 
     whips it out. . . . Rather than take care of each other . . 
     . Guido is like knee deep with the butch bitch and all of a 
     sudden here is the fem bitch looking at me.  Hot.  I get 
     crazy.  I hook up a little bit.  Then Guido says, hey, I 
     done got mine, how about we switching?  So I went into the 
     private bedroom with the butch bitch and then got another 
     one.

     Indecent - NAL Issued.  Jacor Broadcasting Corporation 
     (WEBN(FM)), 13 FCC Rcd 4152 (MMB 1997), aff'd 13 FCC Rcd 
     5825 (MMB 1997) (forfeiture paid).
     WXTB(FM), Clearwater, FL                ``Bubba, The Love 
     Sponge''

     Take the phone and I want you to rub it on it hard.  I want 
     to hear the telephone, okay?  Okay honey. (Rubbing noises)  
     You hear that?  A little bit longer though please.  I'm on 
     the edge right now.  A little bit faster.  (Rubbing noises)  
     You get that?  That's nice.  Could you do it again and then 
     scream my name out, please?  Like you're having an orgasm?  
     Yeah.  Go ahead.  Okay. (Rubbing noises)  Mm mm.  That's it?  
     It's got to be longer than that Ginny, come on work with me.  
     Be a naughty girl.  Be a little slutty bitch that you are.  
     One more time.  Okay.  (Rubbing Noises).

     Indecent - NAL Issued.  Citicasters Co. (WXTB(FM)), 13 FCC 
     Rcd 15381 (MMB 1998) (forfeiture paid).

In determining whether broadcasts are presented in a pandering or 
titillating manner, the context of the broadcast is particularly 
critical.  Thus, even where language is explicit, the matter is 
graphic, or where there is intense repetition of vulgar terms, 
the presentation may not be pandering or titillating, and the 
broadcast may not be found actionably indecent.

     KING-TV, Seattle, WA                    ``Teen Sex: What 
     About the Kids?''


     Broadcast of portions of a sex education class in a local 
     high school that included the use of very realistic sex 
     organ models and simulated demonstrations of various methods 
     of birth control as well as frank discussions of sexual 
     topics.

     Not Indecent.  King Broadcasting Co. (KING-TV), 5 FCC Rcd 
     2971 (1990).  The Commission held that although the program 
     dealt explicitly with sexual issues and included the use of 
     very graphic sex organ models, "the material presented was 
     clinical or instructional in nature and not presented in a 
     pandering, titillating or vulgar manner."  5 FCC Rcd at 
     2971.

     WABC-TV, New York, NY                   ``Oprah Winfrey 
     Show''
                                   (How to Make Romantic 
Relations with
                                     Your Mate Better)

     Okay, for all you viewers out there with children watching, 
     we're doing a show today on how to make romantic relations 
     with your mate better.  Otherwise  known as s-e-x. ... I'm 
     very aware there are a number of children who are watching 
     and so, we're going to do our best to keep this show rated 
     "G" but just in case, you may want to send your kids to a 
     different room.  And we'll pause for a moment while you do 
     that. ... According to experts and recent sex surveys the 
     biggest complaints married women have about sex are ... 
     their lovemaking is boring ... American wives all across the 
     country have confessed to using erotic aids to spice up 
     their sex life and ... thousands of women say they fantasize 
     while having sex with their husbands. ... And most women say 
     they are faking it in the bedroom.
     [Quiz:]  I like the way my partner looks in clothing. ... I 
     like the way my partner looks naked. ... I like the way my 
     partner's skin feels. ... I like the way my partner tastes. 
     ...

     [Psychologist and panelists:]  Do you know that you can 
     experience orgasm, have you experienced that by yourself?  
     No, I have not ... Okay, one of the things that, well, you 
     all know what I'm talking about. ... You need to at least 
     know how to make your body get satisfied by yourself.  
     Because if you don't know how to do it, how is he going to 
     figure it out?  He doesn't have your body parts, he doesn't 
     know.

     Not Indecent.  Letter from Chief, Complaints and 
     Investigations Branch, Enforcement Division, Mass Media 
     Bureau to Chris Giglio (July 20, 1994).  Subject matter 
     alone does not render material indecent.  Thus, while 
     material may be offensive to some people, in context, it 
     might not be actionably indecent.

     KTVI-TV, St. Louis, MO                  ``Geraldo Rivera 
     Show'' 
                                   (Unlocking the Great Mysteries 
                              of Sex) 

     We have seen such a slew of sex books ..."Your G-spot," "How 
     to Have Triple Orgasms." One of the biggest myths ... either 
     we go all the way or we do nothing. ... He just missed an 
     opportunity to make love, not all the way ... but to share a 
     moment of passion and a moment of closeness. ... It's 
     important that a man learn to use the penis the way an 
     artist uses a paintbrush ... and if a woman is also willing 
     to learn how to move her vagina. ... With good control of PC 
     muscles, a man can separate orgasm from ejaculation and have 
     more than one orgasm. ...  Really great sex is always based 
     on feeling safe enough with your partner to open up.  
     Passion is just the expression of a tremendous sense of 
     connection you feel.  If you think sex is pleasurable, try 
     making love and having sex at the same time for turning 
     pleasure into ecstasy. 

     Not Indecent.   Letter from Chief, Complaints and 
     Investigations Branch, Enforcement Division, Mass Media 
     Bureau, to Gerald P. McAtee (October 26, 1989).  While 
     offensive to some, the material was not found to be 
     indecent.

     WSMC-FM, Collegedale, TN                ``All Things 
     Considered''
     [National Public Radio]

     Mike Schuster has a report and a warning.  The following 
     story contains some very rough language.  [Excerpt from 
     wiretap of telephone conversation in which organized crime 
     figure John Gotti uses "fuck" or "fucking" 10 times in 7 
     sentences (110 words).] 
     
