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

In the Matter of                  )
Complaints Against Various        )   File No. EB-04-IH-0589
Television Licensees Regarding    )
Their Broadcast on November 11,   )
2004, of the ABC Television       )
Network's Presentation of the 
Film “Saving Private Ryan”


Adopted:  February 3, 2005              Released:  February 
28, 2005 

By the Commission:  Chairman Powell issuing a separate 
statement; Commissioner Martin issuing a                                                
separate statement at a later date.


     1.   In this Memorandum Opinion and Order, we deny 
        complaints filed by members of the American Family 
        Association (“AFA”) and by others (collectively, 
        the “Complainants”) alleging that certain 
        television stations affiliated with the ABC 
        Television Network (“ABC”)1 broadcast indecent and 
        profane material on November 11, 2004, from 
        approximately 8:00 to 11:00 p.m. Eastern Standard 
        Time, during the ABC presentation of the film 
        “Saving Private Ryan.”  After our review of the 
        complaints and the videotape of the broadcast of the 
        film so aired by these stations,2 we find that the 
        material does not violate the applicable indecency 
        and profanity prohibitions. 


     2.   On  November 11, 2004, certain stations that are 
        affiliates of ABC aired a special Veterans Day 
        presentation of the 1998 award-winning3 World War II 
        motion picture “Saving Private Ryan.”  The film 
        relates the story of a mission by eight U.S. 
        soldiers to rescue Private James Francis Ryan, a 
        soldier and the sole surviving son from a family of 
        four brothers, three of whom were lost while also 
        serving in the war.  At the commencement of the 
        broadcast, the film is introduced by Dr. Harold 
        Baumgarten, a World War II veteran who survived the 
        Allies' D-Day landing at Normandy Beach, which is 
        depicted in the opening scenes of the film.  Dr. 
        Baumgarten, now in his eighties, was, at 19 years of 
        age, a soldier who was wounded five times during 32 
        hours of combat at Normandy.4  He is joined in 
        introducing the film by United States Senator John 
        McCain, a distinguished Navy veteran who served in 

     3.   Senator McCain notes in his introductory remarks 
        that the broadcast of the film is “an extraordinary 
        tribute to a generation of brave men like Dr. 
        Baumgarten,” who fought to protect American 
        freedom.5  The Senator expresses his opinion that it 
        is important to present this “intense, emotional 
        film unedited, with limited commercial 
        interruption,” because “[i]f we don't remember the 
        past, we run the risk of repeating it.”6  However, 
        he also states that “the R-rated language and 
        graphic content [of the film] is for mature 
        audiences and not appropriate for children.”7    
        Following this introduction, the text of an 
        additional viewer advisory is aired, 8 along with 
        the  letters “TV MA LV,” the voluntary industry 
        code warning parents that the broadcast is for 
        mature audiences only and unsuitable for children 
        due to the presence of violence and unacceptable 
        language. 9  Such warnings and codes are also aired 
        after each of the 10 commercial breaks during the 
        broadcast10 and were posted on the ABC website in 
        advance of the broadcast.11  
     4.   The Commission's Enforcement Bureau has previously 
        ruled that Veterans Day broadcasts in 2001 and 2002 
        of the unedited version of the film did not violate 
        the Commission's indecency prohibitions.12   
        Nevertheless, according to news reports, 
        approximately 66 of a total of 225 stations 
        affiliated with ABC declined to air the film, citing 
        their uncertainty as to whether it contained 
        indecent material, reportedly based, in part, on 
        Commission indecency rulings subsequent to these 
        previous broadcasts of the film.13  Following the 
        November 11, 2004, broadcast, the Commission 
        received the complaints, alleging that the aired 
        film contains indecent or otherwise actionable 
        material.  The Complainants generally cite, among 
        other things, film dialogue containing expletives 
        including:  “fuck,” and variations thereof; 
        “shit,” “bullshit,” and variations thereof; 
        “bastard,” and “hell.”  In addition, the 
        Complainants cite the presence in the film of other 
        allegedly offensive language, such as “Jesus,” and 
        “God damn.”  They also object to the film's 
        graphic depiction of wartime violence.  Accordingly, 
        the Complainants argue that the ABC Network Stations 
        should be sanctioned for airing material that 
        violates federal indecency and profanity 


