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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of
) File Nos. EB-03-IH-0122
Complaints Against Various Television and
Licensees Concerning Their February 25, )
2003 Broadcast of the Program "NYPD EB-03-IH-0353
Blue" )
)
FORFEITURE ORDER
Adopted: February 19, 2008 Released: February 19, 2008
By the Commission: Commissioner McDowell issuing a statement.
I. INTRODUCTION
1. In this Forfeiture Order, issued pursuant to section 503 of the
Communications Act of 1934, as amended (the "Act"), and section 1.80
of the Commission's rules, we find that ABC Television Network
("ABC") affiliated stations and ABC owned-and-operated stations listed
in Attachment A, infra, broadcast indecent material during an episode
of the program NYPD Blue on February 25, 2003, in willful violation of
18 U.S.C. S: 1464 and section 73.3999 of the Commission's rules. Based
on our review of the facts and circumstances in this case, we conclude
that each station is liable for a forfeiture in the amount of $27,500.
II. BACKGROUND
2. NYPD Blue was a weekly, hour-long program that ran on the ABC
Television Network from 1993 through 2005. The Commission received
numerous complaints alleging that certain affiliates of ABC and ABC
owned-and-operated stations broadcast indecent material during the
February 25, 2003 episode of NYPD Blue that aired at 9:00 p.m. in the
Central and Mountain Standard Time Zones. After reviewing the
complaints, the Enforcement Bureau (the "Bureau") sent a letter of
inquiry to ABC on February 3, 2004. As a result of its investigation,
the Bureau received a response from ABC and a tape of the episode.
3. ABC's response to the Bureau's letter of inquiry confirmed the
inclusion in the program of a scene, referenced in the complaints, in
which a woman and a boy, who plays the eight-year old son of another
character on the show, are involved in an incident that includes adult
female nudity. Specifically, the woman's naked buttocks and a portion
of her breasts were depicted in a scene in which she is shown
disrobing and preparing to take a shower, and the boy unexpectedly
enters the bathroom. ABC also confirmed that 52 of the stations about
which we had received complaints aired the material outside the "safe
harbor." In its responses to the letters of inquiry, ABC argued,
without citing any authority, that the buttocks are not a sexual or
excretory organ. ABC conceded that the scene included back and side
nudity, but contended that it was "not presented in a lewd, prurient,
pandering, or titillating way." ABC further asserted that the purpose
of the scene was to "illustrate[ ] the complexity and awkwardness
involved when a single parent brings a new romantic partner into his
or her life," and that the nudity was not included to depict an
attempted seduction or a sexual response from the young boy. ABC also
asserted that, because of the "modest number of complaints" the
network received, and the program's generally high ratings, the
contemporary community standards of the viewing community embrace,
rather than reject, this particular material.
4. On January 25, 2008, the Commission released the Notice of Apparent
Liability for Forfeiture ("NAL"), finding that the material at issue
apparently violated the broadcast indecency standard. Applying its
two-prong indecency analysis, the Commission first found that the
material depicted sexual or excretory organs or activities. The
Commission then concluded that the material, in context, was patently
offensive as measured by contemporary community standards for the
broadcast medium and thus satisfied the second prong of our indecency
standard. In reaching this conclusion, we reviewed each of the three
principal factors relevant to a finding of patent offensiveness under
our contextual analysis of indecency cases. We first determined that
the material presented in the episode "contains explicit and graphic
depictions of sexual organs." Turning to the second principal factor
in our patent offensiveness inquiry, the Commission found "that the
broadcast dwells on and repeats the sexual material." Finally, the
Commission concluded that the material was shocking and titillating,
explaining, among other things, that "the scene's depiction of adult
female nudity, particularly the repeated shots of a woman's naked
buttocks, is titillating and shocking."
5. Accordingly, the NAL found the licensees of 52 stations that broadcast
the episode apparently liable for forfeitures in the amount of $27,500
per station for broadcasting indecent material, in apparent willful
violation of 18 U.S.C. S: 1464 and section 73.3999 of the Commission's
rules. In response to the NAL, numerous letters and pleadings were
filed with the Commission.
III. DISCUSSION
6. The proposed forfeiture amount in this case was assessed in accordance
with section 503(b) of the Communications Act, section 1.80 of the
Commission's Rules, and the Commission's forfeiture guidelines set
forth in its Forfeiture Policy Statement. In assessing forfeitures,
section 503(b) of the Act requires that we take into account the
nature, circumstances, extent, and gravity of the violation, and with
respect to the violator, the degree of culpability, any history of
prior offenses, ability to pay, and other matters as justice may
require. As discussed further below, we have examined the licensees'
responses to the NAL pursuant to the aforementioned statutory factors,
our rules, and the Forfeiture Policy Statement, and, with the
exception of the seven stations listed in paragraph 56 hereof, we find
no basis for cancellation or reduction of the forfeiture.
A. Application of Indecency Test to NYPD Blue
7. Indecency findings involve two fundamental determinations. First, the
material alleged to be indecent must fall within the subject matter
scope of our indecency definition, i.e., "the material must describe
or depict sexual or excretory organs or activities." In the NAL, the
Commission concluded that the programming at issue here is within the
scope of our indecency definition because it depicts sexual and
excretory organs, specifically, an adult woman's buttocks. ABC and the
ABC Affiliates contest this finding, arguing that the buttocks are not
sexual or excretory organs and thus are outside the scope of indecency
regulation. Relying primarily on medical texts, the ABC Affiliates
argue that sexual organs are "biologically defined" as the genitalia
or reproductive organs that are involved in reproduction. Similarly,
they argue that excretory organs include only the organs of the
excretory system that eliminate urine and other waste products of
metabolism, and that the "[t]he only external organs or structures of
the excretory system are the penis in males, and the urethral opening
in females, which appears between the walls of the labia." ABC argues
that the buttocks are not an excretory or sexual organ because they do
not have a sexual or excretory physiological function. In addition,
both argue that the precedents cited in the NAL are inapposite and
that the Commission has never treated mere depictions of naked
buttocks as within the scope of its indecency definition. All of these
arguments lack merit.
8. The Commission has consistently interpreted the term "sexual or
excretory organs" in its own definition of indecency as including the
buttocks, which, though not physiologically necessary to procreation
or excretion, are widely associated with sexual arousal and closely
associated by most people with excretory activities. Thus, the
Commission has in many cases treated naked buttocks as coming within
the scope of its indecency definition, even though it has not always
concluded that particular depictions or descriptions were patently
offensive and thus actionably indecent.
9. The indecency standard that we are applying here was formulated by the
Commission to enforce 18 U.S.C. S: 1464 through administrative action.
The Commission has broad discretion to interpret and apply the
standards and terminology it has developed, as long as it does so in a
manner that is consistent with the statute and the Constitution. In
the context of interpreting and applying the statutory and regulatory
proscription against indecent programming, it is appropriate to
interpret these terms not in a medical sense but rather in the sense
of organs that are closely associated with sexuality or excretion and
that are typically kept covered because their public exposure is
considered socially inappropriate and shocking. We believe that it is
appropriate to use the terms sexual or excretory organs - as we have
in the past - in a manner consonant with the purpose of the regulatory
regime to protect children from indecent depictions of organs
associated with sex and excretion and sexual and excretory activities.
The purpose of indecency regulation, obviously, is not to regulate
procreation or excretion, so we do not think a technical physiological
definition is appropriate.
10. Moreover, if we interpreted these terms in the narrow physiological
sense advocated by ABC and the ABC Affiliates, the airwaves could be
filled with naked buttocks and breasts during daytime and prime time
hours because they would be outside the scope of indecency regulation
(at least if no sexual or excretory activities were shown or
discussed). We find it impossible to believe that ABC or the ABC
Affiliates ever thought this to be the Commission's policy. In short,
while their Responses to the NAL are brimming with medical definitions
and arguments, the respondents offer no legal or public policy reason
for their argument, and we find it lacking in merit.
11. Contrary to the ABC Affiliates' contention, the "rule of lenity" does
not require that the Commission construe the indecency proscription in
section 1464 narrowly even when it is imposing administrative
sanctions for violations. The Supreme Court made clear in FCC v.
Pacifica that the removal of the indecency provision from the
Communications Act and its codification in section 1464 of the
criminal code in 1948 was not intended to effect any "substantive
change." The Court thus found it unnecessary to "consider any question
relating to the possible application of S: 1464 as a criminal
statute." It is similarly unnecessary here - all the more so because
the term we are construing is one that appears in the standard
formulated by this Commission for purposes of imposing administrative
forfeitures.
12. Turning to the second aspect of our indecency test, we also find that,
in context and on balance, the complained-of material is patently
offensive as measured by contemporary community standards for the
broadcast medium. In our analysis of the three principal factors
involved in determining whether material is patently offensive, "the
overall context of the broadcast in which the disputed material
appeared is critical. Each indecency case presents its own particular
mix of these, and possibly other, factors, which must be balanced to
ultimately determine whether the material is patently offensive and
therefore indecent." Each of the three principal factors contributes
to a finding of patent offensiveness here. ABC points to factors that,
it argues, mitigate the patent offensiveness of the disputed material,
in particular the NYPD Blue series' "outstanding artistic and social
merit," the relationship of the scene in question to a theme
stretching across multiple episodes, and the parental advisory and
rating at the beginning of the episode. On balance, however, for the
reasons discussed below, we find that the material is patently
offensive as measured by contemporary community standards for the
broadcast medium.
13. First, we find that the depiction of an adult woman's naked buttocks
was sufficiently graphic and explicit to support an indecency finding.
Indeed, we do not believe that the explicit and graphic nature of the
material is reasonably debatable. Although the language-based examples
that it provides are not entirely apposite, examination of the
Indecency Policy Statement reveals that, in a case such as this one,
the issue under the first principal factor is whether the visual
depiction of the sexual or excretory organ is clear and unmistakable.
Here, the scene in question shows a female actor naked from behind,
with her buttocks fully visible at close range. She is not wearing a
g-string or other clothing, nor are the shots of her buttocks
pixillated or obscured. Thus, the material is sufficiently graphic and
explicit to support an indecency finding. Although the partial views
of her naked breast from behind and from the side are not sufficiently
graphic and explicit, in and of themselves, to support an indecency
finding, they also add somewhat to the first factor's weight here.
14. The cases cited by the ABC Affiliates for the proposition that nudity
is not necessarily graphic or explicit are easily distinguishable from
this case. ABC cites cases in which the Commission did not find
depictions of naked buttocks to be patently offensive, but none held
that the clear and unmistakable depiction of nudity was not
sufficiently explicit to support a finding of patent offensiveness.
Rather, each held that the material at issue, in light of all of the
relevant factors, was not patently offensive. We emphasize that our
finding with respect to explicitness does not represent a conclusion
that the scene in question is pandering or titillating; that issue
relates to our analysis of the third principal factor below. We simply
conclude here that the disputed material's clear, unobscured,
close-range visual depiction of a woman's buttocks was graphic and
thus supports a finding of patent offensiveness.
15. Second, we find that the disputed material's repeated depictions of a
woman's naked buttocks provide some support for a patent offensiveness
finding. As set forth in the Indecency Policy Statement, the issue
under the second principal factor is focus and repetition versus
"passing or fleeting" reference to sexual or excretory material. Here,
the disputed scene includes repeated shots of a woman's naked buttocks
and focuses on her nudity. At one point, when her buttocks already
have been displayed once and she is about to step into the shower, the
camera deliberately pans down her back to reveal another full view of
her buttocks before panning up again. While we concede that a longer
scene or additional depictions of nudity throughout the episode would
weigh more heavily in favor of an indecency finding, we conclude here
that the focus on and repeated shots of the woman's naked buttocks
provides some support for a finding of indecency under the second
factor. In this regard, it is worth noting that our analysis under
this factor is best viewed on a continuum rather than as a binary "all
or nothing" determination. To be sure, the depiction here is not as
lengthy or repeated as some of the cases cited by ABC and ABC
Affiliates in which the Commission has indicated that this factor
supported a finding of patent offensiveness (and thus does not provide
as much support for a finding of patent offensiveness as was present
in those cases). However, this material does contain more shots or
lengthier depictions of nudity, or more focus on nudity, than other
cases involving nudity where the Commission has found that this factor
did not weigh in favor of a finding of patent offensiveness.
