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Federal Communications Commission
Washington, D.C. 20554
In the Matter of
) File Nos. EB-03-IH-0122
Complaints Against Various Television and
Licensees Concerning Their February 25, )
2003 Broadcast of the Program "NYPD EB-03-IH-0353
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: January 25, 2008 Released: January 25, 2008
By the Commission: Commissioner Tate issuing a separate statement.
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), issued
pursuant to Section 503(b) of the Communications Act of 1934, as
amended (the "Act"), and Section 1.80 of the Commission's rules, we
find that the ABC Television Network ("ABC") affiliated stations and
ABC owned-and-operated stations listed in the Attachment to this NAL
aired material that apparently violates the federal restrictions
regarding the broadcast of indecent material. Specifically, during the
February 25, 2003 episode of the ABC program "NYPD Blue," aired at
9:00 p.m. Central Standard Time and Mountain Standard Time, these
licensees each broadcast adult female nudity. Based upon our review of
the facts and circumstances of this case, we conclude that each
licensee listed in the Attachment is apparently liable for a monetary
forfeiture in the amount of $27,500 per station for broadcasting
indecent material in apparent violation of 18 U.S.C. S: 1464 and
Section 73.3999 of the Commission's rules.
2. Section 1464 of Title 18, United States Code, prohibits the broadcast
of obscene, indecent, or profane programming. The FCC rules
implementing that statute, a subsequent statute establishing a "safe
harbor" during certain hours, and the Act prohibit radio and
television stations from broadcasting obscene material at any time and
indecent material between 6 a.m. and 10 p.m.
3. Indecency Analysis. Enforcement of the provisions restricting the
broadcast of indecent, obscene, or profane material is an important
component of the Commission's overall responsibility over broadcast
radio and television operations. At the same time, however, the
Commission must be mindful of the First Amendment to the United States
Constitution and Section 326 of the Act, which prohibit the Commission
from censoring program material or interfering with broadcasters' free
speech rights. As such, in making indecency determinations, the
Commission proceeds cautiously and with appropriate restraint.
4. The Commission defines indecent speech as material 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.
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 definition-that 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.
5. In our assessment of whether broadcast material is patently offensive,
"the full context in which the material appeared is critically
important." Three principal factors are significant to this contextual
analysis: (1) the explicitness or graphic nature of the material; (2)
whether the material dwells on or repeats at length depictions or
descriptions of sexual or excretory organs or activities; and (3)
whether the material panders to, titillates, or shocks the audience.
In examining these three factors, we must weigh and balance them on a
case-by-case basis 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." In particular
cases, one or two of the factors may outweigh the others, either
rendering the broadcast material patently offensive and consequently
indecent, or, alternatively, removing the broadcast material from the
realm of indecency.
6. Forfeiture Calculations. This NAL is issued pursuant to Section
503(b)(1) of the Act. Under that provision, any person who is
determined by the Commission to have willfully or repeatedly failed to
comply with any provision of the Act or any rule, regulation, or order
issued by the Commission or to have violated Section 1464 of Title 18,
United States Code, shall be liable to the United States for a
forfeiture penalty. Section 312(f)(1) of the Act defines willful as
"the conscious and deliberate commission or omission of [any] act,
irrespective of any intent to violate" the law. The legislative
history to Section 312(f)(1) clarifies that this definition of willful
applies to both Sections 312 and 503(b) of the Act, and the Commission
has so interpreted the term in the Section 503(b) context.
7. The Commission's Forfeiture Policy Statement establishes a base
forfeiture amount of $7,000 for the transmission of indecent or
obscene materials. The Forfeiture Policy Statement also specifies that
the Commission shall adjust a forfeiture based upon consideration of
the factors enumerated in Section 503(b)(2)(D) of the Act, such as
"the nature, circumstances, extent and gravity of the violation, and,
with respect to the violator, the degree of culpability, any history
of prior offenses, ability to pay, and such other matters as justice
may require." The statutory maximum forfeiture amount for violations
that occurred in February 2003 is $27,500.
