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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
Complaints Against Various ) File No. EB-04-IH-0589
Television Licensees Regarding )
Their Broadcast on November 11, )
2004, of the ABC Television )
Network's Presentation of the
Film “Saving Private Ryan”
MEMORANDUM OPINION AND ORDER
Adopted: February 3, 2005 Released: February
28, 2005
By the Commission: Chairman Powell issuing a separate
statement; Commissioner Martin issuing a
separate statement at a later date.
I. INTRODUCTION
1. In this Memorandum Opinion and Order, we deny
complaints filed by members of the American Family
Association (“AFA”) and by others (collectively,
the “Complainants”) alleging that certain
television stations affiliated with the ABC
Television Network (“ABC”)1 broadcast indecent and
profane material on November 11, 2004, from
approximately 8:00 to 11:00 p.m. Eastern Standard
Time, during the ABC presentation of the film
“Saving Private Ryan.” After our review of the
complaints and the videotape of the broadcast of the
film so aired by these stations,2 we find that the
material does not violate the applicable indecency
and profanity prohibitions.
II. BACKGROUND
2. On November 11, 2004, certain stations that are
affiliates of ABC aired a special Veterans Day
presentation of the 1998 award-winning3 World War II
motion picture “Saving Private Ryan.” The film
relates the story of a mission by eight U.S.
soldiers to rescue Private James Francis Ryan, a
soldier and the sole surviving son from a family of
four brothers, three of whom were lost while also
serving in the war. At the commencement of the
broadcast, the film is introduced by Dr. Harold
Baumgarten, a World War II veteran who survived the
Allies' D-Day landing at Normandy Beach, which is
depicted in the opening scenes of the film. Dr.
Baumgarten, now in his eighties, was, at 19 years of
age, a soldier who was wounded five times during 32
hours of combat at Normandy.4 He is joined in
introducing the film by United States Senator John
McCain, a distinguished Navy veteran who served in
Vietnam.
3. Senator McCain notes in his introductory remarks
that the broadcast of the film is “an extraordinary
tribute to a generation of brave men like Dr.
Baumgarten,” who fought to protect American
freedom.5 The Senator expresses his opinion that it
is important to present this “intense, emotional
film unedited, with limited commercial
interruption,” because “[i]f we don't remember the
past, we run the risk of repeating it.”6 However,
he also states that “the R-rated language and
graphic content [of the film] is for mature
audiences and not appropriate for children.”7
Following this introduction, the text of an
additional viewer advisory is aired, 8 along with
the letters “TV MA LV,” the voluntary industry
code warning parents that the broadcast is for
mature audiences only and unsuitable for children
due to the presence of violence and unacceptable
language. 9 Such warnings and codes are also aired
after each of the 10 commercial breaks during the
broadcast10 and were posted on the ABC website in
advance of the broadcast.11
4. The Commission's Enforcement Bureau has previously
ruled that Veterans Day broadcasts in 2001 and 2002
of the unedited version of the film did not violate
the Commission's indecency prohibitions.12
Nevertheless, according to news reports,
approximately 66 of a total of 225 stations
affiliated with ABC declined to air the film, citing
their uncertainty as to whether it contained
indecent material, reportedly based, in part, on
Commission indecency rulings subsequent to these
previous broadcasts of the film.13 Following the
November 11, 2004, broadcast, the Commission
received the complaints, alleging that the aired
film contains indecent or otherwise actionable
material. The Complainants generally cite, among
other things, film dialogue containing expletives
including: “fuck,” and variations thereof;
“shit,” “bullshit,” and variations thereof;
“bastard,” and “hell.” In addition, the
Complainants cite the presence in the film of other
allegedly offensive language, such as “Jesus,” and
“God damn.” They also object to the film's
graphic depiction of wartime violence. Accordingly,
the Complainants argue that the ABC Network Stations
should be sanctioned for airing material that
violates federal indecency and profanity
restrictions.
