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

In the Matter of                 )
Various Complaints Against the   )    File Nos. EB-03-IH-0468; 
Cable/Satellite Television       )    EB-03-IH-0563 through 0567; 
Program “Nip/Tuck”             )    EB-03-IH-0732; EB-05-IH-


Adopted:  March 3, 2005                  Released:  March 4, 2005

By the Chief, Enforcement Bureau:


     1.   In this Memorandum Opinion and Order, we deny 
complaints received from individuals who have alleged that the 
television program “Nip/Tuck,” shown on the FX Network, or 
various episodes of the program, violate federal restrictions 
regarding indecent and obscene material.  As set forth below, the 
Commission has indicated that it does not regulate cable 
indecency or indecency on satellite subscription services, so we 
deny that aspect of the complaints.  Moreover, nothing in the 
record indicates that “Nip/Tuck” meets the legal test for 
obscenity, so we deny that aspect of the complaints as well.


     2.   The television program “Nip/Tuck,” a drama involving 
plastic surgeons, is shown on the FX Network, which is available 
through cable or satellite service.1  Some complaints allege that 
the program generally is indecent and/or obscene, and other 
complaints allege that various, specific episodes are indecent 
and/or obscene.  Although the complaints vary in the degree of 
detail provided, they generally allege that the program depicts 
actors engaged in an array of simulated sexual acts, including 
oral, anal, and genital intercourse, as well as nudity.  Some 
complaints also focus on the program's graphic portrayal of 
medical procedures such as liposuction and rhinoplasty.  


     3.   The Commission does not regulate cable indecency.  In 
this regard, the Commission recently stated: “Indecency 
regulation is only applied to broadcast services,” not cable.2  
In declining to review complaints regarding cable indecency, the 
Commission has said that cable services “are not broadcast 
services, but subscription-based services, which do not call into 
play the issue of indecency.”3  Under 18 U.S.C.  1464, the 
Commission has express statutory authority to impose sanctions 
for the broadcast of “any obscene, indecent, or profane language 
by means of radio communication.”4  As the Commission recently 
stated:  “. . . the criminal code restriction on indecency 
applies only to `means of radio communication' and therefore not 
cable communications.”5  Thus, the Commission does not regulate 
cable indecency.  More generally, the Commission also has made 
clear that indecency restrictions do not apply to other 
subscription services:  “[T]his case, which involves 
subscription as opposed to conventional broadcast service - does 
not call into play the issue of indecency.”6

     4.   We also deny the complaints to the extent that they 
allege that “Nip/Tuck” is obscene.  The three-part obscenity 
test set forth in Miller v. California requires that (1) an 
average person, applying contemporary community standards, would 
find that the material, as a whole, appeals to the prurient 
interest; (2) the material depicts or describes, in a patently 
offensive way, sexual conduct specifically defined by applicable 
law; and (3) the material, taken as a whole, lacks serious 
literary, artistic, political, or scientific value.7  This test 
is designed “to isolate `hard core' pornography from expression 
protected by the First Amendment.”8  The complaints, even those 
that cite to and describe specific episodes, do not allege that 
the program actually depicts the kind of “hard core” 
pornography covered by Miller.  Further, nothing in the record 
indicates that “Nip/Tuck” as a whole appeals to the prurient 
interest or lacks serious literary, artistic, political, or 
scientific value.

     5.   Finally, although the Commission does not regulate 
cable indecency, we note that the Act provides a number of tools, 
available through current technology, for those who wish to 
selectively block unwanted television programming.  As the 
Commission has noted, “[f]irst, as section 640 requires, a cable 
operator must block programming, using any means, if such a 
request is made by a particular 

subscriber.  Second, a cable subscriber may obtain a lock-box 
from the local cable operator if he or she wants to selectively 
block unwanted material.”9  Satellite subscription services have 
similar tools.10


     6.   Accordingly, IT IS ORDERED, that the complaints filed 
against the FX Network television program “Nip/Tuck” are hereby 

                              FEDERAL COMMUNICATIONS COMMISSION

                              David H. Solomon
                              Chief, Enforcement Bureau


1See  “Unlike broadcast television, which 
sends over-the-air signals, cable television operates by 
transmitting programs to subscribers through coaxial cables or 
wires.”  Cruz v. Ferre, 755 F.2d 1415, 1419 n.4 (11th Cir. 1985) 
(citations omitted).  Satellite television is transmitted via 
“over-the-air signals” but, like cable, is available only to 
subscribers.  See Subscription Video, Report and Order, 2 FCC Rcd 
1001, 1005,  32 (1987) (subscription-based satellite services 
are not “broadcasting” as defined by the Communications Act), 
aff'd sub nom. National Association for Better Broadcasting v. 
FCC, 849 F.2d 665 (D.C. Cir. 1988).      
2 See Violent Television Programming and Its Impact on Children, 
Notice of Inquiry, 19 FCC Rcd 14394, 14403,  21 (2004) 
(“Violence NOI”).
3Applications for Consent to the Transfer of Control of Licenses 
from Comcast Corporation and AT&T Corp., Transferors, to AT&T 
Comcast Corporation, Transferee, Memorandum Opinion and Order, 17 
FCC Rcd 23246, 23328,  213 (2002) (subsequent history omitted).
418 U.S.C.  1464 (“Whoever utters any obscene, indecent, or 
profane language by means of radio communications shall be fined 
under this title or imprisoned not more than two years, or 
both.”); compare id. with 18 U.S.C. 1468(a) (“Whoever 
knowingly utters any obscene language or distributes any obscene 
matter by means of cable television or subscription services on 
television, shall be punished by imprisonment for not more than 2 
years or by a fine in accordance with this title, or both.”).  
See also Telecommunications Act of 1992, Pub. L. No. 102-356,  
16a, 106 Stat. 949, 954 (1992) (requiring Commission to implement 
indecency time of day restrictions on “radio or television 
broadcast station[s]”) (emphasis added); 47 C.F.R.  73.3999 
(applying indecency restrictions to broadcast but not to cable).  
5 Violence NOI, 19 FCC Rcd at 14403, n.45 (quoting 18 U.S.C.  
1464).  The Commission also noted there that its rules regarding 
section 1464 do not apply to cable.
6 See Harriscope of Chicago, Inc., Memorandum Opinion and Order, 
3 FCC Rcd 757, 760 n.2 (1988) (subsequent history omitted) 
(indecency restrictions not applied to subscription service 
provided by television licensee; “Consistent with existing case 
law, the Commission does not impose regulations regarding 
indecency on services lacking the indiscriminate access to 
children that characterizes broadcasting.”); see also Litigation 
Recovery Trust, Memorandum Opinion and Order, 17 FCC Rcd 21852, 
21856,  8 (2002) (indecency restrictions not applicable to 
satellite programming provided to hotels; “[s]uch subscription-
based services do not call into play the issue of indecency.”).
7Miller v. California, 413 U.S. 15, 24 (1973).
8Id. at 29.
9Implementation of Section 505 of the Telecommunications Act of 
1996, Order, 16 FCC Rcd 20915, 20918,  9 (2001); see 47 U.S.C. 
 544(d)(2), 560.  For further information on how consumers can 
restrict access to unwanted television programming, see 
10 See;