8. The Programming. The Commission received numerous complaints alleging
that certain affiliates of ABC and ABC owned-and-operated stations, as
listed in the Attachment, broadcast indecent material during the
February 25, 2003 episode of the ABC program "NYPD Blue" at 9:00 p.m.
in the Central and Mountain Standard Time Zones.
9. The complaints refer to a scene at the beginning of the program,
during which a woman and a boy, who appears to be about seven or eight
years old, are involved in an incident that includes adult female
nudity. As confirmed by a tape of the program provided by ABC, during
the scene in question, a woman wearing a robe is shown entering a
bathroom, closing the door, and then briefly looking at herself in a
mirror hanging above a sink. The camera then shows her crossing the
room, turning on the shower, and returning to the mirror. With her
back to the camera, she removes her robe, thereby revealing the side
of one of her breasts and a full view of her back. The camera shot
includes a full view of her buttocks and her upper legs as she leans
across the sink to hang up her robe. The camera then tracks her, in
profile, as she walks from the mirror back toward the shower. Only a
small portion of the side of one of her breasts is visible. Her pubic
area is not visible, but her buttocks are visible from the side.
10. The scene shifts to a shot of a young boy lying in bed, kicking back
his bed covers, getting up, and then walking toward the bathroom. The
camera cuts back to the woman, who is now shown standing naked in
front of the shower, her back to the camera. The frame consists
initially of a full shot of her naked from the back, from the top of
her head to her waist; the camera then pans down to a shot of her
buttocks, lingers for a moment, and then pans up her back. The camera
then shifts back to a shot of the boy opening the bathroom door. As he
opens the door, the woman, who is now standing in front of the mirror
with her back to the door, gasps, quickly turns to face the boy, and
freezes momentarily. The camera initially focuses on the woman's face
but then cuts to a shot taken from behind and through her legs, which
serve to frame the boy's face as he looks at her with a somewhat
startled expression. The camera then jumps to a front view of the
woman's upper torso; a full view of her breasts is obscured, however,
by a silhouette of the boy's head and ears. After the boy backs out of
the bathroom and shuts the door, the camera shows the woman facing the
door, with one arm and hand covering her breasts and the other hand
covering her pubic area. The scene ends with the boy's voice, heard
through the closed door, saying "sorry," and the woman while looking
embarrassed, responds, "It's okay. No problem." The complainants
contend that such material is indecent and request that the Commission
impose sanctions against the licensees responsible for broadcasting
11. Indecency Analysis. As an initial matter, we find that the programming
at issue is within the scope of our indecency definition because it
depicts sexual organs and excretory organs - specifically an adult
woman's buttocks. Although ABC argues, without citing any authority,
that the buttocks are not a sexual organ, we reject this argument,
which runs counter to both case law and common sense.
12. We also find that the material is, in the context presented here,
patently offensive as measured by contemporary community standards for
the broadcast medium. Turning to the first principal factor in our
contextual analysis, the scene contains explicit and graphic
depictions of sexual organs. The scene depicts multiple, close-range
views of an adult woman's naked buttocks. In this respect, this case
is similar to other cases in which we have held depictions of nudity
to be graphic and explicit.
13. Turning to the second factor in our contextual analysis, although not
dispositive, we find that the broadcast dwells on and repeats the
sexual material. We have held that repetition and persistent focus on
sexual or excretory material is a relevant factor in evaluating the
potential offensiveness of broadcasts. Here, the scene in question
revolves around the woman's nudity and includes several shots of her
naked buttocks. The material is thus dwelled upon and repeated.