16. Third, we find that the scene's pandering, titillating, and shocking
nature supports a patent offensiveness finding. The female actor's
nudity is presented in a manner that clearly panders to and titillates
the audience. The viewer is placed in the voyeuristic position of
viewing an attractive woman disrobing as she prepares to step into the
shower. Moreover, not only does the scene include a shot of her naked
buttocks as she removes her robe in front of the bathroom mirror, the
scene goes farther, providing the audience with another full view of
her naked buttocks as she stands in front of the shower. This second
shot, in which the camera pans down her naked back to her buttocks,
pauses for a moment and then pans up her back, highlights the
salacious aspect of the scene, clearly suggesting that its interest
lies at least partly in seeing the actress's naked buttocks. The
subsequent camera shots of the boy's shocked face from between the
woman's legs, and of her naked, partially-obscured upper torso from
behind his head, also serve to heighten the titillating and shocking
nature of the scene. We disagree with ABC's position that these shots
convey "nothing sexual or lewd." Although the scene does not depict
any sexual response in the child, his presence serves to heighten the
shocking nature of the scene's depiction of her nudity.
17. Contrary to ABC's arguments, comparison of the instant scene to
Commission precedents does not undermine our finding regarding the
third principal factor. The disputed material is easily
distinguishable from the nudity addressed by the Commission in
Schindler's List. In Schindler's List, the complainant conceded that
the material he alleged to be actionably indecent was not presented to
pander or titillate. Indeed, the "full frontal nudity" that aired
outside of safe harbor and was the subject of the complaint was, as
the ABC Affiliates explain, a scene depicting concentration group
prisoners "made to run around the camp fully nude as the sick are
sorted from the healthy." While the scene is certainly disturbing, it
is neither pandering nor titillating and bears no contextual
resemblance to the material in NYPD Blue. Accordingly, we disagree
with the claim of the ABC Affiliates that it is "difficult to
distinguish" the nudity here from the nudity in the Schindler's List
scene. Likewise, the Will and Grace episode cited by ABC is easily
distinguishable because it presents no nudity.
18. We also disagree with ABC's contention that we are refusing to defer
to its artistic judgment, in contrast to cases such as Schindler's
List and Saving Private Ryan. We are not "second-guessing" an artistic
decision by concluding that the nudity contained in NYPD Blue was
graphic and presented in a pandering and titillating manner. Art may
very well be graphic, and we recognize that NYPD Blue was a
longstanding television drama that garnered writing, directing, and
acting awards, and that the scene in question related to a broad
storyline of the show. Our finding does not represent a conclusion
that the disputed material lacked artistic or social merit. As the
D.C. Circuit has recognized, however, "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." Further, we agree
with ABC that the parental advisory and rating at the beginning of the
program is relevant and weighs against a finding of indecency. As
discussed above, however, we must weigh these factors along with the
three principal factors above to ultimately determine whether the
disputed material is patently offensive and therefore indecent. In
context and on balance, we conclude that the graphic, repeated,
pandering, titillating, and shocking nature of the scene's visual
depiction of a woman's naked buttocks warrant a finding that it is
patently offensive under contemporary community standards for the
broadcast medium, notwithstanding any artistic or social merit and the
presence of a parental advisory and rating. Therefore, it is
actionably indecent.
B. Procedural Arguments
19. ABC and the ABC Affiliates raise several procedural objections to the
NAL, including attacks on the sufficiency of the complaints underlying
the Commission's action and arguments that the parties have been
denied their due process rights by the Commission because of an
alleged delay in providing the complaints to them and the alleged
truncated period afforded them to respond to the NAL. We address these
arguments in turn.
1. Sufficiency of Complaints
20. ABC and the ABC Affiliates contend that the complaints underlying the
NAL did not meet the requirements of the Commission's indecency
enforcement policy and should have been summarily dismissed.
Specifically, both ABC and the ABC Affiliates argue that the
Commission failed to make an initial determination as to the
sufficiency of each complaint in this case, as required by the Omnibus
Remand Order. According to ABC and the ABC Affiliates, with one
exception, the subject complaints in this case were identical "form"
complaints generated by a single advocacy group. Furthermore, they
claim there is no evidence that any of the complainants actually
viewed the subject episode of NYPD Blue on the stations cited in the
NAL or on any station. For these reasons, ABC and the ABC affiliates
argue that the complaints are not bona fide, actionable complaints
and should have been dismissed for lack of sufficiency. Accordingly,
they contend that the Commission should rescind the NAL.
21. The arguments advanced by ABC and ABC Affiliates regarding the
sufficiency of the complaints are without merit because they are based
upon a flawed understanding of our indecency enforcement policy. As
the Commission clarified in the Omnibus Remand Order, it is sufficient
that viewers in markets served by each of the ABC Stations filed
complaints identifying the allegedly indecent episode of NYPD Blue at
issue. Moreover, and contrary to the arguments of ABC and the ABC
Affiliates, there is no requirement that a complaint include a
statement that the complainant viewed the material alleged to be
indecent. The Commission has considered and rejected similar
arguments.
22. Each of the initial e-mail complaints received by the Commission
specifically identified the February 25, 2003 episode of NYPD Blue,
each stated that the material was aired on stations affiliated with
the ABC Network, and each provided a significant excerpt of the
allegedly indecent material. Although the complainants initially did
not provide call letters of a specific ABC affiliate or other
information identifying the market in which the complainant resided,
Commission staff requested further information on these points in
follow-up e-mails to the complainants. Specifically, the staff
requested information about the television station over which the
complainant saw the subject program, including, if available, the
station's call letters or "the city and town in which the station you
watched is located." The staff received numerous responses to the
follow-up e-mails identifying the ABC Stations referenced in the NAL.
The follow-up emails permitted the staff to ensure that there was a
complainant in the market of each of the ABC Stations against which a
forfeiture is imposed herein, consistent with the Commission's
enforcement policy.
23. Consequently, this complaint proceeding does not present the same
issues as did the complaints against KMBC-TV discussed in the Omnibus
Order Remand and which both ABC and the ABC Affiliates cite in their
responses. In that case, there were no complaints filed by anyone
residing in the market served by KMBC-TV. Instead, the complaints were
filed by a complainant residing outside the KMBC-TV market and there
was nothing in the record to tie the complaints to KMBC-TV's local
viewing area. With respect to stations at issue in this Order, we have
affirmative statements from the complainants tying the complaints to a
particular ABC station or affiliated station.
24. Moreover, we find no merit in the argument by ABC and the ABC
Affiliates that complaints which were not filed contemporaneously with
the airing of the February 25, 2003, episode of NYPD Blue should be
dismissed. The Commission does not require complainants to file
indecency complaints within a specified time frame. Under these
circumstances, we find that the NAL was consistent with our commitment
to an appropriately restrained enforcement policy and recent
Commission practice to limit the imposition of forfeiture penalties to
licensees whose stations serve markets from which specific complaints
are received.
2. Notice and Length of Time to Respond to NAL
25. The ABC Affiliates contend that the length of time between when the
episode aired and the NAL was issued, combined with the "unusually
shortened" period of time they had for responding to the NAL,
effectively deprived them of their administrative due process rights.
Beaumont, in a separate response, makes similar arguments. More
specifically, the ABC Affiliates claim that they did not know until
the NAL was issued that there were pending complaints against the ABC
affiliate stations concerning its broadcast of the subject NYPD Blue
episode. The ABC Affiliates note that although the Commission issued a
letter of inquiry to ABC, Inc., concerning the indecency complaints
the Commission had received, the affiliates did not directly receive
similar notice from the Commission and, therefore, did not have as
much time as the ABC owned-and-operated stations to conduct a
contemporaneous investigation of the facts. As such, they assert that
pertinent records may be non-existent or hard to locate, and
knowledgeable witnesses may no longer readily be available. Moreover,
they argue that once the NAL was issued, they were afforded only 17
days, rather than the usual 30 days, in which to respond and that this
shortened period further prejudiced their rights.
26. We find no merit in ABC Affiliates' and Beaumont's due process
arguments. Both parties fail to demonstrate that the Commission's
process somehow impeded their ability to fully exercise their due
process rights. The arguments advanced by the parties with respect to
insufficient notice suggest a misunderstanding of the nature of the
Commission's forfeiture process. Pursuant to section 1.80 of the
Commission's rules, before imposing a forfeiture penalty, the
Commission must provide each licensee with a written notice of
apparent liability which includes an explanation of the nature of the
misconduct, the rule section that the Commission believes was
violated, and the proposed forfeiture amount. The NAL in this instance
provided such required notice. There is no requirement that the
Commission direct a letter of inquiry to a licensee as part of an
investigation of alleged indecent programming aired by a broadcast
station before issuing an NAL. Moreover, section 1.80 of the
Commission's rules specifies that each licensee to which such notice
is provided may file a written response demonstrating why a forfeiture
penalty should not be imposed or should be reduced. By their responses
to the NAL and various FOIA filings to obtain copies of complaints ,
the ABC Affiliates and other parties availed themselves of the
opportunity to respond the Commission's concerns, belying their claims
to the contrary.
27. Furthermore, as a practical matter we are not persuaded that the ABC
Affiliates suffered any harm from the shortened NAL response period or
the time period between the broadcast and the NAL under the
circumstances involved here. The principal record involved here is the
tape of the episode, which the ABC Affiliates do not maintain was
difficult to obtain. In addition, while they argue that individual
stations may have had difficulty determining whether they aired the
episode within the "safe harbor," ABC provided that information to the
Commission in 2004. The parties' timely filings also contradict any
potential claim that they have suffered actual harm and/or that the
NAL response time was so inadequate as to jeopardize their due process
rights. The ABC Affiliates claim that "pertinent records of the
broadcast may be non-existent or difficult to locate, and
knowledgeable witnesses may no longer be readily available." They do
not argue that such records or witnesses were, in fact, impossible to
locate or that any particular material relevant to their case could
not be found. At best, the parties argue inconvenience, which, even if
true, they clearly surmounted, considering the number, coordinated
nature, and overall comprehensiveness of their filings.
28. Section 1.80 provides that the "[r]espondent will be afforded a
reasonable period of time (usually 30 days from the date of the
notice) to show, in writing, why a forfeiture penalty should not be
imposed or should be reduced, or to pay the forfeiture." The
Commission's rules do not state that the reasonable period of time
will always be 30 days. A 30-day response period is not mandated. The
rule only requires that the response period be reasonable, and the
parties have not submitted evidence of actual harm or presented any
persuasive arguments to convince the Commission that the 17 days
afforded for a response in this case was not reasonable. Indeed, the
evidence before us demonstrates that the ABC Affiliates were able to
substantively respond to the NAL and to fully incorporate in that
response relevant materials, including the underlying complaints in
this proceeding. Legal counsel from 20 law firms and/or companies
coordinated and responded to the NAL in one, consolidated, 70-page
brief, with exhibits, on behalf of the majority of ABC affiliated
stations. Accordingly, we conclude that the period provided for the
licensees' response was reasonable and that they were neither deprived
of the required notice nor an opportunity to be heard.
29. The ABC Affiliates also complain that the quality of the notice
received through the NAL does not meet the standards set forth in
Section 1.80(f)(1)(ii) because it allegedly fails to "[s]et forth the
nature of the act or omission charged against the respondent and the
facts upon which such charge is based." We find this argument wholly
unpersuasive. The NAL set forth the episode, air date and time, and a
sufficient description of the content and how it violated the
Commission's indecency rules. There is no requirement, as the ABC
Affiliates suggest, that the Commission provide the underlying
complaint itself as part of the notice. Accordingly, we reject this
argument.
30. Finally, the ABC Affiliates' argument that their due process rights
have been denied because they did not have the benefit of producing
evidence in the context of an administrative hearing proceeding is
misplaced. As the Commission has previously stated:
It is, of course, true that the complainant's statement is "untested," in
that no evidentiary hearing has been held. However, the Communications Act
of 1934, as amended ("Act") permits the imposition of a forfeiture without
an evidentiary hearing. The Act also protects the rights of parties
subject to a forfeiture assessed without a hearing by providing that such
a forfeiture cannot be used to the prejudice of the party unless it is
paid or a court of competent jurisdiction has issued a final order after a
trial de novo requiring that the forfeiture be paid.
Accordingly, given the foregoing, we deny the ABC Affiliates' and
Beaumont's argument that the NAL should be rescinded based on any due
process or insufficient notice grounds.
