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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of
)
Complaints Against Various Television
Licensees Concerning Their December 31, ) File No. EB-05-IH-0035
2004 Broadcast of the Program "Without A
Trace" )
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: February 21, 2006 Released: March 15, 2006
By the Commission: Chairman Martin, Commissioners Copps and Tate issuing
separate statements; Commissioner Adelstein concurring and issuing a
statement.
I. INTRODUCTION
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 CBS Television Network ("CBS") affiliated stations and
CBS owned-and-operated stations listed in Attachment A aired material
that apparently violates the federal restrictions regarding the
broadcast of indecent material. Specifically, during the Our Sons and
Daughters episode of the CBS program "Without a Trace" on December 31,
2004, at 9:00 p.m. in the Central and Mountain Time Zones, these
licensees each broadcast material graphically depicting teenage boys
and girls participating in a sexual orgy. Based upon our review of the
facts and circumstances of this case, we conclude that the licensees
listed in Attachment A are apparently liable for a monetary forfeiture
in the amount of $32,500 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.
II. BACKGROUND
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 description;
(2) whether the material dwells on or repeats at length 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. In this NAL, we apply the two-pronged indecency analysis described
above. Specifically, we first determine whether the complained-of
material is within the scope of our indecency definition; i.e.,
whether it describes or depicts sexual or excretory activities or
organs. We then turn to the three principal factors of the second
prong to determine whether, taken in context, the material is patently
offensive as measured by contemporary community standards for the
broadcast medium.
7. Our contextual analysis takes into account the manner and purpose of
broadcast material. For example, material that panders to, titillates,
or shocks the audience is treated quite differently than material that
is primarily used to educate or inform the audience. In particular, we
recognize the need for caution with respect to complaints implicating
the editorial judgment of broadcast licensees in presenting news and
public affairs programming, as these matters are at the core of the
First Amendment's free press guarantee.
8. 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) of the Act 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.
We emphasize that every licensee is responsible for the decision to
air particular programming and will be held accountable for violating
federal restrictions on the willful or repeated broadcast of obscene,
indecent, or profane material.
9. 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), 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
occurring on or after September 7, 2004, is $32,500.
III. DISCUSSION
10. The Programming. The Commission received numerous complaints alleging
that certain affiliates of CBS and CBS owned-and-operated stations
(listed in Attachment A) broadcast indecent material during the Our
Sons and Daughters episode of the CBS program "Without a Trace" on
December 31, 2004, at 9:00 p.m. in the Central and Mountain Time
Zones.
11. The December 31, 2004 episode at issue concerns an FBI investigation
into the disappearance and possible rape of a high school student.
During an interrogation, a witness recalls a party held at the home of
a teenager. As she recounts the details of the party, the program cuts
to a "flashback" scene. The scene -- which forms the basis of the
viewer complaints -- consists of a series of shots of a number of
teenagers engaged in various sexual activities, including sex between
couples and among members of a group. Although the scene contains no
nudity, it does depict male and female teenagers in various stages of
undress. The scene also includes at least three shots depicting
intercourse, two between couples and one "group sex" shot. In the
culminating shot of the scene, the witness exclaims to the others in
the party that the victim is a "porn star." The action briefly returns
to the present, as the witness pauses in her story, then the flashback
resumes, as the victim is shown wearing bra and panties, straddled on
top of one male character, while two other male characters kiss her
breast near the bra strap. The lower portion of the panties is shaded,
but she is shown moving up and down while the male teenager thrusts
his hips into her crotch.
12. Indecency Analysis. We find that the material meets the first prong of
the indecency test. While no nudity is shown, it is clear, as detailed
above, that the scene depicts numerous sexual activities.
13. 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 is explicit and graphic. The material
contains numerous depictions of sexual conduct among teenagers that
are portrayed in such a manner that a child watching the program could
easily discern that the teenagers shown in the scene were engaging in
sexual activities, including apparent intercourse. The background
sounds, which include moaning, add to the graphic and explicit sexual
nature of the depictions. The scene is not shot as clinical or
educational material, and the movements, sounds, and comments
contained in the scene are highly sexually charged.
14. Next, although not dispositive, we find it relevant that the broadcast
dwells on and repeatedly depicts the sexual material, the second
principal factor in our analysis. The scene in question contains
several depictions of apparent sexual intercourse.
15. As for the third factor, we find that the complained-of material is
pandering, titillating, and shocking to the audience. The explicit and
lengthy nature of the depictions of sexual activity, including
apparent intercourse, goes well beyond what the story line could
reasonably be said to require. Moreover, the scene is all the more
shocking because it depicts minors engaged in sexual activities.
16. In sum, because the scene is explicit, dwells upon sexual material,
and is shocking and titillating, we conclude that the broadcast of the
material at issue here is patently offensive under contemporary
community standards for the broadcast medium and thus apparently
indecent. The complained-of material was broadcast 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. Therefore, there is a
reasonable risk that children may have been in the viewing audience
and the broadcast is legally actionable.
17. Forfeiture Calculation. We find that the CBS affiliates and CBS
owned-and-operated stations listed in Attachment A consciously and
deliberately broadcast the episode in question. 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, based on the
factors enumerated in section 503(b)(2)(D) of the Act and the facts
and circumstances of this case. We find that the statutory maximum of
$32,500 is an appropriate proposed forfeiture amount for each
violation arising out of the December 31, 2004 broadcasts. The gravity
of the apparent violation is heightened in this case because, as
discussed above, the material graphically depicts teenage boys and
girls participating in a sexual orgy. While there is no nudity, the
scene is highly sexually charged and explicit. Moreover, the material
is particularly egregious because it focuses on sex among children. In
addition, the program is prerecorded, and CBS and its affiliates could
have edited or declined the content prior to broadcast. Therefore, we
find that each of the licensees listed in Attachment A is apparently
liable for a proposed forfeiture of $32,500 for broadcast of the
December 31, 2004 episode of "Without A Trace." 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 "Without A
Trace," we propose forfeitures only against 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. We recognize that
this approach differs from that taken in previous Commission decisions
involving the broadcast of apparently indecent programming. Our
commitment to an appropriately restrained enforcement policy, however,
justifies this more limited approach towards the imposition of
forfeiture penalties. Accordingly, we propose forfeitures as set forth
in Attachment A.
