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                         Before the
              Federal Communications Commission
                   Washington, D.C. 20554

In the Matter of                  )
                                 )
RAYCOM AMERICA, INC.              )   File No. EB-02-IH-0626
                                 )   Facility #19184
Licensee of  Station WMC-TV       )
Memphis, Tennessee                )
                                 )

                MEMORANDUM OPINION AND ORDER

     Adopted:  March 6, 2003                 Released:   
March 11, 2003

By the Commission:

     1.   In this  Memorandum Opinion and Order,  we deny an 
application for  review filed  May 9,  2002, by  Randy Sharp 
(``Sharp'').   Sharp seeks  review  of the  April 18,  2002, 
letter  ruling of  the  Chief,  Investigations and  Hearings 
Division,  Enforcement Bureau,  which  denied his  complaint 
alleging  that  WMC-TV,  Memphis, Tennessee,  aired  profane 
material on September 19, 2001,  between 8:00 and 9:00 p.m., 
Central Standard Time, during the program ``The West Wing.''  
Sharp alleges that  the staff erred in failing  to find that 
the  broadcast violated  Section  1464 of  Title  18 of  the 
United States Code, 18 U.S.C. § 1464, which prohibits, among 
other  things, the  broadcast of  profane material.   Raycom 
America, Inc. (``Raycom''), the  station's licensee, filed a 
pleading  opposing Sharp's  request  for review  on July  2, 
2002.1  Sharp did not file a reply thereto.

     2.   Sharp's  complaint   arises  from   the  station's 
broadcast  of the  ``Two  Cathedrals'' episode  of the  NBC-
network program ``The West  Wing.''  According to Raycom, in 
that episode, the show's  character President Bartlet, while 
alone  in  a  church,   reflects  aloud  on  his  ``personal 
struggles and growth'' during an impassioned lament to God.2  
Raycom represents that both the show and episode in question 
have garnered  numerous dramatic awards and  nominations, in 
addition  to critical  and  philosophical  attention on  the 
subject of  communicating with  God.3  Raycom  contends that 
the speech about  which Sharp complains is  not profane, but 
was  merely   intended  as   a  character's   expression  of 
frustration  with a  deity who  is seemingly  indifferent to 
instances  of human  suffering.  For  the reasons  set forth 
below, we find  no merit to Sharp's  complaint, and conclude 
that  the staff's  April  18, 2002,  letter ruling  properly 
found that the licensee did not  violate 18 U.S.C. § 1464 by 
airing the remarks in question.               

     3.   First,  Sharp argues  that  licensee violated  the 
statute  by broadcasting  the portion  of ``The  West Wing'' 
program wherein character  President Bartlet ``scream[ed] at 
God,''   and   made   irreverent   references   toward   the 
deity¾``[y]ou're a sonofabitch, you know that?,'' and ``have 
I displeased you,  you feckless thug?''  Sharp  cites FCC v. 
Pacifica, 438 U.S. 726 (1978)  and Schenck v. U.S., 249 U.S. 
47, 52 (1919) as precedents  that support a finding that the 
language at  issue is  legally profane.  However,  the cases 
Sharp relies on are inapposite.4   The courts have held that 
material,  such as  the phrase  ``god damn  it'' uttered  in 
anger, while offensive  to some, is not  legally profane for 
purposes of  section 1464.  Gagliardo v.  United States, 366 
F.2d 720, 725  (9th Cir. 1966) (CB  radio transmission); see 
also Warren B.  Appleton, 28 FCC 2d 36  (1971) (broadcast of 
``damn'' is  not profane).  The United  States Supreme Court 
has   also    struck   down   a   state    statute   banning 
``sacrilegious''  movies  as  violative  of  the  First  and 
Fourteenth  amendments.  Burstyn  v.  Wilson,  343 U.S.  495 
(1952).  In  so ruling the  court stated: ``[i]t is  not the 
business of  government in  our nation  to suppress  real or 
imagined attacks  upon a particular religious  doctrine. . . 
.''  Id. at  505.  Because we believe the  language at issue 
here falls within the scope  of Gagliardo and Burstyn, we do 
not believe it was actionably profane.          

     4.   Secondly, it appears that Sharp did not accurately 
characterize some further remarks  about which he complains.  
Sharp alleges  that the  show's character  President Bartlet 
uttered  profanity  by cursing  God¾  `[t]o  hell with  your 
punishments!  To  hell with you!''  However,  citing the NBC 
show's  script, Raycom  represents  that  the complained  of 
phrases  were  actually spoken  in  Latin,  not English  ---
``cruciatus in crucem, eas in crucem,'' which literally mean 
``send your torments to the cross''  and ``may you go to the 
cross.''5   Moreover,   even  if  the  Latin   phrases  were 
understood to have the idiomatic meaning that Sharp ascribes 
to them,  we believe that  Gagliardo and Burstyn  compel the 
conclusion that they are  not actionable under section 1464.  
Finally, it appears that the  other Latin phrases uttered in 
the character's  broadcast soliloquy  are not  even arguably 
profane.6 

     5.   Accordingly,  IT IS  ORDERED, pursuant  to Section 
1.115 of the Commission's rules, 47 C.F.R. § 1.115, that the 
application for review filed May  9, 2002, by Randy Sharp IS 
DENIED;  that  the  staff's  April  18,  2002,  decision  IS 
AFFIRMED.

     6.   IT  IS  FURTHER  ORDERED,   that  copies  of  this 
Memorandum  Opinion and  Order  shall be  sent by  Certified 
Mail, Return Receipt Requested, to Randy Sharp, 411 N. Ione, 
Tupelo, Mississippi,  38801, and  to Rebecca S.  Bryan, Vice 
President  and General  Counsel, Raycom  America, RSA  Tower 
20th Floor,  201 Monroe Street, Montgomery,  Alabama, 36104.  
A 







courtesy copy  shall be  sent by regular  mail to  Andrea R. 
Hartman, Senior  Vice President and Deputy  General Counsel, 
NBC, Inc., 330 Bob Hope Drive, Burbank, California, 91523.


                         FEDERAL COMMUNICATIONS COMMISSION



                         Marlene H. Dortch
                         Secretary


_________________________

1 On July 11, 2002, NBC, Inc. submitted remarks concurring 
with Raycom's response.

2 See text of script, attached.

3 James M. Wall, Quarrelling with God, 118 The Christian 
Century 36 (June 6, 2001).

4 In Pacifica, the Supreme Court discussed the government's 
authority to restrict speech that is indecent but not 
obscene; profanity was not at issue.  In Schenck, it 
discussed the circumstances in which the government may 
regulate speech that poses a ``clear and present danger.''
 
5 See Quarrelling with God, supra.  We note that the 
citations in Wall's article are textually consistent with 
Raycom's script of the broadcast, and that Sharp did not 
dispute Raycom's account.

6 According to the article Quarrelling with God, the phrase 
``haec credam a deo pio, a deo justo, a deo scito?'' means 
``am I to believe these things from a righteous God, a just 
God, a wise God?''; ``gratias tibi ago, domine'' means 
``thank you, Lord''; and ``tuus in terra serves, nuntius 
fui; officium perfeci'' means ``I was Your servant, Your 
messenger on the earth; I did my duty.''