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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
COMPLAINTS AGAINST VARIOUS ) File No. EB-03-IH-0110
BROADCAST LICENSEES )
REGARDING THEIR AIRING OF )
THE ``GOLDEN GLOBE AWARDS'' )
PROGRAM 1 )
)
MEMORANDUM OPINION AND ORDER
Adopted: October 3, 2003 Released: October
3, 2003
By the Chief, Enforcement Bureau:
I. INTRODUCTION
1. In this Memorandum Opinion and Order, issued
pursuant to Section 0.111(a)(7) of the Commission's rules,2
we deny complaints received from the Parents Television
Council and from certain individuals who have alleged that
various television station licensees aired program material
during the ``Golden Globe Awards'' program on January 19,
2003, that violates the federal restrictions regarding the
broadcast of obscene and indecent material.3
II. BACKGROUND
2. The complainants allege that the licensees named
in their respective complaints aired the ``Golden Globe
Awards'' program, during which the performer Bono uttered
the phrase ``this is really, really, fucking brilliant,'' or
``this is fucking great.''4 The complainants contend that
such material is either obscene and/or indecent, and they
request that the Commission levy sanctions against the
licensees for the broadcast of the subject material.
III. DISCUSSION
3. The Federal Communications Commission is
authorized to license radio and television broadcast
stations and is responsible for enforcing the Commission's
rules and applicable statutory provisions concerning the
operation of those stations. The Commission's role in
overseeing program content is very limited. The First
Amendment to the United States Constitution and section 326
of the Communications Act of 1934, as amended, (the ``Act'')
prohibit the Commission from censoring program material and
from interfering with broadcasters' freedom of expression.5
The Commission does, however, have the authority to enforce
statutory and regulatory provisions restricting indecency
and obscenity. Specifically, it is a violation of federal
law to broadcast obscene or indecent programming. Title 18
of the United States Code, Section 1464 prohibits the
utterance of ``any obscene, indecent or profane language by
means of radio communication.'' 6 In addition, section
73.3999 of the Commission's rules provides that radio and
television stations shall not broadcast obscene material at
any time, and shall not broadcast indecent material during
the period 6 a.m. through 10 p.m.7 The Commission may impose
a monetary forfeiture, pursuant to Section 503(b)(1) of the
Act,8 upon a finding that a licensee has broadcast indecent
material in violation of 18 U.S.C. § 1464 and section
73.3999 of the rules.
A. Indecency Analysis
4. Any consideration of government action against
allegedly indecent programming must take into account the
fact that such speech is protected under the First
Amendment.9 The federal courts consistently have upheld
Congress's authority to regulate the broadcast of indecent
speech, as well the Commission's interpretation and
implementation of the governing statute.10 Nevertheless,
the First Amendment is a critical constitutional limitation
that demands that, in indecency determinations, we proceed
cautiously and with appropriate restraint.11
5. The Commission defines indecent speech as language
that, in context, 12 depicts or describes sexual or
excretory activities or organs in terms patently offensive
as measured by contemporary community standards for the
broadcast medium.13
Indecency findings involve at least
two fundamental determinations.
First, the material alleged to be
indecent must fall within the subject
matter scope of our indecency
definition¾that is, the material must
describe or depict sexual or excretory
organs or activities. . . . Second,
the broadcast must be patently
offensive as measured by contemporary
community standards for the broadcast
medium.14
As a threshold matter, the material aired during the
``Golden Globe Awards'' program does not describe or depict
sexual and excretory activities and organs. The word
``fucking'' may be crude and offensive, but, in the context
presented here, did not describe sexual or excretory organs
or activities. Rather, the performer used the word
``fucking'' as an adjective or expletive to emphasize an
exclamation. Indeed, in similar circumstances, we have
found that offensive language used as an insult rather than
as a description of sexual or excretory activity or organs
is not within the scope of the Commission's prohibition of
indecent program content.15
6. Moreover, we have previously found that fleeting
and isolated remarks of this nature do not warrant
Commission action.16 Thus, because the complained-of
material does not fall within the scope of the Commission's
indecency prohibition, we reject the claims that this
program content is indecent, and we need not reach the
second element of the indecency analysis.