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 CBS Television Network and of the stations owned and
operated by CBS listed in Attachment A are hereby NOTIFIED of their
APPARENT LIABILITY FOR FORFEITURE in the amount of $32,500 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 "Without a Trace"
on December 31, 2004.
21. IT IS FURTHER ORDERED that a copies of this NAL shall be sent by
Certified Mail, Return Receipt Requested, to Anne Lucey, Senior Vice
President, Regulatory Affairs, CBS, 1501 M Street, N.W., Suite 1100,
Washington, D.C. 20005, and to the licensees of the stations listed in
Attachment A, at their respective addresses noted therein.
22. IT IS FURTHER ORDERED, pursuant to section 1.80 of the Commission's
rules, that within thirty (30) days of the release of this NAL, each
licensee identified in Attachment A 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 Attachment A. 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
number 911-6106.
24. The responses, if any, must be mailed to William H. Davenport, Chief,
Investigations and Hearings Division, Enforcement Bureau, Federal
Communications Commission, 445 12^th Street, S.W., Room 4-C330,
Washington D.C. 20554, and MUST INCLUDE the relevant NAL/Acct. No.
referenced for each proposed forfeiture in Attachment A 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,
D.C. 20554.
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
Secretary
ATTACHMENT A
PROPOSED FORFEITURES FOR DECEMBER 31, 2004
BROADCASTS OF "WITHOUT A TRACE"
Station Call Proposed
Licensee Name and Mailing FRN No. NAL Acct. No. Signs and Facility Forfeiture
Address Communities of ID Nos. Amount
License
Alabama Broadcasting
Partners WAKA (TV)
0003828738 200632080014 701 $32,500
3020 Eastern Boulevard Selma, AL
Montgomery, AL 36123
Alaska Broadcasting
Company, Inc. KTVA (TV)
0006160915 200632080015 49632 $32,500
1007 W. 32^nd Ave Anchorage, AK
Anchorage, AK 99503
Arkansas Television
Company
KTHV (TV)
c/o Gannett Co., Inc. 0003756442 200632080016 2787 $32,500
Little Rock, AR
7950 Jones Branco Dr.
Mclean, VA 22107
Barrington Broadcasting
Quincy Corporation
KHQA-TV
2500 W. Higgins Road 0011063302 200632080017 4690 $32,500
Hannibal, MO
Ste 880
Hoffman Estates, IL 60195
Barrington Broadcasting
Missouri Corp. KRCG (TV)
2500 W. Higgins Road 0012140109 200632080018 Jefferson City, 41110 $32,500
Suite 880 MO
Hoffman Estates, IL 60195
Catamount Bcstg of Fargo
LLC KXJB-TV
0002474161 200632080019 49134 $32,500
1350 21^st Ave. South Valley City, ND
Fargo, ND 58103
KCCO-TV
Alexandria, MN
CBS Broadcasting, Inc. WBBM-TV 9632
2000 K Street, N.W. Suite Chicago, IL 9617
725 0003482189 200632080020 $130,000
WCCO-TV 9629
Washington, DC 20006
Minneapolis, MN 9635
WFRV-TV
Green Bay, WI
CBS Stations Group of KEYE-TV
Texas, L.P.
Austin, TX 33691
2000 K Street, N.W. 0001767078 200632080021 $65,000
KTVT (TV) 23422
Ste. 725
Fort Worth, TX
Washington, DC 20006
CBS Television Stations,
Inc.
KCNC-TV
2000 K Street, N.W. 0004425773 200632080022 47903 $32,500
Denver, CO
Suite 725
Washington, DC 20006
Chelsey Broadcasting
Company of Casper, LLC KGWC-TV
0008721292 200632080023 63177 $32,500
2923 East Lincolnway Casper, WY
Cheyenne, WY 82001
ComCorp of Indiana
License Corp. WEVV (TV)
0004328308 200632080024 72041 $32,500
P.O. Drawer 53708 Evansville, IN
Lafayette, LA 70505
Coronet Comm Co.
WHBF-TV
99 Pondfield Rd 0003757457 200632080025 13950 $32,500
Rock Island, IL
Bronxville , NY 10708
Des Moines Hearst-Argyle
Television, Inc.
c/o Brooks, Pierce, Et. KCCI (TV)
Al. 0002573277 200632080026 33710 $32,500
Des Moines, IA
P.O. Box 1800
Raleigh, NC 27602
Eagle Creek Broadcasting
of Laredo, LLC
KVTV (TV)
2111 University Park 0007262348 200632080027 33078 $32,500
Drive, Ste. 650 Laredo, TX
Okemos, MI 48864
Eagle Creek Broadcasting
of Corpus Christi, LLC KZTV (TV)
2111 University Park Dr 0007277445 200632080028 Corpus Christi, 33079 $32,500
Ste 650 TX
Okemos, MI 48864
KBIM-TV
Roswell, NM
KGMB (TV)
Honolulu, HI 48556
Emmis Television License KMTV (TV) 36917
LLC
Omaha, NE 35190
3500 W Olive Ave Ste. 0002884252 200632080029 $195,000
1450 KREZ-TV 48589
Burbank, CA 915051 Durango, CO 48575
KRQE (TV) 70655
Albuquerque, NM
WTHI-TV
Terre Haute, IN
Fisher Broadcasting Idaho
TV, LLC KBCI-TV,
0005848445 200632080030 49760 $32,500
100 4th Ave N Ste 510 Boise, ID
Seattle, WA 98101
Fisher Broadcasting-SE
Idaho TV LLC KIDK (TV)
0005848619 200632080090 56028 $32,500
100 4th Ave N Ste 510 Idaho Falls, ID
Seattle, WA 9810
Freedom Bcstg of TX
Licensee LLC KFDM-TV
0010053064 200632080031 22589 $32,500
PO Box 7128 Beaumont, TX
Beaumont, TX 77726
Glendive Bcstg Corp.