C. Other Arguments
1. Broadcast Satellite Station
31. Gray Television Licensee, Inc. ("Gray"), argues that the Commission
should dismiss the case as to its satellite station, KLBY(TV), Colby,
KS, and remove it from liability for the forfeiture assessed in the
NAL. Gray explains that KLBY is a satellite station of Gray's
full-power station, KAKE-TV, Wichita, KS, which is already subject to
the NAL. As such, Gray asserts that KLBY(TV) "offers little more than
an extension of the signal of its parent station, and makes virtually
no independent programming judgments about the programming it
broadcasts." Further, it states that it broadcasts less than one half
hour a week of programming that differs from the full power station.
Gray contends that the Commission's treatment of KLBY here is
inconsistent with its differential treatment of satellite stations in
other arenas, such as their exemption from television broadcast
ownership restrictions. Gray claims that subjecting it to forfeitures
for both KAKE-TV and KLBY airing the same content would effectively
make it more expensive to own satellite stations, which contrasts with
the Commission's treatment in other contexts making it less burdensome
to own satellite stations. In making these arguments, Gray relies on
precedent concerning ownership restrictions, the burdens an applicant
must satisfy to own a satellite station, and limits on independent
programming a satellite station may offer.
32. Notably, however, Gray does not cite indecency enforcement rules or
policy to support its theory. While the Commission might have eased
certain burdens on those seeking to own satellite stations, it has not
made the pronouncement that Gray suggests, in effect, that the
Commission should not apply the same indecency rules to satellite
stations as it does to full-service stations. Nor has the Commission
concurred in Gray's implicit contention that when a satellite
station's parent station is subject to forfeiture for the airing
indecent programming, the satellite station should not be fined for
carrying the same material.
33. The Commission first authorized TV satellite operations in small or
sparsely populated areas with insufficient economic bases to support
full-service operations. As such, Gray is correct that KLBY offers "a
unique and irreplaceable service." That does not mean, however, that
KLBY is effectively exempt from the Commission's indecency regulation.
In fact, the Commission abolished the limit on the amount of original
local programming that a satellite station may originate. This
elimination cuts against Gray's argument because it chooses for its
satellite station to carry most of the same programming aired by its
full-service parent station rather than originate different
programming. In any event, there is no reason why the viewers of a
satellite station should not expect it to abide by the same content
restrictions as a full-service station. Accordingly, Gray is no less
responsible for the programming of its satellite station than for its
full-service station. Therefore, we reject Gray's arguments on these
points.
2. Statute of Limitations
34. Northeast Kansas Broadcast Service and KFBB Corporation correctly
argue that the statute of limitations for the Commission to assess a
forfeiture precludes it from assessing liability for KTKA-TV and
KFBB-TV due to an intervening renewal grant for each station between
the episode in question and the issuance of the NAL. The Commission
accordingly cancels the NAL insofar as it relates to these stations.
D. Constitutional Issues
35. Respondents argue that imposition of a forfeiture in this case would
violate the First Amendment. ABC contends that Commission's indecency
standard is unconstitutional on its face. In support, it asserts that
the justifications that existed for adopting the current indecency
standard are no longer valid; the current indecency standard is
impermissibly vague; the availability of new blocking technologies has
rendered the current indecency standard overbroad; and the indecency
standard is subjective in a way that violates the First Amendment. The
ABC Affiliates assert that the Supreme Court's decision in Pacifica
bars the Commission from regulating brief material; the Commission
failed to follow the context-driven approach required by the First
Amendment; a prohibition on all broadcast nudity is overbroad; and the
Commission must apply local, not national, community standards of
patent offensiveness. For the reasons discussed below, we reject
Respondents' arguments.
36. Validity of Indecency Test. ABC argues that the underpinnings of the
Commission's current indecency standard date back to the Supreme
Court's decision in Federal Communications Commission v. Pacifica
Foundation, and that the justifications upon which the Court relied in
its decision - the uniquely pervasive presence of the broadcast medium
and the unique accessibility of broadcasting to children - are no
longer viable. In this regard, ABC argues that cable and satellite
transmissions now reach the majority of the nation's television
households and offer hundreds of channels as well as the signals of
broadcast stations.
37. We disagree with ABC's claim that the justifications upon which the
Supreme Court relied in Pacifica are no longer valid and note that the
D.C. Circuit has rejected this precise argument: "Despite the
increasing availability of receiving television, such as cable . . .
there can be no doubt that the traditional broadcast media are
properly subject to more regulation than is generally permissible
under the First Amendment." Notwithstanding ABC's arguments to the
contrary, the broadcast media continue to have a "uniquely pervasive
presence" in American life. The Supreme Court has recognized that
"[d]espite the growing importance of cable television and alternative
technologies, `broadcasting is demonstrably a principal source of
information and entertainment for a great part of the Nation's
population." In 2003, 98.2% of households had at least one television,
and 99% had at least one radio. Although the majority of households
with television subscribe to a cable or satellite service, millions of
households continue to rely exclusively on broadcast television, and
the National Association of Broadcasters estimates that there are some
73 million broadcast-only television sets in American households.
Moreover, many of those broadcast-only televisions are in children's
bedrooms. Although the broadcast networks have experienced declines
in the number of viewers over the last several years, the programming
they offer remains by far the most popular and is available to almost
all households. Indeed, elsewhere in its response, ABC trumpets the
fact that "NYPD Blue . . . enjoyed great popular success on the ABC
Television Network, averaging more than 15 million viewers during its
12 years on the network."
38. The broadcast media are also "uniquely accessible to children." In
this respect, broadcast television differs from cable and satellite
television. Parents who subscribe to cable exercise some choice in
their selection of a package of channels, and they may avoid
subscribing to some channels that present programming that, in their
judgment, is inappropriate for children. Indeed, upon the request of a
subscriber, cable providers are required by statute to "fully block
the audio and video programming of each channel carrying such
programming so that one not a subscriber does not receive it." In
contrast, as the D.C. Circuit has observed, "broadcast audiences have
no choice but to `subscribe' to the entire output of traditional
broadcasters." The V-chip provides parents with some ability to
control their children's access to broadcast programming, but it does
not eliminate the need for the Commission to vigorously enforce its
indecency rules. In particular, as explained in further detail below,
we note that numerous televisions do not contain a V-chip, and most
parents who have a television set with a V-chip are unaware of its
existence or do not know how to use it. Accordingly, there is no
merit to ABC's claim that Pacifica - and more importantly, our
indecency rules - are invalid, obsolete or outdated.
39. Vagueness and Overbreadth. ABC argues that the Commission's indecency
standard is unconstitutionally vague, citing Reno v. ACLU. Reno
addressed the constitutionality of provisions of the Communications
Decency Act ("CDA") that sought to protect minors from harmful
material on the Internet. The Court determined that the CDA's
indecency standard was impermissibly vague because it failed to define
key terms, thereby provoking uncertainty among speakers and preventing
them from discerning what speech would violate the statute. ABC
asserts that, because the CDA definition of indecency was determined
by the Court to be fatally imprecise, and the Commission's definition
of indecency is similar to the CDA definition, it follows that the
Commission's definition is similarly flawed.
40. We reject ABC's arguments that the Commission's indecency standard is
vague. That standard is essentially the same as the one used in the
order that was reviewed in Pacifica, and the Supreme Court had no
difficulty applying that definition and using it to conclude that the
broadcast at issue in that case was indecent. We therefore agree with
the D.C. Circuit that "implicit in Pacifica" is an acceptance of the
FCC's generic definition of `indecent' as capable of surviving a
vagueness challenge."
41. We also believe that ABC's reliance on Reno is without merit. The
Court in Reno expressly distinguished Pacifica, giving three different
reasons for doing so. Thus, far from casting doubt on Pacifica's
vagueness holding, Reno recognizes its continuing vitality.
42. We also reject ABC's claim that the "contemporary community standards
for the broadcast medium" criterion is impermissibly subjective. The
"contemporary community standards for the broadcast medium" criterion
- which was upheld by the Supreme Court in Pacifica - is that of an
average broadcast listener or viewer. Our approach to discerning
community standards parallels that used in obscenity cases, where the
jury is instructed to rely on its own knowledge of community standards
in determining whether material is patently offensive. Here, however,
the Commission has the added advantage of being an expert agency, and
as we have explained before, "[w]e rely on our collective experience
and knowledge, developed through constant interaction with lawmakers,
courts, broadcasters, public interest groups and ordinary citizens, to
keep abreast of contemporary community standards for the broadcast
medium." In applying this standard, the Commission does not apply its
own "personal sensibilities," but at the same time it is settled that
"merit is properly treated as a factor in determining whether material
is patently offensive."
43. The ABC Affiliates contend that the Commission's application of
community standards "is unconstitutionally overbroad because it
constitutes a national standard to determine whether broadcast
material is patently offensive, rather than local community
standards." Instead, the ABC Affiliates contend that the Commission
must "examine[ ] the mores of the more than four dozen various
geographic communities in which the NYPD Blue episode was viewed and
for which the ABC Affiliates are being cited."
44. This argument is unavailing. Our longstanding indecency test focuses
on whether material is patently offensive as measured by contemporary
community standards for the "broadcast medium" generally, rather than
those of any particular community. That is the standard the Supreme
Court affirmed in Pacifica, without any suggestion that the Commission
erred by not determining whether broadcast of the Carlin monologue was
patently offensive according to the community standards of New York,
the only community in which there was a complaint about its broadcast.
If application of a national standard was appropriate in Pacifica, it
clearly was in this case, which involves a national broadcast and
complaints arising from many parts of the country.
45. For their contrary position, the ABC Affiliates rely principally on
criminal obscenity prosecutions, which present distinct concerns not
applicable to this non-criminal proceeding involving indecency, not
obscenity. Even in the context of obscenity, however, the Supreme
Court has said only that the First Amendment does not require juries
to apply nationwide community standards. States therefore have the
option of defining obscenity based on more localized community
standards, but nothing in the Supreme Court's obscenity case law
requires them to do so. Indeed, a national standard actually
facilitates national broadcasting, since it provides more certainty
and avoids the necessity of tailoring national programming
station-by-station based on the potentially disparate community
standards of a nationwide television audience.
46. ABC also asserts that television viewers today are able to effectively
prevent reception of any programming that they consider unsuitable for
children through the use of voluntary ratings of programs by the
entertainment industry and so-called "V-Chip" technology. The
existence of a less intrusive solution, according to ABC, thus renders
the Commission's regulatory scheme unconstitutionally overbroad.
Likewise, the ABC Affiliates state that the "V-chip is not itself
dispositive of the legal issue in this case" but nonetheless claim
that its availability creates "constitutional ramifications"
militating against a finding of indecency here.
47. We reject these arguments. While we agree that the V-chip provides
some assistance in protecting children from indecent material, it does
not eliminate the need for the Commission to enforce its indecency
rules. Numerous televisions do not contain a V-chip, and most parents
who have a television set with a V-chip are unaware of its existence
or do not know how to use it. In addition, we note that some
categories of programming, including news and sports, are not rated
and, therefore, are not subject to blocking by V-chip technology.
Finally, numerous studies have raised serious questions about the
accuracy of the television ratings on which the effectiveness of a
V-chip depends. In this case, for example, the V-chip would have
failed a parent attempting to shield her children from exposure to
nudity by filtering out all programs with an "S" content descriptor
(for "sexual situations") since ABC did not include such a descriptor
for this program.
48. The ABC Affiliates also argue that a finding of indecency in this case
is unconstitutionally overbroad because it amounts to proscription of
"all non-sexual nudity on television." This argument is based on a
false premise. As discussed above, our finding that the broadcast
included a depiction of sexual or excretory organs - namely a woman's
buttocks - was necessary, but not sufficient, to find the broadcast
indecent. We find the nudity here indecent because it was patently
offensive when considered in light of contemporary community standards
for the broadcast medium. In particular, we find that, in context, the
material was shocking, pandering, and titillating. This case therefore
does not present the question whether a prohibition on broadcast of
all "non-sexual nudity" would be constitutionally overbroad.
49. Conflict with Pacifica. The ABC Affiliates also argue that the
"Pacifica decision makes it clear that the fleeting nature of the
nudity depicted here . . . may not be proscribed." We reject this
contention. As an initial matter, the ABC Affiliates are wrong
factually: the nudity included in this broadcast was not fleeting.
