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                           Before the 
                FEDERAL COMMUNICATIONS COMMISSION
                     Washington, D.C.  20554


In the Matter of                )
                                )
WPBN/WTOM LICENSE               )       
SUBSIDIARY, INC.                )
                                )
Licensee of Stations WPBN-TV,   )
Traverse City, and WTOM-TV,     )
Cheboygan, Michigan             )

                  MEMORANDUM OPINION AND ORDER 


     Adopted:  January 11, 2000         Released:  January 14, 
2000        


By the Commission:

     1.  In this Order, we deny a "Petition for Reconsideration," 
filed on September 25, 1998, by Thomas B. North ("North").  North 
seeks reconsideration or review of an August 26, 1998, letter 
from the Mass Media Bureau ("MMB"), acting pursuant to delegated 
authority, explaining MMB's earlier action effectively denying 
his complaint alleging that two Michigan television stations, 
WPBN-TV, Traverse City, and WTOM-TV, Cheboygan, broadcast 
indecent material when, on February 23, 1997, they broadcast the 
NBC network presentation of the film Schindler's List.  For the 
reasons stated below, North's request is denied.1

                           Background

     2.  On March 3, 1997, North filed a complaint alleging that 
the nudity contained in the network presentation of Schindler's 
List, specifically that which was broadcast before 10 p.m., is 
actionably indecent.  By letter dated April 30, 1997, the Chief, 
Complaints and Political Programming Branch of MMB's former 
Enforcement Division ("C&PP"), advised North that the material 
identified in the complaint did not meet the legal standard for 
indecent programming.2  See, e.g., FCC v. Pacifica Foundation, 
438 U.S. 726 (1978).  That letter further explained that subject 
matter alone does not render material indecent and that nudity is 
not per se actionably indecent.  

     3.  On August 19, 1997, North sought further clarification 
of the staff's response to his complaint.  North specifically 
questioned the authority of the Chief, C&PP, to address his 
complaint, and alleged that the April 30, 1997, staff letter was 
a "summary conclusion that appears to be without basis." By 
letter dated August 26, 1998, North was informed by the Chief, 
C&PP, that his complaint was evaluated by MMB staff pursuant to 
the authority delegated in Section 0.283 of the Commission's 
Rules, 47 C.F.R. 0.283.  Moreover, that letter expanded on and 
further explained the basis for the staff's conclusion that the 
adult frontal nudity he viewed in this particular presentation of 
Schindler's List does not meet the legal definition of indecency 
and therefore does not warrant further Commission action.  
Specifically, the staff letter explained that broadcast material 
such as that he objected to is actionably indecent when presented 
in a patently offensive manner, and that material which may be 
patently offensive in one context may not be so if presented 
under other circumstances. The staff concluded that although this 
airing of Schindler's List did contain incidental frontal nudity, 
the material broadcast depicted a historical view of World War II 
and wartime atrocities which, viewed in that context, was not 
presented in a pandering, titillating or vulgar manner or in any 
way that would be considered patently offensive and, therefore, 
actionably indecent.    
                                
     4.  In his September 25, 1998, pleading, North alleges that 
the staff exceeded its delegated authority as set forth in 
Section 0.283 of the Commission's Rules because his original 
complaint "may contain new or novel arguments not previously 
considered by the Commission, and/or present facts or arguments 
which appear to justify a change of Commission policy" (italics 
added).  In this regard, he maintains that the Commission has 
historically misapplied or misinterpreted the relevant legal 
standard to enforcement matters relating to indecent broadcasts, 
resulting in actions that are contrary to federal law.  Among 
those errors, he asserts, are the staff's findings that, in this 
case, the adult frontal nudity shown prior to 10 p.m. is not 
actionably indecent. 

     5.  North contends that the staff employed the wrong 
standard to evaluate his complaint by emphasizing the "context" 
of the broadcast rather than whether its depictions or 
descriptions were patently offensive as measured by contemporary 
community standards.  North argues that it is contemporary 
community standards, not context, that determine whether 
something is patently offensive under the definition of indecent 
programming, and "then and only then should the Commission look 
to the context to see if it negates any finding of patent 
offensiveness."  In this regard, North contends that the 
"Commission's [August 26, 1998] letter, answering [his] request 
as to which elements [of indecency] are not present, does not 
anywhere contend that the complained of nudity in the movie is 
not in violation of contemporary community standards, and [the 
Commission] therefore admits that element in agreement with 
[him]."  Moreover, North states, it "cannot be disputed with any 
amount of intelligence
. . . [that] there is nothing in human existence, short of death, 
severe injury, or legal obscenity that is more disturbing to the 
mind or emotions that [sic] the uninvited sight of adult frontal 
nudity."3       6.  North also challenges the staff's conclusions based on 
the context of the presentation.  He concedes, as the staff 
concluded, that the portions of the movie he objects to were not 
presented to pander or titillate, and he does not claim that the 
movie was otherwise without merit.  However, North asserts that 
the staff's consideration of those factors improperly establishes 
additional requirements for the evaluation of whether particular 
programming is indecent.  Similarly, he objects to the staff's 
conclusions that the material was not presented in a shocking or 
vulgar manner and that the viewer advisories aired during the 
broadcast of the film are relevant.  He asserts that the viewer 
advisories were not part of this movie, are not part of the 
context to be considered, and therefore have no bearing on 
whether this broadcast was indecent or not.  Moreover, North 
argues that even if the presentation of something "vulgar" or 
"shocking" were an element of the indecency definition, any 
reasonable person would agree that adult frontal nudity meets 
that definition, and "when that nudity is presented in the 
context of the Holocaust, a further degree of `shock' is added."  
Thus, he maintains that this broadcast of Schindler's List was 
clearly presented in a vulgar and shocking manner, contrary to 
the staff's conclusion.

