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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of
)
Complaints Against Various Licensees
Regarding Their Broadcast of the Fox ) File No. EB-03-IH-0162
Television Network Program "Married By
America" on April 7, 2003 )
)
FORFEITURE ORDER
Adopted: February 21, 2008 Released: February 22, 2008
By the Commission:
I. INTRODUCTION
1. In this Forfeiture Order, issued pursuant to section 503 of the
Communications Act of 1934, as amended, and section 1.80 of the
Commission's rules, we find that the FOX Television Network stations
listed in Attachment A, infra, broadcast indecent material during an
episode of the program "Married By America" on April 7, 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 the licensees of these stations are
liable for a forfeiture in the amount of $7,000 per station.
II. BACKGROUND
2. "Married By America" was a weekly, hour-long "reality-based" program
that was carried on the FOX Television Network in the spring of 2003.
It featured several single adults who agreed to be engaged to and
potentially marry each other, even though they had never previously
met. The April 7, 2003 episode of the program focused on Las Vegas
bachelor and bachelorette parties for two couples that featured
sexually oriented entertainment provided by male and female strippers.
Following the broadcast, the Commission received complaints alleging
that the "Married By America" episode contained indecent material.
After reviewing the complaints and a videotape of the subject episode,
the Enforcement Bureau directed a letter of inquiry to TVT License,
Inc., licensee of Station WTVT(TV), Tampa, Florida, seeking further
information about the episode. By letters dated August 11 and
September 9, 2003, FOX Entertainment Group, Inc. ("FEG") responded to
the LOI. In its LOI responses, FEG identified the licensees of 169
FOX Television Network Stations that had aired the April 7, 2003
episode prior to 10:00 p.m. FEG maintained that the "Married By
America" episode in question did not contain descriptions or
depictions of sexual or excretory organs or activities and, even if it
did, the material was not patently offensive as measured by
contemporary community standards for the broadcast medium.
3. On October 12, 2004, the Commission released the 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 satisfied
the second prong of the indecency analysis, finding it patently
offensive as measured by contemporary community standards for the
broadcast medium. Looking to the three principal factors in our
contextual analysis, we first determined that the material presented
in the episode was "sufficiently graphic and explicit to be indecent."
Turning to the second principal factor in our patent offensiveness
inquiry, whether the material dwells on or repeats at length
depictions or descriptions of sexual or excretory organs or
activities, the Commission rejected FOX's claim that the sexual
material in the episode is fleeting, instead finding that the sexual
matter is plainly dwelled upon. Finally, the Commission concluded that
the material was pandering and titillating, explaining, among other
things, that "[t]he episode depicts the prolonged appearance of
strippers attempting to sexually arouse the party-goers . . . . "
4. Accordingly, the NAL found the licensees of 169 stations that
broadcast the episode apparently liable for forfeitures in the amount
of $7,000 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
5. Respondents raise multiple arguments, each of which is discussed
below. Generally, they assert that the subject episode of "Married By
America" is not actionably indecent under the Commission's prevailing
indecency standard. Respondents further contend that, even if the
episode is actionably indecent, the FOX Affiliates against whom the
NAL was directed should not be sanctioned for having broadcast the
program. Moreover, they argue that the Commission's indecency standard
is unconstitutional on its face and as applied in the NAL. We reject
these arguments, but, for the reasons noted above, confine our
forfeiture action to those stations about which we received
complaints.
A. Application of Indecency Test to "Married By America"
6. Respondents collectively argue that the NAL should be rescinded
because the episode in question of "Married By America" does not
satisfy the Commission's indecency test. In this regard, Respondents,
such as FOX/Affiliates Group, argue that the subject bachelor and
bachelorette scenes included no descriptions or depictions of sexual
organs or activities, and, even if they did, the material was not
presented in a context that could reasonably be construed as patently
offensive because the material was not explicit or graphic; the
episode did not dwell on or repeat any indecent material; and the
broadcast did not pander to, titillate, or shock the audience. We
reject Respondents' arguments.
7. Before addressing these arguments in detail, however, it is
instructive to briefly summarize the material in question. The
program focuses on a bachelorette party for two brides-to-be and a
separate bachelor party for the would-be grooms. It depicts various
scenes from the two parties, each of which features sexually oriented
entertainment provided by nude or semi-nude female and male
"strippers." In one of the first scenes of the bachelorette party, a
male stripper wearing pants and no shirt performs on top of a woman
wearing a miniskirt who is lying on her back on the floor. From the
rear, the camera shows him thrusting his crotch into her face and then
moving down her body toward her upper thighs, where whipped cream is
shown on her bare legs just below her crotch. He places his face
directly above the spot, apparently to lick off the whipped cream.
Then, another woman is shown kneeling behind a topless male stripper,
her hands smearing whipped cream on his stomach. The dancer is then
shown from the front, wearing only shorts, holding the woman's hand by
the wrist and moving it down his chest and stomach towards his crotch,
apparently about to place her hand in his shorts. One of the
brides-to-be is shown placing her lips over a stripper's nipple, which
is covered in whipped cream.
8. Meanwhile, at the bachelor party, two female strippers arrive.
Initially, they are wearing tops but their buttocks are pixilated,
presumably to obscure portions of their buttocks as well as the
g-strings that cover their genitals. The camera shows close-ups of
their stomachs, crotches and hips as they dance and remove their
clothing. One of the grooms-to-be is shown from above and behind,
sitting on a couch without his shirt as the two performers, now
topless, straddle him, apparently kissing one another as a female
voice sings seductively in the background. On the voice-over, the
groom-to-be states the strippers' names and informs the audience that
they are sisters. He also informs the audience that they removed his
shirt and pants, and he is then shown on all fours on the floor. The
two strippers, who are clad only in thongs (their breasts are
pixilated), remove his pants. One kneels beside him as the other
spanks him from behind with a whip or a belt. He is finally shown
lying on his back, shirtless, with the two strippers above him
caressing his chest.
9. Back at the bachelorette party, a female stripper arrives. She sits
on the laps of the two brides-to-be and kisses one. She is then shown
lying topless on a couch, cupping her breasts with her hands as a
bride-to-be straddles her. The other bride-to-be states that they
both had fun with the stripper. "I was touching her. Jill was
touching her. I licked the whipped cream off her..." The first
bride-to-be- is then shown leaning over the stripper, who is again
lying on the couch cupping her breasts, this time with whipped cream
on her chest and stomach. The bride-to-be's face moves up from the
stripper's breasts toward her mouth as both women stick out their
tongues, apparently about to kiss. The other bride-to-be's refusal to
engage in this same activity engenders hard feelings between the two
brides-to-be, but she observes that she "didn't have to lick whipped
cream off her stomach or her boobs."
10. The program then returns to the bachelor party as one groom-to-be
retires to a back room with one stripper (who is again shown wearing a
top and with pixilated buttocks) while the other groom-to-be receives
a lap dance. As he describes his reluctance to engage in such
activity in the voice-over, a stripper is shown straddling him on the
couch, thrusting her crotch toward his, and removing her top (again,
her breasts are pixilated) so that her breasts are a foot or so from
his face. The scene ends with one of the grooms-to-be, who is shown
kissing one of the strippers, stating that there's "nothing wrong with
kissing a stripper before you're married. Kissing a stripper after
you're married, that's when the trouble begins."