III. DISCUSSION
5. 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 Act prohibit the Commission from
censoring program material and from interfering with
broadcasters' freedom of expression.14 The
Commission does, however, have the authority to
enforce statutory and regulatory provisions
restricting indecency. Specifically, it is a
violation of federal law to broadcast obscene,
indecent or profane 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.”15 In
addition, section 73.3999 of the Commission's rules,
which was promulgated for the civil enforcement of
that statute and section 16(a) of the Public
Telecommunications Act of 1992,16 as modified by a
subsequent court decision,17 provides that radio and
television stations shall not broadcast obscene
material at any time, and shall not broadcast
indecent material during the period 6 a.m. through
10 p.m.
6. Any consideration of government action against
allegedly indecent programming must take into
account the fact that such speech is protected under
the First Amendment.18 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.19
Nevertheless, the First Amendment is a critical
constitutional limitation that demands that, in such
determinations, we proceed cautiously and with
appropriate restraint.20
7. 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.21
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.22
8. The complained-of material contained in the
broadcast of the film includes at least one word
(i.e. “fuck” and its variations) which falls
within the first prong of our indecency
definition.23 Therefore, the material warrants
further scrutiny to determine whether it is patently
offensive as measured by contemporary community
standards. For the reasons set forth below,
however, we conclude that the material, in context,
is not patently offensive, and therefore, not
indecent.
9. In making indecency determinations, the Commission
has indicated that the “full context in which the
material appeared is critically important,”24 and
has articulated three “principal factors” for its
analysis: “(1) the explicitness or graphic nature
of the description or depiction of sexual or
excretory organs or activities; (2) whether the
material dwells on or repeats at length descriptions
of sexual or excretory organs or activities; (3)
whether the material appears to pander or is used to
titillate, or whether the material appears to have
been presented for its shock value.”25 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.”26 In
particular cases, one or two of the factors may
outweigh the others, either rendering the broadcast
material patently offensive and consequently
indecent,27 or, alternatively, removing the
broadcast material from the realm of indecency.28
10. Contextual considerations are critical in making
indecency determinations for two reasons, both of
which implicate the First Amendment interests at
stake. First, context is important in determining
the potential impact of the allegedly indecent
material on children - the compelling governmental
interest that the Supreme Court held justified
regulation of broadcast indecency. As the Supreme
Court noted in Pacifica:
The Commission's decision [in Pacifica] rested entirely
on a nuisance rationale
under which context is all-important. The concept
requires consideration of a host
of variables. The time of day was emphasized by the
Commission. The content of the
program in which the language is used will also affect
the composition of the audience...
Pacifica at 750. Thus, the Court observed that the
broadcast of an Elizabethan comedy or one of Chaucer's
Canterbury Tales might raise different considerations than
the broadcast at issue in Pacifica.29 The Court explained:
“Even a prime-time recitation of Geoffrey Chaucer's
Miller's Tale would not be likely to command the attention
of many children who are both old enough to understand and
young enough to be adversely affected . . . “30 Thus, the
content of the program, as well as the time period during
which it is broadcast, may affect how many children are
likely to be in the audience and the material's impact on
them.
11. Second, we must consider context in order to
minimize intrusion into broadcasters' speech. Although the
courts have upheld Congress' authority to regulate the
broadcast of indecent speech and the Commission's
implementation of the governing statute,31 we must
nevertheless proceed with “due respect for the high value
our Constitution places on freedom and choice in what the
people say and hear.”32 Our decisions reflect this
restraint. Thus, we do not find indecent every depiction or
description of sexual or excretory organs or activities.
Rather, as discussed above, we find material indecent only
if it is patently offensive based on an examination of the
material's explicit or graphic nature, whether it is dwelled
upon or repeated, and whether it appears to pander or is
intended to titillate or shock the audience. In connection
with the third factor, we consider whether the material has
any social, scientific or artistic value, as finding that
material has such value may militate against finding that it
was intended to pander, titillate or shock.33 Of course, as
the D.C. Circuit has stated, “merit is properly treated as
a factor in determining whether material is patently
offensive, but it does not render such material per se not
indecent.”34
12. As discussed below, contextual considerations are
important in evaluating “Saving Private Ryan” for both
reasons.