     Not Indecent.  Peter Branton, 6 FCC Rcd 610 (1991) 
     (subsequent history omitted).  Explicit language was 
     integral part of a bona fide news story concerning organized 
     crime; the material aired was part of a wiretap recording 
     used as evidence in Gotti's widely reported trial.  The 
     Commission explained that it did ``not find the use of such 
     [coarse] words in a legitimate news report to have been 
     gratuitous, pandering, titillating or otherwise ``patently 
     offensive'' as that term is used in our indecency 
     definition.''  6 FCC Rcd at 610.

     WPBN-TV, Traverse City, MI                   ``Schindler's 
List'' Film
     WTOM-TV, Cheboygan, MI

     ``Schindler's List'' is a film that depicted a historical 
     view of World War II and wartime atrocities.  The movie 
     contained depictions of adult frontal nudity.

     Not Indecent. WPBN/WTOM License Subsidiary, Inc. (WPBN-TV 
     and WTOM-TV), 15 FCC Rcd 1838 (2000).  The Commission ruled 
     that full frontal nudity is not per se indecent.  Rather, 
     the ``full context'' of the nudity is controlling.  Looking 
     at ``the subject matter of the film, the manner of its 
     presentation, and the warnings that accompanied the 
     broadcast,'' the Commission held that the nudity in 
     ``Schindler's List'' was not actionably indecent.

     WFLA(AM), Tampa, FL                Announcer Comments

     Announcers allegedly referred to complainant, Chuck Harder, 
     as ``Suck Harder,'' ``Suck,'' and ``Suckie'' throughout the 
     broadcast and called the complainant a ``useless piece of 
     crap.''  Also referred to complainant's network, the Sun 
     Radio Network as ``Suck Harder Radio Network.''

     Not Indecent.  Jacor Broadcasting of Tampa Bay, Inc., 
     Renewal of License of Station WFLA(AM), 7 FCC Rcd 1826 (ASD, 
     MMB 1992).  Cited language was used in the context of a 
     discussion of a radio network that provided programming to a 
     station competitor and was found, in context, not actionably 
     indecent.

Compare the following cases where licensees unsuccessfully 
claimed that, because of the context of the broadcasts (i.e., 
alleged news stories), the broadcasts were not pandering.

     KSD-FM, St. Louis, MO                   ``The Breakfast 
     Club''

     I've got this Jessica Hahn interview here in Playboy.  I 
     just want to read one little segment . . . the good part.

      "[Jim Bakker] has managed to completely undress me and he's 
     sitting on my chest.  He's really pushing himself, I mean 
     the guy was forcing himself.  He put his penis in my mouth . 
     . . I'm crying, tears are coming, and he is letting go.  The 
     guy came in my mouth.  My neck hurts, my throat hurts, my 
     head feels like it's going to explode, but he's frustrated 
     and determined, determined enough that within minutes he's 
     inside me and he's on top and he's holding my arms. He's 
     just into this, he's inside me now.  Saying, when you help 
     the shepherd, you're helping the sheep."

     (followed by air personality making sheep sounds)  This was 
     rape.  Yeah, don't you ever come around here Jim Bakker or 
     we're going to cut that thing off.

     Indecent - NAL Issued.  Pacific and Southern Company, Inc. 
     (KSD-FM), 6 FCC Rcd 3689 (MMB 1990) (forfeiture paid).  The 
     broadcast contained excerpts from a Playboy magazine account 
     of the alleged rape of Jessica Hahn by the Rev. Jim Bakker.  
     The licensee explained the broadcast was newsworthy ``banter 
     by two on-air personalities reflecting public concern, 
     criticism, and curiosity about a public figure whose 
     reputedly notorious behavior was a widespread media issue at 
     the time.''  Responding to the licensee's argument, the Mass 
     Media Bureau stated that "although the program . . . 
     arguably concerned an incident that was at the time `in the 
     news,' the particular material broadcast was not only 
     exceptionally explicit and vulgar, it was . . . presented in 
     a pandering manner.  In short, the rendition of the details 
     of the alleged rape was, in context, patently offensive."    
     6 FCC Rcd at 3689.

     KNON(FM), Dallas, TX                    ``I Want to Be a 
     Homosexual'' Song

     But if you really want to give me a blowjob, I guess I'll 
     let you as long as you respect me in the morning.  Suck it 
     baby.  Oh yeah, suck it real good. . . . Are you sure this 
     is your first rim job?. . . Stick it up your punk rock ass.  
     You rub your little thing, when you see phony dikes in 
     Penthouse magazine. . . . Call me a faggot, call me a butt-
     loving fudge-packing queer. . . You rub your puny thing, 
     when you see something (?) pass you on the street.

     Indecent - NAL Issued.  Agape Broadcasting Foundation, Inc. 
     (KNON(FM)), 9 FCC Rcd 1679 (MMB 1994), forfeiture reduced 13 
     FCC Rcd 9262 (MMB 1998) (forfeiture paid).  Licensee claimed 
     that ```the words and the song constitute political speech' 
     aired in a good faith attempt to present meaningful public 
     affairs programming . . . to challenge those who would use 
     such language to stigmatize . . . members of the gay 
     community.''  13 FCC Rcd at 9263.  The Mass Media Bureau 
     responded that the licensee has ``considerable discretion as 
     to the times of the day . . . when it may broadcast indecent 
     material. ... Consequently, we find unavailing Agape's 
     argument that, in essence, its duty to air public affairs 
     programming required a mid-afternoon presentation of lyrics 
     containing repeated, explicit, and vulgar descriptions of 
     sexual activities and organs.''  Id.

     KSJO(FM), San Jose, California               Lamont & 
     Tonelli Show

     ``...she should go up and down the shaft about five times, 
     licking and sucking and on the fifth swirl her tongue around 
     the head before going back down....''