11. 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." The material
contained in the episode in question clearly described or depicted
sexual activities and sexual organs. With respect to sexual
activities, the scenes at issue contained depictions or descriptions
of a myriad of activities designed to stimulate sexual arousal,
including, among other things, the massaging and caressing of naked
chests and stomachs, the thrusting of a male stripper's crotch into a
woman's face, a topless female stripper performing a lap dance for one
of the grooms-to-be, the licking of whipped cream off of naked
"stomachs" and "boobs," a topless female stripper spanking with a whip
or a belt the buttocks of a topless man who is on all fours, two
topless female strippers kissing while straddling a shirtless man, and
a female stripper cupping her own bare breasts and puckering her lips.
Respondents' suggestion that the Commission's indecency definition is
limited to the specific act of sexual intercourse finds no support in
our precedent or in common sense. By any reasonable definition, many
of the activities depicted and described at the bachelor and
bachelorette parties constitute sexual activities. The scenes at issue
also depicted sexual organs. While it is true that the nude female
breasts and buttocks shown were pixilated, the Commission has never
held that the full exposure of sexual or excretory organs is required
to satisfy the first prong of the broadcast indecency standard.
12. 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. Turning to the three principal
factors in our contextual analysis, we first examine whether the
material was explicit and graphic. Here, we reject Respondents' claims
that the material was not explicit or graphic. To be sure, the
pixilation of the female strippers' naked breasts and buttocks does
render the material less explicit and graphic than it would have been
in the absence of pixilation. However, the material is still
sufficiently graphic and explicit to support an indecency finding. As
discussed above, the party scenes were graphic in their depictions of
strippers luring partygoers into engaging in sexual behavior. For
example, they included the thrusting of a male stripper's crotch into
a woman's face, a topless female stripper performing a lap dance for
one of the grooms-to-be, a topless female stripper spanking with a
whip or a belt the buttocks of a topless man who is on all fours, and
a female stripper cupping her own bare breasts and puckering her lips.
The fact that isolated body parts were "pixilated" did not obscure the
overall graphic character of the depiction. The mere pixilation of
sexual organs is not necessarily determinative under our analysis
because the material must be assessed in its full context. Here,
despite the obscured nature of the nudity, it is unmistakable that the
partygoers are participating in sexual activities and that sexual
organs are being exposed. Likewise, the fact that the scenes were
carefully edited so that the camera cut away an instant before, for
example, a bride-to-be licked a male stripper's whipped cream-covered
nipple or locked tongues with a female stripper, does not prevent a
finding that the scenes were sufficiently graphic and explicit to
support a finding of patent offensiveness. Despite a few missing
pieces of the visual jigsaw puzzle, a child watching this program
easily could discern that partially nude adults are attending a party
and participating in sexual activities.
13. We also reject Respondents' claims that the material was fleeting.
While FOX/Affiliates Group argues that the strippers' images that the
Commission found to be offensive appeared on screen for a mere 10.5
seconds, the party scenes in this episode contain persistent sexual
activities and run for six minutes, which is not fleeting as we have
construed that term. Indeed, the scenes in question were imbued
throughout with highly charged sexual content. Moreover, a central
point of the entire episode -- indeed the very drama which
FOX/Affiliates Group insists the party scenes were intended to evoke
-- centered on whether the participants could be enticed into engaging
in sexual conduct with male and female strippers.
14. Finally, we find that the material, in context, was presented in a
pandering and titillating manner. Indeed, the whole point of the
strippers' performances appears to be to titillate the brides- and
grooms-to-be, and, by extension, the audience. Furthermore, in
context, it is clear that the sexual activities were presented not to
educate or inform but to arouse the participants and the viewers.
Among other things, the episode depicted a topless female stripper
spanking with a whip or a belt the buttocks of a topless man who is an
all fours, a topless female stripper lying on a couch, cupping her
breasts with her hands as a woman straddles her, two topless female
strippers, who are characterized as sisters, straddling a shirtless
man and kissing one another as a female voice sings seductively in the
background, and those same strippers caressing the chest of the same
shirtless man. This series of events and the others recounted above
were clearly presented in a pandering and titillating manner.
15. Contrary to FOX/Affiliate Group's contentions, we did not in the NAL
and are not here paying "lip service" to the importance of context in
making an indecency determination. Indeed, it is in large part because
of the context in which the material in question was presented that we
conclude that the broadcast was indecent. There is no merit to
FOX/Affiliate Group's claim that, because the material in question was
supposedly an integral part of the episode in question, as it was in
the movie "Saving Private Ryan," we are precluded from finding the
broadcast to be indecent. This case is decidedly different from our
decision involving ABC's broadcast of the movie "Saving Private Ryan."
In denying complaints alleging that the broadcast contained indecent
material because of the use of explicit language, the Commission
reasonably determined that the language at issue in "Saving Private
Ryan," reflecting "the soldiers' strong human reactions to, and often,
revulsion at, those unspeakable conditions and the peril in which they
find themselves," was not used to pander, titillate or shock. It was
entirely reasonable for the Commission to conclude that, in that
context, the explicit language was not pandering or titillating. By
contrast, in the instant case, the scenes showing strippers seducing
bachelor and bachelorette partygoers clearly pandered to and
titillated the viewing audience. It is no defense to argue that the
lurid sexual activities depicted in the party scenes related to the
theme of the program. Indeed, under FOX/Affiliate Group's reasoning, a
graphic and explicit depiction of sexual intercourse could not be
deemed patently offensive so long as it related to the show's theme of
tempting engaged couples into sexual dalliances with hired strippers.
16. We also reject Respondents' claims that the "contemporary community
standards for the broadcast medium" criterion is not ascertainable.
The "contemporary community standards for the broadcast medium"
criterion is that of an average broadcast listener or viewer and does
not encompass any particular geographic area. 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."
17. It is also important to stress that our decision to commence an
investigation and, where appropriate, to impose administrative
sanctions, is not based on whether a particular program receives high
ratings or is the subject of multiple complaints. As a general matter,
we will commence an investigation on the basis of even one properly
filed complaint that raises legitimate concerns as to whether a
licensee has engaged in misconduct. We have followed this course in
the past and will continue to do so in the future.
B. Culpability of FOX Affiliates
18. Respondents argue in the alternative that, even if the material that
was broadcast during the April 7, 2003, episode of "Married By
America" is actionably indecent, licensees of stations affiliated with
the FOX Network should not be subject to a forfeiture penalty.
Although we have already determined that this forfeiture order should
be limited to licensees whose stations served markets from which we
received complaints, we believe it appropriate nonetheless to address
all parties' arguments regarding the subject of affiliate culpability.
1. Pre-Broadcast Preview
19. Cunningham, Falls/Compass Group, FOX/Affiliates Group, Ft. Smith
Group, Hill, Independent, Mission, Pappas Group, Sinclair, and
Warwick/White Knight Group argue that FOX Affiliates had no role in
the selection, planning or approval of the episode in question, which
was transmitted by the network to the FOX Affiliates "precisely at the
moment that the program was scheduled to air." Respondents rely on
Complaints Against Various Television Licensees Concerning their
February 1, 2004, Broadcast of the Super Bowl XXXVIII Halftime Show,
Notice of Apparent Liability for Forfeiture, FCC 04-209 (rel. Sept.
22, 2004), in which the Commission declined to sanction licensees of
the CBS affiliate stations that broadcast the 2004 Super Bowl halftime
show because the affiliates "could not have reasonably anticipated"
that the show would contain apparently indecent material. Respondents
argue that the FOX Affiliates in the instant case were in the same
position with respect to the subject episode of "Married By America"
as the CBS affiliates were with respect to the 2004 Super Bowl
halftime telecast. Consequently, according to Respondents, they should
receive the same treatment as the affiliates in the Super Bowl case.