Even if it were, however, Pacifica would pose no barrier to a finding
of indecency. First, Pacifica involved spoken expletives, not images
of nudity. Even if it were true that the Court in Pacifica had drawn
the First Amendment line at the twelve minutes it took Carlin to
complete his monologue, there is no reason to believe it would require
the same amount of repetition in a case of nudity. In any event,
contrary to the ABC Affiliates' contention, Pacifica did not decide
that regulation of brief expletives would be unconstitutional but
instead expressly reserved the question.
50. The ABC Affiliates also contend that a forfeiture here would conflict
with Pacifica's recognition that "`context is all-important'" because
of "the fact that the depiction of bare buttocks occurred in a gritty,
realistic police drama unlikely to attract an audience of children,
even at 9:00 p.m." Contrary to the ABC Affiliates' contention, our
finding of indecency takes full account of context and reflects
careful application of three contextual factors we apply in all our
indecency cases. Moreover, it is settled that the Commission is
permitted to regulate indecency between the hours of 6 a.m. and 10
p.m. - the time of day when children are most likely to be in the
audience - and is not required to determine on a
broadcast-by-broadcast basis whether children were watching. The
licensees could have, but did not, broadcast this episode of NYPD Blue
after 10 p.m. - as their counterparts in the Eastern and Pacific time
zones did - and not run afoul of the Commission's indecency
regulations.
IV. CONCLUSION
51. Section 503(b) of the Act, 47 U.S.C. S: 503(b), and section 1.80(a) of
the Commission's rules, 47 C.F.R S: 1.80, both state that any person
who willfully or repeatedly fails to comply with the provisions of the
Act or the rules shall be liable for a forfeiture penalty. For
purposes of section 503(b) of the Act, the term "willful" means that
the violator knew it was taking the action in question, irrespective
of any intent to violate the Commission's rules. Based on our
determination that the stations in question willfully broadcast this
episode of NYPD Blue and the material before us, we find that the ABC
stations willfully violated 18 U.S.C. S: 1464 and section 73.3999 of
the Commission's rules, by airing indecent programming during the NYPD
Blue program on February 25, 2003.
52. The Commission's Forfeiture Policy Statement sets a base forfeiture
amount of $7,000 for the transmission of indecent or obscene
materials. The Forfeiture Policy Statement also specifies that the
Commission shall adjust a forfeiture based upon consideration of the
factors enumerated in section 503(b)(2)(D) of the Act, 47 U.S.C. S:
503(b)(2)(D), such as "the nature, circumstances, extent and gravity
of the violation, and, with respect to the violator, the degree of
culpability, any history of prior offenses, ability to pay, and such
other matters as justice may require." For the following reasons, we
find that $27,500, the maximum applicable forfeiture during the time
the material was broadcast, is an appropriate proposed forfeiture for
the material found to be apparently indecent in this case. The scene
depicts a woman's naked buttocks in a graphic and shocking manner. The
material was prerecorded, and ABC or its affiliates could have edited
or declined the content prior to broadcast. Although ABC included a
warning, we find that a lower forfeiture is not warranted here in
light of all the circumstances surrounding the apparent violation,
including the shocking and titillating nature of the scene. On balance
and in light of all of the circumstances, we find that a $27,500
forfeiture amount for each station would appropriately punish and
deter the apparent violation in this case. Therefore, we find that
each licensee listed in the Attachment is apparently liable for a
proposed forfeiture of $27,500 for each station that broadcast the
February 25, 2003, episode of NYPD Blue prior to 10 p.m.
53. Although we are informed that other stations not mentioned in any
complaint also broadcast the complained-of episode of NYPD Blue, we
propose forfeitures against only those licensees whose broadcasts of
the material between 6 a.m. and 10 p.m. were actually the subject of
viewer complaints to the Commission. This result is consistent with
the approach set forth by the Commission in its most recent indecency
orders. As indicated in those orders, our commitment to an
appropriately restrained enforcement policy justifies this more
limited approach toward the imposition of forfeiture penalties.
Accordingly, we propose forfeitures as set forth in the Attachment.
54. We have thoroughly considered all of the licensees' arguments as well
as the factors listed in section 503(b)(2)(D) of the Act. On balance,
we believe that a forfeiture penalty in the base amount of $27,500
against the stations listed in Attachment A is appropriate.
V. ORDERING CLAUSES
55. ACCORDINGLY, IT IS ORDERED, pursuant to section 503(b) of the
Communications Act of 1934, as amended, and section 1.80 of the
Commission's rules, that each of the ABC stations listed in Attachment
A of this Forfeiture Order are liable for a forfeiture in the amount
of $27,500 each for broadcasting indecent material, in willful
violation of 18 U.S.C. S: 1464 and section 73.3999 of the Commission's
rules.
56. IT IS FURTHER ORDERED that the NAL is cancelled as to Northeast Kansas
Broadcast Service, Inc., for KTKA-TV; KFBB Corporation, for KFBB-TV;
Louisiana Television Broadcasting, LLC, for WBRZ-TV; WXOW-WQOW
Television, Inc., for WXOW-TV; KMBC Hearst-Argyle Television, Inc.,
for KMBC-TV; KHBS Hearst-Argyle Television, Inc., for KHOG-TV; and
Forum Communications Company, for WDAY-TV, for the reasons discussed
elsewhere in this Order.
57. IT IS FURTHER ORDERED, pursuant to section 1.80 of the Commission's
rules, that each of the stations listed in Attachment A of this
Forfeiture Order SHALL PAY the full amount of its respective
forfeiture by the close of business on Thursday, February 21, 2008.
Payment of the forfeiture must be made by check or similar instrument,
payable to the order of the Federal Communications Commission. The
payment must include the NAL/Account number and FRN Number referenced
in the Attachment. Payment by check or money order may be mailed to
Federal Communications Commission, P.O. Box 979088, St. Louis, MO
63197-9000. Payment by overnight mail may be sent to U.S. Bank -
Government Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St.
Louis, MO 63101. Payments by wire transfer may be made to ABA Number
021030004, receiving bank TREAS/NYC, and account number 27000001. For
payment by credit card, an FCC Form 159 (Remittance Advice) must be
submitted. When completing the FCC Form 159, enter the NAL/Account
number in block number 23A (call sign/other ID), and enter the letters
"FORF" in box 24A (payment type code). Requests for full payment under
an installment plan should be sent to: Chief Financial Officer -
Financial Operations, 445 12th Street, S.W., Room 1-A625, Washington,
D.C. 20554. Please contact the Financial Operations Group Help Desk
at 1-877-480-3201 or Email: ARINQUIRIES@fcc.gov with any questions
regarding payment procedures. Any station that pays its forfeiture by
close of business on February 21 shall so notify Ben Bartolome, Acting
Chief of the Enforcement Bureau's Investigations and Hearings
Division, by email (Ben.Bartolome@fcc.gov) by close of business that
day. The Commission will ensure that each of the stations listed in
Attachment A of the Forfeiture Order is notified immediately upon
release by the Commission.
58. IT IS FURTHER ORDERED that the Commission will not consider reducing
or canceling a forfeiture in response to a claim of inability to pay
unless the respondent submits: (1) federal tax returns for the most
recent three-year period; (2) financial statements prepared according
to generally accepted accounting practices ("GAAP"); or (3) some other
reliable and objective documentation that accurately reflects the
respondent's current financial status. Any claim of inability to pay
must specifically identify the basis for the claim by reference to the
financial documentation submitted.
59. IT IS FURTHER ORDERED that a copy of this Forfeiture Order shall be
sent, by Certified Mail/Return Receipt Requested, to each of the
licensees identified in Attachment A hereto and to their respective
counsel and representatives identified in Attachment B hereto.
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
Secretary
ATTACHMENT A
Forfeitures For February 25, 2003
Broadcasts Of NYPD Blue
Licensee Name Station Call
and Mailing FRN No. NAL Acct. Sign and Facility Forfeiture
Address No. Community of ID Nos. Amount
License
Cedar Rapids
Television KCRG-TV
Company, 2nd
Avenue at 5th 0002589489 200832080013 Cedar 9719 $27,500
Street, NE, Rapids, IA
Cedar Rapids,
IA 52401
Centex
Television KXXV(TV)
Limited 0001675719 200832080014 9781 $27,500
Partnership, P. Waco, TX
O. Box 2522,
Waco, TX 76702
Channel 12 of
Beaumont, Inc.,
KBMT(TV)
525 Interstate 0006587307 200832080015 10150 $27,500
Highway, 10 Beaumont, TX
South,
Beaumont, TX
77701
Citadel
Communications,
LLC, 44 KLKN(TV)
Pondfield Road, 0003757481 200832080016 11264 $27,500
Suite 12, Lincoln, NE
Bronxville, NY
10708
KLTV/KTRE
License
Subsidiary,
LLC, 201 Monroe KLTV(TV)
Street, RSA 0015798341 200832080017 68540 $27,500
Tower 20th Tyler, TX
Floor,
Montgomery, AL
36104
Duhamel
Broadcasting KOTA-TV
Enterprises, 0002433340 200832080018 17688 $27,500
518 St. Joseph Rapid City,
Street,, Rapid SD
City, SD 57701
Gray Television
Licensee Corp., KAKE-TV
1500 North West 0002746022 200832080020 65522 $27,500
Street, Wichita, KS
Wichita, KS
67203
Gray Television
Licensee, Inc., KLBY(TV)
0002746022 200832080021 65523 $27,500
P. O. Box 10, Colby, KS
Wichita, KS
67201
KSTP-TV, LLC,
3415 University KSTP-TV
Avenue, West, 0009769621 200832080022 28010 $27,500
St. Paul, MN St. Paul, MN
55114-2099
KATC
Communications, KATC(TV)
Inc., 1103
Eraste Landry 0003822285 200832080023 Lafayette, 33471 $27,500
Road, LA
Lafayette, LA
70506
KATV, LLC, P. KATV(TV)
O. Box 77, 0001694462 200832080024 33543 $27,500
Little Rock, AR Little Rock,
72203 AR
KDNL Licensee,
LLC, c/o
Pillsbury KDNL-TV
Winthrop Shaw 0002144459 200832080025 56524 $27,500
Pittman, LLP, St. Louis,
2300 N Street, MO
NW, Washington,
DC 20037-1128
KETV
Hearst-Argyle
Television,
Inc., c/o KETV(TV)
Brooks, Pierce, 0003799855 200832080026 53903 $27,500
et al, P. O. Omaha, NE
Box 1800,
Raleigh, NC
27602
KSWO Television
Company, Inc., KSWO-TV
0001699248 200832080030 35645 $27,500
P. O. Box 708, Lawton, OK
Lawton, OK
73502
KTBS, Inc., P. KTBS-TV
O. Box 44227, 0003727419 200832080031 35652 $27,500
Shreveport, LA Shreveport,
71104 LA
KTRK
Television,
Inc., 77 W. KTRK-TV
66th Street, 0012480109 200832080032 35675 $27,500
Floor 16, New Houston, TX
York, NY
10023-6201
KTUL, LLC, 3333 KTUL(TV)
S. 29th West 0001694413 200832080033 35685 $27,500
Avenue, Tulsa, Tulsa, OK
OK 74107
KVUE
Television, KVUE(TV)
Inc., 400 South 0001545581 200832080034 35867 $27,500
Record Street, Austin, TX
Dallas, TX
75202
McGraw-Hill
Broadcasting
Company, 123 KMGH-TV
Speer 0003476827 200832080036 40875 $27,500
Boulevard, Denver, CO
Denver, CO
80203
Media General
Communication WMBB(TV)
Holdings, LLC,,
333 E. Franklin 0015751217 200832080037 Panama City, 66398 $27,500
Street, FL
Richmond, VA
23219-2213
Mission
Broadcasting, KODE-TV
Inc., 544 Red 0004284899 200832080038 18283 $27,500
Rock Drive, Joplin, MO
Wadsworth, OH
44281
Mississippi
Broadcasting
Partners, c/o
Anne Swanson, WABG-TV
Dow Lohnes
PLLC, 1200 New 0003828753 200832080039 Greenwood, 43203 $27,500
Hampshire MS
Avenue, NW,
Suite 800,
Washington DC
20036-6802
