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


In the Matter of                )  File No. EB-04-IH-0590
                                )
Complaints Against Various Television Station     )
Licensees Regarding the ABC Television  )
Network's November 15, 2004, Broadcast of    )
“Monday Night Football”       )       
                                   

                  MEMORANDUM OPINION AND ORDER

Adopted:  March 3, 2005                      Released:  March 14, 
2005 

By the Commission:  Commissioner Copps issuing separate 
statement.

I.   INTRODUCTION

     1.   In this Memorandum Opinion and Order, we deny 
complaints alleging that various television station licensees 
that are affiliates of the ABC Television Network (“ABC”) aired 
indecent material during their broadcast of ABC's “Monday Night 
Football” on November 15, 2004, at 9 p.m. Eastern Standard Time, 
in violation of 18 U.S.C. § 1464 and 47 C.F.R. § 73.3999.  For 
the reasons discussed below, we conclude that the material in 
question does not violate the Commission's indecency prohibition.

II.  BACKGROUND

     2.   At 9:00 p.m. Eastern Standard Time, on November 15, 
2004, as the introductory segment to the broadcast of the 
National Football League game between the Philadelphia Eagles and 
Dallas Cowboys, ABC aired a scene featuring Eagles wide receiver 
Terrell Owens and actress Nicollette Sheridan, appearing as her 
character in the ABC program “Desperate Housewives.”  During 
the scene, Sheridan and Owens, who is fully suited for the game, 
are alone in the Eagles' locker room.  Sheridan, wearing only a 
towel, seeks to seduce Owens.  After he rebuffs her advances, 
telling her that the game is about to start and that his team 
needs him, she drops her towel.  The camera shows her from the 
back, nude from the waist up.  The viewer cannot see her body 
below the waist.  He responds, “Aw, hell, the team's going to 
have to win without me” and she then leaps into his arms.  The 
scene concludes with two other characters from “Desperate 
Housewives” watching the locker room encounter on their 
television, who remark how “desperate” Sheridan appears and 
then change the channel to the game, repeating the traditional 
Monday Night Football introduction, “Are you ready for some 
football?!”  The game broadcast then commences.  

     3.   Following ABC's broadcast, the Commission received many 
complaints alleging that the “Monday Night Football” scene 
contained indecent material.  The Commission subsequently 
reviewed a videotape of the broadcast.




III. DISCUSSION

     4.   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.1  The Commission does, however, have the authority to 
enforce statutory and regulatory provisions restricting 
indecency, profanity and obscenity.  Specifically, it is a 
violation of federal law to broadcast obscene, profane or 
indecent 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.” 2 In 
addition, section 73.3999 of the Commission's rules provides that 
radio and television stations shall not broadcast obscene 
material at any time, and, consistent with a subsequent statute 
and court case,3 shall not broadcast indecent material during the 
period 6 a.m. through 10 p.m.4 

     5.   Any consideration of government action against 
allegedly indecent programming must take into account the fact 
that such speech is protected under the First Amendment.5  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.6  Nevertheless, the First Amendment is a critical 
constitutional limitation that demands that, in indecency 
determinations, we proceed cautiously and with appropriate 
restraint.7  

     6.   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.8  

     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.9

     7.   In our assessment of whether broadcast material is 
patently offensive, “the full context in which the material 
appeared is critically important.”10  Three principal factors 
are significant to this contextual analysis: (1) the explicitness 
or graphic nature of the description; (2) whether the material 
dwells on or repeats at length descriptions of sexual or 
excretory organs or activities; and (3) whether the material 
appears to pander or is used to titillate or shock.11  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.”12  In particular cases, 
one or two of the factors may outweigh the others, either 
rendering the broadcast material patently offensive and 
consequently indecent,13 or, alternatively, removing the 
broadcast material from the realm of indecency.14    