KXGN-TV
210 S Douglas St 0003749892 200632080032 24287 $32,500
Glendive, MT
Glendive, MT 59330
KBTX-TV
Bryan, TX
KGIN (TV)
Grand Island,
NE
KKTV (TV)
Colorado 6669
Springs, CO
7894
KOLN (TV)
35037
Lincoln, NE
Gray Television Licensee, 7890
Inc. KWTX-TV
35903
4141 East 29^th Street 0002746022 200632080033 Waco, TX $325,000
35954
Bryan, TX 77801 KXII (TV)
63160
Sherman, TX
4689
WIBW-TV
6867
Topeka, KS
35908
WIFR (TV)
Freeport, IL
WSAW-TV
Wausau, WI
WVLT-TV
Knoxville, TN
Griffin Entities, LLC, KWTV (TV)
3993 Howard Hughes 0002147155 200632080034 25382 $32,500
Parkway, Suite 250, Las Oklahoma City,
Vegas, NV 89109 OK
Griffin Licensing, L.L.C.
KOTV (TV)
3993 Howard Hughes Pkwy., 0004283339 200632080035 35434 $32,500
Ste 250 Tulsa, OK
Las Vegas, NV 89109
Hoak Media of Colorado
LLC KREX-TV
500 Crescent Court, Suite 0009455809 200632080036 Grand Junction, 70596 $32,500
220 CO
Dallas, TX 75240
Hoak Media of Wichita
Falls, L.P. KAUZ-TV
0009510603 200632080037 6864 $32,500
13355 Noel Road Wichita Falls,
TX
Dallas, TX 75240
ICA Broadcasting I, LTD
KOSA-TV
700 N Grant St 0003758976 200632080038 6865 $32,500
Odessa, TX
Odessa, TX 79761
WANE-TV
Indiana Broadcasting, LLC
Fort Wayne, ID 39270
4 Richmond Square 0007641590 200632080039 $65,000
WISH-TV 39269
Providence , RI 02906
Indianapolis,
IN
KCTZ Communications, Inc.
KBZK (TV)
1128 East Main 0001811827 200632080040 33756 $32,500
Bozeman, MT
Bozeman, MT 59715
KDBC License, LLC
KDBC-TV
500 South Chinowth Rd 0010811776 200632080041 33764 $32,500
El Paso, TX
Visalia, CA 93277
KENS-TV, Inc.
KENS-TV
400 South Record St. 0008654188 200632080042 26304 $32,500
San Antonio, TX
Dallas, TX 75202
Ketchikan TV, LLC
P.O. Box 348 KTNL (TV)
0005039896 200632080043 60519 $32,500
2539 North Highway 67 Sitka, AK
Sedalia, CO 80135
KGAN Licensee, LLC
Shaw Pittman LLP. KGAN (TV)
Attn: K. Schmeltzer 0009405226 200632080044 Cedar Rapids, 25685 $32,500
IA
2300 N Street, N.W.
Washington, DC 20037
KHOU-TV LP
KHOU-TV
1945 Allen Parkway 0004542346 200632080045 34529 $32,500
Houston, TX
Houston, TX 77019
KLFY, LP
KLFY-TV
P.O. Box 1800 0005575733 200632080046 35059 $32,500
Lafayette, LA
Raleigh, NC 27602
KMOV-TV, Inc.
KMOV (TV)
1 Memorial Drive 0001569110 200632080047 70034 $32,500
St. Louis, MO
St. Louis, MO 63102
KPAX Communications, Inc.
KPAX-TV
P.O. Box 4827 0001811827 200632080048 35455 $32,500
Missoula, MT
Missoula, MT 59806
KRTV Communications, Inc.
KRTV (TV)
Post Office Box 2989 0004523304 200632080049 35567 $32,500
Great Falls, MT
Great Falls, MT 59403
KSLA License Subsidiary,
LLC
KSLA-TV
RSA Tower 20th Fl 0003733045 200632080050 70482 $32,500
Shreveport, LA
201 Monroe St
Montgomery, AL 36104
KTVQ Communications, Inc.
KTVQ (TV)
3203 3^rd Ave North 0001628551 200632080051 35694 $32,500
Billings, MT
Billings, MT 59101
KUTV Holdings, Inc.
KUTV (TV)
2000 K Street, N.W. Suite 0009072380 200632080052 35823 $32,500
725 Salt Lake City,
UT
Washington, DC 20006
KXLF Communications, Inc.
KXLF-TV
1003 Montana Street 0001563956 200632080053 35959 $32,500
Butte, MT
Butte, MT 59701
Libco, Inc.