     7.  Finally, North concedes that it is not illegal to air an 
unedited version of Schindler's List.  Rather, he argues, it was 
illegal to do so, prior to 10 p.m., without editing out the adult 
frontal nudity.  Noting the concern for the protection of 
children and unconsenting adults against intrusion by offensive 
broadcasts, North states that, if the frontal nudity in 
Schindler's List is not indecent, the practical effect of that 
ruling would be that such nudity can be legally broadcast by any 
television station during any part of the day, including those 
times when children and unconsenting adults are likely to be in 
the audience.

                           Discussion

     8.  We have reviewed the staff's actions of April 30, 1997 
and August 26, 1998, and affirm them.4  Rather, we find it was 
within the Bureau's delegated authority to address the original 
complaint, which applied an established indecency standard to the 
facts at issue.  47 C.F.R.  0.283.  From a procedural 
standpoint, we note that the allegation that the staff exceeded 
its delegated authority because his original complaint "may have" 
contained new or novel arguments not previously considered by the 
Commission fails to set forth with any particularity the new or 
novel questions he contends were improperly addressed by the 
staff.  Review of his prior submissions indicates that such new 
or novel arguments were neither pleaded nor apparent.  Moreover, 
North has not set forth with any particularity how the staff may 
have otherwise exceeded its delegated authority, and we find no 
support for his allegation in that regard.  

     9.  From a substantive perspective, we concur with the 
staff's rejection of North's fundamental premise that the 
presentation of adult frontal nudity prior to 10 p.m. per se 
constitutes indecent programming, mandating further Commission 
action in all cases, including this particular presentation of 
Schindler's List.  Indecency findings involve at least two 
distinct determinations.  First, the material alleged to be 
indecent must fall within the subject matter scope of our 
indecency definition -- i.e., the material must describe or 
depict sexual or excretory organs or activities.  Once the 
Commission determines that the material aired falls within that 
definition, we must then evaluate whether the broadcast is 
patently offensive as measured by contemporary community 
standards for the broadcast medium.  See Infinity Broadcasting 
Corp., 3 FCC Rcd 930 (1987), aff'd in part and remanded in part 
sub nom. Action for Children's Television v. FCC, 852 F.2d 1332 
(D.C. Cir. 1988). There is no dispute that the program at issue, 
as aired, satisfies the first component of this standard.  We 
agree with the staff's view, however, that the material, as 
aired, was not patently offensive. 

     10.  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.  See Sagittarius Broadcasting 
Corporation, 5 FCC Rcd 7291, 7292 (MMB 1990) (citations omitted), 
aff'd, 7 FCC Rcd 6873 (MMB 1992), vacated pursuant to a 
settlement agreement, 10 FCC Rcd 12245 (1995).  Nor is subject 
matter alone the basis for an indecency determination.  The full 
context in which the material appeared must be considered in 
determining whether material is patently offensive.  See Infinity 
Broadcasting Corp., supra. See also Action for Children's 
Television v. FCC, 932 F.2d 1504 (D.C. Cir. 1991);  Letter to 
Peter Branton, 6 FCC Rcd 610 (1991); appeal dismissed sub nom. 
Branton v. FCC, 993 F.2d 906 (D.C. Cir. 1993); cert. denied, 511 
U. S. 1052 (1994).  It is not sufficient, for example, to know 
simply that explicit sexual terms or descriptions were used. 
Pacifica Foundation v. FCC, 438 U.S. 726, 750 (1978).  Contextual 
determinations involve a host of potential variables.  The 
interplay of these variables will vary depending on the facts 
presented in any given case.5  Thus, all of the possible 
contextual factors that might bear on an evaluation of the patent 
offensiveness of any particular material cannot simply be 
cataloged comprehensively and applied mechanically.  Accordingly, 
we reject North's contention that because the staff did not 
specifically list which elements of indecency were not present in 
its evaluation of his complaint concerning this particular 
showing of Schindler's List, the Commission, presumably by 
default, agrees with or concedes to his assessment that this 
material is patently offensive.6 

      11.  Contrary to North's ultimate conclusions, nudity 
itself is not per se indecent.  If the definition of what 
constitutes actionably indecent programming were as absolute as 
claimed by North, there simply would be no need for or practical 
impact of the remainder of that definition -- that the 
programming in question be measured against the contemporary 
community standards for the broadcast medium.  Moreover, we find 
no legal basis to conclude that "the contemporary community 
standards for the broadcast medium" are as inflexible as North 
describes, preclude Commission evaluation of the full context of 
the presentation of the subject programming, or, even considering 
the context of the presentation, compel a finding that nudity 
shown before 10 p.m. is so "vulgar" as to render it necessarily 
indecent. 
  
