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                         Before the
              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:

I.   INTRODUCTION

     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 
complaints.

II.  BACKGROUND

     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  

III.      DISCUSSION

     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 
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.''10  Satellite subscription services have 
similar tools.11

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.

                              FEDERAL COMMUNICATIONS 
COMMISSION



                              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. 
1988).      
2  Specifically,  the  complainants allege  that  the  staff 
member stated ``goddammit...what the fuck are you guys doing 
up there.''  
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 
circumstances.
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; 
http://www.dishnetwork.com/content/programming/parental_con-
trol/index.shtml.