Nexstar
Broadcasting,
Inc., 909 Lake WDHN(TV)
Carolyn 0009961889 200832080040 43846 $27,500
Parkway, Suite Dothan, AL
1450, Irving,
TX 75039
New York Times
Management
Services Co. WQAD-TV
c/o New York 0003481587 200832080041 73319 $27,500
Times Co., 229 Moline, IL
W.43rd Street,
New York, NY
10036-3913
Nexstar
Broadcasting, KQTV(TV)
Inc., 909 Lake
Carolyn 0009961889 200832080042 St. Joseph, 20427 $27,500
Parkway, Suite MO
1450, Irving,
TX 75039
NPG of Texas, KVIA-TV
L.P., 4140 Rio 0006548028 200832080044 49832 $27,500
Bravo, El Paso, El Paso, TX
TX 79902
Ohio/Oklahoma
Hearst-Argyle
Television, c/o KOCO-TV
Brooks Pierce 0001587609 200832080045 12508 $27,500
et al, P. O. Oklahoma
Box 1800, City, OK
Raleigh, NC
27602
Piedmont
Television of WAAY-TV
Huntsville
License, LLC, Huntsville,
c/o Piedmont AL 57292
Television 0004063483 200832080046 $55,000
Holdings LLC, KSPR(TV) 35630
7621 Little
Avenue, Suite Springfield,
506, Charlotte, MO
NC 28226
Pollack/Belz
Communications KLAX-TV
Co., Inc., 5500 0006096200 200832080047 52907 $27,500
Poplar Lane, Alexandria,
Memphis, TN LA
38119-3716
Post-Newsweek
Stations, San
Antonio, Inc.,
c/o KSAT-TV
Post-Newsweek 0002149953 200832080048 53118 $27,500
Stations, 550 San Antonio,
West Lafayette TX
Boulevard,
Detroit, MI
48226-3140
Scripps Howard
Broadcasting KNXV-TV
Co., 312 Walnut 0012487609 200832080049 59440 $27,500
Street, Phoenix, AZ
Cincinnati, OH
45202
Southern
Broadcasting, WKDH(TV)
Inc., P. O. Box 0005411632 200832080050 83310 $27,500
1645, Tupelo, Houston, MS
MS 38802
Tennessee
Broadcasting
Partners, c/o
Russell WBBJ-TV
Schwartz, One 0003828696 200832080051 65204 $27,500
Television Jackson, TN
Place,
Charlotte, NC
28205
Tribune
Television New
Orleans, Inc., WGNO(TV)
1 Galleria 0002847564 200832080052 72119 $27,500
Boulevard, New Orleans,
Suite 850, LA
Metairie, LA
70001
WAPT
Hearst-Argyle
TV, Inc., (CA WAPT(TV)
Corp.) , 0005008867 200832080053 49712 $27,500
Jackson, MS
P. O. Box 1800,
Raleigh, NC
27602
WDIO-TV, LLC,
3415 University WDIO-TV
Avenue West, 0004199139 200832080054 71338 $27,500
St. Paul, MN Duluth, MN
55114-2099
WEAR Licensee,
LLC, Pillsbury, WEAR-TV
Winthrop, Shaw,
Pittman, LLP, 0004970935 200832080055 Pensacola, 71363 $27,500
2300 N Street, FL
NW, Washington,
DC 20037-1128
WFAA-TV, Inc.,
400 South WFAA-TV
Record Street, 0001651496 200832080056 72054 $27,500
Dallas, TX Dallas, TX
75202
WISN
Hearst-Argyle
TV, Inc. (CA WISN-TV
Corp.), 0003792603 200832080057 65680 $27,500
Milwaukee,
P. O. Box 1800, WI
Raleigh, NC
27602
WKOW
Television,
Inc., WKOW-TV
0004383683 200832080058 64545 $27,500
P. O. Box 909, Madison, WI
Quincy, IL
62306
WKRN, G.P., c/o
Brooks Pierce WKRN-TV
et al, P. O. 0005015037 200832080059 73188 $27,500
Box 1800, Nashville,
Raleigh, NC TN
27602
WLS Television,
Inc., 77 W. WLS-TV
66th Street, 0003471315 200832080060 73226 $27,500
Floor 16, New Chicago, IL
York, NY
10023-6201
WSIL-TV, Inc.,
5009 South WSIL-TV
Hulen, Suite 0002808137 200832080061 73999 $27,500
101, Fort Harrisburg,
Worth, TX IL
76132-1989
Young
Broadcasting of
Green Bay, WBAY-TV
Inc., c/o
Brooks Pierce 0004994984 200832080063 Green Bay, 74417 $27,500
et al, P. O. WI
Box 1800,
Raleigh, NC
27602
ATTACHMENT B
Pleadings Filed Responding to NAL
Responses to the Notices of Apparent Liability for Forfeiture:
* Opposition to Notice of Apparent Liability for Forfeiture of 50
Television Broadcast Stations Affiliated with the ABC Television
Network and of the ABC Television Affiliates Association, filed on
February 11, 2008, by Cedar Rapids Television Company, Licensee of
Station KCRG-TV, Cedar Rapids, Iowa; Centex Television Limited
Partnership, Licensee of Station KXXV(TV), Waco, Texas; Channel 12 of
Beaumont, Inc., Licensee of Station KBMT(TV), Beaumont, Texas; Citadel
Communications, LLC, Licensee of Station KLKN(TV), Lincoln, Nebraska;
Duhamel Broadcasting Enterprises, Licensee of Station KOTA-TV, Rapid
City, South Dakota; Forum Communications Company, Licensee of Station
WDAY-TV, Fargo, North Dakota; Gray Television Licensee, Inc., Licensee
of Stations KAKE-TV, Wichita, Kansas and KLBY(TV), Colby, Kansas; KATC
Communications, Inc., Licensee of Station KATC(TV), Lafayette,
Louisiana; KATV LLC, Licensee of Station KATV(TV), Little Rick
Arkansas; KDNL Licensee, LLC, Licensee of Station KDNL-TV, St. Louis,
Missouri; Hearst-Argyle Television, Inc., Parent of the Licensee of
Stations KETV(TV), Omaha, Nebraska, KHOG-TV, Fayetteville, Arkansas,
KMBC-TV, Kansas City, Missouri, KOCO-TV, Oklahoma City, Oklahoma,
WAPT(TV), Jackson, Mississippi, and WISN-TV, Milwaukee, Wisconsin;
KLTV/KTRE License Subsidiary, LLC, Licensee of Station KLTV(TV),
Tyler, Texas; KSTP-TV, LLC, Licensee of Station KSTP-TV, St. Paul,
Minnesota; KSWO Television Co., Inc., Licensee of Station KSWO-TV,
Lawton, Oklahoma; KTBS, Inc., Licensee of Station KTBS-TV, Shreveport,
Louisiana; KTUL, LLC, Licensee of Station KTUL(TV),Tulsa, Oklahoma;
KVUE Television, Inc., Licensee of Station KVUE(TV), Austin, Texas;
Louisiana Television Broadcasting, LLC, Licensee of Station WBRZ-TV,
Baton Rouge, Louisiana; McGraw-Hill Broadcasting Company, Licensee of
Station KMGH- TV, Denver, Colorado; Media General Communication
Holdings, LLC, Licensee of Station WMBB(TV), Panama City, Florida;
Mission Broadcasting, Inc., Licensee of Station KODE-TV, Joplin,
Missouri; Mississippi Broadcasting Partners, Licensee of Station
WABG-TV, Greenwood, Mississippi; Local TV Illinois License, LLC,
Licensee of Station WQAD-TV, Moline, Illinois; Nexstar Broadcasting,
Inc., Licensee of Stations WDHN(TV), Dothan, Alabama, and KQTV(TV),
St. Joseph, Missouri; Northeast Kansas Broadcast Service, Inc., Former
Licensee of Station KTKA-TV, Topeka, Kansas; NPG of Texas, L.P.,
Licensee of Station KVIA-TV, El Paso, Texas; Piedmont Television of
Huntsville License, LLC, Licensee of Stations WAAY-TV, Huntsville,
Alabama and KSPR(TV), Springfield, Missouri; Pollack/Belz
Communications Co., Inc., Licensee of Station KLAX-TV, Alexandria,
Louisiana; Post-Newsweek Stations, San Antonio, Inc., Licensee of
Station KSAT-TV, San Antonio, Texas; Scripps Howard Broadcasting
Company, Licensee of Station KNXV-TV, Phoenix, Arizona; Southern
Broadcasting, Inc., Licensee of Station WKDH(TV), Houston, Texas;
Tennessee Broadcasting Partners, Licensee of Station WBBJ-TV, Jackson,
Tennessee; Tribune Company, Parent of the Licensee of Station
WGNO(TV), New Orleans, Louisiana; WDIO-TV, LLC, Licensee of Station
WDIO-TV, Duluth, Minnesota; WEAR Licensee, LLC, Licensee of Station
WEAR-TV, Pensacola, Florida; WFAA-TV, Inc., Licensee of Station
WFAA-TV, Dallas, Texas; WKOW Television, Inc., Licensee of Station
WKOW-TV, Madison, Wisconsin; WKRN, G.P., Licensee of Station WKRN-TV,
Nashville, Tennessee; WSIL-TV, Inc., Licensee of Station WSIL-TV,
Harrisburg, Illinois; WXOK-WQOW Television, Inc., Licensee of Station
WXOW-TV, LaCrosse, Wisconsin; Young Broadcasting of Green Bay, Inc.,
Licensee of Station WBAY-TV, Green Bay, Wisconsin;
* Opposition of Channel 12 of Beaumont, Inc. to Notice of Apparent
Liability for Forfeiture filed by Channel 12 of Beaumont, Inc.
("Beaumont"), Licensee of Station KBMT(TV), Beaumont, Texas, on
February 11, 2008 ("Beaumont Response");
* Letter to Benigno E. Bartolome, Acting Chief, Investigations and
Hearings Division, Enforcement Bureau, filed by The Wooster Printing
Company ("WPRC"), Parent of the former Licensee of Station KFBB-TV,
Great Falls, Montana, filed on February 5, 2008 ("WPRC Response");
* Statement of Support filed by Max Media of Montana II LLC ("Max
Media"), current Licensee of Station KFBB-TV, Great Falls, Montana,
filed on February 11, 2008 ("KFBB Response");
* Opposition of ABC, Inc. to Notice of Apparent Liability for Forfeiture
filed on February 11, 2008 by ABC, Inc. ("ABC"), Parent of the WLS
Television, Inc., Licensee of Station WLS-TV, Chicago, Illinois, and
KTRK Television, Inc., Licensee of Station KTRK-TV, Houston, Texas
("ABC Response");
* Response of Former Licensee, filed by Northeast Kansas Broadcast
Service, Inc. ("Northeast"), Former Licensee of Station KTKA-TV,
Topeka, Kansas, on February 6, 2008 ("Northeast Response");
Requests for Extension of Time:
* Petition for Extension of Time filed by Channel 12 of Beaumont, Inc.,
Licensee of Station KBMT(TV), Beaumont, Texas, on February 4, 2008;
* Letter to Matthew Berry, General Counsel, Federal Communications
Commission, cc: Benigno E. Bartolome, Acting Chief, Investigations and
Hearings Division, Enforcement Bureau, Request for Extension of Time
on February 1, 2008 from Forum Communications Company, Licensee of
Station WDAY-TV, Fargo, North Dakota; KVUE Television, Inc., Licensee
of Station KVUE(TV), Austin, Texas; and WFAA-TV, Inc., Licensee of
Station WFAA-TV, Dallas, Texas;
* Motion for Extension of Time filed by Pollack/Belz Communications Co.,
Inc., Licensee of Station KLAX-TV, Alexandria, Louisiana, on February
1, 2008;
* Motion for Extension of Time filed by Post-Newsweek Stations, San
Antonio, Inc., Licensee of Station KSAT-TV, San Antonio, Texas, on
February 1, 2008;
* Motion for Extension of Time KLTV/KTRE License Subsidiary, LLC,
Licensee of Station KLTV(TV), Tyler, Texas, on February 1, 2008;
* Letter to Benigno E. Bartolome, Acting Chief, Investigations and
Hearings Division, Enforcement Bureau, Request for Extension of Time
on February 1, 2008 from Centex Television Limited Partnership,
Licensee of Station KXXV(TV), Waco, Texas; and KSWO Television Co.,
Inc., Licensee of Station KSWO-TV, Lawton, Oklahoma;
* Letter to Benigno E. Bartolome, Acting Chief, Investigations and
Hearings Division, Enforcement Bureau, Request for Extension of Time,
from Scripps Hoard Broadcasting Company, Licensee of Station KNXV-TV,
Phoenix, Arizona, on February 1, 2008;
* Motion by ABC Television Affiliates Association and Named Licensees
for Extension of Time to Response to Notice of Apparent Liability for
Forfeiture and Letter to Matthew Berry, General Counsel, Federal
Communications Commission, cc: Benigno E. Bartolome, Acting Chief,
Investigations and Hearings Division, Enforcement Bureau, Request for
Extension of Time on February 1, 2008 from Cedar Rapids Television
Company, Licensee of Station KCRG-TV, Cedar Rapids, Iowa; Citadel
Communications, LLC, Licensee of Station KLKN(TV), Lincoln, Nebraska;
Request for Extension of Time filed by Duhamel Broadcasting
Enterprises, Licensee of Station KOTA-TV, Rapid City, South Dakota;
KATV LLC, Licensee of Station KATV(TV), Little Rick Arkansas;
Hearst-Argyle Television, Inc., Parent of the Licensee of Stations
KETV(TV), Omaha, Nebraska; KHOG-TV, Fayetteville, Arkansas; KMBC-TV,
Kansas City, Missouri; KOCO-TV, Oklahoma City, Oklahoma; WAPT(TV),
Jackson, Mississippi; WISN-TV, Milwaukee, Wisconsin; KTBS, Inc.,
Licensee of Station KTBS-TV, Shreveport, Louisiana; KTUL, LLC,
Licensee of Station KTUL(TV),Tulsa, Oklahoma; NPG of Texas, L.P.,
Licensee of Station KVIA-TV, El Paso, Texas; WKOW Television, Inc.,
Licensee of Station WKOW-TV, Madison, Wisconsin; WKRN, G.P., Licensee
of Station WKRN-TV, Nashville, Tennessee; WSIL-TV, Inc., Licensee of
Station WSIL-TV, Harrisburg, Illinois; WXOK-WQOW Television, Inc.,
Licensee of Station WXOW-TV, LaCrosse, Wisconsin; Young Broadcasting
of Green Bay, Inc., Licensee of Station WBAY-TV, Green Bay, Wisconsin;
Tennessee Broadcasting Partners, Licensee of Station WBBJ-TV, Jackson,
Tennessee; Mississippi Broadcasting Partners, Licensee of Station
WABG-TV, Greenwood, Mississippi; Request for Extension of Time filed
by Louisiana Television Broadcasting, LLC, Licensee of Station
WBRZ-TV, Baton Rouge, Louisiana;
* Motion for Extension of Time of KSPT-TV and WDIO-TV filed on February
4, 2008 by KSTP-TV, LLC, Licensee of Station KSTP-TV, St. Paul,
Minnesota; WDIO-TV, LLC, Licensee of Station WDIO-TV, Duluth,
Minnesota.
