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

In the Matter of                )  
Licensee of Station WTTG(TV)    )  Facility ID No. 22207
Washington, D.C.              )         


Adopted:  February 14, 2005             Released: February 
28, 2005 

By the Commission:  


     1.   In this Memorandum Opinion and Order, we deny a 
complaint1 filed by the Parents Television Council 
(``PTC''), alleging that Fox Television Stations, Inc., 
licensee of Station WTTG(TV), Washington, D.C., aired an 
episode of the program Arrested Development in violation of 
the federal restrictions regarding the broadcast of indecent 

     2.   PTC alleges that Station WTTG(TV) and other 
television stations affiliated with the Fox Television 
Network (``Fox Affiliates'') broadcast indecent material on 
November 16, 2003, at 9:30 p.m. Eastern Standard Time 
contained in an episode of the Arrested Development program.  
PTC complains about several scenes in the episode. 
Specifically, according to the Complaint, ``There are 
multiple scripted bleeps, and some sexual innuendo dealing 
with homosexuality.''  In particular, the episode contains a 
reference to ``making corn-holes'' and then ``corn-holing'' 
(which the Complaint describes as ``slang for anal sex''), 
within the context of discussions of a corn baller, an 
implement for making popcorn balls.  After review of the 
Complaint and the videotape of the subject episode provided 
by PTC, we find that the material is not patently offensive, 
as defined by Commission precedent, and therefore does not 
violate our indecency prohibition.


     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.3  
The Commission does, however, have the authority to enforce 
statutory and regulatory provisions restricting obscenity, 
indecency and profanity.  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.'' 4  
Consistent with a subsequent statute and court case,5 
section 73.3999 of the Commission's rules 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 The 
Commission may impose a monetary forfeiture, pursuant to 
section 503(b)(1) of the Act,7 upon a finding that a 
licensee has broadcast obscene, indecent or profane material 
in violation of 18 U.S.C. § 1464 and section 73.3999 of the 

     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 the Commission's interpretation and 
implementation of the governing statute.9  Nevertheless, the 
First Amendment is a critical constitutional limitation that 
demands that, in such 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 

     6.   The material aired during the Arrested Development 
program arguably describes sexual activities and, therefore, 
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 is not patently offensive, and 
therefore, not indecent.

     7.   In making indecency determinations, the Commission 
has indicated that the ``full context in which the material 
appeared is critically important,''13 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.'' 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 
     8.   PTC complains about four scenes contained in the 
November 16, 2003, episode of Arrested Development.  After 
review of the Complaint and the videotape of the episode, we 
conclude that the material is not patently offensive, as 
defined by Commission precedent, because the cited dialogue 
is neither sufficiently graphic nor explicit.18  As PTC 
acknowledges in its Complaint, virtually all of the language 
to which it objects was edited from the program prior to 
broadcast, so that it is not decipherable by viewers.19  The 
remaining non-edited language cited in the Complaint as 
sexual innuendo is ambiguous.  Consequently, we conclude 
that the material in question is not indecent.20  


     9.         Accordingly, IT IS ORDERED, that the 
Complaint alleging that Fox Television Stations, Inc., 
licensee of Station WTTG(TV), Washington, D.C., and other 
Fox Affiliates broadcast indecent material contained in the 
Arrested Development program on November 16, 2003, in 
violation of 18 U.S.C. § 1464 and 47 C.F.R. § 73.3999, is 
hereby DENIED.

     10.  IT IS FURTHER ORDERED, that copies of this 
Memorandum Opinion and Order shall be sent by Certified 
Mail, Return Receipt Requested, to Fox Television Stations, 
Inc., 5151 Wisconsin Avenue, N.W., Washington, D.C. 20015, 
and to the Parents Television Council, 707 Wilshire 
Boulevard, #2075, Los Angeles, California 90017. 


                         Marlene H. Dortch

1 Letter from Lara  Mahaney, Parents Television Council, to 
David H.  Solomon, Chief, Enforcement Bureau, Federal 
Communications Commission, dated November 24, 2003, at 2  
(``Complaint'').  A copy of the Complaint is provided in the 

2 See 18 U.S.C. § 1464; 47 C.F.R. § 73.3999.
3 U.S. CONST., amend. I; 47 U.S.C. § 326 (2002).

4 18 U.S.C. § 1464.
5 Public Telecommunications Act of 1992, Pub. L. No. 102-
356, 106 Stat. 949 (1992), as modified by 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'').

6 See 47 C.F.R. § 73.3999.
7  See 47 U.S.C. § 503(b)(1).  See also 47 U.S.C. § 
312(a)(6) (authorizing license revocation for indecency 

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 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.
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 potentially 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 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 (2001) (emphasis in 

13 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.

14 Indecency Policy Statement, 16 FCC Rcd at 8003 (emphasis 
in original).

15 Id.

16 Id. at 8009 (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), and EZ 
New Orleans, Inc. (WEZB(FM)), 12 FCC Rcd 4147 (MMB 1997) 
(forfeiture paid)).

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 KSAZ License, Inc., Memorandum Opinion and Order, 19 
FCC Rcd 15999, 16001, ¶ 6 (2004); Complaints Against Various 
Licensees Regarding Their Airing of the UPN Network Program 
``Buffy the Vampire Slayer'' on November 20, 2001, 
Memorandum Opinion and Order, 19 FCC Rcd 15995, 15998, ¶ 6 

19 Complaint at 2, 3 (``These are extended bleeps, where 
more than one offensive item is said, but you can't make out 
what is being said; These are extended bleeps where you 
cannot decipher what the character is saying, but it offends 
other characters.'').  Thus, the parentheticals in the 
transcript submitted by PTC are, in virtually all cases, 
PTC's guess regarding what the deleted word was.

20  We note that, in the Complaint, PTC cites as indecent a 
line in which expletives (stated by a character who was 
burned by the corn baller implement) are edited out, leaving 
the word ``Christ'' at the end of the exclamation.  The 9th 
Circuit held that such statements are not a violation under 
18 U.S.C. § 1464.  See Gagliardo v. United States, 366 F.2d 
720, 725 (9th Cir. 1966) (``God damn it'' not a violation 
under 18 U.S.C. § 1464), and Warren B. Appleton, 28 FCC 2d 
36 (B'cast Bur. 1971) (``damn'' not a violation under 18 
U.S.C. § 1464); see also Burstyn v. Wilson, 343 U.S. 495, 
505 (1952) (government shall not ``suppress real or imagined 
attacks upon a particular religious doctrine''); Raycom 
America (WMC-TV), Memorandum Opinion and Order, 18 FCC Rcd 
4186 (2003).