13. The film, as aired by the ABC Network Stations on
November 11, 2004, contains numerous expletives and other
potentially offensive language generally as part of
soldiers' dialogue, some of which is cited by the
Complainants. Such language includes: “fuck,” and its
variations; “hell”; “ass” and “asshole”; “crap”;
“son of a bitch”; “bastard”; “shit” and its
variations, including “bullshit” and “shitty”;
“prick”; and “pee.” For the purpose of this discussion,
we will assume arguendo, that this material meets the first
and second components to our analysis of whether it is
patently offensive, in that at least some of the language is
graphic and explicit, and is repeated throughout the course
of the three and a half-hour broadcast of the film.
Nevertheless, for the reasons discussed below, in light of
the overall context in which this material is presented, we
conclude that such findings with respect to the first two
factors are outweighed in this instance by the third
component of the analysis. For the following reasons, here,
the complained-of material, in context, is not pandering and
is not used to titillate or shock.
14. The subject matter of the film, the portrayal of a
mission to save the last surviving son of an Iowa farm
family, involves events that occurred during World War II.
As stated in the introduction to the broadcast, in relating
this story, the motion picture realistically depicts the
fierce combat during the Normandy invasion, including,
according to a veteran who participated in and witnessed
these events, “things that no one should ever have to
see.”35 Essential to the ability of the filmmaker to
convey to viewers the extraordinary conditions in which the
soldiers conducted themselves with courage and skill are the
reactions of these ordinary Americans to the barbaric
situations in which they were placed. The expletives
uttered by these men as these events unfold realistically
reflect the soldiers' strong human reactions to, and, often,
revulsion at, those unspeakable conditions and the peril in
which they find themselves. Thus, in context, the dialogue,
including the complained-of material, is neither gratuitous
nor in any way intended or used to pander, titillate or
shock. Indeed, it is integral to the film's objective of
conveying the horrors of war through the eyes of these
soldiers, ordinary Americans placed in extraordinary
situations. Deleting all of such language or inserting
milder language or bleeping sounds into the film would have
altered the nature of the artistic work and diminished the
power, realism and immediacy of the film experience for
viewers. In short, the vulgar language here was not
gratuitous and could not have been deleted without
materially altering the broadcast. In this context, we must
proceed with caution and exercise restraint given “the high
value our Constitution places on freedom and choice in what
the people say and hear.”36
15. Moreover, the presentation by the ABC Network
Stations is not intended as family entertainment, a fact
clearly and explicitly stated in the introduction that
precedes the film and is repeated in the aural and visual
viewer advisory and voluntary parental code that follow each
commercial break during the broadcast. Thus, parents had
ample warning that this film contained material that might
be unsuitable for children and could have exercised their
own judgment about the suitability of the language for their
children in the context of this film.
16. The Commission has found similar material
depicting an historical view of World War II and wartime
atrocities to be not patently offensive, and thus not
actionably indecent.37 We see no reason to conclude
otherwise with respect to the film at issue here. Thus, in
light of the overall context of the film, including the fact
that it is designed to show the horrors of war, its
presentation to honor American veterans on the national
holiday specifically designated for that purpose, the
introduction, which articulated the importance of presenting
the film in its unedited form, and the clear and repeated
warnings provided by ABC, not only in the introduction but
also at each commercial break, we find that the complained-
of material is not patently offensive as measured by
contemporary community standards for the broadcast medium,
and, therefore, not indecent. For the same reasons, and
based on the same contextual analysis, we conclude that the
language referred to above is not profane in context here.38
17. Further, we conclude that uses of the words
“Jesus,” “Jesus Christ,” “God,” “God damn” and its
variations, and “damn” and its variations, are not
actionable under section 1464 for the reasons set forth in
Raycom America, Inc., Memorandum Opinion and Order, 18 FCC
Rcd 4186 (2003). Finally, although some of the Complainants
also reference the violence depicted in the film, the
Commission's current standard for determining whether
material falls within the prohibitions of section 1464 is
not applicable to violent programming.39
18. In so concluding, we find that this case is
distinguishable from that in which we previously found the
use of the word “fucking” during the broadcast of the 2003
Golden Globe Awards ceremony to be indecent and profane in
context.40 The contextual differences between the
expletives contained in the broadcast of the film here and
that contained in the 2003 broadcast of the Golden Globe
Awards ceremony are critical to our analysis under section
1464. The utterance of the word “fucking” by a performer
during the Golden Globe Awards telecast occurred in the
context of a live awards program in which use of the word
was shocking and gratuitous, where no claim of “any
political, scientific or other independent value” was made,
and during which children were expected to be in the
audience.41 Consequently, we concluded that, in context,
the use of the word “fucking” in that instance was
indecent and profane.42 In contrast, and as discussed
above, in the different context presented here, the
complained-of material broadcast during the presentation of
the film “Saving Private Ryan” is not indecent or profane.