FOX/Affiliates Group argues that, because "Married By America" was a
reality show which involved audience participation, producers were
constrained by tight production schedules and the need to protect the
integrity of the voting process. Consequently, FOX/Affiliates Group
maintains that "Married By America" was more akin to a live sporting
event than a scripted drama or comedy show, making it difficult for
FOX Affiliates to have had a meaningful opportunity to review the
program in advance. Ft. Smith Group further argues that, even if the
episode had been available for advance review, "it is unrealistic to
assume that individual stations, and especially small market
affiliates, could muster the resources to review and analyze every
network program."
20. We find no merit in these arguments. While "Married By America"
producers may not have had the luxury of being able to film and edit
each episode weeks in advance of air time as they might ordinarily do
for a scripted series, Respondents fail to explain why FOX Television
Network could not have provided FOX Affiliates with a tape of the
episode in question at some time prior to April 7, particularly in
light of the type of material that the producers intended to include
in the episode. Indeed, FOX/Affiliates Group claims that the tight
production schedule only makes it "difficult," not impossible, for
affiliates to review the program's content prior to air time.
Furthermore, we note that, at the conclusion of the program episode
that was broadcast a week earlier, FOX Television Network provided
highlights of the then-upcoming April 7 episode. Such highlights
included many of the scenes that are the subject of this Forfeiture
Order. Consequently, although the April 7 episode may still have been
in production a week before air time, FOX Television Network knew that
it would include the subject bachelor/bachelorette party scenes, and
FOX Affiliates were provided with advance notice of the nature of the
material that was scheduled for broadcast. Thus, they should have been
prepared to screen the program before airing it.
21. We also reject FOX/Affiliates Group's contention that "Married By
America" is akin to a live sporting event because it involved audience
participation. According to FOX/Affiliates Group, FOX Television
Network transmitted the episode to FOX Affiliates at air time in order
to safeguard the show's voting process. However, the decision not to
provide an advance tape of the episode to FOX Affiliates appears to
have been discretionary, not the result of circumstances over which
FOX Television Network lacked control. Indeed, none of the Respondents
contends that FOX Television Network was prevented from providing FOX
Affiliates with a tape of the episode prior to broadcast, had they
requested one. Under these circumstances, we believe that the
comparison between "Married By America" and a live sporting event is
not valid, and Respondent's reliance on our Super Bowl decision is
accordingly misplaced.
22. Finally, we reject Ft. Smith Group's claim that it is unfair and
unreasonable to expect affiliates to review and analyze the network
programs that they broadcast. It is bedrock Commission policy that
broadcast licensees are ultimately responsible for the material that
they air, regardless of the source. It is fundamentally inconsistent
with the obligations of a broadcast licensee to broadcast programming
without regard to - and without even being aware of -- its content.
2. Network Affiliation Agreement
23. Hill and Pappas Group assert that their network affiliation agreements
with FOX prevent them from discharging their obligations as licensees
by impeding their ability to determine which programming is suitable
for viewers in their communities. They explain that their affiliation
agreements place strict limits on the number of occasions that they
may preempt network programming without advance approval from FOX and
that an excessive number of "unauthorized preemptions" could result in
FOX severing its affiliation with them, a consequence that could be
financially devastating. They further maintain that obtaining advance
approval to preempt a particular program is not practical when, as
here, an affiliate is unable to preview the episode because it is
being delivered to the station at the moment it is scheduled to be
broadcast. Hill and Pappas Group conclude:
Thus, the contractual and practical deprivation to the affiliates of a
meaningful power to review and reject undesirable episodes of otherwise
acceptable network program series forces the affiliates into a Hobson's
Choice: either to acquiesce in the network's programming choices and
potentially face Commission sanctions for content which the affiliates had
no role in planning, producing, or approving, as well as suffer local
viewer and advertiser wrath for airing programming that is deemed
offensive to local tastes; or to decline to air an entire series of a
program that is deemed (on the basis of one or more episodes) to run a
risk of containing indecency or other actionable content, which will
likely incur network reprisal, including possible withdrawal of the
affiliation . . . ."
24. We do not agree that these circumstances serve to eliminate or
diminish an affiliate's liability for having broadcast indecent
material. First, as indicated above, the entitlement to hold a
Commission license carries with it certain fundamental obligations,
one of which is to ensure compliance with our rules and to take
responsibility for the programs that a licensee airs. Second, our
rules relating to network affiliation agreements specifically provide
that network affiliation agreements can not prevent or hinder
licensees from rejecting or refusing network programs "which the
station reasonably believes to be unsatisfactory or unsuitable or
contrary to the public interest . . . ." Third, as noted above,
Respondents and the public at large were provided with notice of the
kind of material that the April 7 episode was likely to contain a full
week in advance of its scheduled broadcast. Neither Hill nor Pappas
Group contends that it even attempted to seek permission from FOX
Television Network to preempt the show. Consequently, we find no merit
to their claims that the network affiliation agreements into which
they voluntarily entered and from which they derive substantial
benefits provide a basis for excusing them from liability for airing
the indecent material at issue here.
C. Other Arguments
25. JW, licensee of Low Power Television Station K02NQ, Columbia Missouri;
Mission, licensee of Stations KHMT(TV), Hardin, Montana, and WBAK-TV,
Terre Haute, Indiana; and Smith, permittee of Station WFFF-TV,
Burlington, Vermont, request cancellation of the NAL on the basis that
they did not hold the authorizations for their respective stations at
the time of the subject broadcast. We have already determined that the
NAL should be cancelled as to all licensees whose stations serve
markets from which no specific complaints were received, a category
which includes these markets. Accordingly, the arguments herein raised
by JW, Mission, and Smith are dismissed as moot.
26. In response to the NAL, Sunbeam, licensee of Station WSVN(TV), Miami,
Florida, tendered a check made payable to the Commission in the amount
of $7,000, subject to final agency action with respect to the
FOX/Affiliates Consolidated Response. Having determined that the NAL
should be canceled as to all licensees against which no specific
complaint was filed, including Sunbeam, Sunbeam may file appropriate
documents requesting a refund of the amount it tendered.
D. Constitutional Issues
27. Respondents argue that the Commission's indecency standard is
unconstitutional on its face. In support, they collectively assert
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
Commission has not demonstrated that children are harmed by indecent
broadcasts. Respondents also argue that the Commission's application
of its indecency test in the instant case was unconstitutional because
the Commission failed to exhibit restraint and caution during its
investigation and because the Respondents were denied due process. For
the reasons discussed below, we reject Respondents' arguments.
28. Validity of Indecency Test. FOX/Affiliates Group 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, FOX/Affiliates Group
argues that cable and satellite transmissions now reach the vast
majority of the nation's television households and offer hundreds of
channels as well as the signals of broadcast stations. FOX/Affiliates
Group also maintains that younger people today have ready and
unfettered access to numerous video sources as well as the Internet.
29. We disagree with Respondents' 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 Respondents' 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.
30. 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, as
explained in further detail below, it does not eliminate the need for
the Commission to vigorously enforce its indecency rules. Broadcast
television is also significantly different from the Internet. The
Internet, unlike television, is not accessible to children "too young
to read." And parents who wish to control older children's access to
inappropriate material can use widely available filtering software --
an option that, whatever its flaws, lacks an effective analog in the
context of broadcast television in light of the numerous problems with
the V-chip and program ratings discussed below. Accordingly, there is
no merit to Respondents' claim that Pacifica - and more importantly,
our indecency rules - are invalid, obsolete or outdated.
