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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    )


   Adopted:  August 4, 2004             Released:  August 9, 

By the Commission:


     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    


     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.     


     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 

           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 

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


     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.


     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.


                         Marlene H. Dortch


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 

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 

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.