     ``Show us how its done'' (evidently the guest had some sort 
     of a prop).

     ``Well, if this was a real penis, it would have a ****ridge, 
     I would like (sic) around the ridge like this...''

     [laughter, comments such as `oh yeah, baby'].

     Indecent - NAL Issued.  Citicasters Co., licensee of Station 
     KSJO(FM), San Jose, California, 15 FCC Rcd 19095 (EB 2000) 
     (forfeiture paid).  The licensee claimed that the program 
     was a clinical discussion of oral sex.  The Enforcement 
     Bureau rejected this argument on the grounds that the disc 
     jockeys' comments on her material showed that the material 
     was offered in a pandering and titillating manner.  ``The 
     disc jockeys' invitation to have Dr. Terry use a prop on a 
     radio program, and their laughter and statements (such as 
     ``oh yeah, baby'') while she conducted that demonstration 
     shown that the material was intended to be pandering and 
     titillating as opposed to a clinical discussion of sex.'' 

The absence of a pandering or titillating nature, however, will 
not necessarily prevent an indecency determination, as 
illustrated by the following case.

     WIOD(AM), Miami, FL                     ``Penis Envy'' Song

     If I had a penis, ... I'd stretch it and stroke it and shove 
     it at smarties ... I'd stuff it in turkeys on Thanksgiving 
     day. ... If I had a penis, I'd run to my mother, Comb out 
     the hair and compare it to brother.  I'd lance her, I'd 
     knight her, my hands would indulge.  Pants would seem 
     tighter and buckle and bulge. (Refrain) A penis to plunder, 
     a penis to push, 'Cause one in the hand is worth one in the 
     bush.  A penis to love me, a penis to share, To pick up and 
     play with when nobody's there. ...   If I had a penis, ... 
     I'd force it on females, I'd pee like a fountain.  If I had 
     a penis, I'd still be a girl, but I'd make much more money 
     and conquer the world.

     Indecent - NAL Issued.  WIOD, Inc. (WIOD(AM)), 6 FCC Rcd 
     3704 (MMB 1989) (forfeiture paid).  The Mass Media Bureau 
     found the material to be patently offensive.  In response to 
     the licensee's assertion that this song was not pandering or 
     titillating and therefore should not be considered indecent, 
     the Bureau stated:  "We believe . . . that it is not 
     necessary to find that the material is pandering or 
     titillating in order to find that its references to sexual 
     activities and organs are patently offensive. (Citations 
     omitted.)  Moreover, humor is no more an absolute defense to 
     indecency . . . than is music or any other one component of 
     communication."  6 FCC Rcd at 3704.  

                    IV.  ENFORCEMENT PROCESS

The Commission does not independently monitor broadcasts for 
indecent material.  Its enforcement actions are based on 
documented complaints of indecent  broadcasting received from the 
public.  Given the sensitive nature of these cases and the 
critical role of context in an indecency determination, it is 
important that the Commission be afforded as full a record as 
possible to evaluate allegations of indecent programming.  In 
order for a complaint to be considered, our practice is that it 
must generally include:  (1) a full or partial tape or transcript 
or significant excerpts of the program;20 (2) the date and time 
of the broadcast; and (3) the call sign of the station involved.  
Any tapes or other documentation of the programming supplied by 
the complainant, of necessity, become part of the Commission's 
records and cannot be returned.  Documented complaints should be 
directed to the FCC, Investigations and Hearings Division, 
Enforcement Bureau, 445 Twelfth Street, S.W., Washington, D.C. 
20554.

If a complaint does not contain the supporting material described 
above, or if it indicates that a broadcast occurred during "safe 
harbor" hours or the material cited does not fall within the 
subject matter scope of our indecency definition, it is usually 
dismissed by a letter to the complainant advising of the 
deficiency.  In many of these cases, the station may not be aware 
that a complaint has been filed. 

If, however, the staff determines that a documented complaint 
meets the subject matter requirements of the indecency definition 
and the material complained of was aired outside "safe harbor" 
hours, then the broadcast at issue is evaluated for patent 
offensiveness.  Where the staff determines that the broadcast is 
not patently offensive, the complaint will be denied.  If, 
however, the staff determines that further enforcement action 
might be warranted,21 the Enforcement Bureau, in conjunction with 
other Commission offices, examines the material and decides upon 
an appropriate disposition, which might include any of the 
following: (1) denial of the complaint by staff letter based upon 
a finding that the material, in context, is not patently 
offensive and therefore not indecent; (2) issuance of a Letter of 
Inquiry (LOI) to the licensee seeking further information 
concerning or an explanation of the circumstances surrounding the 
broadcast; (3) issuance of a Notice of Apparent Liability (NAL) 
for monetary forfeiture; and (4) formal referral of the case to 
the full Commission for its consideration and action.22  
Generally, the last of these alternatives is taken in cases where 
issues beyond straightforward indecency violations may be 
involved or where the potential sanction for the indecent 
programming exceeds the Bureau's delegated forfeiture authority 
of $25,000 (47 C.F.R.  0.311).

Where an LOI is issued, the licensee's comments are generally 
sought concerning the allegedly indecent broadcast to assist in 
determining whether the material is actionable and whether a 
sanction is warranted.  If it is determined that no further 
action is warranted, the licensee and the complainant will be so 
advised.  Where a preliminary determination is made that the 
material was aired and was indecent, an NAL is issued.  If the 
Commission previously determined that the broadcast of the same 
material was indecent, the subsequent broadcast constitutes 
egregious misconduct and a higher forfeiture amount is warranted.  
KGB, Inc. (KGB-FM), 13 FCC Rcd 16396 (1998) (``higher degree of 
culpability for the subsequent broadcast of material previously 
determined by the Commission to be indecent'').