     5.   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 Act prohibit the Commission from 
        censoring program material and from interfering with 
        broadcasters' freedom of expression.14  The 
        Commission does, however, have the authority to 
        enforce statutory and regulatory provisions 
        restricting indecency.  Specifically, it is a 
        violation of federal law to broadcast obscene, 
        indecent or profane 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.”15  In 
        addition, section 73.3999 of the Commission's rules, 
        which was promulgated for the civil enforcement of 
        that statute and section 16(a) of the Public 
        Telecommunications Act of 1992,16 as modified by a 
        subsequent court decision,17 provides that radio and 
        television stations shall not broadcast obscene 
        material at any time, and shall not broadcast 
        indecent material during the period 6 a.m. through 
        10 p.m.

     6.   Any  consideration  of government  action  against 
        allegedly  indecent   programming  must   take  into 
        account the fact that such speech is protected under 
        the   First   Amendment.18    The   federal   courts 
        consistently have  upheld  Congress's  authority  to 
        regulate the broadcast  of indecent speech,  as well 
        as    the     Commission's    interpretation     and 
        implementation   of    the   governing    statute.19  
        Nevertheless, the  First  Amendment  is  a  critical 
        constitutional limitation that demands that, in such 
        determinations,  we  proceed  cautiously   and  with 
        appropriate restraint.20  

     7.   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.21  

     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.22

     8.   The  complained-of   material  contained   in  the 
        broadcast of  the film  includes at  least one  word 
        (i.e.  “fuck”  and  its  variations)  which  falls 
        within   the   first   prong    of   our   indecency 
        definition.23   Therefore,  the   material  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, in context, 
        is  not  patently  offensive,   and  therefore,  not 

     9.   In making indecency determinations, the Commission 
        has indicated that the “full context in which the 
        material appeared is critically important,”24 and 
        has articulated three “principal factors” for its 
        analysis:  “(1)  the explicitness or graphic nature 
        of the description or depiction of sexual or 
        excretory organs or activities; (2) whether the 
        material dwells on or repeats at length descriptions 
        of sexual or excretory organs or activities; (3) 
        whether the material appears to pander or is used to 
        titillate, or whether the material appears to have 
        been presented for its shock value.”25  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.”26  In 
        particular cases, one or two of the factors may 
        outweigh the others, either rendering the broadcast 
        material patently offensive and consequently 
        indecent,27 or, alternatively, removing the 
        broadcast material from the realm of indecency.28

     10.  Contextual considerations are critical in making 
        indecency determinations for two reasons, both of 
        which implicate the First Amendment interests at 
        stake.  First, context is important in determining 
        the potential impact of the allegedly indecent 
        material on children - the compelling governmental 
        interest that the Supreme Court held justified 
        regulation of broadcast indecency.  As the Supreme 
        Court noted in Pacifica:  

     The Commission's decision [in Pacifica] rested entirely 
on a nuisance rationale
     under which context is all-important.  The concept 
requires consideration of a host 
     of variables.  The time of day was emphasized by the 
Commission. The content of the
     program in which the language is used will also affect 
the composition of the audience...

