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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
FOX TELEVISION STATIONS, INC. ) File No. EB-03-IH-0672
)
Licensee of Station WTTG(TV) ) Facility ID No. 22207
Washington, D.C. )
MEMORANDUM OPINION AND ORDER
Adopted: February 14, 2005 Released: February
28, 2005
By the Commission:
I. INTRODUCTION
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
material.2
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.
II. DISCUSSION
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
rules.
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
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
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
III. ORDERING CLAUSES
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.
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
Secretary
_________________________
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
Attachment.
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
violations).
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
original).
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
(2004).
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).