14. With respect to the third factor, we find that the scene's depiction
of adult female nudity, particularly the repeated shots of a woman's
naked buttocks, is titillating and shocking. ABC concedes that the
scene included back and side nudity, but contends that it was "not
presented in a lewd, prurient, pandering, or titillating way." ABC
asserts that the purpose of the scene was to "illustrate the
complexity and awkwardness involved when a single parent brings a new
romantic partner into his or her life," and that the nudity was not
included to depict an attempted seduction or a sexual response from
the young boy. Even accepting ABC's assertions as to the purpose of
the scene, they do not alter our conclusion that the scene's depiction
of adult female nudity is titillating and shocking. As discussed
above, the scene includes multiple, close-up views of the woman's nude
buttocks, with the camera at one point panning down her naked back for
a lingering shot of her buttocks. The partial views of the woman's
breasts, as well as the camera shots of the boy's shocked face from
between her legs and of her upper torso from behind his head, are also
relevant contextual factors that serve to heighten the titillating and
shocking nature of the scene. Thus, we find that the scene in
question, which included repeated and lingering images of a woman
naked from the back, with close-up views of her naked buttocks,
presented adult female nudity in a manner that shocks and titillates
15. Finally, we reject ABC's argument that, because of the "modest number
of complaints" the network received, and the program's generally high
ratings, the contemporary community standards of the viewing community
embrace, rather than reject, this particular material. As a matter of
clarification, while ABC may not have received many complaints about
the program, the Commission received numerous complaints, including
thousands of letters from members of various citizen advocacy groups.
The Commission's indecency determinations are not governed by the
number of complaints received about a given program, however, nor do
they turn on whether the program or the station that broadcast it
happens to be popular in its particular market. Indeed, with respect
to the latter factor, the fact that the program is watched by a
significant number of viewers serves to increase the likelihood that
children were among those who may have seen the indecent broadcasts,
thereby increasing the public harm from the licensees' misconduct.
16. In sum, although the broadcast of nudity is not necessarily indecent
in all contexts, taking into account the three principal factors in
our contextual analysis, we conclude that the broadcast of the
material at issue here is apparently indecent. As reviewed above, the
material in this episode was explicit, dwelled upon, and shocking,
pandering and titillating. The complained-of material was broadcast by
the licensees listed in the Attachment within the 6 a.m. to 10 p.m.
time frame relevant to an indecency determination under Section
73.3999 of the Commission's rules. Although ABC included in the
program a warning that "this police drama contains adult language and
partial nudity," the Supreme Court has ruled that such warnings are
not necessarily effective because the audience is constantly changing
stations. Therefore, notwithstanding the warning, there is a
reasonable risk that children may have been in the audience and the
broadcast is legally actionable.
17. Forfeiture Calculation. We find that the ABC affiliates and ABC
owned-and-operated stations listed in the Attachment consciously and
deliberately broadcast the programming at issue here. Accordingly, we
find that each broadcast in apparent violation of 18 U.S.C. S: 1464
and 47 C.F.R. S: 73.3999 was willful within the meaning of Section
503(b)(1) of the Act, and subject to forfeiture.
18. We therefore turn to the proposed forfeiture amount, which is based on
the factors enumerated in Section 503(b)(2)(D) of the Act and the
facts and circumstances of this case. For the following reasons, we
find that $27,500 is an appropriate proposed forfeiture for the
material found to be apparently indecent in this case. The scene
depicts a nude woman with her buttocks entirely exposed. The material
was prerecorded, and ABC or its affiliates could have edited or
declined the content prior to broadcast. Although ABC included a
warning, we find that a lower forfeiture is not warranted here in
light of all the circumstances surrounding the apparent violation,
including the shocking and titillating nature of the scene. On balance
and in light of all of the circumstances, we find that a $27,500
forfeiture amount for each station would appropriately punish and
deter the apparent violation in this case. Therefore, we find that
each licensee listed in the Attachment is apparently liable for a
proposed forfeiture of $27,500 for each station that broadcast the
February 25, 2003, episode of "NYPD Blue" prior to 10 p.m.
19. Although we are informed that other stations not mentioned in any
complaint also broadcast the complained-of episode of "NYPD Blue," we
propose forfeitures against only those licensees whose broadcasts of
the material between 6 a.m. and 10 p.m. were actually the subject of
viewer complaints to the Commission. This result is consistent with
the approach set forth by the Commission in its most recent indecency
orders. As indicated in those orders, our commitment to an
appropriately restrained enforcement policy justifies this more
limited approach toward the imposition of forfeiture penalties.