KGBT-TV
2215 B Renaissance Drive, 0001881523 200632080054 34457 $32,500
Ste 5 Harlingen, TX
Las Vegas, NV 89119
Malara Broadcast Group of
Duluth Licensee, LLC
KDLH (TV)
5880 Midnight Pass Rd Apt 0002836237 200632080055 4691 $32,500
701 Duluth, MN
Siesta Key, FL 34242-2104
MMT License, LLC
KYTX (TV)
900 Laskin Road 0009745027 200632080056 55644 $32,500
Nacogdoches, TX
Virgina Beach, VA 23451
KBSH-TV
Media General
Hays, KS
Broadcasting of South 66415
Carolina Holdings, Inc. KIMT (TV)
0002207520 200632080057 66402 $97,500
333 East Franklin Street Mason City, IA
73187
Richmond, VA 23219 WKRG-TV
Mobile, AL
WDEF-TV
Chattanooga, TN
WHLT (TV)
54385
Hattiesburg, MS
Media General 48668
Communications, Inc. WIAT (TV)
0002050185 200632080058 5360 $162,500
333 East Franklin Street Birmingham, AL
57826
Richmond, VA 23219 WJHL-TV
48667
Johnson City,
TN
WJTV (TV)
Jackson, MS
KCTV (TV)
Meredith Corp.
Kansas City, MO 41230
1716 Locust St 0005810726 200632080059 $66,000
KPHO-TV 41223
Des Moines IA 50309-33203
Phoenix, AZ
Mission Broadcasting,
Inc. KOLR (TV)
0003725389 200632080060 28496 $32,500
544 Red Rock Dr Springfield, MO
Wadsworth, OH 44281
Neuhoff Family
Partnership
KMVT (TV)
11793 Lake House Court 0005011648 200632080061 35200 $32,500
Twin Falls, ID
North Palm Beach,
FL 33408
News Channel 5 Network,
LP WTVF (TV)
0002054880 200632080062 36504 $32,500
474 James Robertson Pky. Nashville, TN
Nashville, TN 37219
KFSM-TV
New York Times Management
Services Corporate Center Fort Smith, AK
1, International Plaza 66469
WHNT-TV
2202 N.W. Shore Blvd., 0003481587 200632080063 48693 $97,500
Suite 370 Huntsville, AL
66174
Tampa, FL 33607 WREG-TV
Memphis, TN
KLBK-TV
Lubbock, TX
KLST (TV)
3660
Nexstar Broadcasting, San Angelo, TX
Inc. 31114
KTAB-TV
909 Lake Carolyn Parkway 0009961889 200632080064 59988 $187,500
Ste 1450 Abilene, TX
42124
Irving, TX 75039 WCIA (TV)
42121
Champaign, IL
WMBD-TV
Peoria, IL
Noe Corp. LLC
KNOE (TV)
1400 Oliver Road 0008295198 200632080065 48975 $32,500
Monroe, LA
Monroe, LA 71211
Panhandle Telecasting
Company KFDA-TV
0001662899 200632080066 51466 $32,500
PO Box 10 Amarillo, TX
Amarillo, TX 79105
Pappas Arizona License,
LLC KSWT (TV)
0004934683 200632080067 33639 $32,500
500 South Chinowth Road Yuma, AZ
Visalia, CA 93277
Primeland Television,
Inc. WLFI-TV
0007641590 200632080068 73204 $32,500
4 Richmond Sq Ste 200 Lafayette, IN
Providence, RI 02906
Queen B Television, LLC
141 S. 6^th Street WKBT (TV)
0003769973 200632080069 74424 $32,500
P.O. Box 1867 La Crosse, WI
Lacrosse, WI 54601
Raycom America License KFVS-TV
Subsidiary, LLC
Cape Giradeau, 592
RSA Tower 20th FL 201 0001835289 200632080070 MO $65,000
Monroe St 48663
KOLD-TV
Montgomery, AL 36104
Tucson, AZ
KXMA-TV
Dickinson, ND
KXMB-TV 55684
Reiten Television, Inc.
Bismarck, ND 55686
1625 West Villard 0002476885 200632080071 $130,000
KXMC-TV 55685
Dickinson, ND 58701
Minot, ND 55683
KXMD-TV
Williston, ND
Saga Broadcasting, LLC
WXVT (TV)
73 Kercheval Ave 0005237599 200632080072 25236 $32,500
Greenville, MS
Grosse Pointe Farms, MI
48236
Saga Quad States
Communications, LLC
KOAM-TV
73 Kercheval Ave 0003574084 200632080073 58552 $32,500
Pittsburg, KS
Grosse Pointe Farms, MI
48236
Sagamore Hill
Broadcasting of KGWN-TV
Wyoming/Northern
Colorado, LLC Cheyenne, WY 63166
0009676958 200632080074 $65,000
Two Embarcadero Ctr. KSTF (TV) 63182
23rd Floor Gering, NE
San Francisco, CA 94111
Television Wisconsin,
Inc. WISC-TV
0002715563 200632080075 65143 $32,500
P.O. Box 44965 Madison, WI
Madison, WI 53744
United Communications
Corp. KEYC-TV
0002210383 200632080076 68853 $32,500
715 58^th Street Mankato, MN
Kenosha, WI 53140
WAFB License Subsidiary
LLC
WAFB (TV)
RSA Tower 20th Fl 0003733060 200632080077 589 $32,500
Baton Rouge, LA
201 Monroe St
Montgomery, AL 36104
Waitt Broadcasting, Inc.
KMEG (TV)
1125 S 103rd St Ste 200 0004957650 200632080078 39665 $32,500
Sioux City, IA
Omaha, NE 6812
WCBI-TV, LLC
WCBI-TV
27 Abercorn Street 0005413471 200632080079 12477 $32,500
Columbus, MS
Savannah, GA 31412
WDJT-TV Limited
Partnership WDJT-TV
0009562265 200632080080 71427 $32,500
26 N Halsted St Milwaukee, WI
Chicago, IL 60661
WMDN, Inc.