31. Vagueness and Overbreadth. FOX/Affiliates Group argues that the
Commission's indecency standard is unconstitutionally vague, citing
Reno v. ACLU, a case addressing the constitutionality of provisions of
the Communications Decency Act ("CDA") which 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.
FOX/Affiliates Group 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.
FOX/Affiliates Group further argues that the Commission's vague
indecency standards and fear of government sanctions create a chilling
effect on broadcasters' exercise of their First Amendment rights.
32. We reject Respondents' 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 FCC v. Pacifica Foundation, 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."
33. We also believe that Respondents' 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.
In addition, contrary to Respondents' claims, we do not believe that
requiring broadcasters to exercise care to avoid airing a patently
offensive depiction of sexual activity prior to 10 p.m. unduly
"chills" exercise of their First Amendment rights. As reviewed above,
we do not believe that our indecency standard is unconstitutionally
vague and as the D.C. Circuit observed, "some degree of
self-censorship is inevitable and not necessarily undesirable so long
as proper standards are available."
34. FOX/Affiliates Group further argues that, even if the Commission's
indecency standard is not impermissibly vague, it is
unconstitutionally overbroad, again relying on Reno v. ACLU, wherein
the Court held that a "burden on adult speech is unacceptable if less
restrictive alternatives would be at least as effective in achieving
the legitimate purpose that the statute was enacted to serve."
According to FOX/Affiliates Group, the Commission's current approach
to regulating indecency relegates protected speech to the "wee hours
of the morning" and impedes the First Amendment rights of
broadcasters. We disagree. By channeling indecent broadcasting to
times of day in which fewer children are in the audience, but which
nonetheless remain accessible to adult viewers and listeners, the
Commission permissibly advances the government's interests "without
unduly infringing on the adult population's right to see and hear
indecent material." Indeed, 10:00 PM hardly qualifies as the "wee
hours of the morning," and the D.C. Circuit upheld the "safe harbor"
period in ACT III.
35. FOX/Affiliates Group also assert 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
FOX/Affiliates Group, thus renders the Commission's regulatory scheme
unconstitutionally overbroad.
36. We reject this argument. 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.
37. Harm to Children. FOX/Affiliates Group argues that the Commission's
indecency test is flawed because the Commission has never made the
requisite showing of harm to children from indecent programming. This
argument is without merit. The Supreme Court did not require such
evidence in Pacifica and the D.C. Circuit rejected the need for such
evidence in ACT III, noting that "the Supreme Court has never
suggested that a scientific demonstration of psychological harm is
required in order to establish the constitutionality of measures
protecting minors from indecent speech." It cannot reasonably be
disputed that the government has a "compelling" interest "in
protecting the physical and psychological well-being of minors," nor
that this interest "extends to shielding minors from the influence of
literature that is not obscene by adult standards." The government's
interests in the "well-being of its youth" and in supporting "parent's
claim to authority in their own household" can justify "the regulation
of otherwise protected expression." Just as clearly, "the Government
has a compelling interest in protecting children under the age of 18
from exposure to indecent broadcasts."
++
++
38. Cautious Approach to Enforcement. FOX/Affiliates Group and others
challenge on various grounds the Commission's issuance of the NAL
against stations that were not the subject of viewer complaints
regarding the April 7, 2003 "Married By America" episode. We need not
address these arguments in light of our decision, 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 were received. FOX/Affiliates Group, Cunningham,
and Falls/Compass Group also accuse the Commission of impermissibly
denying all of the licensees that were subject to the NAL, save the
one to which the letter of inquiry was directed, any opportunity to
respond to the Commission's concerns before the Commission issued its
NAL. According to FOX/Affiliates Group, the Commission's "blunderbuss
approach is both unfair to licensees and contrary to the First
Amendment." We find no merit to this argument, which demonstrates a
misunderstanding of the nature of the Commission's forfeiture process
and confuses a notice of apparent liability for a forfeiture with a
forfeiture order. 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 various filings, Respondents availed themselves of the
opportunity to respond the Commission's concerns, belying their claims
to the contrary.
IV. CONCLUSION
39. 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 "Married by America" and the material before us, we find
that the FOX Television Network Stations listed in Attachment A
willfully violated 18 U.S.C. S: 1464 and section 73.3999 of the
Commission's rules, by airing indecent programming during the "Married
By America" program on April 7, 2003.
40. 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."
41. We have thoroughly considered Respondents' arguments as well as the
factors listed in Section 503(b)(2)(D) of the Act. On reflection, we
believe that the forfeiture penalty in the base amount of $7,000
proposed against each of the stations listed in Attachment A in the
NAL is unduly low in light of the nature and gravity of the violation
and the ability of the licensees to pay. If we were proposing a
forfeiture for the first time here, we would be inclined to propose a
significantly higher forfeiture per station. However, we cannot,
consistent with our rules, increase the forfeiture amount without
issuing another NAL, and we are concerned that issuing another NAL at
this late date could jeopardize our ability to enforce the forfeiture.
Therefore, we will impose the forfeiture proposed in the NAL on each
of the stations listed in Attachment A.
V. ORDERING CLAUSES
42. 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 stations listed in Attachment A
of this Forfeiture Order is liable for a forfeiture in the amount of
$7,000 for broadcasting indecent material, in willful violation of 18
U.S.C. S: 1464 and section 73.3999 of the Commission's rules.
43. IT IS FURTHER ORDERED that the NAL is cancelled as to all other
licensees referenced in the NAL.
44. IT IS FURTHER ORDERED that the Commission will entertain appropriate
documents filed by Sunbeam requesting a refund of the $7,000
forfeiture that it previously paid in this proceeding.
45. IT IS FURTHER ORDERED, pursuant to section 1.80 of the Commission's
rules, that within thirty (30) days of the release of this Forfeiture
Order, the stations listed in Attachment A of this Forfeiture Order
SHALL PAY the full amount of its respective forfeiture.
46. IT IS FURTHER ORDERED that 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 appropriate
NAL Account Number and FRN Number referenced in Attachment A. 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. Payment[s] 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 block number 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.
47. 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.
48. 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 C hereto.
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
Secretary
ATTACHMENT A
Licensees and Stations
Licensee Name Station Call
and Mailing FRN No. NAL Acct. No. Sign and Facility Forfeiture
Address Community of ID No. Amount
License
FOX Television
Stations, Inc.
WJBK,
5151 Wisconsin 1529056 200832080064 Detroit, MI 73123 $7,000
Ave., N.W.,
Washington D.C.
20016
FOX Television
Stations, Inc.
KMSP-TV,
5151 Wisconsin 1529056 200832080065 Minneapolis, 68883 $7,000
Ave., N.W., MN
Washington D.C.
20016
FOX Television
Stations, Inc.
WTTG,
5151 Wisconsin 1529056 200832080066 Washington, 22207 $7,000
Ave., N.W., DC
Washington,
D.C. 20016
TVT License,
Inc.
WTVT, Tampa,
5151 Wisconsin 1811074 200832080067 FL 68569 $7,000
Ave., N.W.,
Washington,
D.C. 20016
WDAF License,
Inc.
WDAF-TV,
5151 Wisconsin 3476421 200832080068 Kansas City, 11291 $7,000
Ave., N.W., MO
Washington,
D.C. 20016
GB Roanoke
Licensing LLC
915 Middle 17270307 200832080069 WFXR-TV, 24813 $7,000
River Drive, Roanoke, VA
Suite 409, Ft.