The licensee is afforded an opportunity to respond to the NAL, a 
step which is required by statute.  47 U.S.C.  503(b).  Once the 
Commission or its staff has considered any response by the 
licensee, it may order payment of a monetary penalty by issuing a 
Forfeiture Order.  Alternatively, if the preliminary finding of 
violation in the NAL is successfully rebutted by the licensee, 
the NAL may be rescinded.  If a Forfeiture Order is issued, the 
monetary penalty assessed may either be the same as specified in 
the NAL or it may be a lesser amount if the licensee has 
demonstrated that mitigating factors warrant a reduction in 
forfeiture.

A Forfeiture Order may be appealed by the licensee through the 
administrative process under several different provisions of the 
Commission's rules.   The licensee also has the legal right to 
refuse to pay the fine.  In such a case, the Commission may refer 
the matter to the U.S. Department of Justice, which can initiate 
a trial de novo in a U.S. District Court.  The trial court may 
start anew to evaluate the allegations of indecency.

                         V.   CONCLUSION

The Commission issues this Policy Statement to provide guidance 
to broadcast licensees regarding compliance with the Commission's 
indecency regulations.23  By summarizing the regulations and 
explaining the Commission's analytical approach to reviewing 
allegedly indecent material, the Commission provides a framework 
by which broadcast licensees can assess the legality of airing 
potentially indecent material.  Numerous examples are provided in 
this document in an effort to assist broadcast licensees.  
However, this document is not intended to be an all-inclusive 
summary of every indecency finding issued by the Commission and 
it should not be relied upon as such. There are many additional 
cases that could have been cited.  Further, as discussed above, 
the excerpts from broadcasts quoted in this document are intended 
only as a research tool.  A complete understanding of the 
material, and the Commission's analysis thereof, requires review 
of the tapes or transcripts and the Commission's rulings thereon.

                      VI.  ORDERING CLAUSE

Accordingly, it is ORDERED that this Policy Statement is ADOPTED.


                         FEDERAL COMMUNICATIONS COMMISSION


                         Magalie Roman Salas
                          1.      Secretary 
        Separate Statement of Commissioner Susan Ness

    In Re: Industry Guidance on the Commission's Case Law 
                        Interpreting 
 18 U.S.C. 1464 and Enforcement Policies Regarding Broadcast 
                          Indecency

Our enforcement of the broadcast indecency statute compels 
the FCC to reconcile two competing fundamental obligations: 
(1) to ensure that the airwaves are free of indecent 
programming material during prescribed hours when children 
are most likely to be in the audience; and  (2) to respect 
the First Amendment rights of broadcasters regarding program 
content. 
      
Understandably, the public is outraged by the increasingly 
coarse content aired on radio and television at all hours of 
the day, including times when children are likely to be 
listening or watching. The flood of letters and e-mails we 
receive reflect a high degree of anger.  As a parent, I 
share the public's frustration.  Many parents feel that they 
cannot enjoy watching daytime or primetime television with 
their children for fear that their youngsters will be 
exposed to indecent material - content that just a few years 
ago would have been unimaginable on broadcast television.

Despite an onslaught of on-air smut, the Commission 
necessarily walks a delicate line when addressing content 
issues, and must be careful not to tread on the First 
Amendment -- the constitutional bulwark of our free society.  
Even words that might be construed as indecent are subject 
to some constitutional protection against government 
regulation.24  

That said, the Supreme Court has seen fit, despite declining 
broadcast audience shares, to reaffirm the FCC's broadcast 
indecency enforcement role, given the ``pervasive'' and 
``invasive'' characteristics of the free over the air 
broadcast medium.25  Our Policy Statement on indecency 
reconciles our statutory mandate and constitutional 
obligation by providing helpful guidance to broadcasters and 
the public alike.  The guidance we offer - a restatement of 
existing statutory, regulatory, and judicial law  - 
establishes a measure of clarity in an inherently subjective 
area. 


     Recommended Procedural Improvements 


We should strive to make our complaint procedures as user-
friendly as possible.26  I believe that our complaint 
process could be improved if, prior to acting on an 
indecency complaint, the Commission routinely forwarded the 
complaint to the licensee in question.  The Policy Statement 
concedes that in ``many [indecency] cases, the station may 
not be aware that a complaint has been filed.''27  Moreover, 
many consumers feel that the Commission mechanically 
dismisses their complaints. I do not believe that 
broadcasters' First Amendment rights would be threatened if 
we were to send broadcasters a courtesy copy of complaints 
filed with the FCC.  Indeed, most broadcasters want to be 
made aware of audience complaints.  And consumers would be 
reassured that their views were being treated seriously.


     Broadcasters Are Part of a National Community


Release of this Policy Statement alone will not solve the 
festering problem of indecency on the airwaves. However, it 
is entirely within the power of broadcasters to address it  
-- and to do so without government intrusion. It is not a 
violation of the First Amendment for broadcasters on their 
own to take responsibility for the programming they air, and 
to exercise that power in a manner that celebrates rather 
than debases humankind.  

It is time for broadcasters to consider reinstating a 
voluntary code of conduct.  I encourage broadcasters, the 
Bush Administration, and Congress swiftly to resolve any 
antitrust impediments to such action and move ahead.

We all are part of a National Community.  As stewards of the 
airwaves, broadcasters play a vital leadership role in 
setting the cultural tone of our society. They can choose to 
raise the standard or to lower it. I hope that broadcasters 
will rise to the occasion by reaffirming the unique role of 
broadcasting as a family friendly medium.  The public 
deserves no less. 