STATEMENT OF
COMMISSIONER ROBERT M. McDOWELL
RE: Complaints Against Various Television Licensees Concerning Their
February 25, 2003 Broadcast of the Program "NYPD Blue", Forfeiture Order,
File Nos. EB-03-IH-0122 and EB-03-IH-0353
While I agree with the substance of the Commission's decision today, I
write separately to note my concerns about a procedural aspect to this
proceeding. After the Commission issued its notice of apparent liability
for forfeiture, the stations were given only 17 days to file a response -
far shorter than the 30 days that is our usual practice. In this instance,
the 52 stations, represented by the network and affiliates association,
had the resources and wherewithal to prepare a comprehensive and timely
response. That may not always be the case. I hope that in future
proceedings, we will grant parties a more reasonable opportunity to
respond to Commission charges.
The NAL Acct. No. and FRN number for each licensee subject to this
Forfeiture Order are listed in Attachment A, infra.
See 47 U.S.C. S: 503(b); 47 C.F.R. S: 1.80.
See 18 U.S.C. S: 1464; 47 C.F.R. S: 73.3999.
See Letter from William D. Freedman, Deputy Chief, Investigations and
Hearings Division, Enforcement Bureau, Federal Communications Commission,
to Susan L. Fox, ABC, Inc., dated February 3, 2004 ("LOI").
See Letter from Susan L. Fox, ABC, Inc., to William D. Freedman, Deputy
Chief, Investigations and Hearings Division, Enforcement Bureau, Federal
Communications Commission, dated February 9, 2004; Letter from John W.
Zucker, Senior Vice President, Law and Regulation, ABC, Inc., and Susan L.
Fox, Vice President, Government Relations, The Walt Disney Company, to
William D. Freedman, Deputy Chief, Investigations and Hearings Division,
Enforcement Bureau, Federal Communications Commission, dated February 17,
2004 ("February 17 Response").
See Complaints Against Various Television Licensees Concerning Their
February 25, 2003 Broadcast of the Program "NYPD Blue," Notice of Apparent
Liability for Forfeiture, FCC 08-25, at P:P: 9-10 (rel. January 25, 2008)
("NAL").
See id.
The "safe harbor" is that part of each day between 10:00 p.m. and 6:00
a.m. in which indecent programming may be broadcast. See 47 C.F.R. S:
73.3999(b) (stating that "[n]o licensee of a radio or television broadcast
station shall broadcast on any day between 6:00 a.m. and 10:00 p.m. any
material which is indecent.")
See February 17 Response at 7.
See id. at 9.
See id. at 3-4, 9-11.
See id. at 9.
See NAL at P: 11.
Id. at P: 12.
Id at P: 13.
Id at P: 14.
See Attachment B, infra, for a list of these submissions. To the extent
that any of the submissions sought an extension of time within which to
file a substantive response to the NAL, those requests are hereby denied
for the reasons discussed below in Section III.B.2 of this Order.
See 47 U.S.C. S: 503(b).
See 47 C.F.R. S: 1.80.
See The Commission's Forfeiture Policy Statement and Amendment of Section
1.80 of the Rules to Incorporate the Forfeiture Guidelines, Report and
Order, 12 FCC Rcd 17087 (1997), recons. denied, 15 FCC Rcd 303 (1999)
("Forfeiture Policy Statement").
See 47 U.S.C. S: 503(b)(2)(D).
See Industry Guidance on the Commission's Case Law Interpreting 18 U.S.C.
S: 1464 and Enforcement Policies Regarding Broadcast Indecency, Policy
Statement, 16 FCC Rcd 7999, 8002 P: 7 (2001) ("Indecency Policy
Statement").
See NAL at P: 11.
See ABC Affiliates Response at 36-37.
Id. at 37-38.
See ABC Response at 15-16.
See ABC Response at 16-21; ABC Affiliates Response at 39-44.
See, e.g., Complaints Regarding Various Television Broadcasts Between
February 2, 2002 and March 8, 2005, 21 FCC Rcd 2664, 2681 P: 62, 2718 P:
225 (2006) (Omnibus Order) ( finding buttocks are sexual and excretory
organs within the subject matter scope of indecency definition); Entercom
Kansas City License, LLC, Notice of Apparent Liability for Forfeiture, 19
FCC FCC Rcd 25011 P: 7 (2004) (comments concerning contestants' genitals,
buttocks and breasts describe or depict sexual or excretory organs);
Rubber City Radio Group, Notice of Apparent Liability for Forfeiture, 17
FCC Rcd 14745, 14747 P: 6 (Enf. Bur. 2002) (dialogue in complaint
referring to a "baby's ass" referred to a child's excretory organ and thus
came within the first prong of the indecency definition).
See id. Similarly, the Commission also has consistently treated female
breasts as sexual organs though, like the buttocks, they are not
physiologically necessary to procreation. See, e.g., Complaints Against
Various Television Licensees Concerning Their February 1, 2004 Broadcast
of the Super Bowl XXXVIII Halftime Show, Notice of Apparent Liability for
Forfeiture, 19 FCC Rcd 19230 (2004) ("Super Bowl NAL"), affirmed,
Forfeiture Order, 21 FCC Rcd 2760 (2006) ("Super Bowl Forfeiture Order"),
affirmed, Order on Reconsideration, 21 FCC Rcd 6653 (2006), ("Super Bowl
Order on Reconsideration"), on appeal sub nom. CBS Corp. v. FCC, No.
06-3575 (3d Cir. 2006).
See 47 U.S.C. S: 503(b)(1)(D).
See, e.g., Udall v. Tallman, 380 U.S. 1, 16 (1965) (Court "shows great
deference to the interpretation given the statute by the agency charged
with its administration....When the construction of an administrative
regulation rather than a statute is in issue, deference is even more
clearly in order."); Dana Corp. v. ICC, 703 F. 2d 1297, 1300 (D.C. Cir.
1983) ("The [ICC] has not violated its own rules, given the broad
discretion it is accorded in interpreting them"); Solite Corp. v. EPA, 952
F. 2d 473, 497 (D.C. Cir. 1991) ("EPA's determination...was thus the
result of the Agency's interpretation and application of its own rules,
and the interpretation was far from `plainly wrong'"); Chemical Waste
Management, Inc .v. EPA, 869 F. 2d 1526, 1538-39 (D.C. Cir. 1989) ("[a]n
agency's interpretation of its own regulations will be accepted unless it
is plainly wrong" ); General Carbon Co. v. OSHRC, 860 F.2d 479, 483 (D.C.
Cir. 1988) ("petitioner, in asserting that the agency has misconstrued its
own standards, has assumed a heavy burden....This court has previously
noted `the high level of deference to be afforded an agency on review when
the issue turns on the interpretation of the agency's own prior
proclamations.").
Under the "nuisance" rationale upheld by the Supreme Court in Pacifica, it
is appropriate to treat as coming within the scope of the indecency
definition those body parts that are considered socially inappropriate to
reveal in public for "[a]s Mr. Justic Sutherland wrote a `nuisance may be
merely a right thing in the wrong place, -- like a pig in the parlor
instead of the barnyard." FCC v. Pacifica Foundation, 438 U.S. 726, 750
(1978) ("Pacifica"). Under its nuisance approach, the Commission has
determined that daytime and primetime broadcast programming is the "wrong
place" to display naked buttocks in a patently offensive manner.
Indeed, the arguments presented by the ABC Affiliates demonstrate the
absurdity of employing a technical physiological definition in the context
of indecency regulation. First, the ABC Affiliates maintain, from a
medical standpoint, that the skin is an excretory organ because it
excretes perspiration. See ABC Affiliates Response at 37 & n.42. But it is
preposterous to suggest that any display of skin falls within the subject
matter scope of our indecency regulation, and the ABC Affiliates even
disclaim the logical consequence of their own argument, stating that the
"ABC Affiliates do not believe that the Commission intends . . . to
proscribe depictions of skin as an excretory organ." Id. Such a concession
indicates that the ABC Affiliates do not seriously believe their own
argument - that the subject matter scope of our indecency regulation is to
be determined through technical physiological definitions. Second, the ABC
Affiliates draw a distinction between excretion, which they claim refers
to the elimination of the waste products of metabolism from the body, and
defecation, which refers to the elimination of feces, "undigested food and
bacteria [that] have never been a part of the functioning of the body."
Id. at 38. Thus, pursuant to the technical physiological definitions
presented by the ABC Affiliates, sweating would be considered an
"excretory activity" while defecating would not. Again, such an approach
makes no sense in the context of indecency regulation, and no reasonable
person would believe that the Commission would use such technical
definitions in the context of indecency regulation. We note, for instance,
that according to the logic of the ABC Affilates, two of the seven "Filthy
Words" in the Carlin monologue at issue in Pacifica - "shit" and "tits" -
would appear not to fall within the subject matter scope of our indecency
definition.
See ABC Affiliates Response at 44-45.
Pacifica, 438 U.S. at 739 n.13.
Id.
Indecency Policy Statement, 16 FCC Rcd at 8003 P: 10. See id. at 8002-8003
P: 9 ("contextual determinations are necessarily highly fact-specific,
making it difficult to catalog comprehensively all of the possible
contextual factors that might exacerbate or mitigate the patent
offensiveness of particular material.").
See ABC Response at 26; ABC Affiliates Response at 51-52, 54-55, 61-62
See Indecency Policy Statement, 16 FCC Rcd at 8004-8008 P:P: 13-16.
Cf. Complaints by Parents Television Council Against Various Broadcast
Licensees Regarding Their Airing of Allegedly Indecent Material,
Memorandum Opinion and Order, 20 FCC Rcd 1920, 1927 P: 9 (2005) ("PTC I")
(material that involved "characters whose sexual and/or excretory organs
were covered by bedclothes, household objects, or pixilation" but did not
"actually depict[ ] sexual or excretory organs" held not sufficiently
graphic or explicit to support a patent offensiveness finding).
