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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
NBC TELEMUNDO LICENSE CO. ) File Nos. EB-03-IH-0539
Licensee of Station WRC-TV ) 0562
Washington, D.C. ) EB-03-IH-
Facility ID No. 47904
MEMORANDUM OPINION AND ORDER
Adopted: October 1, 2004 Released: November 23, 2004
By the Commission:
1. In this Memorandum Opinion and Order, we deny four
individual complaints (the ``Complaints'') from the Parents
Television Council (``PTC'') and 44 related complaints 1 alleging
that NBC Telemundo License Co., licensee of Station WRC-TV,
Washington, D.C., and various other affiliates of the NBC
Television Network (``NBC'') aired episodes of the NBC program
``Coupling'' on September 25 and October 2, 9 and 23, 2003, in
violation of federal restrictions regarding the broadcast of
2. The Complaints allege that, at 9:00 p.m. Eastern
Standard Time, on September 25, and October 2, 9 and 23, 2003,
Station WRC-TV broadcast episodes of the ``Coupling'' program
that contained allegedly indecent material.3 According to the
Complaints, which are attached hereto, the episodes at issue
``contained . . . indecent material'' and were also ``seen in
homes across the country.''4
3.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.5 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.''6 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,7 shall not broadcast
indecent material during the period 6 a.m. through 10 p.m.8
4.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 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
5.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
The complained-of material aired during the episodes of the
``Coupling'' program depicts or describes sexual activities and
organs, and therefore, warrants further scrutiny to determine
whether it is patently offensive as measured by contemporary
community standards. For the reasons set forth below, however,
we conclude that the material is not patently offensive, and
therefore, not indecent.
6.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
7. After reviewing the transcripts and videotapes of the
episodes provided by PTC, we conclude that the complained-of
material is not sufficiently explicit or graphic to be indecent.
The episodes in question deal with the interconnected
relationships of the six regular characters in the series, three
men and three women.19 The complained-of material is primarily
the dialogue between the characters, which involves conversations
exploring their relationships. The material presents a close
case. The dialogue includes sustained and repeated use of sexual
innuendo and double entendre, with sex the constant theme of the
program episodes. The cumulative effect of such repeated
references appear to render the material shocking, titillating,
or pandering to the viewing audience. We conclude that our
findings with respect to these two factors are outweighed in this
instance by the first component of our analysis, lack of explicit
or graphic depiction or description. The episodes in question do
not explicitly depict sexual activities or organs (other than
kissing). Rather, the characters' conversations together with
the set-up of the scenes make clear that sexual activity has
occurred. Further, despite repeated references to sexual
activities and organs, which we find troubling, none of the
episodes contains graphic descriptions of sexual activities and
organs or uses language that is so graphic as to qualify as
indecent or profane. Consequently, we conclude that the
material, in context, is not patently offensive as measured by
contemporary community standards for the broadcast medium and,
therefore, not indecent.20
III. ORDERING CLAUSES
8.ACCORDINGLY, IT IS ORDERED, that the complaints alleging
that Station WRC-TV and other licensees airing NBC programming
violated the indecency prohibition by broadcasting the September
25 and October 2, 9 and 23, 2003, episodes of the ``Coupling''
program, ARE HEREBY DENIED.
9. IT IS FURTHER ORDERED, that copies of this Memorandum
Opinion and Order shall be sent by Certified Mail Return -
Receipt Requested to Parents Television Council, 707 Wilshire
Boulevard, Suite 2075, Los Angeles, California 90017, and to NBC
Telemundo License Co., licensee of Station WRC-TV, 1299
Pennsylvania Avenue, N.W., Washington, D.C. 20004.
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
1 To date, the Commission has received a total of 48 complaints
concerning the September 25 and October 2, 9 and October 23,
2003, episodes of the program broadcast by the NBC affiliates.
2 See 18 U.S.C. § 1464 and 47 C.F.R. § 73.3999.
3 See Letters from Parents Television Council (``PTC'') to
Federal Communications Commission, dated November 24, 2003, and
October 29, 2003. The Complaints state that the `` Coupling''
episodes at issue were broadcast over Station WRC-TV and
stations of other NBC affiliates across the country.
4 See id; Attachments A-D (emphasis in original).
5 U.S. CONST., amend. I; 47 U.S.C. § 326 (2002).
6 18 U.S.C. § 1464.
7 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.).
8 See 47 C.F.R. § 73.3999. We note that to the extent
complainants in the Eastern and Pacific time zones objected to
broadcasts of the ``Coupling'' episodes after 10:00 p.m. in those
areas, those broadcasts were outside the time period covered by
our indecency rules. See supra n. 9 and accompanying text.
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 18 U.S.C. 1464; 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''); ACT III, 58 F. 3d 654.
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
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 Id., 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 Id., 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
19 See Complaints.
20 The ``contemporary standards for the broadcast medium''
criterion is that of the average broadcast listener and with
respect to Commission decisions, does not encompass any
particular geographic area. See id., 16 FCC Rcd at 8002, ¶ 8.