     2.   
        3.   Separate Statement of Commissioner Harold W. 
                       Furchtgott-Roth
                              4.   
     5.   In the Matter of Guidance on the Commission's Case 
                      Law Interpreting 
       6.   18 U.S.C. Section 1464 and Enforcement Policies 
                Regarding Broadcast Indecency

The Commission is obliged, under a settlement agreement, to 
issue guidance on its broadcast indecency policies. As the 
courts have noted, there is a certain ``vagueness inherent 
in [this] subject matter.''28  I find that the policy 
statement establishes necessary boundaries for this elusive 
and highly subjective area of the law. 

I must note, however, that Commission action to enforce the 
indecency guidelines would set the stage for a new 
constitutional challenge regarding our authority to regulate 
content.  To be sure, Red Lion v. FCC29 and its progeny, FCC 
v. Pacifica,30 have not yet been overruled.  Nevertheless, 
their continuing validity is highly doubtful from both an 
empirical and jurisprudential point of view.31

If rules regulating broadcast content were ever a 
justifiable infringement of speech, it was because of the 
relative dominance of that medium in the communications 
marketplace of the past.32 As the Commission has long 
recognized, the facts underlying this justification are no 
longer true.33 Today, the video marketplace is rife with an 
abundance of programming,34 distributed by several types of 
content providers.35 A competitive radio marketplace is 
evolving as well, with dynamic new outlets for speech on the 
horizon.36  Because of these market transformations, the 
ability of the broadcast industry to corral content and 
control information flow has greatly diminished.37 In my 
judgment, as alternative sources of programming and 
distribution increase, broadcast content restrictions must 
be eliminated.

For these reasons, I believe that the lenient constitutional 
standard for reviewing broadcast speech, formally announced 
in Red Lion, rests on a shaky empirical foundation.38   
Technology, especially digital communications, has advanced 
to the point where broadcast deregulation is not only 
warranted, but long overdue. In my view, the bases for 
challenging broadcast indecency has been well laid, and the 
issue is ripe for court review.39

I must note my amazement that it has taken over seven years 
for the Commission to fulfill its obligation to issue this 
item.  While broadcast indecency is a delicate issue to 
discuss, it has not benefited the industry or the Commission 
to ignore the matter.  I commend the Chairman for taking the 
initiative to move this item.  Norm Goldstein and others 
staff members deserve special credit for crafting a document 
that makes the best of a difficult situation for the 
Commission.

With these observations in mind, I vote to adopt this policy 
statement.

                              7.   
                              8.   
                              9.   
    Dissenting Statement of Commissioner Gloria Tristani

     10.  IN THE MATTER OF INDUSTRY GUIDANCE ON THE 
COMMISSION'S CASE LAW INTERPRETING 
     11.  18 U.S.C. 1464 AND ENFORCEMENT POLICIES REGARDING 
BROADCAST INDECENCY, EB 
                     12.  FILE NO. 00-IH-0089

          I  dissent  from  the issuance  of  this  ``Policy 
     Statement''   (hereinafter  ``Statement'')   for  three 
     reasons.    First,  the   Statement  creates   a  false 
     impression that  it satisfies an obligation  assumed by 
     the   Commission  in   1994.   Second,   the  Statement 
     perpetuates the myth that broadcast indecency standards 
     are too vague and compliance so difficult that a Policy 
     Statement  is necessary  to  provide further  guidance.  
     Most importantly, this  Statement diverts this Agency's 
     attention and  resources away from the  ongoing problem 
     of  lax enforcement,  which  is a  pressing concern  of 
     America's citizens.

          The Statement notes that  on February 22, 1994 the 
     Commission  entered into  a  Settlement Agreement  with 
     Evergreen      Media      Corporation      (hereinafter 
     ``Agreement'').40   At fn  23 the  Statement cites  the 
     terms of the Agreement as  the source of our obligation 
     to produce this Statement:

          Specifically, in  paragraph 2(b)  of the 
          settlement  agreement,   the  Commission 
          agreed  to  "publish  industry  guidance 
          relating to its  caselaw interpreting 18 
          U.S.C.   1464 and the  FCCs enforcement 
          policies   with  respect   to  broadcast 
          indecency.''41

     The  Agreement actually  imposed  a significantly  more 
     restricted obligation.

          Within nine  months of the date  of this 
          Agreement,   the   FCC   shall   publish 
          industry   guidance   relating  to   its 
          caselaw  interpreting 18  U.S.C.   1464 
          and the  FCCs enforcement  policies with 
          respect to broadcast indecency.42

          Six and one half years  later, it is clear the FCC 
     did not  observe the  terms of  the Agreement.  While I 
     cannot  support the  FCC's failure  to comply  with the 
     timeline  set  forth  in the  original  Agreement,  the 
     record does  not disclose a single  effort by Evergreen 
     to seek  specific performance under the  Agreement.  It 
     is well  settled that  ``equity aids the  vigilant, not 
     those who slumber on their rights,'' and doctrines such 
     as laches are designed to promote diligence and prevent 
     enforcement of stale claims.43   The public interest is 
     not served  by permitting Evergreen to  sit silently on 
     the sidelines while  Commission after Commission failed 
     to act.   Even if  the FCC shirked  its duty  under the 
     Agreement, as long as Evergreen retained the benefit of 
     dismissal of indecency  cases against it as  set out in 
     the  Agreement, a  strong  case  exists that  Evergreen 
     ratified this  agency's inaction for almost  7 years.44  
     If  Evergreen  Media  Corporation  had  an  enforceable 
     interest  in  the Agreement,  it  has  long since  been 
     waived.