IV. ORDERING CLAUSES
19. ACCORDINGLY, IT IS ORDERED, that the Complaints
filed against the licensees of the ABC Network Stations
regarding their broadcast on November 11, 2004, of the film
“Saving Private Ryan” ARE HEREBY DENIED.
20. IT IS FURTHER ORDERED that a copies of this
Memorandum Opinion and Order shall be sent by Certified Mail
Return Receipt Requested to Donald E. Wildmon, American
Family Association, P.O. Drawer 2440, Tupelo, Mississippi
38803, to Susan L. Fox, Vice President, Government
Relations, The Walt Disney Company, 1150 17th Street, N.W.,
Suite 400, Washington, D.C. 20036 and to John W. Zucker,
Senior Vice President, Law & Regulation, ABC, Inc., 77 West
66th Street, New York, N.Y. 10024.
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
Secretary STATEMENT OF
CHAIRMAN MICHAEL K. POWELL
Re: Complaints Against Various Licensees Regarding Their
Broadcast on November 11, 2004, of ABC Television
Network's Presentation of the Film “Saving Private
Ryan,”
Today, we reaffirm that content cannot be evaluated
without careful consideration of context. Saving Private
Ryan is filled with expletives and material arguably
unsuitable for some audiences, but it is not indecent in the
unanimous view of the Commission.
This film is a critically acclaimed artwork that tells
a gritty story¾one of bloody battles and supreme heroism.
The horror of war and the enormous personal sacrifice it
draws on cannot be painted in airy pastels. The true colors
are muddy brown and fire red and any accurate depiction of
this significant historical tale could not be told properly
without bringing that sense to the screen. It is for these
reasons that the FCC has previously declined to rule this
film indecent.
This, of course, is not to suggest that legal content
is not otherwise objectionable to many Americans.
Recognizing that fact, it is the responsible broadcaster
that will provide full and wide disclosure of what viewers
are likely to see and hear, to allow individuals and
families to make their own well-informed decisions whether
to watch or not. I believe ABC and its affiliated stations
made a responsible effort to do just that in this case.
Fair warning is appropriately an important
consideration in indecency cases. In complaints you often
find that Americans are not excessively prudish, only that
they are fed up with being ambushed with content at times
and places they least expect it. It is insufficient to
tell consumers not to watch objectionable content, if the
“shock” value is dependent on the element of surprise.
This is particularly true in broadcast television, where
viewers are accustomed and encouraged to order their viewing
by parts of the day¾morning shows, daytime TV and late night
have long been the zones in which expectations are set.
When those lines are blurred, the consumer loses a degree of
control, a degree of choice.
Context remains vital to any consideration of whether
profanity or sexual content constitutes legally actionable
indecency. The Commission must stay faithful to considering
complaints within their setting and temper any movement
toward stricter liability if it hopes to give full effect to
the confines of the First Amendment.
_________________________
1 For purposes of this Memorandum Opinion and Order, “ABC
Network Stations” are those stations that are affiliates
of ABC and aired the film “Saving Private Ryan” on
November 11, 2004. As explained below, not all ABC
affiliates aired the film.
2 The videotape contains a running reference to the time of
the broadcast by hour, minute and second, commencing at
8:00 p.m., presumably the Eastern Standard Time of the
broadcast.. All references herein to the tape will be to
the “Videotape” and provide the time designation of the
material so referenced.
3 “Saving Private Ryan” was the recipient of the 1999
Golden Globe awards for best motion picture-drama and best
direction. That same year, the film received Academy
Awards for best direction, cinematography, film editing,
sound and sound effects editing.
http://www.casenet.com/movie/savingprivateryan.htm.