Lauderdale, FL
33304
Journal
Broadcast
Corporation WSYM-TV,
2710192 200832080070 Lansing, MI 74094 $7,000
3355 S. Valley
View Blvd., Las
Vegas, NV 89102
KDSM Licensee,
LLC Pillsbury
Winthrop Shaw
Pittman LLP,
Attn. Kathryn 5019195 200832080071 KDSM-TV, Des 56527 $7,000
R. Schmeltzer, Moines, IA
2300 N Street,
N.W.,
Washington,
D.C. 20037
Lingard
Broadcasting
Corporation WLOV-TV, West
4348322 200832080072 Point, MS 37732 $7,000
P.O. Box 1732,
Tupelo, MS
38802
Meredith
Corporation
WHNS,
1716 Locust 5878004 200832080073 Greenville, 72300 $7,000
Street, Des SC
Moines, IA
50309
Mountain
Licenses, L.P.
2111 University KCYU-LP,
Park Drive, 6175939 200832080074 Yakima, WA 58694 $7,000
Suite 650,
Okemos, MI
48864
WVAH Licensee,
LLC 2000 W. WVAH-TV,
41st. Street, 7283054 200832080075 Charleston, 417 $7,000
Baltimore, MD WV
21211
WZTV Licensee,
LLC Pillsbury
Winthrop Shaw
Pittman, LLC,
Attn: Kathryn 6551758 200832080076 WZTV, 418 $7,000
R. Schmeltzer Nashville, TN
2300 N Street,
N.W.,
Washington,
D.C. 20037
ATTACHMENT B
Responses to NAL
* Letter to William H. Davenport, Chief, Investigations and Hearings
Division, Enforcement Bureau, Federal Communications Commission, from
Henry Goldberg, Esquire, Goldberg, Godles, Wiener & Wright, counsel
for Bluenose Broadcasting of Savannah, LLC ("Bluenose"), dated
December 3, 2004 ("Bluenose Response");
* Cunningham Opposition to Notice of Apparent Liability for Forfeiture,
filed by Cunningham Broadcasting Corporation ("Cunningham") on
December 3, 2004 ("Cunningham Response");
* Joint Response in Opposition to the Notice of Apparent Liability for
Forfeiture, filed jointly by Falls Broadcasting Company and Compass
Communications of Idaho, Inc. (collectively, "Falls/Compass Group") on
December 2, 2004 ("Falls/Compass Joint Response);
* Opposition to Notice of Apparent Liability for Forfeiture, filed by
FOX Broadcasting Company and the Licensees of the Television Broadcast
Stations Affiliated with the FOX Television Network ("FOX/Affiliates
Group") on December 3, 2004 ("FOX/Affiliates Consolidated Response");
* Letter to William H. Davenport, Chief, Investigations and Hearings
Division, Enforcement Bureau, Federal Communications Commission, from
Peter Tannenwald, Esquire, Irwin, Campbell & Tannenwald, P.C., counsel
for Ft. Smith 46, Inc., Marquette Broadcasting, Inc., Montana License
Sub, Inc., Montgomery Communications, Inc., and TV67, Inc.
(collectively, "Ft. Smith Group"), dated December 3, 2004 ("Ft. Smith
Consolidated Response");
* Response to Notice of Apparent Liability for Forfeiture, filed by Hill
Broadcasting Company, Inc. ("Hill") on December 3, 2004 ("Hill
Response");
* Response to Notice of Apparent Liability for Forfeiture, filed by
Independent Communications, Inc. ("Independent") on November 12, 2004
("Independent Response");
* Letter to Marlene H. Dortch, Secretary, Federal Communications
Commission, from Gregory L. Masters, Esquire, Wiley Rein & Fielding
LLP, counsel for JW Broadcasting LLC ("JW"), dated November 5, 2004
("JW Response");
* Opposition to Notice of Apparent Liability for Forfeiture, filed by
Lingard Broadcasting Corporation ("Lingard") on December 3, 2004
("Lingard Response");
* Letter to William H. Davenport, Chief, Investigations and Hearings
Division, Enforcement Bureau, Federal Communications Commission, from
Howard M. Liberman, Esquire, Drinker Biddle & Reath, LLP, counsel for
Mission Broadcasting , Inc. ("Mission"), dated December 7, 2004
("Mission Response");
* Response to Notice of Apparent Liability for Forfeiture, filed jointly
by KMPH(TV) License, LLC; KPTM(TV) License, LLC; and Pappas
Telecasting of Sioux City, L.P. (collectively, "Pappas Group") on
December 3, 2004 ("Pappas Consolidated Response").
* Opposition to Notice of Apparent Liability for Forfeiture, filed by
Sinclair Broadcast Group, Inc. ("Sinclair") on December 3, 2004
("Sinclair Response");
* Letter to William H. Davenport, Chief, Investigations and Hearings
Division, Enforcement Bureau, Federal Communications Commission, from
Jeffrey J. Gee, Esquire, Dow Lohnes & Albertson, PLLC, counsel for
Smith Media License Holdings, LLC ("Smith"), dated December 3, 2004
("Smith Response");
* Letter to Forfeiture Collections Agency, Finance Branch, Federal
Communications Commission, from Marvin Rosenberg, Esquire, Holland &
Knight, counsel for Sunbeam Television Corporation ("Sunbeam"), dated
November 29, 2004 ("Sunbeam Response");
* Opposition to Notice of Apparent Liability for Forfeiture, filed by
United Communications Corporation ("United") on December 3, 2004
("United Response"); and,
* Opposition to Notice of Apparent Liability for Forfeiture, filed
jointly by Warwick Communications, Inc. and White Knight Broadcasting
of Natchez License Corp. (collectively, "Warwick/White Knight Group")
on December 3, 2004 ("Warwick/White Knight Joint Response").
ATTACHMENT C
Licensees' Counsel and Representatives
John C. Quale, Esquire
Skadden, Arps, Slate, Meagher & Flom LLP
1440 New York Avenue, N.W.
Washington, DC 20005
(Counsel for FOX Broadcasting Company)
John C. Quale, Esquire
Skadden, Arps, Slate, Meagher & Flom LLP
1440 New York Avenue, N.W.
Washington, DC 20005
(Counsel for FOX Television Holdings, Inc., FOX Television Stations, Inc.)
Maureen A. O.Connell
Vice President Regulatory and Government Affairs
The News Corporation Limited
444 North Capitol Street, N.W., Suite 740
Washington, DC 20001
James A. Koerner, Esquire
Koerner & Olender PC
5809 Nicholson Lane, Suite 124
Rockville, MD 20852
(Counsel for Blue Bonnet Communications, Inc.; GE Media, Inc.; National
Communications, Inc.; Pacific Media Corporation)
Joseph A. Godles, Esquire
Goldberg, Godles, Wiener & Wright
1229 19th Street, N.W.
Washington, DC 20036
(Counsel for Bluenose Broadcasting of Savannah LLC)
Dennis Corbett, Esquire
Leventhal, Senter & Lerman PLLC
2000 K Street, N.W., Suite 600
Washington, DC 20006
(Counsel for Broadcasting Licenses, L.P.; Davis Television Clarksburg,
LLC; Davis Television Wausau, LLC; Mountain Licenses, L.P.; Ramar
Communications II, Ltd.; Stainless Broadcasting, L.P.)
Kathleen A. Kirby, Esquire
Wiley Rein & Fielding LLP
1776 K Street, N.W.
Washington, DC 20006
(Counsel for California Oregon Broadcasting, Inc.)