Accordingly, we propose forfeitures as set forth in the Attachment.
IV. ordering clauses
20. Accordingly, IT IS ORDERED, pursuant to Section 503(b) of the
Communications Act of 1934, as amended, and Section 1.80 of the
Commission's rules, that the licensees of the stations that are
affiliates of the ABC Television Network and of the stations owned and
operated by ABC, as enumerated in the Attachment, are hereby NOTIFIED
of their APPARENT LIABILITY FOR FORFEITURE in the amount of $27,500
per station for willfully violating 18 U.S.C. S: 1464 and Section
73.3999 of the Commission's rules by their broadcast of the program
"NYPD Blue" on February 25, 2003.
21. IT IS FURTHER ORDERED that a copies of this NAL shall be sent by
Certified Mail, Return Receipt Requested, to John W. Zucker, Senior
Vice President, Law & Regulation, ABC Inc., 77 West 66th Street, New
York, New York 20024, and 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 the licensees of the stations listed in
the Attachment, at their respective addresses noted therein.
22. IT IS FURTHER ORDERED, pursuant to Section 1.80 of the Commission's
rules, that not later than February 11, 2008, each licensee identified
in the Attachment SHALL PAY the full amount of its proposed forfeiture
or SHALL FILE a written statement seeking reduction or cancellation of
their proposed forfeiture.
23. Payment of the forfeitures must be made by check or similar
instrument, payable to the order of the Federal Communications
Commission. Payments must include the relevant NAL/Acct. No. and FRN
No. referenced in the Attachment. Payment by check or money order may
be mailed to Federal Communications Commission, P.O. Box 358340,
Pittsburgh, Pennsylvania 15251-8340. Payment by overnight mail may be
sent to Mellon Bank/LB 358340, 500 Ross Street, Room 1540670,
Pittsburgh, Pennsylvania 15251. Payment by wire transfer may be made
to ABA Number 043000261, receiving bank Mellon Bank, and account
24. The responses, if any, must be mailed to Benigno E. Bartolome, Acting
Chief, Investigations and Hearings Division, Enforcement Bureau,
Federal Communications Commission, 445 12th Street, S.W., Room 4-C330,
Washington D.C. 20554, and MUST INCLUDE the relevant NAL/Acct. No.
referenced for each proposed forfeiture in the Attachment hereto.
25. The Commission will not consider reducing or canceling a forfeiture in
response to a claim of inability to pay unless the respondent submits:
(1) federal tax returns for the most recent three-year period; (2)
financial statements prepared according to generally accepted
accounting practices ("GAAP"); or (3) some other reliable and
objective documentation that accurately reflects the respondent's
current financial status. Any claim of inability to pay must
specifically identify the basis for the claim by reference to the
financial documentation submitted.
26. Requests for payment of the full amount of this NAL under an
installment plan should be sent to: Associate Managing Director -
Financial Operations, 445 12th Street, S.W., Room 1-A625, Washington,
27. Accordingly, IT IS ORDERED that the complaints in this NAL proceeding
ARE GRANTED to the extent indicated herein, AND ARE OTHERWISE DENIED,
and the complaint proceeding IS HEREBY TERMINATED.