B. Obscenity Analysis
6. To be obscene, material must meet a three-prong
test: (1) the average person, applying contemporary
community standards, must find that the material, as a
whole, appeals to the prurient interest; (2) the material
must depict or describe, in a patently offensive way, sexual
conduct specifically defined by applicable law; and (3) the
material, taken as a whole, must lack serious literary,
artistic, political or scientific value.17 Applying that
test, we find that the material broadcast during the
``Golden Globe Awards'' program was not obscene. The use of
specific words, including expletives or other ``four letter
words'' does not render material obscene.18 Moreover, the
complained-of material does not depict or describe sexual
conduct and thus does not meet the obscenity standard under
Miller v. California.19 Because the broadcast does not meet
the obscenity standard under Miller, we deny the complaints
alleging that the broadcast was obscene.
IV. CONCLUSION
7. I
n view of the foregoing, we conclude that the various
licensees that aired the ``Golden Globe Awards'' program on
January 19, 2003, did not violate the law, and, therefore,
no action is warranted.
V. ORDERING CLAUSES
8. Accordingly, IT IS ORDERED, pursuant to Section
0.111(a)(7) of the Commission's rules, 47 C.F.R. §
0.111(a)(7), that the complaints filed against the
broadcasts of the ``Golden Globe Awards'' program on January
19, 2003, by the licensees listed in the attached appendix
are hereby DENIED.
9. IT IS FURTHER ORDERED, that a copy of this
Memorandum Opinion and Order shall be sent by Certified Mail
Return Receipt Requested to The Parents Television Council,
707 Wilshire Boulevard, Los Angeles, California 90017.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
APPENDIX
CALL SIGN COMMUNITY OF LICENSEE
LICENSE
KALB-TV Alexandria, Media General
LA Communica-
tions, Inc.
KARE(TV) Minneapolis, Multimedia
MN Holdings
Corp.
KARK-TV Little Rock, KARK-TV, Inc.
AR
KATV(TV) Little Rock, KATV, LLC
AR
KBTV-TV Port Arthur, Nexstar
TX Broadcast of
Beaumont/Port
Arthur,
L.L.C.
KCBD(TV) Lubbock, TX LIBCO, Inc.
KCEN-TV Temple, TX Channel 6,
Inc.
KCNC-TV Denver, CO CBS
Television
Stations Inc.
KCRA-TV Sacramento, KCRA Hearst-
CA Argyle
Television,
Inc.
KETK-TV Jacksonville, KETK Licensee
TX L.P.
KFDM-TV Beaumont, TX Freedom
Broadcasting
of Texas,
Inc.
KFOR-TV Oklahoma New York
City, OK Times
Management
Services
KGW(TV) Portland, OR King
Broadcasting
Company
KHAS-TV Hastings, NE Greater
Nebraska
Television,
Inc..
KING-TV Seattle, WA King
Broadcasting
Company
KKCO(TV) Grand Eagle III
Junction, CO Broadcasting,
LLC
KNBC(TV) Los Angeles, NBC
CA Subsidiary
(KNBC-TV),
Inc.
KNSD(TV) San Diego, CA Station
Venture
Operations,
LP
KOAA-TV Pueblo, CO Sangre De
Cristo
Communica-
tions, Inc.
KOB-TV Albuquerque, KOB-TV, LLC
NM
KPNX(TV) Mesa, AZ Multimedia
Holdings
Corporation
KPRC-TV Houston, TX Post-Newsweek
Stations,
Houston, LP
KRBC-TV Abilene, TX Mission
Broadcasting,
Inc.
KRIS-TV Corpus KVOA
Christi, TX Communica-
tions, Inc.
KTGF(TV) Great Falls, MMM License
MT LLC
KWBW(TV) Salinas, CA Hearst-Argyle
Stations,
Inc.
KSDK(TV) St. Louis, MO Multimedia
KSDK, Inc.
KSHB-TV Kansas City, Scripps
MO Howard
Broadcasting
Company
KSNF(TV) Joplin, MO Nexstar
Broadcasting
of Joplin,
L.L.C.
KTEN(TV) Ada, OK Channel 49
Acquisition
Corp.
KTIV(TV) Sioux City, KTIV
IA Television,
Inc.
KUSA-TV Denver, CO Multimedia
Holdings
Corp.
KWES-TV Odessa, TX Midessa
Television
Company
KWWL(TV) Waterloo, IA Raycom
America, Inc.
KXAS-TV Fort Worth, Station
TX Venture
Operations,
LP
KYTV(TV) Springfield, KY3, Inc.
MO
WANE-TV Fort Wayne, Indiana
IN Broadcasting,
LLC
WAVE(TV) Louisville, LIBCO, Inc.
