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


In the Matter of                )  
                                )
WBDC BROADCASTING, INC.         )  Facility ID No. 30576    
                                )  File No. EB-03-IH-0710
Licensee of Station WBDC-TV  )          
Washington, D.C.                )
                                )
                                    

                MEMORANDUM OPINION AND ORDER

Adopted:  February 14, 2005             Released:  February 
25, 2005 

By the Commission:  

I.     INTRODUCTION

     1.   In this Memorandum Opinion and Order, we deny a 
complaint filed by the Parents Television Council (``PTC'') 
alleging that WBDC Broadcasting, Inc., licensee of Station 
WBDC-TV, Washington, D.C., aired an episode of the program 
Angel in violation of the federal restrictions regarding the 
broadcast of indecent material.1  

     2.   PTC alleges that WBDC-TV and other television 
licensees affiliated with The WB Television Network (``WB 
Affiliates'') broadcast indecent material on November 19, 
2003, during the Angel program, which was broadcast by WBDC-
TV at 9:00 p.m. Eastern Standard Time.  PTC complains about 
several scenes during the episode, which involves, inter 
alia, a rivalry between the program's characters Angel and 
Spike.2  After review of the Complaint and a 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. 

     A.     Indecency Analysis

     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 Angel program 
depicts 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 two scenes - several minutes 
apart-- during the November 19, 2003, episode of Angel.  We 
have attached PTC's Complaint which summarizes these scenes 
from the subject episode.  After review of the Complaint and 
the videotape of the episode provided by PTC, we conclude 
that the material is not ``patently offensive'' as defined 
by Commission precedent, because the cited material is not 
sufficiently graphic or explicit.  Both scenes are brief.  
Neither scene at issue contains any nudity and neither is 
sufficiently graphic or explicit to render the program 
patently offensive as measured by contemporary community 
standards.18  Consequently, we conclude that the material in 
question is not indecent.  


III.     ORDERING CLAUSES

     9.         Accordingly, IT IS ORDERED, that the 
Complaint alleging that WBDC Broadcasting, Inc., licensee of 
Station WBDC-TV, Washington, DC, and other WB Television 
Network affiliates, broadcast indecent material during the 
Angel program on November 19, 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 a copy of this 
Memorandum Opinion and Order shall be sent by Certified Mail 
Return Receipt Requested to the licensee of Station WBDC-TV, 
WBDC Broadcasting, Inc., 2121 Wisconsin Avenue, N.W., Suite 
350, Washington, D.C., 20007, and to the Parents Television 
Council, 707 Wilshire Boulevard, Los Angeles, California 
90017. 


                         FEDERAL COMMUNICATIONS COMMISSION
                    


                         Marlene H. Dortch
                         Secretary 







_________________________

1 See 18 U.S.C. § 1464 (2002); 47 C.F.R. § 73.3999 (2002).  

2 Letter from Lara  Mahaney, Parents Television Council, to 
David H. Solomon, Chief, Enforcement Bureau, Federal 
Communications Commission, dated December 4, 2003, at 2 
(``Complaint'').  A copy of the Complaint is provided as an 
Attachment.  

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 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.'').   

11 Infinity Broadcasting Corporation of Pennsylvania, 
Memorandum Opinion and Order, 2 FCC Rcd 2705 (1987) 
(subsequent history omitted) (citing Pacifica Foundation, 
Memorandum Opinion and Order, 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, Policy Statement, 16 FCC Rcd 
7999, 8002 (2001) (``Indecency Policy Statement'') (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), 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). 

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, e.g., KSAZ License, Inc. (KSAZ(TV)), Memorandum 
Opinion and Order, 19 FCC Rcd 15999 (2004); Complaint 
Against Various Broadcast 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 (2004).