P.O. Box 2424 0001744838 200632080081 WMDN (TV) 73255 $32,500
Meridian, MS 39302
WSBT, Inc.
WSBT-TV
300 W. Jefferson Blvd. 0008712937 200632080082 73983 $32,500
South Bend, IN
South Bend, IN 46601
WWL-TV, Inc.
WWL-TV
1024 North Rampart St. 0008654154 200632080083 74192 $32,500
New Orleans, LA
New Orleans, LA 70116
Young Broadcasting of
Rapid City, Inc. KCLO-TV
0003475449 200632080084 41969 $32,500
P.O. Box 1800 Rapid City, SD
Raleigh, NC 27602
Young Broadcasting of KELO-TV
Sioux Falls, Inc.
Sioux Falls, SD 41983
P.O. Box 1800 0003475464 200632080085 $65,000
KPLO-TV 41964
Raleigh, NC 27602
Reliance, SD
STATEMENT OF
CHAIRMAN KEVIN J. MARTIN
Re: Complaints Against Various Television Licensees Concerning Their
February 1, 2004 Broadcast of the Super Bowl XXXVIII Halftime Show;
Complaints Regarding Various Television Broadcasts Between February 2,
2002 and March 8, 2005; Complaints Against Various Television Licensees
Concerning Their December 31, 2004 Broadcast of the Program "Without A
Trace"
Congress has long prohibited the broadcasting of indecent and profane
material and the courts have upheld challenges to these standards. But the
number of complaints received by the Commission has risen year after year.
They have grown from hundreds, to hundreds of thousands. And the number of
programs that trigger these complaints continues to increase as well. I
share the concerns of the public - and of parents, in particular - that
are voiced in these complaints.
I believe the Commission has a legal responsibility to respond to them and
resolve them in a consistent and effective manner. So I am pleased that
with the decisions released today the Commission is resolving hundreds of
thousands of complaints against various broadcast licensees related to
their televising of 49 different programs. These decisions, taken both
individually and as a whole, demonstrate the Commission's continued
commitment to enforcing the law prohibiting the airing of obscene,
indecent and profane material.
Additionally, the Commission today affirms its initial finding that the
broadcast of the Super Bowl XXXVIII Halftime Show was actionably indecent.
We appropriately reject the argument that CBS continues to make that this
material is not indecent. That argument runs counter to Commission
precedent and common sense.
STATEMENT OF
COMMISSIONER MICHAEL J. COPPS
Re: Complaints Regarding Various Television Broadcasts Between
January 1, 2002 and March 12, 2005, Notices of Apparent Liability and
Memorandum Opinion and Order
Complaints Against Various Television Licensees Concerning Their December
31, 2004 Broadcast of the Program "Without A Trace," Notice of Apparent
Liability
Complaints Against Various Television Licensees Concerning Their February
1, 2004 Broadcast Of The Super Bowl XXXVII Halftime Show, Forfeiture Order
In the past, the Commission too often addressed indecency complaints with
little discussion or analysis, relying instead on generalized
pronouncements. Such an approach served neither aggrieved citizens nor
the broadcast industry. Today, the Commission not only moves forward to
address a number of pending complaints, but does so in a manner that
better analyzes each broadcast and explains how the Commission determines
whether a particular broadcast is indecent. Although it may never be
possible to provide 100 percent certain guidance because we must always
take into account specific and often-differing contexts, the approach in
today's orders can help to develop such guidance and to establish
precedents. This measured process, common in jurisprudence, may not
satisfy those who clamor for immediate certainty in an uncertain world,
but it may just be the best way to develop workable rules of the road.
Today's Orders highlight two additional issues with which the Commission
must come to terms. First, it is time for the Commission to look at
indecency in the broader context of its decisions on media consolidation.
In 2003 the FCC sought to weaken its remaining media concentration
safeguards without even considering whether there is a link between
increasing media consolidation and increasing indecency. Such links have
been shown in studies and testified to by a variety of expert witnesses.
The record clearly demonstrates that an overwhelming number of the
Commission's indecency citations have gone to a few huge media
conglomerates. One recent study showed that the four largest radio
station groups which controlled just under half the radio audience were
responsible for a whopping 96 percent of the indecency fines levied by the
FCC from 2000 to 2003.
One of the reasons for the huge volume of complaints about excessive sex
and graphic violence in the programming we are fed may be that people feel
increasingly divorced from their "local" media. They believe the media no
longer respond to their local communities. As media conglomerates grow
ever larger and station control moves farther away from the local
community, community standards seem to count for less when programming
decisions are made. Years ago we had independent programming created from
a diversity of sources. Networks would then decide which programming to
distribute. Then local affiliates would independently decide whether to
air that programming. This provided some real checks and balances.
Nowadays so many of these decisions are made by vertically-integrated
conglomerates headquartered far away from the communities they are
supposed to be serving--entities that all too often control both the
distribution and the production content of the programming.
If heightened media consolidation is indeed a source for the violence and
indecency that upset so many parents, shouldn't the Commission be cranking
that into its decisions on further loosening of the ownership rules? I
hope the Commission, before voting again on loosening its media
concentration protections, will finally take a serious look at this link
and amass a credible body of evidence and not act again without the facts,
as it did in 2003.
Second, a number of these complaints concern graphic broadcast violence.
The Commission states that it has taken comment on this issue in another
docket. It is time for us to step up to the plate and tackle the issue of
violence in the media. The U.S. Surgeon General, the American Academy of
Pediatrics, the American Psychological Association, the American Medical
Association, and countless other medical and scientific organizations that
have studied this issue have reached the same conclusion: exposure to
graphic and excessive media violence has harmful effects on the physical
and mental health of our children. We need to complete this proceeding.