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
Proposed Forfeitures For February 25, 2003
Broadcasts Of "NYPD Blue"
Licensee Name Station Call Proposed
and Mailing FRN No. NAL Acct. Sign and Facility Forfeiture
Address No. Community of ID Nos. Amount
Avenue at 5th 0002589489 200832080013 Cedar Rapids, 9719 $27,500
Street, NE, IA
Limited 0001675719 200832080014 9781 $27,500
Partnership, P. Waco, TX
O. Box 2522,
Waco, TX 76702
Channel 12 of
525 Interstate 0006587307 200832080015 10150 $27,500
Highway, 10 Beaumont, TX
LLC, 44 KLKN(TV)
Pondfield Road, 0003757481 200832080016 11264 $27,500
Suite 12, Lincoln, NE
LLC, 201 Monroe KLTV(TV)
Street, RSA 0015798341 200832080017 68540 $27,500
Tower 20th Tyler, TX
Enterprises, 0002433340 200832080018 17688 $27,500
518 St. Joseph Rapid City,
Street,, Rapid SD
City, SD 57701
Company, 301 WDAY-TV
8th Street 0002480085 200832080019 22129 $27,500
South, P. O. Fargo, ND
Fargo, ND 58103
Licensee Corp., KAKE-TV
1500 North West 0002746022 200832080020 65522 $27,500
Street, Wichita, KS
Licensee, Inc., KLBY(TV)
0002746022 200832080021 65523 $27,500
P. O. Box 10, Colby, KS
3415 University KSTP-TV
Avenue, West, 0009769621 200832080022 28010 $27,500
St. Paul, MN St. Paul, MN
Inc., 1103 KATC(TV)
Eraste Landry 0003822285 200832080023 33471 $27,500
Road, Lafayette, LA
KATV, LLC, P. KATV(TV)
O. Box 77, 0001694462 200832080024 33543 $27,500
Little Rock, AR Little Rock,
Winthrop Shaw 0002144459 200832080025 56524 $27,500
Pittman, LLP, St. Louis, MO
2300 N Street,
Inc., c/o KETV(TV)
Brooks, Pierce, 0003799855 200832080026 53903 $27,500
et al, P. O. Omaha, NE
Republican 0011094281 200832080027 34412 $27,500
Printing Great Falls,
Company, 40 S MT
Brooks, Pierce, 0001587088 200832080028 Fayetteville, 60354 $27,500
et al, P. O. AR
Brooks, Pierce, 0001675974 200832080029 Kansas City, 65686 $27,500
et al, P.O. Box MO
Company, Inc., KSWO-TV
0001699248 200832080030 35645 $27,500
P. O. Box 708, Lawton, OK
KTBS, Inc., P. KTBS-TV
O. Box 44227, 0003727419 200832080031 35652 $27,500
Shreveport, LA Shreveport,
Inc., 77 W. KTRK-TV
66th Street, 0012480109 200832080032 35675 $27,500
Floor 16, New Houston, TX
KTUL, LLC, 3333 KTUL(TV)
S. 29th West 0001694413 200832080033 35685 $27,500
Avenue, Tulsa, Tulsa, OK
Inc., 400 South 0001545581 200832080034 35867 $27,500
Record Street, Austin, TX
Broadcasting, 0001714344 200832080035 38616 $27,500
LLC, P. O. Box Baton Rouge,
2906, Baton LA
Rouge, LA 70821
Company, 123 KMGH-TV
Speer 0003476827 200832080036 40875 $27,500
Boulevard, Denver, CO
333 E. Franklin 0015751217 200832080037 Panama City, 66398 $27,500
Inc., 544 Red 0004284899 200832080038 18283 $27,500
Rock Drive, Joplin, MO
Dow Lohnes WABG-TV
PLLC, 1200 New 0003828753 200832080039 43203 $27,500
Hampshire Greenwood, MS
Inc., 909 Lake WDHN(TV)
Carolyn 0009961889 200832080040 43846 $27,500
Parkway, Suite Dothan, AL
New York Times
c/o New York WQAD-TV
Times Co. 0003481587 200832080041 73319 $27,500
229 W. 43rd
New York, NY
Inc., 909 Lake
Carolyn 0009961889 200832080042 St. Joseph, 20427 $27,500
Parkway, Suite MO
Service, Inc., 0001841766 200832080043 49397 $27,500
2121 S.W. Topeka, KS
NPG of Texas, KVIA-TV
L.P., 4140 Rio 0006548028 200832080044 49832 $27,500
Bravo, El Paso, El Paso, TX
Television, c/o KOCO-TV