Pacifica at 750.  Thus, the Court observed that the 
broadcast of an Elizabethan comedy or one of Chaucer's 
Canterbury Tales might raise different considerations than 
the broadcast at issue in Pacifica.29 The Court explained:  
“Even a prime-time recitation of Geoffrey Chaucer's 
Miller's Tale would not be likely to command the attention 
of many children who are both old enough to understand and 
young enough to be adversely affected . . . “30  Thus, the 
content of the program, as well as the time period during 
which it is broadcast, may affect how many children are 
likely to be in the audience and the material's impact on 

     11.  Second, we must consider context in order to 
minimize intrusion into broadcasters' speech.  Although the 
courts have upheld Congress' authority to regulate the 
broadcast of indecent speech and the Commission's 
implementation of the governing statute,31 we must 
nevertheless proceed with “due respect for the high value 
our Constitution places on freedom and choice in what the 
people say and hear.”32  Our decisions reflect this 
restraint.  Thus, we do not find indecent every depiction or 
description of sexual or excretory organs or activities.  
Rather, as discussed above, we find material indecent only 
if it is patently offensive based on an examination of the 
material's explicit or graphic nature, whether it is dwelled 
upon or repeated, and whether it appears to pander or is 
intended to titillate or shock the audience.  In connection 
with the third factor, we consider whether the material has 
any social, scientific or artistic value, as finding that 
material has such value may militate against finding that it 
was intended to pander, titillate or shock.33  Of course, as 
the D.C. Circuit has stated, “merit is properly treated as 
a factor in determining whether material is patently 
offensive, but it does not render such material per se not 
     12.  As discussed below, contextual considerations are 
important in evaluating “Saving Private Ryan” for both 

     13.  The film, as aired by the ABC Network Stations on 
November 11, 2004, contains numerous expletives and other 
potentially offensive language generally as part of 
soldiers' dialogue, some of which is cited by the 
Complainants.  Such language includes:  “fuck,” and its 
variations; “hell”; “ass” and “asshole”; “crap”; 
“son of a bitch”; “bastard”; “shit” and its 
variations, including “bullshit” and “shitty”; 
“prick”; and “pee.”  For the purpose of this discussion, 
we will assume arguendo, that this material meets the first 
and second components to our analysis of whether it is 
patently offensive, in that at least some of the language is 
graphic and explicit, and is repeated throughout the course 
of the three and a half-hour broadcast of the film.  
Nevertheless, for the reasons discussed below, in light of 
the overall context in which this material is presented, we 
conclude that such findings with respect to the first two 
factors are outweighed in this instance by the third 
component of the analysis.  For the following reasons, here, 
the complained-of material, in context, is not pandering and 
is not used to titillate or shock.

     14.  The subject matter of the film, the portrayal of a 
mission to save the last surviving son of an Iowa farm 
family, involves events that occurred during World War II.  
As stated in the introduction to the broadcast, in relating 
this story, the motion picture realistically depicts the 
fierce combat during the Normandy invasion, including, 
according to a veteran who participated in and witnessed 
these events, “things that no one should ever have to 
see.”35  Essential to the ability of the filmmaker to 
convey to viewers the extraordinary conditions in which the 
soldiers conducted themselves with courage and skill are the 
reactions of these ordinary Americans to the barbaric 
situations in which they were placed.  The expletives 
uttered by these men as these events unfold realistically 
reflect the soldiers' strong human reactions to, and, often, 
revulsion at, those unspeakable conditions and the peril in 
which they find themselves.  Thus, in context, the dialogue, 
including the complained-of material, is neither gratuitous 
nor in any way intended or used to pander, titillate or 
shock.  Indeed, it is integral to the film's objective of 
conveying the horrors of war through the eyes of these 
soldiers, ordinary Americans placed in extraordinary 
situations.  Deleting all of such language or inserting 
milder language or bleeping sounds into the film would have 
altered the nature of the artistic work and diminished the 
power, realism and immediacy of the film experience for 
viewers.  In short, the vulgar language here was not 
gratuitous and could not have been deleted without 
materially altering the broadcast.  In this context, we must 
proceed with caution and exercise restraint given “the high 
value our Constitution places on freedom and choice in what 
the people say and hear.”36 

     15.  Moreover, the presentation by the ABC Network 
Stations is not intended as family entertainment, a fact 
clearly and explicitly stated in the introduction that 
precedes the film and is repeated in the aural and visual 
viewer advisory and voluntary parental code that follow each 
commercial break during the broadcast.  Thus, parents had 
ample warning that this film contained material that might 
be unsuitable for children and could have exercised their 
own judgment about the suitability of the language for their 
children in the context of this film. 