STATEMENT OF
Commissioner Jonathan S. Adelstein
Concurring
Re: Complaints Against Various Television Licensees Concerning Their
December 31, 2004 Broadcast of the Program "Without A Trace," Notice of
Apparent Liability for Forfeiture
I have sworn an oath to uphold the Constitution and to carry out the laws
adopted by Congress. Trying to find a balance between these obligations
has been challenging in many of the indecency cases that I have decided. I
believe it is our duty to regulate the broadcast of indecent material to
the fullest extent permissible by the Constitution because safeguarding
the well-being of our children is a compelling national interest. I
therefore have supported efforts to step up our enforcement of indecency
laws since I joined the Commission.
The Commission's authority to regulate indecency over the public airwaves
was narrowly upheld by the Supreme Court with the admonition that we
should exercise that authority with the utmost restraint, lest we inhibit
constitutional rights and transgress constitutional limitations on
government regulation of protected speech. Given the Court's guidance in
Pacifica, the Commission has repeatedly stated that we would judiciously
walk a "tightrope" in exercising our regulatory authority. Hence, within
this legal context, a rational and principled "restrained enforcement
policy" is not a matter of mere regulatory convenience. It is a
constitutional requirement.
Accordingly, I concur with the instant decision, but concur in part and
dissent in part with the companion Omnibus Order because, while in some
ways the Omnibus decision does not go far enough, in other ways it goes
too far. Significantly, it abruptly departs from our precedents by
adopting a new, weaker enforcement mechanism that arbitrarily fails to
assess fines against broadcasters who have aired indecent material.
Additionally, while the Omnibus Order appropriately identifies violations
of our indecency laws, not every instance determined to be indecent meets
that standard.
We have previously sought to identify all broadcasters who have aired
indecent material and hold them accountable. In the Omnibus Order,
however, the Commission inexplicably fines only the licensee whose
broadcast of indecent material was the subject of a viewer's complaint,
even though we know millions of other Americans were exposed to the
offending broadcast. I cannot find anywhere in the law that Congress told
us to apply indecency regulations only to those stations against which a
complaint was specifically lodged. The law requires us to prohibit the
broadcast of indecent material, period. This means that we must enforce
the law anywhere we determine it has been violated. It is willful
blindness to decide, with respect to network broadcasts we know aired
nationwide, that we will only enforce the law against the local station
that happens to be the target of viewer complaints. How can we impose a
fine solely on certain local broadcasters, despite having repeatedly said
that the Commission applies a national indecency standard - not a local
one?
The failure to enforce the rules against some stations but not others is
not what the courts had in mind when they counseled restraint. In fact,
the Supreme Court's decision in Pacifica was based on the uniquely
pervasive characteristics of broadcast media. It is patently arbitrary to
hold some stations but not others accountable for the same broadcast. We
recognized this just two years ago in Married By America. The Commission
simply inquired who aired the indecent broadcast and fined all of those
stations that did so.
In the Super Bowl XXXVIII Halftime Show decision, we held only those
stations owned and operated by the CBS network responsible, under the
theory that the affiliates did not expect the incident and it was
primarily the network's fault. I dissented in part to that case because I
believed we needed to apply the same sanction to every station that aired
the offending material. I raise similar concerns today, in the context of
the Omnibus Order.
The Commission is constitutionally obligated to decide broadcast indecency
and profanity cases based on the "contemporary community standard," which
is "that of the average broadcast viewer or listener." The Commission has
explained the "contemporary community standard," as follows:
We rely on our collective experience and knowledge, developed through
constant interaction with lawmakers, courts, broadcasters, public interest
groups and ordinary citizens, to keep abreast of contemporary community
standards for the broadcast medium.
I am concerned that the Omnibus Order overreaches with its expansion of
the scope of indecency and profanity law, without first doing what is
necessary to determine the appropriate contemporary community standard.
The Omnibus Order builds on one of the most difficult cases we have ever
decided, Golden Globe Awards, and stretches it beyond the limits of our
precedents and constitutional authority. The precedent set in that case
has been contested by numerous broadcasters, constitutional scholars and
public interest groups who have asked us to revisit and clarify our
reasoning and decision. Rather than reexamining that case, the majority
uses the decision as a springboard to add new words to the pantheon of
those deemed to be inherently sexual or excretory, and consequently
indecent and profane, irrespective of their common meaning or of a
fleeting and isolated use. By failing to address the many serious concerns
raised in the reconsideration petitions filed in the Golden Globe Awards
case, before prohibiting the use of additional words, the Commission falls
short of meeting the constitutional standard and walking the tightrope of
a restrained enforcement policy.
This approach endangers the very authority we so delicately retain to
enforce broadcast decency rules. If the Commission in its zeal oversteps
and finds our authority circumscribed by the courts, we may forever lose
the ability to protect children from the airing of indecent material,
barring an unlikely constitutional amendment setting limitations on the
First Amendment freedoms.
The perilous course taken today is evident in the approach to the
acclaimed Martin Scorsese documentary, "The Blues: Godfathers and Sons."
It is clear from a common sense viewing of the program that coarse
language is a part of the culture of the individuals being portrayed. To
accurately reflect their viewpoint and emotions about blues music requires
airing of certain material that, if prohibited, would undercut the ability
of the filmmaker to convey the reality of the subject of the documentary.
This contextual reasoning is consistent with our decisions in Saving
Private Ryan and Schindler's List.
The Commission has repeatedly reaffirmed, and the courts have consistently
underscored, the importance of content and context. The majority's
decision today dangerously departs from those precedents. It is certain to
strike fear in the hearts of news and documentary makers, and broadcasters
that air them, which could chill the future expression of constitutionally
protected speech.