KY
WBBH-TV Fort Myers, Waterman
FL Broadcasting
Corp. of
Florida
WBOY-TV Clarksburg, West Virginia
WV Media
Holdings, LLC
WBRE-TV Wilkes-Barre, Nexstar
PA Broadcasting
of
Northeastern
Pennsylvania,
L.L.C.
WCAU(TV) Philadelphia, NBC
PA Subsidiary
(WCAU-TV),
L.P.
WCNC-TV Charlotte, NC WCNC-TV, Inc.
WCSH(TV) Portland, ME Pacific and
Southern
Company, Inc.
WCYB-TV Bristol, VA Appalachian
Broadcasting
Corp.
WDIV-TV Detroit, MI Post-Newsweek
Stations,
Michigan,
Inc.
WDSU(TV) New Orleans, New Orleans
LA Hearst-Argyle
Television,
Inc.
WESH(TV) Daytona Orlando
Beach, FL Hearst-Argyle
Television,
Inc.
WFIE(TV) Evansville, LIBCO, Inc.
IN
WFLA-TV Tampa, FL Media General
Communica-
tions, Inc.
WFMJ-TV Youngstown, WFMJ
OH Television,
Inc.
WGAL(TV) Lancaster, PA WGAL Hearst-
Argyle
Television,
Inc.
WHDH-TV Boston, MA WHDH-TV
WHGH-TV Thomasville, H.G.H.
GA Investment
Corp.
WHEC-TV Rochester, NY WHEC-TV, LLC
WHO-TV Des Moines, New York
IA Times
Management
Services
WILX-TV Onondaga, MI Gray
Midamerica TV
Licensee
Corp.
WJAR(TV) Providence, Outlet
RI Broadcasting,
Inc.
WJFW-TV Rhinelander, Northland
WI Television,
Inc.
WKYC-TV Cleveland, OH WKYC-TV, Inc.
WLWT(TV) Cincinnati, Ohio/Oklahoma
OH Hearst-Argyle
TV, Inc.
WMAQ-TV Chicago, IL NBC
Subsidiary
(WMAQ-TV),
Inc.
WMC-TV Memphis, TN Raycom
America, Inc.
WMFE-TV Orlando, FL Community
Communica-
tions, Inc.
WMGT(TV) Stillwater, Endurance
MN Broadcasting,
LLC
WMTV(TV) Madison, WI Gray
Midamerica TV
Licensee
Corp.
WNBC(TV) New York, NY National
Broadcasting
Company, Inc.
WNDU-TV South Bend, Michiana
IN Telecasting
Corp.
WNYT(TV) Albany, NY WNYT-TV, LLC
WOAI-TV San Antonio, CCB Texas
TX Licenses,
L.P.
WOOD-TV Grand Rapids, WOOD License
MI Company, LLC
WOWT-TV Omaha, NE Gray
Midamerica TV
Licensee
Corp.
WPMI(TV) Mobile, AL Clear Channel
Broadcasting
Licenses,
Inc.
WPXI(TV) Pittsburgh, WPXI-TV
PA Holdings,
Inc.
WRC-TV Washington, NBC
DC Subsidiary
(WRC-TV),
Inc.
WRCB-TV Chattanooga, Sarkes
TN Tarzian, Inc.
WRIC-TV Petersburg, Young
VA Broadcasting
of Richmond,
Inc.
WSAV-TV Savannah, GA Media General
Communica-
tions, Inc.
WSAZ-TV Huntington, Emmis
WV Television
License Corp.
WSFA(TV) Montgomery, Libco, Inc.
AL
WSMV-TV Nashville, TN Meredith
Corp.
WTHR(TV) Indianapolis, Videoindiana,
IN Inc.
WTMJ-TV Milwaukee, WI Journal
Broadcast
Corp.
WTVY(TV) Dothan, AL Gray
Midamerica TV
Licensee
Corp.
WVLA(TV) Baton Rouge, Knight
LA Broadcasting
of Baton
Rouge Lic.
Corp.
WVTM-TV Birmingham, Birmingham
AL Broadcasting
(WVTM TV),
Inc.
WWBT(TV) Richmond, VA Jefferson-
Pilot
Communica-
tions Company
of Virginia
WWLP(TV) Springfield, WWLP
MA Broadcasting,
LLC
WXIA-TV Atlanta, GA Gannett
Georgia, L.P.
WYFF(TV) Greenville, WYFF Hearst-
SC Argyle
Television,
Inc.
