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

In the Matter of                 )
KSAZ License, Inc.               )    File No. EB-03-IH-0256
                                )    Facility ID No. 35587
Licensee of Station KSAZ(TV)     )
Phoenix, Arizona                 )


   Adopted:  August 4, 2004             Released:  August 9, 2004

By the Commission:


     1.   In  this  Memorandum  Opinion  and  Order,  we  deny  a 
complaint  by  Americans  for  Decency1  and  related  complaints 
alleging that  KSAZ License,  Inc.  (``KSAZ''), the  licensee  of 
Station  KSAZ(TV),  Phoenix,  Arizona,  aired  indecent  material 
during the ``Will and Grace'' program on March 31, 2003,  between 
the hours of 6:00  and 7:00 p.m.2   The complainants allege  that 
the ``Will and Grace'' episode at issue included a scene in which 
``[a] woman photographer passionately kissed [a] woman author and 
then humped her (what she called a `dry hump.')''3  We find  that 
the material is not ``patently offensive'' under the Commission's 
indecency analysis.


     2.The  Federal Communications  Commission is  authorized  to 
license  radio   and  television   broadcast  stations   and   is 
responsible for enforcing the  Commission's rules and  applicable 
statutory provisions concerning the operation of those  stations.  
The Commission's  role  in  overseeing program  content  is  very 
limited.  The First Amendment  to the United States  Constitution 
and section 326 of  the Communications Act  of 1934, as  amended, 
(the ``Act'')  prohibit  the Commission  from  censoring  program 
material and  from  interfering  with  broadcasters'  freedom  of 
expression.4  The Commission does, however, have the authority to 
enforce statutory and regulatory provisions restricting indecency 
and obscenity.  Specifically, it is a violation of federal law to 
broadcast obscene  or  indecent  programming.  Title  18  of  the 
United States Code, Section 1464 prohibits the utterance of ``any 
obscene,  indecent  or  profane   language  by  means  of   radio 
communication.''5   In   addition,   section   73.3999   of   the 
Commission's rules provides  that radio  and television  stations 
shall not broadcast obscene material at any time, and, consistent 
with a subsequent  statute and court  case,6 shall not  broadcast 
indecent material during the period 6 a.m. through 10 p.m.7   The 
Commission may impose a monetary forfeiture, pursuant to  Section 
503(b)(1) of  the Act,8  upon  a finding  that the  licensee  has 
broadcast indecent material in violation of 18 U.S.C. § 1464  and 
Section 73.3999 of the rules.

     A.Indecency Analysis

     3.Any consideration  of government action against  allegedly 
indecent programming must  take into account  the fact that  such 
speech is  protected under  the  First Amendment.9   The  federal 
courts consistently have upheld Congress's authority to  regulate 
the broadcast of indecent material,  as well as the  Commission's 
interpretation and  implementation  of the  governing  statute.10  
Nevertheless, the First  Amendment is  a critical  constitutional 
limitation that  demands that,  in indecency  determinations,  we 
proceed cautiously and with appropriate restraint.11  

     4.The Commission defines  indecent speech as language  that, 
in context, depicts or  describes sexual or excretory  activities 
or organs in terms patently offensive as measured by contemporary 
community standards for the broadcast medium.12  

           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 definition¾that is, the  material 
           must describe or depict sexual or excretory 
           organs or  activities. .  . .  Second,  the 
           broadcast must  be  patently  offensive  as 
           measured    by    contemporary    community 
           standards for the broadcast medium.13

It is not  clear that the  material aired during  the ``Will  and 
Grace'' program  identified by  the complainants  depicts  sexual 
activities and, therefore, warrants further scrutiny to determine 
whether it  is patently  offensive  as measured  by  contemporary 
community standards.  Even  were the material  to fit within  the 
subject matter scope  of the indecency  prohibition, however,  we 
conclude that it is not patently offensive.

     5.In  our  assessment  of  whether  broadcast  material   is 
patently offensive,  ``the full  context  in which  the  material 
appeared is  critically important.''14   Three principal  factors 
are significant to this contextual analysis: (1) the explicitness 
or graphic nature  of the description;  (2) whether the  material 
dwells  on  or  repeats  at  length  descriptions  of  sexual  or 
excretory organs  or activities;  and  (3) whether  the  material 
appears to  pander  or  is  used to  titillate  or  shock.15   In 
examining these three factors, we must weigh and balance them  to 
determine whether the  broadcast material  is patently  offensive 
because ``[e]ach indecency case  presents its own particular  mix 
of these, and possibly, other factors.''16  In particular  cases, 
the weight of one or two of the factors may outweigh the  others, 
either rendering the  broadcast material  patently offensive  and 
consequently  indecent,17   or,   alternatively,   removing   the 
broadcast material from the realm of indecency.18    

     6.After  reviewing the  relevant episode,  we conclude  that 
material broadcast on the ``Will and Grace'' program at issue  is 
not sufficiently  explicit  or  graphic  to  be  indecent.   Both 
characters are fully clothed, and  there is no evidence that  the 
activity depicted  was  dwelled  upon, or  was  used  to  pander, 
titillate or shock the  audience.  Accordingly, we conclude  that 
KSAZ did not  violate the Commission's  indecency prohibition  by 
airing the ``Will and Grace'' program on March 31, 2003.