See Super Bowl Forfeiture Order, 21 FCC Rcd at 2765-66 (broadcast of a
female performer's breast was graphic and explicit); Young Broadcasting of
San Francisco, Notice of Apparent Liability, 19 FCC Rcd 1751 (2004)
(broadcast of performer's exposed penis was graphic and explicit).
See ABC Affiliates Response at 47. See Omnibus Order at 2716 P: 215 (scene
from The Today Show was not graphic or explicit where "[t]he shot of the
man's penis is not at close range, and the overall focus of the scene is
on the rescue attempt, not on the man's sexual organ"); Complaints by
Parents Television Council Against Various Broadcast Licensees Regarding
Their Airing of Allegedly Indecent Material, Memorandum Opinion and Order,
20 FCC Rcd 1931, 1938 P: 9 (2005) ("PTC II") ("rudimentary depiction of a
cartoon boy's buttocks" was not sufficiently graphic or explicit to
support a patent offensiveness finding).
See ABC Response at 18-19.
See id.
See Indecency Policy Statement, 16 FCC Rcd at 8008 P: 17.
See id.
See ABC Response at 21-24; ABC Affiliates Response at 48-50.
In any event, even were we to conclude that the second principal factor in
our contextual analysis does not support a finding a patent offensiveness,
we would still reach the same conclusion based on the strength of the
first and third principal factors. See, e.g., Super Bowl Forfeiture Order,
21 FCC Rcd at 2766 P: 12; Young Broadcasting of San Francisco, 19 FCC Rcd
at 1755 P:P: 10, 12 (broadcast of performer's exposed penis was graphic
and explicit).
ABC Response at 31.
While the scene does not depict any sexual response in the child, the
effect of the nudity on the child is joked about later in the episode.
The woman, who is on the police force, is discussing with another
policewoman whether seeing her naked might have a long-term impact on the
boy when the older detective who is the boy's father walks into the squad
room. The woman asks him: "How was he when you dropped him off at
school?" He responds: "Dropped him off at a Hooters." When she looks
perplexed, he adds: "He insisted," at which point she smiles and walks
away.
See WPBN/WTOM License Subsidiary, Inc., Memorandum Opinion and Order, 15
FCC Rcd 1838, 1840 (nudity in broadcast of Schindler's List not patently
offensive when considered in context of World War II concentration camp).
See id. at 1840 P: 6.
ABC Affiliates Response at 57.
Neither do we credit ABC's argument that the nudity here is presented in a
similar manner to the expletives in Saving Private Ryan. See ABC Response
at 27, (citing 20 FCC Rcd 4507) (In Complaints Against Various 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, 20 FCC Rcd 4507 (2005), the Commission found
that use of coarse, vulgar expletives in broadcast of Saving Private Ryan
not patently offensive when considered in wartime context). The conclusion
that the material here (a woman disrobing to reveal her naked buttocks) is
presented in a pandering and titillating manner whereas the material in
Saving Private Ryan (expletives uttered by soldiers in the midst of World
War II) was not presented in a pandering and titillating manner is
entirely unremarkable.
See ABC Affiliates Response at 58. For the same reason, we reject the ABC
Affiliates' assertion that the Commission has created a per se prohibition
of nudity. We need not address Respondents' reliance on unpublished staff
letters denying indecency complaints against broadcasts of the film
Catch-22 and other programs that contained nudity. See ABC Response at
18-19, 25-27; ABC Affiliates Response at 58-60. See 47 C.F.R. S: 0.445(e)
(unpublished opinions and orders of the Commission or its staff "may not
be relied upon, used or cited as precedent, except against persons who
have actual notice of the document in question or by such persons against
the Commission"); Pathfinder Communications Corp., Memorandum Opinion and
Order, 18 FCC Rcd 9272, 9279 P: 13 & n.47 (2003); see also Indep. Ins.
Agents of America, Inc. v. Ludwig, 997 F.2d 958, 962 (D.C. Cir. 1993) ("In
the real world of agency practice, informal unpublished letters should not
engender reliance.") (internal quotes and citations omitted).
See Omnibus Order, 21 FCC Rcd at 2702 P: 158 ("the touching of the breasts
is not portrayed in a sexualized manner, and does not appear to elicit any
sexual response from Grace.").
See ABC Response at 27; ABC Affiliates Response at 51-52.
See ABC Affiliates Response at 52.
See ABC Response at 26-27.
Action for Children's Television v. FCC, 852 F.2d 1332, 1340 (D.C. Cir.
1988) ("ACT I")
As ABC points out, the Commission made clear in dismissing indecency
complaints against broadcasts of Schindler's List and Saving Private Ryan
that a prominent broadcast parental advisory, while not necessarily
precluding an indecency finding, should be considered in assessing the
degree to which the broadcaster is acting in a responsible manner and the
degree to which the public may be surprised and offended by unexpected
material. See ABC Response at 34-35 (citing 20 FCC Rcd at 4513 P:P: 15-16,
15 FCC Rcd at 1840 P: 6, 1842 P: 13); ABC Affiliates Response at 61-62.
See ABC Response at 10-14 (citing Complaints Regarding Various Television
Broadcasts Between February 2, 2002 and March 8, 2005, Order, 21 FCC Rcd
13299 (2006) ("Omnibus Remand Order")); ABC Affiliates Response at 21-34
(citing Omnibus Order, 21 FCC Rcd at 2673 P: 32, 2676 P: 42, 2687 P: 86;
Complaints Regarding Various Television Broadcasts Between February 2,
2002 and March 8, 2005, Order, 21 FCC Rcd 13299, 13328-329 P:P: 74-77
(2006) ("Omnibus Remand Order")). In addition, Channel 12 of Beaumont,
Inc. (Beaumont), which joined in the ABC Affiliates Response, filed a
supplement directed to matters pertinent to Station KBMT(TV). See Beaumont
Response.
See ABC Response at 10-14; ABC Affiliates Response at 23-29; Beaumont
Response at 4.
See ABC Response at 10-14; ABC Affiliates Response at 21-34; Beaumont
Response at 6.
See Super Bowl Order on Reconsideration 21 FCC Rcd at 6665 P: 30.
See Omnibus Remand Order, 21 FCC Rcd at 13323 P: 57, n.180, 13328-329
P:75.
See Omnibus Remand Order, 21 FCC Rcd at 13323 P: 57, n.180
We reject the ABC Affiliates' argument that the complaints singularly
concern the exposure of a child actor to adult female nudity on the set of
NYPD Blue during production of the episode and cannot be read to raise a
broadcast indecency issue. See ABC Affiliates Response at 24. There is no
reasonable basis for this extremely narrow construction of the complaints.
Indeed, many of the complaints specifically stated, "it is shameless that
this kind of broadcast is going unchallenged by the FCC." We note, in this
regard, that the Commission does not require that indecency complaints be
"letter perfect," or provide an exact description of the allegedly
indecent material. See, e.g., Indecency Policy Statement, 16 FCC Rcd at
8015 P: 24 & n.20 citing Citicasters Co., Licensee of Station KSJO(FM),
San Jose, California, Notice of Apparent Liability, 15 FCC Rcd 19095 (Enf.
Bur. 2000) (forfeiture paid). Once the Commission receives a valid
complaint, it reviews the program material to determine whether it is
indecent.
See e-mail from William H. Davenport, Chief, Investigations and Hearings
Division, Enforcement Bureau, Federal Communications Commission dated
December 29, 2005.
Id.
Contrary to the ABC Affiliates' suggestion, there is no requirement that
the complainant include a physical address matching the affiliate's
television market. See ABC Affiliates Response at 23.
See Indecency Policy Statement, 16 FCC Rcd at 8015, P: 24 (requirements
generally for consideration of an indecency complaint). There is no merit
in the contention that it was improper for the staff to seek additional
clarifying information from the complainants. The staff exercises its
reasonable discretion in determining whether a particular complaint
warrants further inquiry or should be dismissed as insufficient. The
decision here to seek further identifying information was well within that
discretion. In any event, even if the initial complaints had been
dismissed, our ordinary practice would have afforded the complainants the
option to refile their complaints with additional information.
See ABC Response at 10-11; ABC Affiliates Response at 28-29; Beaumont
Response at 4.
See Omnibus Remand Order, 21 FCC Rcd at 13328-329 P: 75.
We do note, however, that we must exclude as insufficient under the
enforcement policy set forth in the Omnibus Order the complaints against 5
stations from the NAL - specifically, WBRZ-TV, Baton Rouge, LA; WXOW-TV,
LaCrosse, WI; KMBC-TV, Kansas City, MO, KHOG-TV, Fayetteville, AR, and
WDAY-TV, Fargo, ND.
See ABC Response at 12-13; ABC Affiliates Response at 23-24; Beaumont
Response at 4-6.
See Indecency Policy Statement, 16 FCC Rcd at 8015, P: 24.
The ABC Affiliates argue that the Commission's production of the
complaints, pursuant to numerous FOIA and informal requests, compounded
the alleged injury to their due process rights and more specifically, that
the Commission never provided copies of complaints respecting eight of the
stations cited in the NAL. See ABC Affiliates Response at 14-17, 22-23.
Two of these stations, KTKA-TV and KFBB-TV, are no longer subject to
forfeitures for reasons discussed elsewhere in this Order, and thus the
argument as to them is moot. As to the remaining six stations, the
Commission responded on an expedited basis to all requests for complaints
concerning stations named in the NAL where the requesting party
represented the station(s) whose complaints it sought. Our records
reflect that the only party requesting the complaints for these six
stations did not indicate that it represented these stations and the
complaints were not, therefore, provided on an expedited basis. The
complaints have now been provided, but any prejudice alleged to have
resulted from the timing of their production must be attributed to the
stations' failure to timely request them.
In addition, the ABC Affiliates point out that certain discrepancies among
the responses to their FOIA requests for the underlying complaints -
mainly, the format of the information provided - raised questions as to
whether they had received copies of the genuine complaints. See ABC
Affiliates Response at 22-23. We have since corrected any such
deficiencies, to the extent they existed. We note, in this regard, that
the parties have not established that they suffered any actual harm as a
result of these discrepancies and that they were able to and did rely on
the complaints in responding to the NAL. Moreover, in responding to the
parties' requests for the underlying complaints, we explained that the
copies we first produced were Access database versions of the complaints
rather than the original Outlook e-mail versions. See E-mail from Ben
Bartolome to Mark Prak, Wade Hargrove, and David Kushner, sent Monday,
February 4, 2008, at 8:02 p.m. (attaching copies of complaints in Access
Version) (copy of E-mail available in FCC record). The next day, we
located and produced the original Outlook versions. See E-mail from Ben
Bartolome to Mark Prak, Wade Hargrove, and David Kushner, sent Tuesday,
February 5, 2008, at 4:54 p.m. (attaching copies of same complaints, but
in Outlook version) (copy of E-mail available in FCC record). There is no
question that the complaints we provided were "genuine."
See ABC Affiliates Response at 9-21.
See Beaumont Response at 5-6.
See ABC Affiliates Response at 11-13.
See Letter from William D. Freedman, Deputy Chief, Investigations &
Hearings Division, Enforcement Bureau, FCC to Susan L. Fox, Esq., ABC
Inc., dated February 3, 2004 ("Letter of Inquiry").
See ABC Affiliates Response at 12.
We note that potential statute of limitations concerns under 28 U.S.C. S:
2462 warranted the Commission's action in providing Respondents a shorter
time period than usual to respond to the NAL.
See supra, P:2.
See 47 C.F.R. S: 1.80(f)(3) (emphasis added).
See ABC Affiliates Response at 21; 47 C.F.R. S: 1.80(f)(1)(ii).
See NAL at P:P: 9-19.
See ABC Affiliates Response at 10.
See Infinity Broadcasting Corporation of Los Angeles, Memorandum Opinion
and Order, 16 FCC Rcd 6867, 6869 P: 8 nn.2-3 (Enf. Bur. 2001), affirmed,
Memorandum Opinion and Order, 17 FCC Rcd 9892 (2002).
See Motion to Dismiss, filed by Gray Television Licensee, Inc., Licensee
of Stations KAKE-TV, Wichita, Kansas and KLBY(TV), Colby, Kansas, on
February 11, 2008 ("Gray Response").
See id. at 2.
See id.
See id.
