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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
KSAZ License, Inc. ) File No. EB-03-IH-0256
) Facility ID No. 35587
Licensee of Station KSAZ(TV) )
Phoenix, Arizona )
)
MEMORANDUM OPINION AND ORDER
Adopted: August 4, 2004 Released: August 9, 2004
By the Commission:
I. INTRODUCTION
1. In this Memorandum Opinion and Order, we deny a
complaint by Americans for Decency1 and related complaints
alleging that KSAZ License, Inc. (``KSAZ''), the licensee of
Station KSAZ(TV), Phoenix, Arizona, aired indecent material
during the ``Will and Grace'' program on March 31, 2003, between
the hours of 6:00 and 7:00 p.m.2 The complainants allege that
the ``Will and Grace'' episode at issue included a scene in which
``[a] woman photographer passionately kissed [a] woman author and
then humped her (what she called a `dry hump.')''3 We find that
the material is not ``patently offensive'' under the Commission's
indecency analysis.
II. DISCUSSION
2.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 The
Commission may impose a monetary forfeiture, pursuant to Section
503(b)(1) of the Act,8 upon a finding that the licensee has
broadcast indecent material in violation of 18 U.S.C. § 1464 and
Section 73.3999 of the rules.
A.Indecency Analysis
3.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 material, as well as 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
4.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.12
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.13
It is not clear that the material aired during the ``Will and
Grace'' program identified by the complainants depicts sexual
activities and, therefore, warrants further scrutiny to determine
whether it is patently offensive as measured by contemporary
community standards. Even were the material to fit within the
subject matter scope of the indecency prohibition, however, we
conclude that it is not patently offensive.
5.In our assessment of whether broadcast material is
patently offensive, ``the full context in which the material
appeared is critically important.''14 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.15 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.''16 In particular cases,
the weight of one or two of the factors may outweigh the others,
either rendering the broadcast material patently offensive and
consequently indecent,17 or, alternatively, removing the
broadcast material from the realm of indecency.18
6.After reviewing the relevant episode, we conclude that
material broadcast on the ``Will and Grace'' program at issue is
not sufficiently explicit or graphic to be indecent. Both
characters are fully clothed, and there is no evidence that the
activity depicted was dwelled upon, or was used to pander,
titillate or shock the audience. Accordingly, we conclude that
KSAZ did not violate the Commission's indecency prohibition by
airing the ``Will and Grace'' program on March 31, 2003.
III. ORDERING CLAUSES
7.ACCORDINGLY, IT IS ORDERED, that the above-referenced
complaints filed against KSAZ License, Inc.'s broadcast of the
``Will and Grace'' program on March 31, 2003, are hereby DENIED.
8. IT IS FURTHER ORDERED, that a copy of this Memorandum
Opinion and Order shall be sent by Certified Mail Return Receipt
Requested to Americans for Decency, 3431 W. Thunderbird Road, Box
275, Phoenix, Arizona 85053-5641.
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
Secretary
_________________________
1 See Letter from Americans for Decency to Michael Powell,
Chairman, Federal Communications Commission, received May 7,
2003.
2 47 U.S.C. § 503(b); 47 C.F.R. § 1.80
3 Though not specifically defined in the complaint, ``dry
humping'' is commonly understood to consist of two people rubbing
their clothed bodies together for sexual stimulation.
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 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 Title 18 of the United States Code, Section 1464 (18 U.S.C. §
1464), prohibits the utterance of ``any obscene, indecent or
profane language by means of radio communication.'' 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, 1340 n.14 (``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 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.'').
12 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)).
13 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, ¶¶ 7-8 (2001) (emphasis in original).
14 Indecency Policy Statement, 16 FCC Rcd at 8002, ¶ 9 (emphasis
in original).
15 Id. at 8002-15, ¶¶ 8-23.
16 Id. at 8003, ¶ 10.
17 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).
18 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'').