     16.  The Commission has found similar material 
depicting an historical view of World War II and wartime 
atrocities to be not patently offensive, and thus not 
actionably indecent.37   We see no reason to conclude 
otherwise with respect to the film at issue here. Thus, in 
light of the overall context of the film, including the fact 
that it is designed to show the horrors of war, its 
presentation to honor American veterans on the national 
holiday specifically designated for that purpose, the 
introduction, which articulated the importance of presenting 
the film in its unedited form, and the clear and repeated 
warnings provided by ABC, not only in the introduction but 
also at each commercial break, we find that the complained-
of material is not patently offensive as measured by 
contemporary community standards for the broadcast medium, 
and, therefore, not indecent.  For the same reasons, and 
based on the same contextual analysis, we conclude that the 
language referred to above is not profane in context here.38
     17.  Further, we conclude that uses of the words 
“Jesus,” “Jesus Christ,” “God,” “God damn” and its 
variations, and “damn” and its variations, are not 
actionable under section 1464 for the reasons set forth in 
Raycom America, Inc., Memorandum Opinion and Order, 18 FCC 
Rcd 4186 (2003).  Finally, although some of the Complainants 
also reference the violence depicted in the film, the 
Commission's current standard for determining whether 
material falls within the prohibitions of section 1464 is 
not applicable to violent programming.39

     18.  In so concluding, we find that this case is 
distinguishable from that in which we previously found the 
use of the word “fucking” during the broadcast of the 2003 
Golden Globe Awards ceremony to be indecent and profane in 
context.40  The contextual differences between the 
expletives contained in the broadcast of the film here and 
that contained in the 2003 broadcast of the Golden Globe 
Awards ceremony are critical to our analysis under section 
1464.  The utterance of the word “fucking” by a performer 
during the Golden Globe Awards telecast occurred in the 
context of a live awards program in which use of the word 
was shocking and gratuitous, where no claim of “any 
political, scientific or other independent value” was made, 
and during which children were expected to be in the 
audience.41  Consequently, we concluded that, in context, 
the use of the word “fucking” in that instance was 
indecent and profane.42   In contrast, and as discussed 
above, in the different context presented here, the 
complained-of material broadcast during the presentation of 
the film “Saving Private Ryan” is not indecent or profane.

     19.  ACCORDINGLY, IT IS ORDERED, that the Complaints 
filed against the licensees of the ABC Network Stations 
regarding their broadcast on November 11, 2004, of the film 
“Saving Private Ryan” ARE HEREBY DENIED.

     20.  IT IS FURTHER ORDERED that a copies of this 
Memorandum Opinion and Order shall be sent by Certified Mail 
Return Receipt Requested to Donald E. Wildmon, American 
Family Association, P.O. Drawer 2440, Tupelo, Mississippi 
38803, to Susan L. Fox, Vice President, Government 
Relations, The Walt Disney Company, 1150 17th Street, N.W., 
Suite 400, Washington, D.C. 20036 and to John W. Zucker, 
Senior Vice President, Law & Regulation, ABC, Inc., 77 West 
66th Street, New York, N.Y. 10024. 


                         Marlene H. Dortch
                         Secretary                        STATEMENT OF

Re:  Complaints  Against Various  Licensees Regarding  Their 
     Broadcast  on  November  11, 2004,  of  ABC  Television 
     Network's  Presentation of  the  Film “Saving  Private 

     Today,  we reaffirm  that content  cannot be  evaluated 
without  careful consideration  of context.   Saving Private 
Ryan  is  filled  with   expletives  and  material  arguably 
unsuitable for some audiences, but it is not indecent in the 
unanimous view of the Commission.  