     8.   We conclude that the material in question is not 
patently offensive, and thus, not indecent.  In particular, the 
“Monday Night Football” segment, although sexually suggestive, 
is not graphic or explicit. 15  Owens is fully dressed throughout 
the segment, and, with the exception of a moment when her bare 
back is exposed to the audience, Sheridan is at all times fully 
covered with a towel.  No sexual or excretory organs are shown or 
described, and no sexual activities are explicitly depicted or 
described.  Furthermore, the scene where Sheridan drops her towel 
and jumps into Owens's arms is brief.  Although the scene 
apparently is intended to be titillating, it simply is not 
graphic or explicit enough to be indecent under our standard.16   

IV.  ORDERING CLAUSE

     9.   ACCORDINGLY, IT IS ORDERED, that the complaints 
alleging that various television station licensees that are 
affiliates of the ABC Television Network aired indecent material 
during their broadcast of ABC's “Monday Night Football” on 
November 15, 2004, in violation of 18 U.S.C. § 1464 and 47 C.F.R. 
§ 73.3999, ARE HEREBY DENIED.  

                         FEDERAL COMMUNICATIONS COMMISSION



                         Marlene H. Dortch
                         Secretary           STATEMENT OF COMMISSIONER MICHAEL J. COPPS

Re:  Complaints Against Various Television Station Licensees 
     Regarding the ABC Television Network's November 15, 2004, 
     Broadcast of “Monday Night Football”

     Although the Commission finds that this broadcast does not 
violate 18 U.S.C. §1464, it does raise the issue of broadcasters 
acting responsibly when deciding what to air during the hours 
when children are likely to be in the audience.  At a time when 
recent surveys show that a substantial majority of parents are 
very concerned that children are being exposed to too much 
inappropriate content, I would hope that television broadcasters 
would go the extra mile in exercising self-discipline when airing 
or promoting programming that may not be appropriate for younger 
viewers.  There wasn't much self-discipline in this particular 
promotion.  As stewards of the public airwaves, broadcasters can 
and should do better.  

_________________________

1 U.S. CONST., amend. I; 47 U.S.C. § 326 (2002).

2 18 U.S.C. § 1464. 

3 Public Telecommunications Act of 1992, Pub. L. No. 102-356, 106 
Stat. 949 (1992) (setting the current safe harbor of 10 p.m. to 6 
a.m. for the broadcast of indecent material); see also Action for 
Children's Television v. FCC, 58 F. 3d 654 (D.C. Cir. 1995) (en 
banc) (“ACT III”), cert. denied, 516 U.S. 1072 (1996) 
(affirming restrictions prohibiting the broadcast of indecent 
material between the hours of 6 a.m. and 10 p.m.). 

4 See 47 C.F.R. § 73.3999. Section 73.3999 implements the Public 
Telecommunications Act of 1992, Pub. L. No. 102-356, 106 Stat. 
949 (1992). 

5 U.S. CONST., amend. I; see Action for Children's Television v. 
FCC, 852 F.2d 1332, 1344 (D.C. Cir. 1988) (“ACT I”).

6 18 U.S.C. § 1464; 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, 58 F. 3d 654.

7 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 potential chilling 
effect of the FCC's generic definition of indecency will be 
tempered by the Commission's restrained enforcement policy”).

8 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)).  

9 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, ¶¶ 7-8 (2001) (emphasis in original).

10 Id. at 8002, ¶ 9 (emphasis in original).

11 Id. at 8002-15, ¶¶ 8-23.  

12 Id. at 8003, ¶ 10.

13 Id. at 8009, ¶ 19 (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)). 

14 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”).

15 Complaints 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, 15998 (2004) (“Buffy the Vampire Slayer Order”)

16 See NBC Telemundo License Co., Memorandum Opinion and Order, 
FCC 04-235 at ¶ 7 (rel. Nov. 23, 2004) (scenes from “Coupling” 
program not indecent; Buffy the Vampire SlayerOrder, 19 FCC Rcd 
15995, 15998 (2004) (scene from “Buffy the Vampire Slayer” 
program not indecent).