Brooks Pierce 0001587609 200832080045 12508 $27,500
et al, P. O. Oklahoma
Box 1800, City, OK
Television of WAAY-TV
License, LLC, Huntsville,
c/o Piedmont AL 57292
Television 0004063483 200832080046 $55,000
Holdings LLC, KSPR(TV) 35630
Avenue, Suite Springfield,
506, Charlotte, MO
Co., Inc., 5500 0006096200 200832080047 52907 $27,500
Poplar Lane, Alexandria,
Memphis, TN LA
Post-Newsweek 0002149953 200832080048 53118 $27,500
Stations, 550 San Antonio,
West Lafayette TX
Co., 312 Walnut 0012487609 200832080049 59440 $27,500
Street, Phoenix, AZ
Inc., P. O. Box 0005411632 200832080050 83310 $27,500
1645, Tupelo, Houston, MS
Schwartz, One 0003828696 200832080051 65204 $27,500
Television Jackson, TN
Orleans, Inc., WGNO(TV)
1 Galleria 0002847564 200832080052 72119 $27,500
Boulevard, New Orleans,
Suite 850, LA
TV, Inc., (CA WAPT(TV)
Corp.) , 0005008867 200832080053 49712 $27,500
P. O. Box 1800,
3415 University WDIO-TV
Avenue West, 0004199139 200832080054 71338 $27,500
St. Paul, MN Duluth, MN
Winthrop, Shaw, WEAR-TV
Pittman, LLP, 0004970935 200832080055 71363 $27,500
2300 N Street, Pensacola, FL
400 South WFAA-TV
Record Street, 0001651496 200832080056 72054 $27,500
Dallas, TX Dallas, TX
TV, Inc. (CA WISN-TV
Corp.), 0003792603 200832080057 65680 $27,500
P. O. Box 1800,
0004383683 200832080058 64545 $27,500
P. O. Box 909, Madison, WI
WKRN, G.P., c/o
Brooks Pierce WKRN-TV
et al, P. O. 0005015037 200832080059 73188 $27,500
Box 1800, Nashville, TN
Inc., 77 W. WLS-TV
66th Street, 0003471315 200832080060 73226 $27,500
Floor 16, New Chicago, IL
5009 South WSIL-TV
Hulen, Suite 0002808137 200832080061 73999 $27,500
101, Fort Harrisburg,
Worth, TX IL
Inc., P.O. Box 0005012216 200832080062 64549 $27,500
909, Quincy, IL La Crosse, WI
Inc., c/o WBAY-TV
Brooks Pierce 0004994984 200832080063 74417 $27,500
et al, P. O. Green Bay, WI
COMMISSIONER DEBORAH TAYLOR TATE
Our action today should serve as a reminder to all broadcasters that
Congress and American families continue to be concerned about protecting
children from harmful material and that the FCC will enforce the laws of
the land vigilantly. In fact, pursuant to the Broadcast Decency Act of
2005, Congress increased the maximum authorized fines ten-fold. The law is
simple. If a broadcaster makes the decision to show indecent programming,
it must air between the hours of 10 p.m. and 6 a.m. This is neither
difficult to understand nor burdensome to implement.
The NAL/Acct. No. and FRN number for each licensee subject to this Notice
are enumerated in the Attachment.
See 47 U.S.C. S: 503(b); 47 C.F.R. S: 1.80.
See 18 U.S.C. S: 1464; 47 C.F.R. S: 73.3999.
See 18 U.S.C. S: 1464.
See 47 C.F.R. S: 73.3999.
See U.S. Const., amend. I; 47 U.S.C. S: 326. See also United States v.
Playboy Entertainment Group, Inc., 529 U.S. 803, 813-15 (2000).
See Action for Children's Television v. FCC, 852 F.2d 1332, 1344, 1340 n.
14 (1988) ("ACT I") (stating that "[b]roadcast 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," and that
any "potential chilling effect of the FCC's generic definition of
indecency will be tempered by the Commission's restrained enforcement
See 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)
Industry Guidance on the Commission's Case Law Interpreting 18 U.S.C.
