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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
Various Complaints Regarding ) File No. EB-04-IH-0329
CNN's Airing of the 2004 )
Democratic National Convention )
MEMORANDUM OPINION AND ORDER
Adopted: March 17, 2005 Released: March 17, 2005
By the Chief, Enforcement Bureau:
1. In this Memorandum Opinion and Order (``MO&O''),
we deny complaints alleging that on July 29, 2004, CNN aired
live program material during the 2004 Democratic National
Convention (``DNC'') that violated federal restrictions
regarding the broadcast of obscene, indecent and profane
material. As set forth below, the Commission has indicated
that it does not regulate indecency and profanity on cable
and satellite subscription services, so we deny that aspect
of the complaints. Moreover, nothing in the record
indicates that the material at issue meets the legal test
for obscenity, so we also deny that aspect of the
2. The complaints assert that at the conclusion of
Senator John Kerry's address to the DNC, CNN, which is
available through cable or satellite service,1 carried a
feed from a microphone located near members of the event's
support staff. The complaints allege that this microphone
captured one staff member who, upset by problems with the
balloon drop that was supposed to follow Senator Kerry's
speech, uttered the ``F-word.''2
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.3 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.''4
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.''5 As the Commission recently stated: ``. .
. the criminal code restriction on indecency applies only to
`means of radio communication' and therefore not cable
communications.''6 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.''7
4. We also deny the complaints to the extent that
they allege that CNN's broadcast of the DNC 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.8 This
test is designed ``to isolate `hard core' pornography from
expression protected by the First Amendment.''9 Nothing in
the record indicates that CNN's broadcast coverage of the
DNC depicts the kind of ``hard core pornography'' covered by
Miller, or that, as a whole, it appeals to the prurient
interest or lacks serious literary, artistic, political, or
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.''10 Satellite subscription services have
IV. ORDERING CLAUSE
6. Accordingly, IT IS ORDERED, that the complaints
filed against CNN's airing of the 2004 Democratic National
Convention are hereby DENIED.
David H. Solomon
Chief, Enforcement Bureau
1 ``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.
2 Specifically, the complainants allege that the staff
member stated ``goddammit...what the fuck are you guys doing
3 See Violent Television Programming and Its Impact on
Children, Notice of Inquiry, 19 FCC Rcd 14394, 14403, ¶ 21
(2004) (``Violence NOI'').
4Applications 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).
5 18 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).
6 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. The
Commission's authority over profanity and indecency derives
from the same criminal statute and Commission rules.
Because the Commission's authority over profanity is
coextensive with its authority over indecency, the limits on
its authority over indecency on cable and satellite services
also apply to its authority over profanity in the same
7 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.'').
8 Miller v. California, 413 U.S. 15, 24 (1973).
9 Id. at 29.
10 Implementation 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 http://www.fcc.gov/parents/.
11 See http://www.directv.com/DTVAPP/learn/LocksLimits.dsp;