     This film is a  critically acclaimed artwork that tells 
a gritty  story¾one of  bloody battles and  supreme heroism.  
The horror  of war  and the  enormous personal  sacrifice it 
draws on cannot be painted in airy pastels.  The true colors 
are muddy brown  and fire red and any  accurate depiction of 
this significant historical tale  could not be told properly 
without bringing that sense to  the screen.  It is for these 
reasons that  the FCC has  previously declined to  rule this 
film indecent.

     This, of course,  is not to suggest  that legal content 
is   not   otherwise   objectionable  to   many   Americans.  
Recognizing  that fact,  it is  the responsible  broadcaster 
that will provide  full and wide disclosure  of what viewers 
are  likely  to  see  and hear,  to  allow  individuals  and 
families to  make their own well-informed  decisions whether 
to watch or not.  I  believe ABC and its affiliated stations 
made a responsible effort to do just that in this case.  

     Fair    warning   is    appropriately   an    important 
consideration in  indecency cases.  In complaints  you often 
find that  Americans are not excessively  prudish, only that 
they are  fed up with  being ambushed with content  at times 
and places  they least  expect it.    It is  insufficient to 
tell consumers  not to  watch objectionable content,  if the 
“shock”  value is  dependent on  the element  of surprise.  
This  is particularly  true in  broadcast television,  where 
viewers are accustomed and encouraged to order their viewing 
by parts of the day¾morning shows, daytime TV and late night 
have  long been  the zones  in which  expectations are  set.  
When those lines are blurred, the consumer loses a degree of 
control, a degree of choice.

     Context remains  vital to any consideration  of whether 
profanity or  sexual content constitutes  legally actionable 
indecency.  The Commission must stay faithful to considering 
complaints  within their  setting  and  temper any  movement 
toward stricter liability if it hopes to give full effect to 
the confines of the First Amendment.

1 For purposes of this  Memorandum Opinion and Order, “ABC 
Network Stations”  are those stations that  are affiliates 
of  ABC  and aired  the  film  “Saving Private  Ryan”  on 
November  11,  2004.   As  explained  below,  not  all  ABC 
affiliates aired the film.  

2 The videotape contains a running reference to the time of 
the  broadcast by  hour, minute  and second,  commencing at 
8:00  p.m., presumably  the  Eastern Standard  Time of  the 
broadcast..  All references  herein to the tape  will be to 
the “Videotape”  and provide the time  designation of the 
material so referenced. 

3 “Saving  Private Ryan”  was the  recipient of  the 1999 
Golden Globe awards for  best motion picture-drama and best 
direction.   That  same  year, the  film  received  Academy 
Awards  for best  direction, cinematography,  film editing, 
sound        and        sound       effects        editing.

4 Videotape at approximately 8:00:12-46 p.m. 

5 Id. at approximately 8:00:48-58 p.m.   

6 Id. at approximately 8:01:11-15 p.m.

7 Id. at approximately 8:01:05-10 p.m.

8 The warning is accompanied by audio delivery of the 
following: “This film contains prolonged depictions of 
graphic, realistic WWII violence, as well as intense adult 
language. The original content of the film has not been 
altered for this TV broadcast. Parental and viewer 
discretion is strongly advised.”

9  In addition  to serving  as a  warning, the  presence of 
these codes allows parents to lock out the telecast on sets 
equipped         with          the         V-chip.   See also 
Implementation of Section 551 of the Telecommunications Act 
of 1996, Video Programming Ratings, 13 FCC Rcd 8232 (1998); 
Technical   Requirements  to   Enable  Blocking   of  Video 
Programming  Based on  Program  Ratings, 13  FCC Rcd  11248 

10 In  connection with  each of  the viewer  advisories that 
follow commercial  breaks, the following appears  on screen: 
“This film  is being presented uncut  with graphic violence 
and intense  adult language.  Viewer discretion  is strongly 
advised.”   Audio  accompanying   this  text   repeats  the 
admonition that  “viewer discretion is  strongly advised.”  
The viewer advisories containing the warning, along with the 
program  codes, appear  at  approximately 8:37:05,  9:09:32, 
9:19:28,  9:30:30,  9:44:52,  9:57:16,  10:12:38,  10:21:59, 
10:35:13, and 11:01:37.  See Videotape, passim.