We should be mindful of Justice Harlan's observation in Cohen v.
California. Writing for the Court, he observed:
[W]ords are often chosen as much for their emotive as their cognitive
force. We cannot sanction the view that the Constitution, while solicitous
of the cognitive content of individual speech, has little or no regard for
that emotive function which, practically speaking, may often be the more
important element of the overall message sought to be communicated.
Given all of these considerations, I find that the Omnibus Order, while
reaching some appropriate conclusions both in identifying indecent
material and in dismissing complaints, is in some ways dangerously off the
mark. I cannot agree that it offers a coherent, principled long-term
framework that is rooted in common sense. In fact, it may put at risk the
very authority to protect children that it exercises so vigorously.
STATEMENT OF
COMMISSIONER DEBORAH TAYLOR TATE
Re: Re: Complaints Against Various Television Licensees Concerning Their
February 1, 2004, Broadcast of the Super Bowl XXXVIII Halftime Show,
Forfeiture Order; Complaints Against Various Television Licensees
Concerning Their December 31, 2004 Broadcast of the Program "Without A
Trace," Notice of Apparent Liability for Forfeiture; Complaints Regarding
Various Television Broadcasts Between February 2, 2002 and March 8, 2005,
Notices of Apparent Liability and Memorandum Opinion and Order
Today marks my first opportunity as a member of the Federal Communications
Commission to uphold our responsibility to enforce the federal statute
prohibiting the airing of obscene, indecent or profane language. To be
clear - I take this responsibility very seriously. Not only is this the
law, but it also is the right thing to do.
One of the bedrock principles of the Communications Act of 1934, as
amended, is that the airwaves belong to the public. Much like public
spaces and national landmarks, these are scarce and finite resources that
must be preserved for the benefit of all Americans. If numbers are any
indication, many Americans are not happy about the way that their airwaves
are being utilized. The number of complaints filed with the FCC reached
over one million in 2004. Indeed, since taking office in January 2006, I
have received hundreds of personal e-mails from people all over this
country who are unhappy with the content to which they - and, in
particular, their families - are subjected.
I have applauded those cable and DBS providers for the tools they have
provided to help parents and other concerned citizens filter out
objectionable content. Parental controls incorporated into cable and DBS
set-top boxes, along with the V-Chip, make it possible to block
programming based upon its content rating. However, these tools, even when
used properly, are not a complete solution. One of the main reasons for
that is because much of the content broadcast, including live sporting
events and commercials, are not rated under the two systems currently in
use.
I also believe that consumers have an important role to play as well.
Caregivers - parents, in particular - need to take an active role in
monitoring the content to which children are exposed. Even the most
diligent parent, however, cannot be expected to protect their children
from indecent material broadcast during live sporting events or in
commercials that appear during what is marketed to be "appropriate"
programming.
Today, we are making significant strides toward addressing the backlog of
indecency complaints before this agency. The rules are simple - you break
them and we will enforce the law, just as we are doing today. Both the
public and the broadcasters deserve prompt and timely resolution of
complaints as they are filed, and I am glad to see us act to resolve these
complaints. At the same time, however, I would like to raise a few
concerns regarding the complaints we address in these decisions.
First, I would like to discuss the complaint regarding the 6:30 p.m.
Eastern Daylight Time airing of an episode of The Simpsons. The Order
concludes that this segment is not indecent, in part because of the fact
that The Simpsons is a cartoon. Generally speaking, cartoons appeal to
children, though some may cater to both children and adults
simultaneously. Nevertheless, the fact remains that children were
extremely likely to have been in the viewing audience when this scene was
broadcast. Indeed, the marketing is aimed at children. If the scene had
involved real actors in living color, at 5:30 p.m. Central Standard Time,
I wonder if our decision would have been different? One might argue that
the cartoon medium may be a more insidious means of exposing young people
to such content. By their very nature, cartoons do not accurately portray
reality, and in this instance the use of animation may well serve to
present that material in a more flattering light than it would if it were
depicted through live video. I stop short of disagreeing with our decision
in this case, but note that the animated nature of the broadcast, in my
opinion, may be cause for taking an even closer look in the context of our
indecency analysis.
Second, our conclusion regarding the 9:00 p.m. Central Standard Time
airing of an episode of Medium in which a woman is shot at point-blank
range in the face by her husband gives me pause. While I agree with the
result in this case, I question our conclusion that the sequence
constitutes violence per se and therefore falls outside the scope of the
Commission's definition of indecency. Without question, this scene is
violent, graphically so. Moreover, it is presented in a way that appears
clearly designed to maximize its shock value. And therein lies my concern.
One of the primary ways that this scene shocks is that it leads the viewer
to believe that the action is headed in one direction - through dialogue
and actions which suggest that interaction of a sexual nature is about to
occur - and then abruptly erupts in another - the brutally violent
shooting of a wife by her husband, in the head, at point-blank range. Even
though the Commission's authority under Section 1464 is limited to
indecent, obscene, and profane content, and thus does not extend to
violent matter, the use of violence as the "punch line" of titillating
sexual innuendo should not insulate broadcast licensees from our
authority. To the contrary, the use of sexual innuendo may, depending on
the specific case, subject a licensee to potential forfeiture, regardless
of the overall violent nature of the sequence in which such sexual
innuendo is used.
* * *
Finally, I would like to express my hope and belief that the problem of
indecent material is one that can be solved. Programmers, artists,
writers, broadcasters, networks, advertisers, parents, public interest
groups, and, yes, even Commissioners can protect two of our country's most
valuable resources: the public airwaves and our children's minds. We must
take a stand against programming that robs our children of their innocence
and constitutes an unwarranted intrusion into our homes. By working
together, we should promote the creation of programming that is not just
entertaining, but also positive, educational, healthful, and, perhaps,
even inspiring.