_________________________
1 This Order denies 234 complaints that the Commission
received concerning broadcasts of this program. Of these,
217 were from individuals associated with Parents Television
Council. See, e.g., postcard complaint against Multimedia
Entertainment, Inc., licensee of Station WGRZ-TV, Buffalo,
New York, from Marsha A. Ashton to Chief, Investigations and
Hearings Division, Enforcement Bureau. The Commission
received multiple complaints concerning some of the stations
that aired the material at issue. A list of the stations
and licensees that are the subject of the complaints is
provided as an appendix to this Order.
2 47 C.F.R. § 0.111(a)(7) (2002).
3 See 47 U.S.C. § 503(b) (2002), 18 U.S.C. § 1464 (2002),
and 47 C.F.R. § 73.3999 (2002).
4 The complaints vary in their characterization of Bono's
comments, and our analysis here applies equally to both
versions.
5 U.S. CONST., amend. I; 47 U.S.C. § 326 (2002).
6 18 U.S.C. § 1464.
7 See 47 C.F.R. § 73.3999.
8 See 47 U.S.C. § 503(b)(1).
9 U.S. CONST., amend. I; See Action for Children's
Television v. FCC, 852 F.2d 1332, 1344 (D.C. Cir. 1988)
(``ACT I'').
10 18 U.S.C. § 1464; FCC v. Pacifica Foundation, 438 U.S.
726 (1978). See also ACT I, 852 F.2d at 1339; Action for
Children's Television v. FCC, 932 F.2d 1504, 1508 (D.C. Cir.
1991), cert. denied, 503 U.S. 914 (1992) (``ACT II'');
Action for Children's Television v. FCC, 58 F. 3d 654 (D.C.
Cir. 1995), cert. denied, 516 U.S. 1043 (1996) (``ACT
III'').
11 ACT I, 852 F.2d at 1344 (``Broadcast material that is
indecent but not obscene is protected by the First
Amendment; the FCC may regulate such material only with due
respect for the high value our Constitution places on
freedom and choice in what people may say and hear.'') See
also United States v. Playboy Entertainment Group, Inc., 529
U.S. 803, 813-15 (2000).
12 The use of specific potentially offensive words is not in
and of itself indecent. Industry Guidance on the
Commission's Case Law Interpreting 18 U.S.C. §1464 and
Enforcement Policies Regarding Broadcast Indecency
(``Indecency Policy Statement''), 16 FCC Rcd 7999, 8002 ¶9
(``In determining whether material is patently offensive,
the full context is critically important. It is not
sufficient to know that explicit sexual terms or
descriptions were used..., citing WPBN/WTOM License
Subsidiary, Inc., 15 FCC Rcd 1838, 1841 (2000), Infinity
Broadcasting Corp., 3 FCC Rcd 930, 931-32 (1987), aff'd in
part, vacated in part, remanded sub nom ACT I, 852 F.2d 1332
(D.C. Cir. 1988)(subsequent history omitted). See Peter
Branton, 6 FCC Rcd 610 (1991)(subsequent history omitted)(no
language is per se indecent).
13 Infinity Broadcasting Corporation of Pennsylvania, 2 FCC
Rcd 2705 (1987)(subsequent history omitted)(citing Pacifica
Foundation, 56 FCC 2d 94, 98 (1975), aff'd sub nom. FCC v.
Pacifica Foundation, 438 U.S. 726 (1978)).
14 Indecency Policy Statement, 16 FCC Rcd 7999, 8002 ¶¶ 7-8
(2001) (emphasis in original).
15 Id. See, e.g., Entercom Buffalo License, LLC (WGR(AM)),
17 FCC Rcd 11997, 11999-12000 ¶¶ 7, 9-10 (EB 2002). See
also, Peter Branton, 6 FCC Rcd at 610.
16 See, e.g., L.M. Communications of South Carolina, Inc.
(WYBB(FM)), 7 FCC Rcd 1595 (MMB 1992)(a fleeting and
isolated utterance (``[t]he hell I did, I drove the mother-
fucker...'') within the context of live and spontaneous
programming not actionable). See also Industry Guidance On
the Commission's Case Law Interpreting 18 U.S.C. § 1464 and
Enforcement Policies Regarding Broadcast Indecency, 16 FCC
Rcd 7999, 8008-09 ¶18 (2001).
17 See Miller v. California, 413 U.S. 15, 24 (1973).
18 See WGBH Educational Foundation (WGBH-TV), 69 FCC 2d
1250, 1253-54 (1978)(offensive language, including
expletives, does not fit within the established definition
of obscenity).
19 See Miller v. California, 413 U.S. at 18-19, 24.