4 Videotape at approximately 8:00:12-46 p.m.
5 Id. at approximately 8:00:48-58 p.m.
6 Id. at approximately 8:01:11-15 p.m.
7 Id. at approximately 8:01:05-10 p.m.
8 The warning is accompanied by audio delivery of the
following: “This film contains prolonged depictions of
graphic, realistic WWII violence, as well as intense adult
language. The original content of the film has not been
altered for this TV broadcast. Parental and viewer
discretion is strongly advised.”
9 In addition to serving as a warning, the presence of
these codes allows parents to lock out the telecast on sets
equipped with the V-chip.
http://www.fcc.gov/cgb/consumerfacts/vchip.html. See also
Implementation of Section 551 of the Telecommunications Act
of 1996, Video Programming Ratings, 13 FCC Rcd 8232 (1998);
Technical Requirements to Enable Blocking of Video
Programming Based on Program Ratings, 13 FCC Rcd 11248
(1998).
10 In connection with each of the viewer advisories that
follow commercial breaks, the following appears on screen:
“This film is being presented uncut with graphic violence
and intense adult language. Viewer discretion is strongly
advised.” Audio accompanying this text repeats the
admonition that “viewer discretion is strongly advised.”
The viewer advisories containing the warning, along with the
program codes, appear at approximately 8:37:05, 9:09:32,
9:19:28, 9:30:30, 9:44:52, 9:57:16, 10:12:38, 10:21:59,
10:35:13, and 11:01:37. See Videotape, passim.
11 See http://abc.go.com/movies/savingprivateryan.html
(“Due to graphic violence and intense adult language,
viewer discretion is strongly advised.”)
12 See, e.g., Letter from Charles W. Kelley, Chief,
Investigations and Hearings Division, Enforcement Bureau,
to Mr. and Mrs. John Schmeling, Jr., dated December 19,
2002, EB-02-IH-0838; Letter from Charles W. Kelley, Chief,
Investigations and Hearings Division, Enforcement Bureau,
to Tim Wildmon, Vice President, American Family
Association, dated June 7, 2002, EB-02-IH-0085.
13 See David Bauder, “66 ABC affiliates chose not to run
`Saving Private Ryan,”' THE DETROIT NEWS, November 13,
2004, www.detnews.com/2004/screens/0411/18. However, all
10 ABC-affiliated stations owned and operated by ABC, Inc.
did air the film. Id.
14 See 47 U.S.C. § 326.
15 18 U.S.C. § 1464.
16 Pub. L. No. 102-356, § 16(a), 106 Stat. 949, 954
(1992).
17 Action for Children's Television v. FCC, 58 F.3d 654
(D.C. Cir. 1995) (en banc), cert. denied, 516 U.S. 1043
(1996) (“ACT III”).
18 U.S. CONST., amend. I; See Action for Children's
Television v. FCC, 852 F.2d 1332, 1344 (D.C. Cir. 1988)
(“ACT I”).
19 FCC v. Pacifica Foundation, 438 U.S. 726 (1978)
(“Pacifica”). 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.
20 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 the people may say and hear.”);
id. at 1340 n.14 (“the potentially chilling effect of the
FCC's generic definition of indecency will be tempered by
the Commission's restrained enforcement policy.”)
21 Infinity Broadcasting Corporation of Pennsylvania,
Memorandum Opinion and Order, 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)).
22 Industry Guidance on the Commission's Case Law
Interpreting 18 U.S.C. §1464 and Enforcement Policies
Regarding Broadcast Indecency, Policy Statement, 16 FCC Rcd
7999, 8002 (2001) (“Indecency Policy Statement”)
(emphasis in original).
23 Complaints Against Various Broadcast Licensees
Regarding Their Airing Of The “Golden Globe Awards”
Program, Memorandum Opinion and Order, 19 FCC Rcd 4975,
4978, ¶ 8 (2004) petitions for stay and reconsideration
pending (“Golden Globe Awards Order”) (“[g]iven the core
meaning of the “F-Word,” any use of that word, or a
variation, in any context, inherently has a sexual
connotation and therefore falls within the first prong of
our indecency definition”).