See id. at 1-2 (citing Television Satellite Stations Review of Policy &
Rules, Second Further Notice of Proposed Rulemaking, 6 FCC Rcd 5010 P: 3
(1991); Review of the Commission's Regulations Governing Television
Broadcasting, Report and Order, 14 FCC Rcd 12903, 12943 P: 90 (1999); 2002
Biennial Regulatory Review, Report and Order and Notice of Proposed
Rulemaking, 18 FCC Rcd 13620, 13710 P: 233 (2003); Television Satellite
Stations: Review of Policy & Rules, Report and Order, 6 FCC Rcd 4212,
4215-16 P:P: 23-25 (1991)).
See id. at 2.
See supra, note 94.
We note, in fact, that the Commission has previously imposed a forfeiture
on a satellite station for violation of the indecency rules and has done
so while concurrently imposing a forfeiture on the satellite station's
parent station for airing the same programming. See, e.g., Super Bowl NAL,
19 FCC Rcd at 19235 P: 13 (finding satellite stations KCCO-TV and KCCW-TV
and their parent station, WCCO-TV, apparently liable for forfeiture for
their broadcast of the Super Bowl XXXVIII Halftime Show), affirmed,
Forfeiture Order, 21 FCC Rcd 2760 (2006), affirmed, Order on
Reconsideration, 21 FCC Rcd 6653 (2006), pet. for review pending on
different grounds, CBS Corp. v. FCC, No. 06-3575 (3d Cir. Filed July 28,
2006).
On a related topic, we note that the Commission has specifically stated
that it will apply indecency rules to the low power broadcast service. See
An Inquiry into the Future Role of Low Power Television Broadcasting and
Television Translators in the National Telecommunications System, 51 Rad.
Reg. 2nd 476 P: 105 (1982) (noting that the statutory prohibitions against
broadcast of obscene material apply to the low power service).
See Gray Response at 2.
See Television Satellite Stations: Review of Policy & Rules, Report and
Order, 6 FCC Rcd 4212, 4215 P: 23 (1991) (eliminating 5% restriction on
local programming by satellite television stations).
See Response of Former Licensee, filed by Northeast Kansas Broadcast
Service, Inc., Former Licensee of Station KTKA-TV, Topeka, Kansas, on
February 6, 2008; Letter to Benigno E. Bartolome, Acting Chief,
Investigations and Hearings Division, Enforcement Bureau, filed by The
Wooster Printing Company, Parent of the Former Licensee of Station
KFBB-TV, Great Falls, Montana, filed on February 5, 2008.
See 438 U.S. 726 (1978).
See ABC Response at 43 (citing Fox Television Stations, 489 F.3d at
464-66).
Action for Children's Television v. FCC, 58 F.3d 654, 660 (D.C. Cir. 1995)
(en banc) cert. denied, 516 U.S. 1043 (1996) ("ACT III "). See also
Prometheus Radio Project v. FCC, 373 F.3d 372, 401-02 (3d Cir. 2004)
(rejecting argument that broadcast ownership regulations should be
subjected to higher level of scrutiny in light of rise of "non-broadcast
media").
Turner Broadcasting Sys., Inc. v. FCC, 520 U.S. 180, 190 (1997) ( quoting
U.S. v. Southwestern Cable Co., 392 U.S. 157, 177 (1968)). See id. at 194
(though broadcast television is "but one of many means for communication,
by tradition and use for decades now it has been an essential part of the
national discourse on subjects across the whole broad spectrum of speech,
thought, and expression.").
See U.S. Census Bureau, Statistical Abstract of the United States 737
(2006).
Annual Assessment of the Status of Competition in the Market for the
Delivery of Video Programming, Twelfth Annual Report, 21 FCC Rcd 2503,
2506-07 P: 8, 2508 P: 15 (2006).
See id. at 2552 P: 97. It also has been estimated that almost half of
direct broadcast satellite subscribers receive their broadcast channels
over the air, Media Bureau Staff Report Concerning Over-the-Air Broadcast
Television Viewers, 2005 WL 473322, No. 04-210, P: 9 (MB Feb. 28, 2005),
and many subscribers to cable and satellite still rely on broadcast for
some of the televisions in their households. Annual Assessment, 21 FCC
Rcd at 2508 P: 15.
See Kaiser Family Foundation, Generation M: Media in the Lives of 8-18
Year-olds 77 (2005). According to the Kaiser Family Foundation report, 68
percent of children aged eight to 18 have a television set in their
bedrooms, and nearly half of those sets do not have cable or satellite
connections.
A large disparity in viewership still exists between broadcast and cable
television programs. For example, during the week of February 4, 2008,
each of the top ten programs on broadcast television had more than 12.5
million viewers, while only two programs on cable television that week -
both professional wrestling programs - managed to attract more than 5
million viewers. See Nielsen Media Research, "Trend Index," available at
http://www.nielsen.com/media/toptens_television.html (visited Feb. 14,
2008). Indeed, that same week, 90 of the top 100-rated programs appeared
on broadcast channels, and the highest rated cable program was number 71.
See Television Bureau of Advertising, "Top 100 Programs on Broadcast and
Subscription TV: Households," available at
http://www.tvb.org/nav/build_frameset.aspx (visited Feb. 14, 2008).
ABC Response at 4.
47 U.S.C. S: 560 (2000). See also United States v. Playboy Entertainment
Group, Inc., 529 U.S. 803 (2000).
ACT III, 58 F.3d at 660.
See infra, P: 47.
See ABC Response at 40-41 (citing 521 U.S. 844 (1997)).
Id. at 871.
ABC Response at 40.
See 438 U.S. at 732.
See ACT I, 852 F.2d at 1339; accord ACT III, 58 F.3d at 659. ABC also
contends that "imposition of forfeitures in this case would be . . .
inconsistent with the Commission's past treatment of similar broadcasts
and similar material," thus rendering the Commission's indecency
enforcement unconstitutionally vague. ABC Response at 39-40. As we explain
above, see supra P:P: 13 - 18, there is no inconsistency, so this argument
necessarily fails.
See Reno v. ACLU, 521 U.S. 844, 867 (1997). First, the Court noted that
the Commission is "an agency that [has] been regulating radio stations for
decades," and that the Commission's regulations simply "designate
when-rather than whether-it would be permissible" to air indecent
material." Id. The CDA, in contrast, was not administered by an expert
agency, and it contained "broad categorical prohibitions" that were "not
limited to particular times." Id. Second, the CDA was a criminal statute,
whereas the Commission has no power to impose criminal sanctions for
indecent broadcasts. See id. at 867, 872. Third, unlike the Internet, the
broadcast medium has traditionally "received the most limited First
Amendment protection." Id. at 867.
See ABC Response at 41-42.
See Indecency Policy Statement, 16 FCC Rcd at 8002, P: 8 and n.15.
See Smith v. United States, 431 U.S. 291, 305 (1977).
See Infinity Radio License, Inc., Memorandum Opinion and Order, 19 FCC Rcd
5022, 5026 P: 12, recon. denied, 19 FCC Rcd 16959 (2004).
See ABC Response at 42.
See ACT I, 852 F.2d at 1340.
See ABC Affiliates' Response at 69.
See ABC Affiliates' Response at 69.
See Pacifica, 438 U.S. at 729, 732.
See Pacifica, 438 U.S. at 739 n.13 ("the validity of the civil sanctions
[for violation of 18 U.S.C. S: 1464] is not linked to the validity of the
criminal penalty.").
See Jenkins v. Georgia, 418 U.S. 153, 157 (1974) ("Miller approved the use
of such instructions [requiring application of state-specific community
standards]; it did not mandate their use."); see also Ashcroft v. ACLU,
535 U.S. 564, 587-89 (2002) (O'Connor, J., concurring in part and
concurring in the judgment) (a national community standard for evaluating
possible indecency on the Internet would be "not only constitutionally
permissible, but also reasonable").
See Ashcroft, 535 U.S. at 591 (Breyer, J., concurring in part and
concurring in the judgment) (First Amendment militates in favor of
national, as opposed to local, community standards in evaluating possible
indecency on the Internet).
See ABC Response at 43-45.
See id. at 44.
ABC Affiliates Response at 65-66.
See Super Bowl Order on Reconsideration, 21 FCC Rcd at 6667 P: 37.
According to a 2003 study, parents' low level of V-chip use is explained
in part by parents' ignorance of the device and the "multi-step and often
confusing process" necessary to use it. Annenberg Public Policy Center,
Parents' Use of the V-Chip to Supervise Children's Television Use 3
(2003). Only 27 percent of mothers in the study group could figure out how
to program the V-Chip, and "many mothers who might otherwise have used the
V-Chip were frustrated by an inability to get it to work properly." Id. at
4.
See Implementation of Section 551 of the Telecommunications Act of 1996,
Report and Order, 13 FCC Rcd 8232, 8242-43, P: 21 (1998).
See, e.g., Barbara K. Kaye & Barry S. Sapolsky, Offensive Language in
Prime-Time Television: Four Years After Television Age and Content
Ratings, 48 Journal of Broadcasting & Electronic Media 554, 563-64 (2004)
(finding that there was more coarse language broadcast during TV-PG
programs than those rated TV-14, just the opposite of what these age-based
ratings would lead a viewer to believe); Henry J. Kaiser Family
Foundation, Parents, Media and Public Policy: A Kaiser Family Foundation
Survey 5 (2004) (nearly 4 in 10 parents of children aged 2-17 stated that
most television programs are not rated accurately); David A. Walsh &
Douglas A. Gentile, A Validity Test of Movie, Television, and Video-Game
Ratings, 107 Pediatrics 1302, 1306 (2001) (study finding that parents
concluded that half of television shows the industry had rated as
appropriate for teenagers were in fact inappropriate, "a signal that the
ratings are misleading.").
See ABC Response at 6.
ABC Affiliates Response at 67.
See supra P: 7 .
See supra P: 16.
ABC Affiliates Response at 63.
See supra P: 15.
Cf. United States v. Martin, 746 F.2d 964, 971-72 (3d Cir. 1984) ("The
hackneyed expression, `one picture is worth a thousand words' fails to
convey adequately the comparison between the impact of the televised
portrayal of actual events upon the viewer of the videotape and that of
the spoken or written word upon the listener or reader.")
See 438 U.S. at 750.
ABC Affiliates Response at 64 (quoting Pacifica, 438 U.S. at 750).
ABC Affiliates Response at 64-65.
See supra P:P: 12 - 18.
See ACT III, 58 F.3d at 665-66. As the D.C. Circuit explained, ratings
data likely under-estimate the number of children in the audience for
indecent programming because "[c]hildren will not likely record, in a
Nielsen diary or other survey, that they listen to or view programs of
which their parents disapprove." Id. at 665. In addition, the court noted
that "changes in the program menu make yesterday's findings irrelevant
today" and "such station-and program-specific data do not take `children's
grazing' into account." Id. at 665-66.
See Southern California Broadcasting Co., 6 FCC Rcd 4387, 4388 (1991).
See The Commission's Forfeiture Policy Statement and Amendment of Section
1.80 of the Rules to Incorporate the Forfeiture Guidelines, Memorandum
Opinion and Order, 12 FCC Rcd 17087, 17113 (1997), recons. denied 15 FCC
Rcd 303 (1999) ("Forfeiture Policy Statement"); 47 C.F.R. S: 1.80(b).
See Complaints Against Various Licensees Regarding Their Broadcast of the
Fox Television Network Program "Married By America" on April 7, 2003,
Notice of Apparent Liability, 19 FCC Rcd 20191, 20196 P: 16 (2004).
The fact that the stations in question may not have originated the
programming is irrelevant to whether there is an indecency violation. See
Review of the Commission's Regulations Governing Programming Practices of
Broadcast Television Networks and Affiliates, Notice of Proposed
Rulemaking, 10 FCC Rcd 11951,11961, P: 20 (1995) (internal quotation
omitted) ("We conclude that a licensee is not fulfilling his obligations
to operate in the public interest, and is not operating in accordance with
the express requirements of the Communications Act, if he agrees to accept
programs on any basis other than his own reasonable decision that the
programs are satisfactory.").
See Omnibus Order, 21 FCC Rcd at 2673 P: 32; Omnibus Remand Order, 21 FCC
Rcd at 13328-329 P:P: 74-77.
47 C.F.R. S: 1.80.
This list excludes any Freedom of Information Act requests.
Federal Communications Commission FCC 08-55
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Federal Communications Commission FCC 08-55
Federal Communications Commission FCC 08-55
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