Clark Wadlow, Esquire
Sidley Austin Brown and Wood
1501 K Street, N.W.
Washington, DC 20005
(Counsel for Channel 40, Inc.; Tribune Television Company; Tribune
Television Holdings, Inc.; Tribune Television Norhtwest, Inc.)
Roger C. Goodspeed
Assistant General Counsel
Tribune Company
220 East 42nd Street, Suite 400
New York, NY 10017
Charles J. Sennet
Senior Counsel/Broadcasting and Entertainment
Tribune Company
435 North Michigan Avenue, Suite 600
Chicago, IL 60611
Clifford M. Harrington, Esquire
Shaw Pittman LLP
2300 N Street, N.W.
Washington, DC 20037
(Counsel for Columbus (WTTE-TV) Licensee, Inc.; WRGT Licensee, LLC; WTAT
Licensee, LLC; WVAH Licensee, LLC)
Kathryn R. Schmeltzer, Esquire
Shaw Pittman LLP
2300 N Street, N.W.
Washington, DC 20037
(Counsel for Chesapeake Television Licensee, LLC; KABB Licensee, LLC; KBSI
Licensee L.P.; KDSM Licensee, LLC; KOKH Licensee, LLC; Warwick
Communications, Inc.; WDKY Licensee, LLC; WEMT Licensee L.P.; White Knight
Broadcasting of Natchez License Corp.; WMSN Licensee, LLC; WPGH Licensee,
LLC; WRLH Licensee, LLC; WSMH Licensee, LLC; WSYT Licensee L.P.; WUHF
Licensee, LLC; WUTV Licensee, LLC; WYZZ Licensee, LLC; WZTV Licensee, LLC)
Vincent J. Curtis, Jr., Esquire
Fletcher, Heald & Hildreth, P.L.C.
1300 North 17th Street, 11th Floor
Arlington, VA 22209
(Counsel for Comcorp of Baton Rouge License Corp.; Comcorp of Texas
License Corp.; Morris Network of Mississippi, Inc.)
Jonathan Lichstein
Corporate FCC Counsel
Sunbelt Communications Company
1500 Foremaster Lane
Las Vegas, NV 89101
(Counsel for Compass Communications of Idaho, Inc.; Falls Broadcasting
Company)
Kenneth E. Satten, Esquire
Wilkinson Barker Knauer, LLP
2300 N Street, N.W., Suite 700
Washington, DC 20037
(Counsel for Grant Broadcasting Systems II, Inc.; rant Media LLC;
Huntsville Television Acquisition Corp.; Quad Cities Television
Acquisition Corp.; Quincy Broadcasting Co.; WSJV Television, Inc.)
Peter Tannenwald, Esquire
Irwin, Campbell & Tannenwald, P.C.
1730 Rhode Island Avenue, N.W., Suite 200
Washington, DC 20036-3120
(Counsel for Forth Smith 46, Inc.; Marquette Broadcasting, Inc.; Montana
License Sub, Inc.; Montgomery Communications, Inc.; TV 67, Inc.)
Lewys Carlini
General Manager, KIIT
Greater Nebraska Television, Inc.
8020 N. Highway 83
North Platte, NE 69101
John R. Feore, Esquire
Dow, Lohnes & Albertson, PLLC
1200 New Hampshire Avenue, N.W., Suite 800
Washington, DC 20036-6802
(Counsel for Idaho Independent Television, Inc.; Independence Television
Company)
Mace Rosenstein, Esquire
Hogan & Hartson, L.L.P.
555 13th Street, N.W.
Washington, DC 20004
(Counsel for Journal Broadcast Corporation)
William Reyner
President and CEO
KEVN, Inc.
1031 East Mountain Drive
Santa Barbara, CA 93108
John Harvey Rees
800 Gold Creek Road
Ohio City, CO 81237
Howard M. Weiss, Esquire
Fletcher, Heald & Hildreth, P.L.C.
1300 North 17th Street, 11th Floor
Arlington, VA 22209
(Counsel for KADN-15, Inc.; Sage Broadcasting Corporation; Star
Broadcasting Limited)
James R. Bayes, Esquire
Wiley Rein & Fielding LLP
1776 K Street, N.W.
Washington, DC 20006
(Counsel for KMSB-TV, Inc.)
Charles R. Naftalin, Esquire
Holland & Knight LLP
2099 Pennsylvania Avenue, N.W., Suite 100
Washington, DC 20006-6801
(Counsel for KQDS Acquisition Corp.; Red River Broadcast Co., LLC)
John R. Feore, Esquire
Dow, Lohnes & Albertson, PLLC
1200 New Hampshire Avenue, N.W., Suite 800
Washington, DC 20036-6802
(Counsel for KVVU Broadcasting Corporation; Meredith Corporation)
Perry Bradshaw
Meredith Corporation
1716 Locust Street
Des Moines, IA 50309-3023
Kevin F. Reed, Esquire
Dow, Lohnes & Albertson, PLLC
1200 New Hampshire Avenue, N.W., Suite 800
Washington, DC 20036-6802
(Counsel for KTVU Partnership; KVOA Communications, Inc.; Peak Media of PA
Licensee LLC)
Robert E. Levine, Esquire
Law Offices of Robert E. Levine
1920 N Street, N.W., Suite 800
Washington, DC 20036
(Counsel for Lingard Broadcasting Corporation)
Howard M. Liberman, Esquire
Drinker Biddle & Reath LLP
1500 K Street, N.W., Suite 1100
Washington, DC 20005
(Counsel for Nexstar Broadcasting, Inc.; WYDC, Inc.)
Harry C. Martin, Esquire
Fletcher, Heald & Hildreth, P.L.C.
1300 North 17th Street, 11th Floor
Arlington, VA 22209
(Counsel for Ottumwa Media Holdings, LLC; Southwestern Media Holdings,
Inc.)
Russell J. Schwartz
Vice President Business Affairs and General Counsel
Bahakel Communications, Ltd.
1 Television Place
Charlotte, NC 28205
Joseph M. Di Scipio, Esquire
Cohn and Marks LLP
1920 N Street, N.W., Suite 300
Washington, DC 20036
(Counsel for Piedmont Television of Anchorage License LLC; Piedmont
Television of Eastern Carolina License LLC; Piedmont Television of Macon
License LLC; Piedmont Television of Youngstown License LLC)
John B. Tupper, Esquire
Kepper, Tupper and Company
112 High Ridge Avenue
Ridgefield, CT 06877
(Counsel for Prime Cities Broadcasting, Inc.)
Eve Klindera Reed, Esquire
Wiley Rein & Fielding LLP
1776 K Street, N.W.
Washington, DC 20006
(Counsel for Rockfleet Broadcasting II, LLC)
John E. Fiorini III, Esquire
Wiley Rein & Fielding LLP
1776 K Street, N.W.
Washington, DC 20006
(Counsel for Seal Rock Broadcasters, L.L.C.)
Kurt A. Wimmer, Esquire
Covington & Burling
1201 Pennsylvania Avenue, N.W.
Washington, DC 20004
(Counsel for Raycom America License Subsidiary, LLC; Raycom National,
Inc.; Raycom National License Subsidiary, LLC; WAVY Broadcasting, LLC;
WUPW Broadcasting, LLC)
Gregg P. Skall, Esquire
Womble Carlyle Sandridge & Rice, PLLC
1401 I Street, N.W., 7th Floor
Washington, DC 20005-2225
(Counsel for Sainte Partners II, L.P.; Sainte Sepulveda, Inc.)