24 Id. (emphasis in original). In Pacifica, the Court
“emphasize[d] the narrowness of [its] holding and noted
that under the Commission rationale that it upheld,
“context is all-important.” 438 U.S. at 750. In so
holding, the Court observed that “indecency is largely a
function of context - it cannot be adequately judged in the
abstract.” Id. at 742.
25 Indecency Policy Statement, 16 FCC Rcd at 8003 (emphasis
in original).
26 Id.
27 Id. at 8009 (citing Tempe Radio, Inc (KUPD-FM), Notice
of Apparent Liability, 12 FCC Rcd 21828 (Mass Media Bur.
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)), Notice of Apparent Liability, 12 FCC Rcd 4147
(Mass Media Bur. 1997) (forfeiture paid) (same).
28 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”).
29 Id. at 750 and n. 29.
30 Id. at n. 29.
31 Pacifica, 438 U.S. 726. See also ACT I, 852 F.2d at
1339; ACT II; ACT III.
32 ACT I, 852 F.2d at 1344. See also id at 1340 n. 14
(“the potentially chilling effect of the FCC's generic
definition will be tempered by the Commission's restrained
enforcement policy.”)
33 See WPBN/WTOM License Subsidiary, Inc. (WPBN-TV and
WTOM-TV), Order on Review, 15 FCC Rcd 1838 (2000). See
also Golden Globe Awards Order, 19 FCC Rcd at 4979, ¶ 9
(use of the word “fuck” during a live awards ceremony
telecast was “shocking and gratuitous”).
34 See ACT I, at 1340 ("since the overall value of a work
will not necessarily alter the impact of certain words or
phrases on children, the FCC's approach is permissible
under controlling case law; merit is properly treated as a
factor in determining whether material is patently
offensive, but it does not render such material per se not
indecent").
35 Videotape at approximately 8:00:43 p.m. One reviewer
characterized the scenes in the film depicting the landing
at Normandy, in which the majority of the expletives are
uttered by the soldiers, as “a chaos of noise, mud, blood,
vomit and death.”
http://rogerebert.suntimes.com/apps/pbcs.dll/article?AID=/-
19980724/REVIEWS/807240.
36 ACT I at 1344. In any event, we also note that ABC was
apparently barred by the copyright holder from altering the
film in any way. See
http://abc.go.com/movies/savingprivateryan.html.
37 See WPBN/WTOM License Subsidiary, Inc.,15 FCC Rcd 1838
(2000), in which the Commission found not to be patently
offensive and accordingly not indecent adult frontal nudity
depicted during a broadcast of the film “Schindler's
List.” In that decision, the Commission held that the
staff of the then-Mass Media Bureau had properly concluded
that the broadcast was not patently offensive as measured
by contemporary community standards for the broadcast
medium, based upon the full context of its presentation,
including the subject matter of the film, the manner of
presentation, and the warnings that accompanied the
broadcast of the film. The staff determined, and the
Commission agreed that, in the particular broadcast of the
film at issue, the depiction of adult frontal nudity was
incidental to the broadcast material's rendering of a
historical view of World War II and wartime atrocities,
which, viewed in context, was not presented in a pandering,
titillating or vulgar manner. Id. at 1839-40, ¶¶ 3, 13.
See also Peter Branton, Letter By Direction of the
Commission, 6 FCC Rcd 610 (1991) (concluding that repeated
use of “fuck” in a recorded news interview program not
indecent in context).
38 See Golden Globe Awards Order, 19 FCC Rcd at 4981, ¶¶
13-14 (defining profanity for purposes of section 1464).
39 We note, however, that the Commission has issued a
Notice of Inquiry to seek comment on issues relating to the
presentation of violence on television, including whether
the agency should restrict such programming. Violent
Television Programming And Its Impact on Children, Notice
of Inquiry, 19 FCC Rcd 14394 (2004).
40 See Golden Globe Awards Order, 19 FCC Rcd 4975. We note
that the Commission made clear in this Order that its
holding related specifically to the context at issue. Id.
at 4975, ¶ 2, 4979, ¶ 9, 4982, ¶¶ 16-17 (indecency), 4981,
¶¶ 13-14 (profanity).
41 Id. at 4979, ¶¶ 9, 10.
42 Id. at 4979-81, ¶¶ 9-13.