          Moreover,  the obligation  to issue  the Statement 
     was subject to several  conditions precedent that bound 
     Evergreen  Media.45    The Statement  itself  does  not 
     disclose   whether   Evergreen    complied   with   its 
     obligations, and  with the exception of  noting payment 
     of  $10,000  forfeiture,  the  record on  file  at  the 
     Commission is silent on the same point.  FCC Mass Media 
     Bureau records disclose that  Evergreen Media no longer 
     owns  the  license  to   which  the  Agreement's  terms 
     attached.   Finally, the  Agreement does  not bind  the 
     Commission to provide to Evergreen's assigns the relief 
     set forth  in the Agreement.46   In the absence  of the 
     party  executing the  Agreement,  and  no successor  to 
     accede  to  those interests,  it  appears  there is  no 
     extant legal  duty or enforceable right  upon which the 
     issuance of the Statement can be based.

          I turn next  to the underpinnings of  the need for 
     this statement.  The Statement provides:

          The   Commission   issues  this   Policy 
          Statement  to  provide guidance  to  the 
          broadcast  industry  regarding our  case 
          law  interpreting 18  U.S.C.   1464 and 
          our enforcement policies with respect to 
          broadcast indecency.47

     First, settlement of a case involving a single licensee 
     should not compel the FCC to adopt our most significant 
     industry-wide   Policy  Statement   on  this   subject, 
     particularly when  doing so  does not serve  the public 
     interest.   Second,  there  is nothing  in  the  record 
     demonstrating that Evergreen Media failed to understand 
     the  FCC's,  or  the  U.S. Supreme  Court's,  cases  on 
     broadcast indecency.  In fact Evergreen agreed to issue 
     to its employees a ``policy  statement'' that was to be 
     based   upon  ``the   FCC's  definition   of  broadcast 
     indecency.''48   It  his  difficult to  understand  how 
     Evergreen   could  both   issue   a  policy   statement 
     containing  the FCC's  definition of  indecency to  its 
     employees  and simultaneously  be unable  to understand 
     the FCC's  definition.  But  leaving that  quirk aside, 
     there is  simply no proof that  broadcast licensees are 
     in  need of  this Policy  Statement.  No  factual basis 
     exists   for  concluding   that  confusion   about  the 
     standards  or  overreaching   enforcement  by  the  FCC 
     requires this Statement.

          Moreover, I  am aware of  no rush of  inquiries by 
     broadcast  licensees  seeking  to learn  whether  their 
     programs  comply with  our indecency  caselaw.  In  the 
     absence of  such requests,  this Policy  Statement will 
     likely  become instead  a ``how-to''  manual for  those 
     licensees  who wish  to  tread the  line  drawn by  our 
     cases.   It  likely may  lead  to  responses to  future 
     enforcement   actions  that   cite  the   Statement  as 
     establishing  false safe  harbors.  In  the absence  of 
     proof that  the Statement addresses  concerns supported 
     by the FCC's  history of enforcement, or  the record of 
     the Evergreen case, the  Statement is nothing more than 
     a remedy in search of a problem.  It would better serve 
     the public if  the FCC got serious  about enforcing the 
     broadcast  indecency standards.   For these  reasons, I 
     dissent.

_________________________

1 Obscene and profane language and depictions are not within the 
scope of this Policy Statement.

2 Although Section 1464 is a criminal statutue, the Commission 
has authority to impose civil penalties for the broadcast of 
indecent material without regard to the criminal nature of the 
statute.  FCC v. Pacifica Foundation, 438 U.S. 726, 739, n. 13 
(1978); see also Action for Children's Television v. FCC, 852 
F.2d 1332, 1335 (D.C.Cir. 1988) (see n. 8 for full case history) 
(Commission has authority to sanction licensees for broadcast of 
indecent material).  The Department of Justice is responsible for 
prosecution of criminal violations of the statute.

3 See Miller v. California, 413 U.S. 15 (1973), reh'g. denied, 
414 U.S. 881 (1973); Sable Communications of California, Inc. v. 
FCC, 492 U.S. 115 (1989); 47 C.F.R.  73. 3999(a).  Obscene 
speech is defined by a three-part test: (1) an average person, 
applying contemporary community standards, must find that the 
material, as a whole, appeals to the prurient interest; (2) the 
material must depict or describe, in a patently offensive way, 
sexual conduct specifically defined by applicable law; and (3) 
the material, taken as a whole, must lack serious literary, 
artistic, political, or scientific value.  Miller v. California, 
413 U.S. at 24.

4 Sable v. FCC, 492 U.S. at 126. 

5 Id. at 748-50 (upholding Commission declaratory order that 
afternoon broadcast of a recording of a 12 minute monologue 
entitled ``Filthy Words'' was indecent as broadcast); see also 
742-47 (Stevens, J.) and 757-61 (Powell, J.). 

6 Id. at 732.

7 Enforcement of Prohibitions Against Broadcast Indecency in 18 
U.S.C.  1464, 8 FCC Rcd 704, n. 10 (1993).  See also Action for 
Children's Television v. FCC, 852 F.2d 1332, 1338 (D.C.Cir. 1988) 
and Action for Children's Television v. FCC , 58 F.3d 654, 657 
(D.C. Cir. 1995) (see n. 8 for full case history). 

8 Action for Children's Television v. FCC, 852 F.2d 1332, 1339 
(D.C.Cir. 1988) (``ACT I''); Action for Children's Television v. 
FCC, 932 F.2d 1504, 1508 (D.C. Cir. 1991), cert. denied, 112 S. 
Ct. 1282 (1992) (``ACT II''); Action for Children's Television v. 
FCC , 58 F.3d 654, 657 (D.C. Cir. 1995), cert. denied, 116 S. Ct. 
701 (1996) (``ACT III''). 

9 These special justifications included the history of extensive 
government regulation of the broadcast medium, the scarcity of 
available frequencies at its inception, and broadcast's 
``invasive'' nature.  Id.  See also Commission's Forfeiture 
Policy Statement and Amendment of Section 1.80 of the Rules to 
Incorporate the Forfeiture Guidelines, 15 FCC Rcd 303, 305-06 
(1999) (``courts have repeatedly upheld the Commission's 
indecency standard'').