11    See 
(“Due  to graphic  violence  and  intense adult  language, 
viewer discretion is strongly advised.”)

12  See,  e.g.,  Letter  from  Charles  W.  Kelley,  Chief, 
Investigations and  Hearings Division,  Enforcement Bureau, 
to Mr.  and Mrs.  John Schmeling,  Jr., dated  December 19, 
2002, EB-02-IH-0838; Letter from  Charles W. Kelley, Chief, 
Investigations and  Hearings Division,  Enforcement Bureau, 
to   Tim   Wildmon,   Vice   President,   American   Family 
Association, dated June 7, 2002, EB-02-IH-0085.

13 See David  Bauder, “66 ABC affiliates chose  not to run 
`Saving  Private Ryan,”'  THE DETROIT  NEWS, November  13, 
2004,  However,  all 
10 ABC-affiliated stations owned  and operated by ABC, Inc. 
did air the film. Id.

14 See 47 U.S.C. § 326.

15 18 U.S.C. § 1464. 

16   Pub. L.  No.  102-356,  § 16(a),  106  Stat. 949,  954 

17   Action for Children's  Television v. FCC, 58  F.3d 654 
(D.C. Cir.  1995) (en  banc), cert.  denied, 516  U.S. 1043 
(1996) (“ACT III”).

18  U.S.  CONST.,  amend.  I;  See  Action  for  Children's 
Television v.  FCC, 852  F.2d 1332,  1344 (D.C.  Cir. 1988) 
(“ACT I”).

19  FCC  v.  Pacifica   Foundation,  438  U.S.  726  (1978) 
(“Pacifica”).  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”); 

20 ACT  I, 852 F.2d  at 1344 (“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 the people may say and hear.”); 
id. at 1340 n.14 (“the  potentially chilling effect of the 
FCC's generic  definition of indecency will  be tempered by 
the Commission's restrained enforcement policy.”)  

21  Infinity  Broadcasting   Corporation  of  Pennsylvania, 
Memorandum  Opinion  and  Order,  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)).  

22  Industry   Guidance  on   the  Commission's   Case  Law 
Interpreting  18  U.S.C.  §1464  and  Enforcement  Policies 
Regarding Broadcast Indecency, Policy Statement, 16 FCC Rcd 
7999,   8002   (2001)  (“Indecency   Policy   Statement”) 
(emphasis in original).

23    Complaints   Against  Various   Broadcast   Licensees 
Regarding  Their  Airing  Of The  “Golden  Globe  Awards” 
Program,  Memorandum Opinion  and Order,  19 FCC  Rcd 4975, 
4978,  ¶ 8  (2004) petitions  for stay  and reconsideration 
pending (“Golden Globe Awards Order”) (“[g]iven the core 
meaning  of the  “F-Word,” any  use  of that  word, or  a 
variation,  in   any  context,  inherently  has   a  sexual 
connotation and  therefore falls within the  first prong of 
our indecency definition”). 

24  Id. (emphasis  in  original).  In  Pacifica, the  Court 
“emphasize[d] the  narrowness of  [its] holding  and noted 
that  under  the  Commission   rationale  that  it  upheld, 
“context  is all-important.”   438  U.S. at  750.  In  so 
holding, the  Court observed that “indecency  is largely a 
function of context - it cannot be adequately judged in the 
abstract.”  Id. at 742.

25 Indecency Policy Statement, 16 FCC Rcd at 8003 (emphasis 
in original).

26 Id. 

27 Id. at  8009 (citing Tempe Radio,  Inc (KUPD-FM), Notice 
of Apparent  Liability, 12 FCC  Rcd 21828 (Mass  Media Bur. 
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)), Notice  of Apparent Liability, 12  FCC Rcd 4147 
(Mass Media Bur. 1997) (forfeiture paid) (same). 