S:1464 and Enforcement Policies Regarding Broadcast Indecency, Policy
Statement, 16 FCC Rcd 7999, 8002 P:P: 7-8 (2001) ("Indecency Policy
Statement") (emphasis in original). In applying the "community standards
for the broadcast medium" criterion, the Commission has stated:
The determination as to whether certain programming is patently offensive
is not a local one and does not encompass any particular geographic area.
Rather, the standard is that of an average broadcast viewer or listener
and not the sensibilities of any individual complainant.
WPBN/WTOM License Subsidiary, Inc., Memorandum Opinion and Order, 15 FCC
Rcd 1838, 1841 P: 10 (2000) ("WPBN/WTOM MO&O"). The Commission's
interpretation of the term "contemporary community standards" flows from
its analysis of the definition of that term set forth in the Supreme
Court's decision in Hamling v. United States, 418 U.S. 87 (1974), reh'g
denied, 419 U.S. 885 (1974). In Infinity Broadcasting Corporation of
Pennsylvania (WYSP(FM)), Memorandum Opinion and Order, 3 FCC Rcd 930
(1987) (subsequent history omitted), the Commission observed that in
Hamling, which involved obscenity, "the Court explained that the purpose
of `contemporary community standards' was to ensure that material is
judged neither on the basis of a decisionmaker's personal opinion, nor by
its effect on a particularly sensitive or insensitive person or group."
Id. at 933 (citing 418 U.S. at 107). The Commission also relied on the
fact that the Court in Hamling indicated that decisionmakers need not use
any precise geographic area in evaluating material. Id. at 933 (citing 418
U.S. at 104-05). Consistent with Hamling, the Commission concluded that
its evaluation of allegedly indecent material is "not one based on a local
standard, but one based on a broader standard for broadcasting generally."
Id. at 933.
Indecency Policy Statement, 16 FCC Rcd at 8002 P: 9 (emphasis in
See id. at 8002-15 P:P: 8-23.
Id. at 8003 P: 10.
See id. at 8009 P: 19 (citing Tempe Radio, Inc (KUPD-FM), Notice of
Apparent Liability for Forfeiture, 12 FCC Rcd 21828 (Mass Media Bur. 1997)
(forfeiture paid), and EZ New Orleans, Inc. (WEZB(FM)), Notice of Apparent
Liability for Forfeiture, 12 FCC Rcd 4147 (Mass Media Bur. 1997)
(forfeiture paid) (finding that the extremely graphic or explicit nature
of references to sex with children outweighed the fleeting nature of the
See 47 U.S.C. S: 503(b)(1)(B) & D. See also 47 C.F.R. 1.80(a)(1).
See 47 U.S.C. S: 312(f)(1).
See H.R. Rep. No. 97-765, 97th Cong. 2d Sess. 51 (1982).
See Southern California Broadcasting Co., Memorandum Opinion and Order, 6
FCC Rcd 4387, 4388 (1991).
See Commission's Forfeiture Policy Statement and Amendment of Section 1.80
of the Rules to Incorporate the Forfeiture Guidelines, Report and Order,
12 FCC Rcd 17087, 17113 (1997), recon. denied, 15 FCC Rcd 303 (1999)
("Forfeiture Policy Statement"); see also 47 C.F.R. S: 1.80(b).
Forfeiture Policy Statement, 12 FCC Rcd at 17100-01 P: 27.
The statutory maximum amount for violations occurring after November 13,
2000, and before September 7, 2004, is $27,500. See 65 FR 60868-01
(2000); see also Amendment of Section 1.80 of the Commission's Rules,
Order, 19 FCC Rcd 10945, 10946 P: 6 (2004) (amending rules to increase
maximum penalties due to inflation since last adjustment of penalty
See Complaints Regarding Various Television Broadcasts Between February
2, 2002 and March 8, 2005, Notices of Apparent Liability and Memorandum
Opinion and Order, 21 FCC Rcd 2664, 2681 P: 62, vacated in part on other
grounds, 21 FCC Rcd 13299 (2006) (subsequent history omitted) ("2006
Indecency Omnibus Order").
See Response at 7.