10 Making Appropriations for the Departments of Commerce, 
Justice, and State, the Judiciary and Related Agencies for the 
Fiscal Year Ending September 30, 1989, and for Other Purposes, 
Pub. L. No. 100-459, Section 608, 102 Stat. 2186, 2228 (1988).

11 Public Telecommunications Act of 1992, Pub. L. No. 102-356,  
16(a), 106 Stat. 949, 954 (1992); Enforcement of Prohibitions 
Against Broadcast Indecency in 18 U.S.C.  1464, Report and 
Order, 8 FCC Rcd 704 (1993).

12 Enforcement of Prohibitions Against Broadcast Indecency in 18 
U.S.C.  1464, Memorandum Opinion and Order, 10 FCC Rcd 10558 
(1995).

13 60 FR 44439 (August 28, 1995).

14 The Commission has also identified ``protection of the home 
against intrusion by offensive broadcasts'' as a compelling 
government interest.  The court did not address the validity of 
that interest. ACT III, 58 F.3d at 660-61.  The Supreme Court has 
noted, however, that the ``uniquely pervasive presence'' of the 
broadcast media, with the audience continually tuning in and out, 
so as to make content warnings less effectual, is a reason for 
affording broadcast media more limited First Amendment 
protections as compared to other forms of communications.  FCC v. 
Pacifica Foundation, 438 U.S. at 748-49.  

15 The Commission's interpretation of the term ``contemporary 
community standards'' flows from its analysis of the definition 
of that term set forth in the Supreme Court's decision in Hamling 
v. United States, 418 U.S. 87 (1974), reh'g denied, 419 U.S. 885 
(1974).  In Infinity Broadcasting Corporation of Pennsylvania 
(WYSP(FM)), 3 FCC Rcd 930 (1987) (subsequent history omitted), 
the commission observed that in Hamling, which involved 
obscenity, ``the Court explained that the purpose of 
`contemporary community standards' was to ensure that material is 
judged neither on the basis of a decisionmaker's personal 
opinion, nor by its effect on a particularly sensitive or 
insensitive person or group.'' 3 FCC Rcd at 933, citing 418 U.S. 
at 107.  The Commission also relied on the fact that the Court in 
Hamling indicated that decisionmakers need not use any precise 
geographic area in evaluating material.  3 FCC Rcd at 933, citing 
418 U.S. at 104-05.  Consistent with Hamling, the Commission 
concluded that its evaluation of allegedly indecent material is 
``not one based on a local standard, but one based on a broader 
standard for broadcasting generally.''  3 FCC Rcd at 933.

16 WPBN/WTOM License Subsidiary, Inc., 15 FCC Rcd at 1841; 
Infinity Broadcasting Corp., 3 FCC Rcd 930, 931-32 (1987), aff'd 
in part, vacated in part, remanded sub nom. Act I, 852 F.2d 1332 
(D.C. Cir. 1988) (subsequent history omitted).

17 Peter Branton, 6 FCC Rcd 610 (1991), aff'd sub nom. Branton v. 
FCC, 993 F.2d 906 (D.C. Cir. 1993), cert. denied 511 U.S. 1052 
(1994).

18 See Great American Television and Radio Company, Inc. 
(WFBQ(FM)), 6 FCC Rcd 3692 (MMB 1990) ("Candy Wrapper").

19 See e.g., Infinity Broadcasting Corp., 3 FCC Rcd 930, 931-32 
(1987), aff'd in part, vacated in part on other grounds, remanded 
sub nom. Act I, 852 F.2d 1332 (D.C. Cir. 1988) (subsequent 
history omitted).



20 See Citicasters Co., licensee of Station KSJO(FM), San Jose, 
California, 15 FCC Rcd 19095 (EB 2000) (forfeiture paid) (``While 
the complainant did not provide us with an exact transcript of 
the broadcast, we find that she has provided us with sufficient 
context to make the determination that the broadcast was 
indecent.'').

21 In Act IV, the court rejected a facial challenge to the 
Commission's procedures for imposing forfeitures for the 
broadcast of indecent materials.  Action for Children's 
Television v. FCC, 59 F.3d 1249 (D.C. Cir. 1995), cert. denied, 
116 S. Ct. 773 (1996) (``Act IV'').

22 This section discusses the typical process.  The Commission 
also has authority to send forfeiture cases to a hearing, in 
which case the procedures discussed here differ.  See 47 U.S.C.  
503(b)(3).  See also 47 U.S.C.  312(b) (revocation hearing for 
violation of 18 U.S.C.  1464).

23 This Policy Statement addresses the February 22, 1994, 
Agreement for Settlement and Dismissal with Prejudice between the 
United States of America, by and through the Department of 
Justice and Federal Communications Commission, and Evergreen 
Media Corporation of Chicago, AM, Licensee of Radio Station 
WLUP(AM).  Specifically, in paragraph 2(b) of the settlement 
agreement, the Commission agreed to ``publish industry guidance 
relating to its caselaw interpreting 18 U.S.C.  1464 and the 
FCC's enforcement policies with respect to broadcast indecency.'' 
United States v. Evergreen Media Corp., Civ. No. 92 C 5600 (N.D. 
Ill., E. Div. 1994).  The settlement agreement also provides that 
the forfeiture order imposed in Evergreen Media Corporation of 
Chicago AM WLUP(AM)), 6 FCC Rcd 502 (MMB 1991), is null and void 
and expunged from the record.  It further specifies that the 
Notice of Apparent Liability issued to WLUP on February 25, 1993, 
Evergreen Media Corporation of Chicago AM (WLUP(AM)), 8 FCC Rcd 
1266 (1993), became null and void and expunged from the record 
six months from the date of the agreement.  Accordingly, those 
decisions are officially vacated.