David Tillotson, Esquire
Law Office of David Tillotson
4606 Charleston Terrace, N.W.
Washington, DC 20007
(Counsel for Second Generation of Iowa, Ltd.)
Howard J. Braun, Esquire
Katten Muchin Zavis Rosenman
1025 Thomas Jefferson Street, N.W., Suite 700 East Lobby
Washington, DC 20007
(Counsel for Shockley Broadcasting, LLC)
Harry F. Cole, Esquire
Fletcher, Heald & Hildreth, P.L.C.
1300 North 17th Street, 11th Floor
Arlington, VA 22209
(Counsel for Surtsey Media, LLC)
Paul H. Brown, Esquire
Wood, Maines & Brown Chartered
1827 Jefferson Place, N.W.
Washington, DC 20036
(Counsel for United Communications Corporation)
Jeffrey J. Gee. Esquire
Dow, Lohnes & Albertson, PLLC
1200 New Hampshire Avenue, N.W., Suite 800
Washington, DC 20036-6802
(Counsel for Smith Media License Holdings, LLC (as successor to Smith
Broadcasting of Vermont, LLC))
William St. Pierre
President
Tanana Valley Television Company
3650 Bradock Street, Suite 2
Fairbanks, AK 99701
David D. Oxenford, Esquire
Shaw Pittman LLP
2300 N Street, N.W.
Washington, DC 20037
(Counsel for WDSI License Corp.; WOLF License Corp.; WTLH License Corp.)
M. Anne Swanson, Esquire
Dow, Lohnes & Albertson, PLLC
1200 New Hampshire Avenue, N.W., Suite 800
Washington, DC 20036-6802
(Counsel for WNAC, LLC)
Mark Nalbone
Secretary
Wyomedia Corporation
1856 Skyview Drive
Casper, WY 82601
Aaron Shainis, Esquire
Shainis & Peltzman, Chartered
1850 M Street, N.W., Suite 240
Washington, DC 20036
(Counsel for Woods Communications Corporation)
Dennis F. Begley, Esquire
Reddy, Begley & McCormick, LLP
1156 15th Street, Suite 610
Washington, DC 20005-1770
(Counsel for Independent Communications, Inc.)
Clifford M. Harrington, Esquire
Shaw Pittman LLP
2300 N Street, N.W.
Washington, DC 20037
(Counsel for Cunningham Broadcasting Corporation)
John Griffith Johnson, Jr., Esquire
Paul, Hastings, Janofsky & Walker LLP
1299 Pennsylvania Avenue, N.W., Tenth Floor
Washington, DC 20004-2400
(Counsel for KMPH(TV) License, LLC; KPTM(TV) License, LLC; Pappas
Telecasting Sioux City, L.P.)
William H. Crispin, Esquire
Crispin & Associates, P.L.L.C.
555 13th Street, N.W., Suite 420 West
Washington, DC 20004
(Counsel for Hill Broadcasting company, Inc.)
Howard M. Liberman, Esquire
Drinker Biddle & Reath LLP
1500 K Street, N.W., Suite 1100
Washington, DC 20005
(Counsel for Mission Broadcasting, Inc.)
Kathryn R. Schmeltzer, Esquire
Shaw Pittman LLP
2300 N Street, N.W.
Washington, DC 20037
(Counsel for Sinclair Broadcast Group, Inc.)
Gregory L. Masters, Esquire
Wiley Rein & Fielding LLP
1776 K Street, N.W.
Washington, DC 20006
(Counsel for JW Broadcasting LLC)
Jeffrey J. Gee, Esquire
Dow, Lohnes & Albertson, PLLC
1200 New Hampshire Avenue, N.W., Suite 800
Washington, DC 20036-6802
(Counsel for Smith Media License Holdings, LLC)
Marvin Rosenberg, Esquire
Holland & Knight
2099 Pennsylvania Avenue, N.W., Suite 100
Washington, DC 20006
(Counsel for Sunbeam Television Corporation)
The NAL Acct. No. and FRN No. for each licensee subject to this Forfeiture
Order are listed in Attachment A, infra.
See 47 U.S.C. S: 503; 47 C.F.R. S: 1.80.
See 18 U.S.C. S: 1464; 47 C.F.R. S: 73.3999. The Notice of Apparent
Liability for Forfeiture in this proceeding included 169 FOX Television
Network stations that are owned and operated, or ultimately controlled by,
FOX Entertainment Group, Inc. (collectively "FOX O&Os") and other
television stations that are network program affiliates of the FOX
Television Network (collectively "FOX Affiliates"). See Complaints Against
Various Licensees Regarding Their Broadcast Of The FOX Television Network
Program "Married By America" On April 7, 2003, Notice of Apparently
Liability for Forfeiture, 19 FCC Rcd 20191 (2004) ("NAL"). Consistent with
our policy of restrained enforcement in indecency proceedings, we have
limited the instant Forfeiture Order to stations in markets from which we
received indecency complaints about the subject episode of "Married By
America." See Complaints Against Various Television Licensees Concerning
Their February 1, 2004 Broadcast of the Super Bowl XXXVIII Halftime Show,
Order on Reconsideration, 21 FCC Rcd 6653, 6665 P: 30 (2006) ("Super Bowl
Order on Reconsideration"), pet. for review pending, CBS Corp. v. FCC, No.
06-3575 (3d Cir. Filed July 28, 2006); In the Matter of Complaints
Regarding Various Television Broadcasts Between February 2, 2002 and March
8, 2005, 21 FCC Rcd 2664, 2673 P: 32 (2006), vacated in part on other
grounds, 21 FCC Rcd 13299 (2006) ("Omnibus Order") (subsequent history
omitted). Accordingly, the stations listed in Attachment A, infra, are a
subset of those named in the NAL.
See Letter to TVT License, Inc., from Maureen F. Del Duca, Chief,
Investigations and Hearings Division, Enforcement Bureau, dated July 10,
2003 ("LOI").
See Letter to Melanie A. Godschall, Investigations and Hearings Division,
Enforcement Bureau, from John C. Quale, Skadden, Arps, Slate, Meagher &
Flom, LLP, dated August 11, 2003; Letter to William D. Freedman, Deputy
Chief, Investigations and Hearings Division, Enforcement Bureau, from John
C. Quale, Skadden, Arps, Slate, Meagher & Flom, LLP, dated September 9,
2003.
NAL, 19 FCC Rcd at 20193-194.
Id. at 20194.
Id. at 20195.
Id.
In accordance with Section 1.80 of the Commission's rules, 47 C.F.R. S:
1.80, the NAL ordered each licensee, within 30 days of release thereof, to
either pay its respective proposed forfeiture in full or file a written
statement seeking reduction or cancellation of the proposed forfeiture.
See 19 FCC Rcd at 20196 P: 19. In response to multiple requests, the
Commission granted extensions of time, to December 3, 2004, within which
to respond to the NAL. Mission Broadcasting, Inc. asked for and was
granted an extension until December 7, 2004 to interpose a response.
Although some licensees have styled their filings as oppositions to the
NAL, the Commission's rules do not contemplate the filing of an opposition
to a proposed action. Consequently, each filing is appropriately
characterized herein as a "response," pursuant to Section 1.80(f)(3) of
the Commission's rules, 47 C.F.R. S: 1.80(f)(3). The entities that filed
responses are hereafter collectively referred to as "Respondents."
See Attachment B, infra, for a list of these submissions.