The NAL/Acct. Nos. and FRN numbers for each licensee subject to this
Notice of Apparent Liability For Forfeiture are contained in Attachment A
hereto.
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.
18 U.S.C. S 1464.
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
policy.").
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. Pacifica, 438 U.S. 726).
Industry Guidance on the Commission's Case Law Interpreting 18 U.S.C.
S1464 and Enforcement Policies Regarding Broadcast Indecency, Policy
Statement, 16 FCC Rcd 7999, 8002 PP 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 original).
Id. at 8002-15 PP 8-23.
Id. at 8003 P 10.
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
references).
Indecency Policy Statement, 16 FCC Rcd at 8010 P 20 (noting that "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").
See Syracuse Peace Council, Memorandum Opinion and Order, 2 FCC Rcd 5043,
5050-51 P 52 (1987) (subsequent history omitted) (eliminating the fairness
doctrine, which placed an affirmative obligation on broadcasters to cover,
and present contrasting viewpoints on, controversial issues of public
importance).
47 U.S.C. S 503(b)(1)(B) & D. See also 47 C.F.R. 1.80(a)(1).
47 U.S.C. S 312(f)(1).
See H.R. Rep. No. 97-765, 97^th 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.
See 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 rates).
See 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, 20194 P 10
(2004) (finding that "although the nudity was pixilated, even a child
would have known that the strippers were topless and that sexual activity
was being shown").
In any event, even if the depictions had been more essential to the
program, the other two factors weigh heavily in favor of a finding of
patent offensiveness as measured by contemporary community standards for
the broadcast medium, so we would not alter our ultimate conclusion in
this case.
See 47 C.F.R. S 73.3999.
See supra P 9.
19 FCC Rcd at 21096 P 16.
The fact that the stations in question may not have originated the
programming in question 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 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 licensees specified in
Attachment A hereto.
U.S. Const., amend. I.
Congress has specifically forbidden the broadcast of obscene, indecent or
profane language. 18 U.S.C. S 1464. It has also forbidden censorship. 47
U.S.C. S 326.
See, e.g., N.Y. v. Ferber, 458 U.S. 747, 756-57 (1982).
See FCC v. Pacifica Foundation, 438 U.S. 726, 750 (1978) (emphasizing the
"narrowness" of the Court's holding); Action for Children's Television v.
FCC, 852 F.2d 1332, 1344 (D.C. Cir. 1988) ("ACT I") ("Broadcast material
that is indecent but not obscene is protected by the [F]irst
[A]mendment.").
See Brief for Petitioner, FCC, 1978 WL 206838 at *9.
ACT I, supra note 4, at 1344 ("the FCC may regulate [indecent] material
only with due respect for the high value our Constitution places on
freedom and choice in what the people say and hear."); Id. at 1340 n.14
("[T]he potentially chilling effect of the FCC's generic definition of
indecency will be tempered by the Commission's restrained enforcement
policy.").
Complaints Regarding Various Television Broadcasts Between February 2,
2002 and March 8, 2005, Notices of Apparent Liability and Memorandum
Opinion and Order (decided March 15, 2006) (hereinafter "Omnibus Order").
See, e.g., In re Sagittarius Broadcasting Corporation, Memorandum Opinion
and Order, 7 FCC Rcd 6873, 6876 (1992) (subsequent history omitted).
See Pacifica Found., 438 U.S. at 748-49 (recognizing the "uniquely
pervasive presence" of broadcast media "in the lives of all Americans").
In today's Order, paragraph 10, the Commission relies upon the same
rationale.
See 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, 20196 (2004)
(proposing a $7,000 forfeiture against each Fox Station and Fox Affiliate
station); reconsideration pending. See also Clear Channel Broadcast
Licenses, Inc., 19 FCC Rcd 6773, 6779 (2004) (proposing a $495,000 fine
based on a "per utterance" calculation, and directing an investigation
into stations owned by other licensees that broadcast the indecent
program). In the instant Omnibus Order, however, the Commission
inexplicably fines only the licensee whose broadcast of indecent material
was actually the subject of a viewer's complaint to the Commission. Id. at
P 71.
See Complaints Against Various Television Licensees Concerning Their
February 1, 2004, Broadcast of the Super Bowl XXXVIII Halftime Show,
Notice of Apparent Liability, 19 FCC Rcd 19230 (2004).
In re Infinity Radio License, Inc., Memorandum Opinion and Order, 19 FCC
Rcd 5022, 5026 (2004).
In re Complaints Against Broadcast Licensees Regarding Their Airing of the
"Golden Globe Awards" Program, Memorandum Opinion and Order, 19 FCC Rcd
4975 (2004); petitions for stay and reconsideration pending.
In the Matter of Complaints Against Various Television Licensees Regarding
Their Broadcast on November 11, 2004, of the ABC Television Network's
Presentation of the Film, "Saving Private Ryan," Memorandum Opinion and
Order, 20 FCC Rcd 4507, 4513 (2005) ("Deleting all [indecent] 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."). See also Peter
Branton, Letter by Direction of the Commission, 6 FCC Rcd 610 (1991)
(concluding that repeated use of the f-word in a recorded news interview
program not indecent in context).
In the Matter of WPBN/WTOM License Subsidiary, Inc., 15 FCC Rcd 1838
(2000).
403 U.S. 15 (1971).
Id. at 26 ("We cannot indulge the facile assumption that one can forbid
particular words without also running a substantial risk of suppressing
ideas in the process.").
See 18 U.S.C. S 1464.
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