24 FCC v. Pacifica Foundation, 438 U.S. 726, 746 (1978) 
(while offensive words might ``ordinarily lack literary, 
political, or scientific value, they are not entirely 
outside the protection of the First Amendment), cf. id. at 
745 (``obscenity may be wholly prohibited'').

25  See, Reno v. ACLU, 521 U.S. 844, 868 (1997).

26  The Policy Statement is careful to point out that 
complaints need not be letter perfect, see, e.g., n. 20 
(citing Bureau decision that an inexact transcript may be 
sufficient to meet procedural requirements).

27   Policy Statement at para. 24.

28Action for Children's Television v. FCC, 852 F.2d 1332, 
1338 (1998) (internal quotation and citation omitted).

29395 U.S. 367 (1969).

30438 U.S. 726 (1978).

31Since Pacifica, the Courts have repeatedly struck down 
indecency regulations and other content-based restrictions.  
See, e.g., United States v. Playboy Entertainment Group, 
Inc., 120 S.Ct. 1878 (2000) (striking down statutory adult 
cable channel scrambling requirements); Greater New Orleans 
Broadcasting Ass'n v. U.S., 527 U.S. 173 (1999) (striking 
down the statutory and regulatory bans on casino advertising 
for broadcast stations); Reno v. ACLU, 117 S.Ct. 2329 (1997) 
(striking down statutory internet indecency requirements); 
Denver Area Educ. Telecomms. Consortium, Inc. v. FCC, 518 
U.S. 727 (1996) (striking down certain statutory indecency 
requirements for commercial leased access and public access 
channels on cable television systems); and Sable 
Communications v. FCC, 492 U.S. 115 (1989) (striking down a 
ban on indecent telephone messages).  See also, Time Warner 
Entertainment Co. v. FCC, __ F.3d. __ (D.C. Cir. 2001) 
(striking down FCC cable ownership cap and channel occupancy 
limits); and Charter Communications v. County of Santa Cruz, 
__ F.Supp. __ (N.D. Cal. 2001) (striking down local cable 
franchise transfer requirements).

32See, e.g., FCC v. Pottsville Broadcasting Co., 309 U.S. 
134, 137 (1940) (ownership rules justified by "a widespread 
fear that in the absence of governmental control the public 
interest might be subordinated to monopolistic domination"); 
see also Red Lion Broadcasting Co. v. FCC, 395 U.S. 367 
(1969) (justifying, at that point in history, a "less 
rigorous standard of First Amendment scrutiny" on the basis 
of "spectrum scarcity").

33See 1985 Fairness Report, 102 FCC 2d 145, 198-221 (1985); 
Syracuse Peace Council, 2 FCC Rcd 5043, 5053 (1985).

34There are well over two hundred channels of video 
programming developed by the cable and broadcast industries.  
In addition, hyper-localized programming, produced by 
public, educational and governmental entities, is now 
available on cable systems throughout the United States.  
Also, dozens of pay-per-view programming options exist for 
cable and satellite subscribers.  Finally, internet users 
have access to tens of thousands of audio programming 
sources and streaming video technology will soon advance to 
the point that broadcast quality television will be 
available to anyone connected to the world wide web.

35Cable operators, cable overbuilders, OVS operators, 
internet service providers, wireless video systems, SMATV, 
common carriers, and satellite carriers are just some of the 
possible outlets for distributing video content.  The 
promise of multiplexed digital television signals, available 
to everyone over-the-air, adds even more video programming 
choices for the American public.

36Satellite radio will debut soon and digital audio 
broadcasting holds out much promise for the future of 
terrestrial radio transmission.  Both types of services will 
offer listeners more channels of programming at higher 
quality levels than is available today.  Moreover, hundreds 
of radio stations are currently streaming content over the 
internet, with thousands of more to follow.

37See Joint Statement of Commissioners Powell and 
Furchtgott-Roth, In re Personal Attack and Political 
Editorial Rules, FCC Gen. Docket No. 83-484, at 5 and n. 15 
(citing statistics on boom in communications outlets).

38It is ironic that streaming video or audio content from a 
television or radio station would likely receive more 
constitutional protection, see Reno, than would the same 
exact content broadcast over-the-air.  A more interesting 
First Amendment question will soon arise when digital 
television stations begin offering subscription services 
over-the-air.  Will intermediate scrutiny apply because the 
pay service is akin to cable television or will a lesser 
standard apply because it is available over-the-air?  The 
same inquiries attach to radio signals delivered to 
listeners on a subscription basis via satellite.

39Dissenting Statement of Commissioner Harold W. Furchtgott-
Roth, In the Matter of 1998 Biennial Regulatory Review: 
Review of the Commission's Broadcast Ownership Rules and 
Other Rules Adopted Pursuant to Section 202 of the 
Communications Act (rel. June 20, 2000).

40 See United States v. Evergreen Media Corp., Civ. No. 92 C 
5600 (N.D. Ill., E. Div. 1994).

41 See Policy Statement at p. 17-18, n.23.

42 See Settlement Agreement at p. 3.

43  See   e.g.  Powell  v.   Zuckert,  366  F.2d   634,  636 
(D.C.Cir.1966).

44 See  e.g., Buffum v.  Peter Barceloux Co., 289  U.S. 227, 
234 (1933).

45   The   Agreement    provides   the   parties   exchanged 
``consideration  and mutual  promises hereinafter  stated.''  
See Settlement  Agreement at p. 2   The Agreement describes, 
at Para. 3,  several actions to be  undertaken by Evergreen.  
The Agreement is  a form of an executory  contract the terms 
of   which  require   timely   satisfaction  to   constitute 
compliance.  Failure  by either party to  perform would make 
the Agreement voidable or unenforceable.

46 See Settlement Agreement at p. 4.

47 See Statement at p.1.

48 See Settlement Agreement, at p. 3.