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Federal Communications Commission
Washington, D.C. 20554
In the Matter of ) File No. EB-04-IH-0590
Complaints Against Various Television Station )
Licensees Regarding the ABC Television )
Network's November 15, 2004, Broadcast of )
Monday Night Football )
MEMORANDUM OPINION AND ORDER
Adopted: March 3, 2005 Released: March 14,
By the Commission: Commissioner Copps issuing separate
1. In this Memorandum Opinion and Order, we deny
complaints alleging that various television station licensees
that are affiliates of the ABC Television Network (ABC) aired
indecent material during their broadcast of ABC's Monday Night
Football on November 15, 2004, at 9 p.m. Eastern Standard Time,
in violation of 18 U.S.C. § 1464 and 47 C.F.R. § 73.3999. For
the reasons discussed below, we conclude that the material in
question does not violate the Commission's indecency prohibition.
2. At 9:00 p.m. Eastern Standard Time, on November 15,
2004, as the introductory segment to the broadcast of the
National Football League game between the Philadelphia Eagles and
Dallas Cowboys, ABC aired a scene featuring Eagles wide receiver
Terrell Owens and actress Nicollette Sheridan, appearing as her
character in the ABC program Desperate Housewives. During
the scene, Sheridan and Owens, who is fully suited for the game,
are alone in the Eagles' locker room. Sheridan, wearing only a
towel, seeks to seduce Owens. After he rebuffs her advances,
telling her that the game is about to start and that his team
needs him, she drops her towel. The camera shows her from the
back, nude from the waist up. The viewer cannot see her body
below the waist. He responds, Aw, hell, the team's going to
have to win without me and she then leaps into his arms. The
scene concludes with two other characters from Desperate
Housewives watching the locker room encounter on their
television, who remark how desperate Sheridan appears and
then change the channel to the game, repeating the traditional
Monday Night Football introduction, Are you ready for some
football?! The game broadcast then commences.
3. Following ABC's broadcast, the Commission received many
complaints alleging that the Monday Night Football scene
contained indecent material. The Commission subsequently
reviewed a videotape of the broadcast.
4. 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.1 The Commission does, however, have the authority to
enforce statutory and regulatory provisions restricting
indecency, profanity and obscenity. Specifically, it is a
violation of federal law to broadcast obscene, profane 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. 2 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,3 shall not broadcast indecent material during the
period 6 a.m. through 10 p.m.4
5. Any consideration of government action against
allegedly indecent programming must take into account the fact
that such speech is protected under the First Amendment.5 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.6 Nevertheless, the First Amendment is a critical
constitutional limitation that demands that, in indecency
determinations, we proceed cautiously and with appropriate
6. 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.8
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.9
7. In our assessment of whether broadcast material is
patently offensive, the full context in which the material
appeared is critically important.10 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.11 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.12 In particular cases,
one or two of the factors may outweigh the others, either
rendering the broadcast material patently offensive and
consequently indecent,13 or, alternatively, removing the
broadcast material from the realm of indecency.14
8. We conclude that the material in question is not
patently offensive, and thus, not indecent. In particular, the
Monday Night Football segment, although sexually suggestive,
is not graphic or explicit. 15 Owens is fully dressed throughout
the segment, and, with the exception of a moment when her bare
back is exposed to the audience, Sheridan is at all times fully
covered with a towel. No sexual or excretory organs are shown or
described, and no sexual activities are explicitly depicted or
described. Furthermore, the scene where Sheridan drops her towel
and jumps into Owens's arms is brief. Although the scene
apparently is intended to be titillating, it simply is not
graphic or explicit enough to be indecent under our standard.16
IV. ORDERING CLAUSE
9. ACCORDINGLY, IT IS ORDERED, that the complaints
alleging that various television station licensees that are
affiliates of the ABC Television Network aired indecent material
during their broadcast of ABC's Monday Night Football on
November 15, 2004, in violation of 18 U.S.C. § 1464 and 47 C.F.R.
§ 73.3999, ARE HEREBY DENIED.
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
Secretary STATEMENT OF COMMISSIONER MICHAEL J. COPPS
Re: Complaints Against Various Television Station Licensees
Regarding the ABC Television Network's November 15, 2004,
Broadcast of Monday Night Football
Although the Commission finds that this broadcast does not
violate 18 U.S.C. §1464, it does raise the issue of broadcasters
acting responsibly when deciding what to air during the hours
when children are likely to be in the audience. At a time when
recent surveys show that a substantial majority of parents are
very concerned that children are being exposed to too much
inappropriate content, I would hope that television broadcasters
would go the extra mile in exercising self-discipline when airing
or promoting programming that may not be appropriate for younger
viewers. There wasn't much self-discipline in this particular
promotion. As stewards of the public airwaves, broadcasters can
and should do better.
1 U.S. CONST., amend. I; 47 U.S.C. § 326 (2002).
2 18 U.S.C. § 1464.
3 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.).
4 See 47 C.F.R. § 73.3999. Section 73.3999 implements the Public
Telecommunications Act of 1992, Pub. L. No. 102-356, 106 Stat.
5 U.S. CONST., amend. I; see Action for Children's Television v.
FCC, 852 F.2d 1332, 1344 (D.C. Cir. 1988) (ACT I).
6 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.
7 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 people may
say and hear.); 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 enforcement policy).
8 Infinity Broadcasting Corporation of Pennsylvania, Memorandum
Opinion and Order, 2 FCC Rcd 2705 (1987) (subsequent history
omitted) (citing Pacifica Foundation, Memorandum Opinion and
Order, 56 FCC 2d 94, 98 (1975), aff'd sub nom. FCC v. Pacifica
Foundation, 438 U.S. 726 (1978)).
9 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).
10 Id. at 8002, ¶ 9 (emphasis in original).
11 Id. at 8002-15, ¶¶ 8-23.
12 Id. at 8003, ¶ 10.
13 Id. at 8009, ¶ 19 (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)).
14 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).
15 Complaints Against Various Broadcast Licensees Regarding Their
Airing of the UPN Network Program Buffy the Vampire Slayer on
November 20, 2001, Memorandum Opinion and Order, 19 FCC Rcd
15995, 15998 (2004) (Buffy the Vampire Slayer Order)
16 See NBC Telemundo License Co., Memorandum Opinion and Order,
FCC 04-235 at ¶ 7 (rel. Nov. 23, 2004) (scenes from Coupling
program not indecent; Buffy the Vampire SlayerOrder, 19 FCC Rcd
15995, 15998 (2004) (scene from Buffy the Vampire Slayer
program not indecent).