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


In the Matter of                )  File No. EB-03-IH-0324
                                )
Complaints against Fox Television Stations, Inc.  )    
Regarding Its Broadcast of the ``Keen Eddie''     )
Program on June 10, 2003        )
                                   

                  MEMORANDUM OPINION AND ORDER

Adopted:  October 5, 2004       Released:  November 23, 2004

By the Commission: Commissioners Abernathy and Adelstein issuing 
a joint statement; Commissioners Copps and Martin dissenting and 
issuing separate statements.  

I.     INTRODUCTION

     1.   In this Memorandum Opinion and Order, we deny multiple 
complaints filed by individuals alleging that Fox Television 
Stations, Inc. (``Fox'') broadcast indecent material over various 
of its owned and operated television stations during an episode 
of the ``Keen Eddie'' program on June 10, 2003, in violation of 
18 U.S.C. § 1464 and 47 C.F.R. § 73.3999.  For the reasons 
discussed below, we conclude that the subject material does not 
violate the Commission's prevailing indecency standards, and we 
hereby deny the complaints.

II.     BACKGROUND

     2.  Beginning in mid 2003 the Commission received a number 
of complaints against Fox Television Stations, Inc. relating to 
its broadcast during prime time on June 10, 2003, of an episode 
of the ``Keen Eddie'' program over various of its owned and 
operated stations.  Specifically, the complaints alleged that the 
program in question contained indecent material.  In response, 
the Enforcement Bureau directed a letter of inquiry to Fox 
requiring additional information about the broadcast.1  Fox 
timely responded to the letter of inquiry and provided a video 
tape of the program.2  Fox maintains that the program did not 
contain indecent material.3

     3.  The ``Keen Eddie'' episode that was broadcast on June 
10, 2003, involved a plot about trafficking in horse semen on the 
black market.  According to the video tape provided by Fox, three 
men apparently hire a prostitute to ``extract'' a horse's semen 
for the artificial insemination of another thoroughbred horse.  
Neither the script nor the images describe how the prostitute 
will accomplish this task.  The episode includes the following 
dialogue between the men and the prostitute in a stable:  

     Prostitute:    No, that's not natural.

     First Man:     Extraction for insemination.  If you 
     look at the picture on                       page 45 
     you'll see how natural it is.

     Prostitute:    Forget it!

     Second Man:    You're a 40-year old filthy slut, you'll 
     do anything                             (referring   to 
     an advertisement by the prostitute to which the        
     men responded).

     Prostitute:    With a human.

     First Man:     Think of it as science. 

The videotape then cuts to another scene in the same stable, with 
the prostitute standing over a collapsed horse.  She explains 
that she tried to arouse the horse by lifting up her shirt, but 
she is never shown doing so.  She states that when she did so, 
the horse collapsed and died.  
     
III.     DISCUSSION

     4. 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, profanity and obscenity.  Specifically, it is a 
violation of federal law to broadcast obscene, profane 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 

     5.   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  

     6.   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    

     7.   Based on a thorough review of the information before 
us, we conclude that the program material in question is not 
actionably indecent.  Although the episode contains references of 
a sexual nature that were broadcast at a time of day when 
children were likely to be in the audience, the specific material 
is not indecent.  In this regard, the material contains no 
graphic or explicit dialogue, discussion, depiction or 
description of any particular sexual or excretory organ or 
activity.  In addition, the characters do not dwell on or repeat 
at length any references to specific sexual or excretory organs 
or activities.  The woman is at all times fully clothed, and is 
never seen touching or even approaching the horse.  The entire 
episode lasts less than 28 seconds.  Finally, the scene does not 
appear to have been intended to pander, shock, or titillate.  
While we understand that some viewers may have found the subject 
matter of this episode to be offensive, we have repeatedly held 
that subject matter alone is not a basis for an indecency 
determination.18  

     8.   In view of the foregoing, we conclude that the 
broadcast of the ``Keen Eddie'' program by Fox Television 
Stations, Inc. over various of its owned and operated stations 
during prime time on June 10, 2003, did not contain indecent 
material.

V.     ORDERING CLAUSES

     9.   ACCORDINGLY, IT IS ORDERED, that the complaints 
alleging that Fox Television Stations, Inc. broadcast indecent 
material over various of its owned and operated stations during 
the ``Keen Eddie'' program on June 10, 2003, in violation of 18 
U.S.C. § 1464 and 47 C.F.R. § 73.3999, ARE HEREBY DENIED.  

