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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
Complaint Against Various ) File No. EB-03-IH-0407
Broadcast Licensees )
Regarding Their Airing Of )
The UPN Network Program ``Buffy )
the Vampire Slayer'' on November 20, 2001 )
MEMORANDUM OPINION AND ORDER
Adopted: August 4, 2004 Released: August 9,
2004
By the Commission:
I. INTRODUCTION
1. In this Memorandum Opinion and Order,1 we deny the
complaint received from the Parents Television Council
(``PTC''), which alleged that various television station
licensees, airing UPN programming, including specifically
Station WDCA(TV), Washington, DC, broadcast the ``Buffy the
Vampire Slayer'' program on November 20, 2001, in violation
of the federal restrictions regarding the broadcast of
indecent material.2
II. BACKGROUND
2. The complaint, filed August 22, 2003, alleges that
at 8:00 p.m. Eastern/Pacific time, and 7:00 p.m. Central
time, the licensees aired an episode of the ``Buffy the
Vampire Slayer'' program that contained allegedly indecent
material. According to the complaint, the episode depicted
the characters Buffy and Spike fighting one another before
engaging in what is alleged in the complaint to be sexual
intercourse.3 PTC provided a videotape of the program.
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.4 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.'' 5 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, consistent with a subsequent statute and
court case,6 shall not broadcast indecent material during
the period 6 a.m. through 10 p.m.7
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.8 The federal courts consistently have upheld
Congress's authority to regulate the broadcast of indecent
speech, as well as the Commission's interpretation and
implementation of the governing statute.9 Nevertheless, the
First Amendment is a critical constitutional limitation that
demands that, in indecency determinations, we proceed
cautiously and with appropriate restraint.10
5. The Commission defines indecent speech as language
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.11
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.12
In our assessment of whether broadcast material is patently
offensive, ``the full context in which the material appeared
is critically important.''13 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 appears to pander or is used to
titillate or shock.14 In examining these three factors, we
must weigh and balance them 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.''15 In particular cases, one or
two of the factors may outweigh the others, either rendering
the broadcast material patently offensive and consequently
indecent,16 or, alternatively, removing the broadcast
material from the realm of indecency.17
6. The November 20, 2001 episode involves a scene
depicting Buffy kissing and straddling Spike shortly after
fighting with him. Based upon our review of the scene, we
did not find that it is sufficiently graphic or explicit to
be deemed indecent. Given the non-explicit nature of the
scene, we cannot conclude that it was calculated to pander
to, titillate or shock the audience. Consequently, we
conclude that the material is not patently offensive as
measured by contemporary community standards for the
broadcast medium.18
IV. CONCLUSION
7. In view of the foregoing, we conclude that the
various licensees, including that of Station WDCA(TV),
Washington, DC, that aired the ``Buffy the Vampire Slayer''
program on November 20, 2001, did not violate the law, and,
therefore, no action is warranted.
V. ORDERING CLAUSES
8. Accordingly, IT IS ORDERED that the Complaint
filed against the broadcast of the ``Buffy the Vampire
Slayer'' program on November 20, 2001, is 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 Lara Mahaney, Director of
Corporate and Entertainment Affairs, Parents Television
Council, 325 South Patrick Street, Alexandria, VA 23114.
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
Secretary
_________________________
1 The Enforcement Bureau has referred this matter to the
full Commission pursuant to Section 0.5(c) of the Rules. 47
C.F.R. § 0.5(c)(2002). This Memorandum Opinion and Order
denies a complaint the Commission received concerning
broadcasts of this program.
2 See 18 U.S.C. § 1464 (2002), and 47 C.F.R. § 73.3999
(2002).
3 See Letter to David Solomon, Chief, Enforcement Bureau,
from Lara Mahaney, Director of Corporate and Entertainment
Affairs, Parents Television Council, dated August 22, 2003
(``Complaint''). The Complaint specifically alleged that
Station WDCA, Washington, D.C., aired the program in
question.
4 U.S. CONST., amend. I; 47 U.S.C. § 326 (2002).
5 18 U.S.C. § 1464.
6 Public Telecommunications Act of 1992, Pub. L. No. 102-
356, 106 Stat. 949 (1992) (setting the current safe harbor
of 10 p.m. to 6 a.m. for the broadcast of indecent
material); see also Action for Children's Television v. FCC,
58 F. 3d 654 (D.C. Cir. 1995) (en banc), (``ACT III''),
cert. denied, 516 U.S. 1072 (1996) (affirming restrictions
prohibiting the broadcast of indecent material between the
hours of 6 a.m. and 10 p.m.).
7 See 47 C.F.R. § 73.3999.
8 U.S. CONST., amend. I; see Action for Children's
Television v. FCC, 852 F.2d 1332, 1344 (D.C. Cir. 1988)
(``ACT I'').
9 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''); ACT
III, 58 F. 3d 654.
10 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.''); id.
at 1340 n.14 (``the potential chilling effect of the FCC's
generic definition of indecency will be tempered by the
Commission's restrained enforcement policy'').
11 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)).
1213 Indecency Policy Statement, 16 FCC Rcd 7999, 8002, ¶¶
7-8 (2001) (emphasis in original).
1314 Id. at 8002, ¶ 9 (emphasis in original).
14 Id. at 8002-15, ¶¶ 8-23.
15 Id. at 8003, ¶ 10.
16 Id. at 8009, ¶ 19 (citing Tempe Radio, Inc (KUPD-FM), 12
FCC Rcd 21828 (MMB 1997) (forfeiture paid) (extremely
graphic or explicit nature of references to sex with
children outweighed the fleeting nature of the references);
EZ New Orleans, Inc. (WEZB(FM)), 12 FCC Rcd 4147 (MMB 1997)
(forfeiture paid) (same)).
17 Indecency Policy Statement, 16 FCC Rcd. at 8010, ¶ 20
(``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'').
18 The ``contemporary standards for the broadcast medium''
criterion is that of an average broadcast listener and with
respect to Commission decisions, does not encompass any
particular geographic area. See id. at ¶ 8 and n.15.