See, e.g., City of Erie v. Pap's A.M., 529 U.S. 277 (2000) (Supreme Court
did not disturb a city's indecency ordinance prohibiting public nudity,
where the buttocks was listed among other sexual organs/body parts subject
to the ordinance's ban on nudity); Loce v. Time Warner Entertainment
Advance/Newhouse Partnership, 191 F.3d 256, 269 (2d. Cir. 1999) (upholding
state district court's determination that Time Warner's decision to not
transmit certain cable programming that it reasonably believed indecent
(some of which included "close-up shots of unclothed breasts and
buttocks") did not run afoul of the Constitution).
See, e.g., Complaints Against Various Television Licensees Concerning
Their February 1, 2004, Broadcast of the Super Bowl XXXVIII Halftime Show,
Notice of Apparent Liability for Forfeiture, 19 FCC Rcd 19230, 19235 P: 13
(2004) ("Super Bowl NAL") (finding that a broadcast of a performer's
exposed breast was graphic and explicit), affirmed, Forfeiture Order, 21
FCC Rcd 2760 (2006), affirmed, Order on Reconsideration, 21 FCC Rcd 6653
(2006), appeal pending. See also Young Broadcasting of San Francisco,
Inc., Notice of Apparent Liability for Forfeiture, 19 FCC Rcd 1751, 1755
P: 11 (2004) ("Young Broadcasting NAL") (finding that a broadcast of a
performer's exposed penis was graphic and explicit), NAL response pending.
See Indecency Policy Statement, 16 FCC Rcd at 8008 P: 17 (citing cases);
see also Complaints Against Various Licensees Regarding Their Broadcast of
the Fox Television Network Program "Married By America" on April 7, 2003,
Notice of Apparent Liability for Forfeiture, 19 FCC Rcd 20191, 20195 P: 11
(2004) ("Married By America NAL") (NAL response pending); Entercom Seattle
License, LLC, Order on Review, 19 FCC Rcd 9069, 9073-74 P: 13 (2004),
petition for recon. pending.
See Response at 9.
See id. at 3-4, 9-11.
See id. at 9, n.7.
See id. at 9.
See The Rusk Corporation, Notice of Apparent Liability for Forfeiture, 8
FCC Rcd 3228, 3229 (1993) (forfeiture paid).
Compare WPBN/WTOM MO&O, 15 FCC Rcd at 1840-41 P:P: 8-13 (finding that
nudity in the broadcast of the movie "Schindler's List" was not indecent
because it was not patently offensive in context) with Young Broadcasting
NAL, 19 FCC Rcd at 1756, P: 14 (finding that exposure of male genitalia
was patently offensive because it was gratuitous and apparently intended
to shock and titillate the audience).
See 47 C.F.R. S: 73.3999.
Response at 10-11.
See Pacifica, 438 U.S. at 748-49.
See Action for Children's Television v. FCC, 58 F. 3d 654, 660-63 (D.C.
Cir. 1995) (en banc), cert. denied, 516 U.S. 1072 (1996).
See Married By America NAL, 19 FCC Rcd at 20196 P: 16.
The fact that the stations in question may not have originated the
programming is irrelevant to whether there is an indecency violation. See
Review of the Commission's Regulations Governing Programming Practices of
Broadcast Television Networks and Affiliates, Notice of Proposed
Rulemaking, 10 FCC Rcd 11951,11961, P: 20 (1995) (internal quotation
omitted) ("We conclude that a licensee is not fulfilling his obligations
to operate in the public interest, and is not operating in accordance with
the express requirements of the Communications Act, if he agrees to accept
programs on any basis other than his own reasonable decision that the
programs are satisfactory.").
See 2006 Indecency Omnibus Order, 21 FCC Rcd at 2673 P: 32.
See 47 C.F.R. S: 1.1914.
Consistent with Section 503(b) of the Act and consistent Commission
practice, for the purposes of the forfeiture proceeding initiated by this
NAL, the only parties to such proceeding will be the licensees specified
in the Attachment.
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Federal Communications Commission FCC 08-25
Federal Communications Commission FCC 08-25