     10.  IT IS FURTHER ORDERED, that a copy of this Memorandum 
Opinion and Order shall be sent by Certified Mail Return - 
Receipt Requested to Parents Television Council, 707 Wilshire 
Boulevard, Suite 2075, Los Angeles, California 90017.

                         FEDERAL COMMUNICATIONS COMMISSION
                    

     
                         Marlene H. Dortch
                         Secretary
                JOINT STATEMENT OF COMMISSIONERS
         KATHLEEN Q. ABERNATHY AND JONATHAN S. ADELSTEIN

Re:  Complaints against Fox Television Stations, Inc. Regarding 
     Its Broadcast of the ``Keen Eddie'' Program on June 10, 
     2003, File No. EB-03-IH-0324

Re:       In the Matter of WBDC Broadcasting, Inc., Licensee of 
     Station WBDC-TV, Washington, D.C., File Nos. EB-03-IH-0466, 
     EB-03-IH-0467; Facility ID No. 30576


     Balancing First Amendment protections with our restriction 
on indecency requires a careful, measured approach that does not 
infringe upon fundamental constitutional rights.  We have had to 
review many programs, which, as parents, we certainly would not 
want our children to watch.  Yet, whether a program is suitable 
for our children is not the standard that as Commissioners of 
this agency we must apply.  Certainly, there is a great deal of 
material that is not directed towards children and that many may 
find objectionable or in bad taste, yet the material does not 
rise to the level of being indecent.  The programs in these 
complaints fit within that category.  As other radio and 
television cases demonstrate, we have not shied away from 
enforcing restrictions on indecency when the matter at issue does 
violate our rules.  We are, however, compelled by the 
Constitution not to overreach our limited authority in this area 
and impose our taste and personal judgments on the rest of 
America.  If we overstep our authority, we run the risk of having 
our limited authority curtailed forever.  As parents and 
Commissioners, we have carefully applied the law with the long-
term sustainability of our enforcement authority in mind.  
                     DISSENTING STATEMENT OF 
                  COMMISSIONER MICHAEL J. COPPS
     
Re:       Complaints against Fox Television Stations, Inc. 
     Regarding Its Broadcast of the ``Keen Eddie'' Program on 
     June 10, 2003, Memorandum Opinion and Order 

     In the face of thousands of complaints, the majority 
concludes that this episode concerning a prostitute and a horse 
contains ``references of a sexual nature,'' but is not indecent 
as it is not intended to pander, shock, or titillate.  I disagree 
with this entire analysis and therefore must dissent.
                     DISSENTING STATEMENT OF
                  COMMISSIONER KEVIN J. MARTIN

Re:       Complaints against Fox Television Stations, Inc. 
     Regarding Its Broadcast of the ``Keen Eddie'' Program on 
     June 10, 2003, Memorandum Opinion and Order

     This Order involves a television program that the majority 
admits ``contains references of a sexual nature that were 
broadcast at a time of day when children were likely to be in the 
audience.''  Yet, the majority concludes that the program, in 
which a prostitute is hired to sexually arouse a horse by 
removing her blouse and to ``extract'' semen from the horse, is 
not indecent because the prostitute is ``never seen actually 
touching'' the horse.  Despite my colleagues' assurance that 
there appeared to be a safe distance between the prostitute and 
the horse, I remain uncomfortable.  I respectfully dissent.  





_________________________

1 See Letter to Fox Television Stations, Inc., Licensee, 
from William D. Freedman, Deputy Chief, Investigations and 
Hearings Division, Enforcement Bureau, dated November 21, 
2003.

2 See Letter to Sandra Watson, Investigations and Hearings 
Division, Enforcement Bureau, from John C. Quale, Fox 
Television Stations, Inc., dated January 6, 2004, 
(``Response'').

3 See id. at 1.

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. Section 73.3999 implements the  Public 
Telecommunications Act of  1992, Pub. L.  No. 102-356, 106  Stat. 
949 (1992). 

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)).  

12 Indecency  Policy Statement,  16  FCC Rcd  7999, 8002  ¶¶  7-8 
(2001) (emphasis in original).

13 Indecency Policy Statement, 16 FCC Rcd 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 See WPBN/WTOM License Subsidiary, Inc., Memorandum Opinion and 
Order, 15 FCC Rcd 1838, 1841 (2000).