28 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”).

29 Id. at 750 and n. 29.

30  Id. at n. 29.

31 Pacifica,  438 U.S. 726.   See also  ACT I, 852  F.2d at 
1339; ACT II; ACT III.  

32 ACT  I, 852  F.2d at 1344.   See also id  at 1340  n. 14 
(“the  potentially chilling  effect of  the FCC's  generic 
definition will be tempered  by the Commission's restrained 
enforcement policy.”)

33  See WPBN/WTOM  License  Subsidiary,  Inc. (WPBN-TV  and 
WTOM-TV), Order  on Review,  15 FCC  Rcd 1838  (2000).  See 
also Golden  Globe Awards Order,  19 FCC  Rcd at 4979,  ¶ 9 
(use of  the word  “fuck” during  a live  awards ceremony 
telecast was “shocking and gratuitous”).

34 See ACT I,  at  1340 ("since the overall value of a work 
will not necessarily  alter the impact of  certain words or 
phrases  on children,  the  FCC's  approach is  permissible 
under controlling case law; merit  is properly treated as a 
factor   in  determining   whether  material   is  patently 
offensive, but it does not  render such material per se not 

35  Videotape at  approximately 8:00:43  p.m. One  reviewer 
characterized the scenes in  the film depicting the landing 
at Normandy,  in which the  majority of the  expletives are 
uttered by the soldiers, as “a chaos of noise, mud, blood, 
vomit                      and                     death.”

36 ACT I at 1344.  In  any event, we also note that ABC was 
apparently barred by the copyright holder from altering the 
film        in         any        way.          See

37 See  WPBN/WTOM License Subsidiary, Inc.,15  FCC Rcd 1838 
(2000), in  which the Commission  found not to  be patently 
offensive and accordingly not indecent adult frontal nudity 
depicted  during  a  broadcast of  the  film  “Schindler's 
List.”   In that  decision, the  Commission held  that the 
staff of the then-Mass  Media Bureau had properly concluded 
that the  broadcast was not patently  offensive as measured 
by  contemporary  community  standards  for  the  broadcast 
medium, based  upon the  full context of  its presentation, 
including the  subject matter  of the  film, the  manner of 
presentation,  and   the  warnings  that   accompanied  the 
broadcast  of  the film.   The  staff  determined, and  the 
Commission agreed that, in  the particular broadcast of the 
film at  issue, the depiction  of adult frontal  nudity was 
incidental  to  the  broadcast material's  rendering  of  a 
historical  view of  World War  II and  wartime atrocities, 
which, viewed in context, was not presented in a pandering, 
titillating or  vulgar manner.  Id.  at 1839-40, ¶¶  3, 13.  
See  also  Peter  Branton,   Letter  By  Direction  of  the 
Commission, 6 FCC Rcd  610 (1991) (concluding that repeated 
use of  “fuck” in a  recorded news interview  program not 
indecent in context).  

38 See  Golden Globe Awards Order,  19 FCC Rcd at  4981, ¶¶ 
13-14 (defining profanity for purposes of section 1464).

39   We note,  however, that  the Commission  has issued  a 
Notice of Inquiry to seek comment on issues relating to the 
presentation of  violence on television,  including whether 
the  agency  should   restrict  such  programming.  Violent 
Television Programming  And Its Impact on  Children, Notice 
of Inquiry, 19 FCC Rcd 14394 (2004).    

40 See Golden Globe Awards Order, 19 FCC Rcd 4975.  We note 
that  the Commission  made  clear in  this  Order that  its 
holding related specifically to  the context at issue.  Id. 
at 4975, ¶ 2, 4979, ¶  9, 4982, ¶¶ 16-17 (indecency), 4981, 
¶¶ 13-14 (profanity).

41 Id. at 4979, ¶¶ 9, 10.

42 Id. at 4979-81, ¶¶ 9-13.