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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
Various Complaints Against the ) File Nos. EB-03-IH-0468;
Cable/Satellite Television ) EB-03-IH-0563 through 0567;
Program “Nip/Tuck” ) EB-03-IH-0732; EB-05-IH-
0040
MEMORANDUM OPINION AND ORDER
Adopted: March 3, 2005 Released: March 4, 2005
By the Chief, Enforcement Bureau:
I. INTRODUCTION
1. In this Memorandum Opinion and Order, we deny
complaints received from individuals who have alleged that the
television program “Nip/Tuck,” shown on the FX Network, or
various episodes of the program, violate federal restrictions
regarding indecent and obscene material. As set forth below, the
Commission has indicated that it does not regulate cable
indecency or indecency on satellite subscription services, so we
deny that aspect of the complaints. Moreover, nothing in the
record indicates that “Nip/Tuck” meets the legal test for
obscenity, so we deny that aspect of the complaints as well.
II. BACKGROUND
2. The television program “Nip/Tuck,” a drama involving
plastic surgeons, is shown on the FX Network, which is available
through cable or satellite service.1 Some complaints allege that
the program generally is indecent and/or obscene, and other
complaints allege that various, specific episodes are indecent
and/or obscene. Although the complaints vary in the degree of
detail provided, they generally allege that the program depicts
actors engaged in an array of simulated sexual acts, including
oral, anal, and genital intercourse, as well as nudity. Some
complaints also focus on the program's graphic portrayal of
medical procedures such as liposuction and rhinoplasty.
III. DISCUSSION
3. The Commission does not regulate cable indecency. In
this regard, the Commission recently stated: “Indecency
regulation is only applied to broadcast services,” not cable.2
In declining to review complaints regarding cable indecency, the
Commission has said that cable services “are not broadcast
services, but subscription-based services, which do not call into
play the issue of indecency.”3 Under 18 U.S.C. § 1464, the
Commission has express statutory authority to impose sanctions
for the broadcast of “any obscene, indecent, or profane language
by means of radio communication.”4 As the Commission recently
stated: “. . . the criminal code restriction on indecency
applies only to `means of radio communication' and therefore not
cable communications.”5 Thus, the Commission does not regulate
cable indecency. More generally, the Commission also has made
clear that indecency restrictions do not apply to other
subscription services: “[T]his case, which involves
subscription as opposed to conventional broadcast service - does
not call into play the issue of indecency.”6
4. We also deny the complaints to the extent that they
allege that “Nip/Tuck” is obscene. The three-part obscenity
test set forth in Miller v. California requires that (1) an
average person, applying contemporary community standards, would
find that the material, as a whole, appeals to the prurient
interest; (2) the material depicts or describes, in a patently
offensive way, sexual conduct specifically defined by applicable
law; and (3) the material, taken as a whole, lacks serious
literary, artistic, political, or scientific value.7 This test
is designed “to isolate `hard core' pornography from expression
protected by the First Amendment.”8 The complaints, even those
that cite to and describe specific episodes, do not allege that
the program actually depicts the kind of “hard core”
pornography covered by Miller. Further, nothing in the record
indicates that “Nip/Tuck” as a whole appeals to the prurient
interest or lacks serious literary, artistic, political, or
scientific value.
5. Finally, although the Commission does not regulate
cable indecency, we note that the Act provides a number of tools,
available through current technology, for those who wish to
selectively block unwanted television programming. As the
Commission has noted, “[f]irst, as section 640 requires, a cable
operator must block programming, using any means, if such a
request is made by a particular
subscriber. Second, a cable subscriber may obtain a lock-box
from the local cable operator if he or she wants to selectively
block unwanted material.”9 Satellite subscription services have
similar tools.10
IV. ORDERING CLAUSES
6. Accordingly, IT IS ORDERED, that the complaints filed
against the FX Network television program “Nip/Tuck” are hereby
DENIED.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
_________________________
1See www.fxnetworks.com. “Unlike broadcast television, which
sends over-the-air signals, cable television operates by
transmitting programs to subscribers through coaxial cables or
wires.” Cruz v. Ferre, 755 F.2d 1415, 1419 n.4 (11th Cir. 1985)
(citations omitted). Satellite television is transmitted via
“over-the-air signals” but, like cable, is available only to
subscribers. See Subscription Video, Report and Order, 2 FCC Rcd
1001, 1005, ¶ 32 (1987) (subscription-based satellite services
are not “broadcasting” as defined by the Communications Act),
aff'd sub nom. National Association for Better Broadcasting v.
FCC, 849 F.2d 665 (D.C. Cir. 1988).
2 See Violent Television Programming and Its Impact on Children,
Notice of Inquiry, 19 FCC Rcd 14394, 14403, ¶ 21 (2004)
(“Violence NOI”).
3Applications for Consent to the Transfer of Control of Licenses
from Comcast Corporation and AT&T Corp., Transferors, to AT&T
Comcast Corporation, Transferee, Memorandum Opinion and Order, 17
FCC Rcd 23246, 23328, ¶ 213 (2002) (subsequent history omitted).
418 U.S.C. § 1464 (“Whoever utters any obscene, indecent, or
profane language by means of radio communications shall be fined
under this title or imprisoned not more than two years, or
both.”); compare id. with 18 U.S.C. § 1468(a) (“Whoever
knowingly utters any obscene language or distributes any obscene
matter by means of cable television or subscription services on
television, shall be punished by imprisonment for not more than 2
years or by a fine in accordance with this title, or both.”).
See also Telecommunications Act of 1992, Pub. L. No. 102-356, §
16a, 106 Stat. 949, 954 (1992) (requiring Commission to implement
indecency time of day restrictions on “radio or television
broadcast station[s]”) (emphasis added); 47 C.F.R. § 73.3999
(applying indecency restrictions to broadcast but not to cable).
5 Violence NOI, 19 FCC Rcd at 14403, n.45 (quoting 18 U.S.C. §
1464). The Commission also noted there that its rules regarding
section 1464 do not apply to cable.
6 See Harriscope of Chicago, Inc., Memorandum Opinion and Order,
3 FCC Rcd 757, 760 n.2 (1988) (subsequent history omitted)
(indecency restrictions not applied to subscription service
provided by television licensee; “Consistent with existing case
law, the Commission does not impose regulations regarding
indecency on services lacking the indiscriminate access to
children that characterizes broadcasting.”); see also Litigation
Recovery Trust, Memorandum Opinion and Order, 17 FCC Rcd 21852,
21856, ¶ 8 (2002) (indecency restrictions not applicable to
satellite programming provided to hotels; “[s]uch subscription-
based services do not call into play the issue of indecency.”).
7Miller v. California, 413 U.S. 15, 24 (1973).
8Id. at 29.
9Implementation of Section 505 of the Telecommunications Act of
1996, Order, 16 FCC Rcd 20915, 20918, ¶ 9 (2001); see 47 U.S.C.
§§ 544(d)(2), 560. For further information on how consumers can
restrict access to unwanted television programming, see
http://www.fcc.gov/parents/.
10 See http://www.directv.com/DTVAPP/learn/LocksLimits.dsp;
http://www.dishnetwork.com/content/programming/parental_control/-
index.shtml.