     7.ACCORDINGLY,  IT  IS ORDERED,  that  the  above-referenced 
complaints filed against  KSAZ License, Inc.'s  broadcast of  the 
``Will and Grace'' program on March 31, 2003, are hereby DENIED. 

     8. IT  IS FURTHER ORDERED,  that a copy  of this  Memorandum 
Opinion and Order shall be sent by Certified Mail Return  Receipt 
Requested to Americans for Decency, 3431 W. Thunderbird Road, Box 
275, Phoenix, Arizona  85053-5641.


                         Marlene H. Dortch


1 See  Letter  from  Americans for  Decency  to  Michael  Powell, 
Chairman, Federal  Communications  Commission,  received  May  7, 
2 47 U.S.C. § 503(b); 47 C.F.R. § 1.80
3  Though  not  specifically  defined  in  the  complaint,  ``dry 
humping'' is commonly understood to consist of two people rubbing 
their clothed bodies together for sexual stimulation.
4 U.S. CONST., amend. I; 47 U.S.C. § 326 (2002).
5 18 U.S.C. § 1464. 
6 Public Telecommunications Act of 1992, Pub. L. No. 102-356, 106 
Stat. 949 (1992) (setting the current safe harbor of 10 p.m. to 6 
a.m. for the broadcast of indecent material); see also Action for 
Children's Television v. FCC, 58 F.  3d 654 (D.C. Cir. 1995)  (en 
banc)  (``ACT  III''),  cert.   denied,  516  U.S.  1072   (1996) 
(affirming restrictions  prohibiting  the broadcast  of  indecent 
material between the hours of 6 a.m. and 10 p.m.). 
7 See 47 C.F.R. § 73.3999.  
8 See 47 U.S.C. § 503(b)(1).
9 U.S. CONST., amend. I; See Action for Children's Television  v. 
FCC, 852 F.2d 1332, 1344 (D.C. Cir. 1988) (``ACT I'').
10 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.''   FCC   v. 
Pacifica Foundation, 438 U.S.  726 (1978).  See  also ACT I,  852 
F.2d at 1339; Action for  Children's Television v. FCC, 932  F.2d 
1504, 1508 (D.C. Cir.  1991), cert. denied,  503 U.S. 914  (1992) 
(``ACT II''); Action for Children's  Television v. FCC, 58 F.  3d 
654 (D.C. Cir. 1995), cert.  denied, 516 U.S. 1043 (1996)  (``ACT 
11 ACT I, 852 F.2d at 1344, 1340 n.14  (``Broadcast material that 
is indecent but not obscene is protected by the First  Amendment; 
the FCC may regulate such material only with due respect for  the 
high value our Constitution places on freedom and choice in  what 
people may  say and  hear.'');  see id.  at 1340  n.14  (``...the 
potential chilling  effect of  the  FCC's generic  definition  of 
indecency  will  be  tempered  by  the  Commission's   restrained 
enforcement policy.'').   
12 Infinity Broadcasting Corporation  of Pennsylvania, 2 FCC  Rcd 
2705  (1987)  (subsequent   history  omitted)  (citing   Pacifica 
Foundation, 56  FCC 2d  94,  98 (1975),  aff'd  sub nom.  FCC  v. 
Pacifica Foundation, 438 U.S. 726 (1978)).  
13 Industry Guidance on the Commission's Case Law Interpreting 18 
U.S.C.  §1464  and   Enforcement  Policies  Regarding   Broadcast 
Indecency (``Indecency  Policy  Statement''), 16  FCC  Rcd  7999, 
8002, ¶¶ 7-8 (2001) (emphasis in original).
14 Indecency Policy Statement, 16 FCC Rcd at 8002, ¶ 9  (emphasis 
in original).  
15 Id. at 8002-15, ¶¶ 8-23.  
16 Id. at 8003, ¶ 10.
17 Id. at 8009, ¶ 19 (citing Tempe Radio, Inc. (KUPD-FM), 12  FCC 
Rcd 21828  (MMB 1997)  (forfeiture  paid) (extremely  graphic  or 
explicit nature of references to sex with children outweighed the 
fleeting  nature  of  the  references);  EZ  New  Orleans,   Inc. 
(WEZB(FM)), 12 FCC Rcd 4147 (MMB 1997) (forfeiture paid) (same). 
18 Indecency Policy Statement,  16 FCC Rcd at  8010, ¶ 20  (``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'').