     12.  Finally, North's assertion that unless the broadcast of 
this programming is sanctioned, he faces the probability of 
exposure in the future to indecency over the airwaves does not 
present a basis for further action in this case.  The staff's 
conclusion that the material he objects to in this broadcast of 
Schindler's List is not actionably indecent is confined to the 
specific facts before it and does not depart from our established 
policies.  Thus, we cannot agree that the effect of this response 
is to authorize the indiscriminate presentation of nudity at any 
time of the day or in any context without regard to those in the 
audience.

     13.  In this specific case, the staff properly concluded 
that the material North objects to in this particular broadcast 
of Schindler's List is not patently offensive as measured by 
contemporary community standards for the broadcast medium.  That 
determination was properly based on the full context of its 
presentation as outlined by the staff in response to North's 
complaints -- including the subject matter of the film, the 
manner of its presentation, and the warnings that accompanied the 
broadcast of this film -- and not the standards of any particular 
community or individual viewer or complainant.  Other than 
North's continuing objection to this result, he has not shown 
that the staff misapplied the law in this case, and his instant 
pleading presents no basis to revisit the staff's actions. Thus, 
we affirm the previous actions of the Mass Media Bureau 
effectively denying his complaints.

     14.  ACCORDINGLY, IT IS ORDERED, that North's ``Petition for 
Reconsideration'' is DENIED.


                   FEDERAL COMMUNICATIONS COMMISSION

                   Magalie Roman Salas
                   Secretary

_________________________

1  North suggests that, as an alternative, the Commission 
consider his September 25, 1998, pleading as an Application for 
Review under Section 1.115 of the Commission's Rules.  This is 
North's third attempt to require the imposition of sanctions for 
this particular broadcast of Schindler's List.  In the interest 
of efficiency, therefore, we will treat his current pleading as 
an application for Commission review of an action taken by the 
staff pursuant to delegated authority.  See 47 C.F.R.  
1.106(a)(1).

2  "Indecent programming" is defined as material "that (depicts 
or) describes in terms patently offensive as measured by 
contemporary community standards for the broadcast medium, sexual 
or excretory activities or organs."  Infinity Broadcasting Corp., 
3 FCC Rcd 930 (1987), aff'd in part and remanded in part sub nom. 
Action For Children's Television v. FCC, 852 F.2d 1332 (D.C. Cir. 
1988).  Indecent material is actionable under the Commission's 
Rules if it is aired between 6 a.m. and 10 p.m.  47 C.F.R. 
73.3999(b).


3  In his original complaint, North alleged that this material 
was patently offensive as measured by contemporary community 
standards for the broadcast medium.  In support, he asserted that
     the broadcast medium standards in every community in 
     the United States are and always have been that adult's 
     sexual organs simply not be shown on television in any 
     context.  These standards have not ever changed -- if 
     they could change, they would not be `standards' 
     because `standards' by definition are something that do 
     not change, so that other things could be measured  by 
     them.  Community standards throughout the nation are 
     that some things are off limits to public broadcast and 
     that includes the showing of sexual organs.
4  Our decision affirming the Division Order effectively moots 
North's delegated authority argument.  See Motions  For 
Declaratory Rulings Regarding Commission Rules and Policies for 
Frequency Coordination in the Private Land Mobile Radio Services, 
Memorandum Opinion and Order, 14 FCC Rcd 12752 (1999); Beehive 
Telephone, Inc. v. Bell Operating Cos., Memorandum Opinion & 
Order, 12 FCC Rcd 17930, 17938-39 (para. 16) (1997) (delegation 
of authority rules are a matter between the Commission and its 
staff and do not give private parties rights), petition for  
review dismissed in part and denied in part, Beehive Telephone 
Co., Inc. v. FCC,  179 F.3d 941 (D.C.Cir. 1999).
5  The Supreme Court has observed that contextual assessments may 
involve (and are not limited to) an examination of whether the 
actual words or depictions in context are, for example, 
``vulgar'' or ``shocking,'' a review of the manner in which the 
words or depictions are portrayed, and an analysis of whether the 
allegedly indecent material is isolated or fleeting.  The merit 
of a work is also one of the many variables that that make up a 
work's context.  Pacifica Foundation v. FCC, at 747-750 & n.29.

6  In this regard, the staff responded to the specific 
allegations made concerning the programming objected to in the 
presentation of this movie, and North's apparent displeasure with 
that outcome does not obviate the responsibility to set forth 
allegations which, if true, establish a prima facie case of 
licensee misconduct warranting further action.  That burden of 
pleading rests with the complainant, not with the Commission or 
its staff.  See, e.g., Astroline Communications Co. v. FCC, 857 
F.2d 1556, 1561 (D.C. Cir. 1988).