One respondent, Sunbeam Television Corporation, licensee of Station
WSVN(TV), Miami, Florida, paid its forfeiture in full, subject to the
outcome of the Commission's final action with respect to the
FOX/Affiliates Consolidated Response.
See supra note 2.
See FOX/Affiliates Consolidated Response at 26-30.
See id. at 31-39.
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 Omnibus Order, 21 FCC Rcd at 2671 P: 24 (pixilated views of nude
breasts and a nude body, as well as other sexual images and innuendo,
depicted or described sexual activities and organs for purposes of first
prong of indecency analysis). See FOX/Affiliate Group's reliance on KSAZ
License, Inc., 19 FCC Rcd 15999 (2004) (denying indecency complaint
against "Will and Grace" episode), is misplaced. See FOX/Affiliates
Consolidated Response at 27. The Commission's decision in that case was
based on the conclusion that the material in question failed to satisfy
the second prong of the indecency standard because "[b]oth characters are
fully clothed, and there is no evidence that the activity depicted was
dwelled upon, or was used to pander, titillate or shock the audience."
KSAZ License, Inc., 19 FCC Rcd at 16001. Further, the context in which the
activity at issue in "Will and Grace" was presented arguably made it more
difficult to determine whether activity itself was sexual in nature,
whereas here the subject of the scenes in question was sexually oriented
entertainment provided by strippers.
See Omnibus Order, 21 FCC Rcd at 2672 P: 25.
See FOX/Affiliates Consolidated Response at 34-35.
See, e.g., Young Broadcasting of San Francisco, Inc., Notice of Apparent
Liability for Forfeiture, 19 FCC Rcd 1751, 1755 P: 12 (2004) (finding that
a broadcast of a performer's penis was fleeting in that it occurred for
less than a second), response pending.
Respondents' reliance (see FOX/Affiliates Consolidated Response at 32) on
In re Complaints Against Various Broadcast Licensees Regarding Their
Airing of The UPN Network Program "Buffy the Vampire Slayer" on November
20, 2001, 19 FCC Rcd 15995, 15998 (2004), lacks merit. Both scenes may
have involved "kissing and straddling," but they are not "strikingly
similar." Id. The "Buffy" scene depicted two fully-clothed actors
ostensibly fighting one another, whereas the instant case, as set forth
above, featured sexually oriented entertainment performed by partially
clad strippers.
See 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) ("Saving Private Ryan Order").
Id. at 4512-13 P: 14.
Indecency Policy Statement, 16 FCC Rcd at 8002 P: 8 & n.15.
See Smith v. United States, 431 U.S. 291, 305 (1977).
Infinity Radio License, Inc., Memorandum Opinion and Order, 19 FCC Rcd
5022, 5026 (2004).
See, e.g., FCC v. Pacifica, 438 U.S. 726 (1978) (A father who heard an
indecent broadcast while driving with his young son complained to the
Commission, which, after forwarding the complaint for comment to and
receiving a response from the licensee, issued a declaratory order
granting the complaint.).
See Cunningham Response at 2-3.
See Falls/Compass Joint Response at 5-6.
See FOX/Affiliates Consolidated Response at 41-47.
See Ft. Smith Consolidated Response at 1-2.
See Hill Response at 2-5.
See Independent Response at 2-3.
See Mission Response at 3.
See Pappas Consolidated Response at 2-6.
See Sinclair Response at 1-2.
See Warwick/White Knight Joint Response at 1-2.
Pappas Consolidated Response at 3.
See, e.g., Independent Response at 2-3; Mission Response at 1.
See FOX/Affiliates Group Consolidated Response at 41-43.
Ft. Smith Consolidated Response at 2.
See Report and Statement of Policy re: Commission en banc Programming
Inquiry, 44 FCC Rcd 2303, 2313 (1960). See also Yale Broadcasting Co. v.
FCC, 478 F.2d 594 (D.C. Cir. ), cert. denied, 414 U.S. 914 (1973)
(affirmed action of Commission reminding broadcast licensees of their duty
to have knowledge of the content of their programming and on the basis of
this knowledge to evaluate the desirability of broadcasting music dealing
with drug use); Gaffney Broadcasting, Inc., 23 FCC 2d 912, 913 (1970)
("licensees are responsible for the selection and presentation of program
material over their stations, including . . . acts or omissions of their
employees"); Alabama Educational Television Commission, 50 FCC 2d 461, 464
(1975) (AETC lost its license in part because it failed to maintain
exclusive authority over all of its programming decisions); WCHS-AM-TV
Corp., 8 FCC 2d 608, 609 (1967) (maintenance of control over programming
is a most fundamental obligation of the licensee).
See Hill Response at 5-7.
See Pappas Consolidated Response at 6-8.
See Hill Response at 5-7; Pappas Consolidated Response at 6-8.
Hill Response at 6; Pappas Consolidated Response at 8.
See supra paragraph 22.
47 C.F.R. S: 73.658(e).
See supra paragraph 20.
See JW Response at 1.
See Mission Response at n. 3.
See Smith Response at 1.
See 438 U.S. 726 (1978).
See FOX/Affiliates Consolidated Response at 7.
See id. at 7-8.
Action for Children's Television v. FCC, 58 F.3d 654, 660 (D.C. Cir. 1995)
(en banc) ("ACT III"). See also Prometheus Radio Project v. FCC, 373 F.3d
372, 401-402 (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)). According to
the Court in Turner Broadcasting, although 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." 520 U.S. at
194.
See U.S. Census Bureau, Statistical Abstract of the United States 737
(2006).
See Annual Assessment of the Status of Competition in the Market for the
Delivery of Video Programming, Twelfth Annual Report, 21 FCC Rcd 2503,
P:P: 8, 15 (2006) ("Annual Assessment").
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, MB Docket 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. See 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 8 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).
47 U.S.C. S: 560 (2000). See United States v. Playboy Entertainment
Group, Inc., 529 U.S. 803 (2000).
Act III, 58 F.3d at 660.
See infra. paragraph 36.
Pacifica, 438 U.S. at 749. See, e.g., Youth, Pornography, and the
Internet, ed. by Dick Thornburgh and Herbert S. Lin, p. 115 (National
Academy Press 2002) ("As a general rule, young children do not have the
cognitive skills needed to navigate the Internet independently. Knowledge
of search strategies is limited if not nonexistent, and typing skills are
undeveloped.").
See Reno v. American Civil Liberties Union, 521 U.S. 844, 877 (1997).
Filtering software, for example, can block access to a website based on
the software's evaluation of the site's content. The V-chip, in contrast,
does not evaluate television programs itself and therefore is only
effective if the programs have been given accurate ratings. However, to
the extent that filtering software is ineffective and children are still
able to access indecent material on the Internet, we note that Congress
has sought to address this problem through the Child Online Protection
Act, a statute whose validity is still being litigated. See Ashcroft v.
ACLU, 542 U.S. 656 (2004) (affirming preliminary injunction).
See 521 U.S. 844 (1997).
See id. at 871.
See FOX/Affiliates Consolidated Response at 10-11.
By way of example, FOX/Affiliates Group states that a number of ABC
Television Network affiliates refused, out of fear of government
sanctions, to carry ABC's unedited broadcast of the Oscar-winning movie
Saving Private Ryan on Veterans Day in 2004, despite the fact that the
network had broadcast the same uncut version of the movie on Veterans Day
in 2001 and 2002 without sanction. See FOX/Affiliates Consolidated
Response at 12-13. We note that, in Saving Private Ryan Order, supra note
22, the Commission concluded that the unedited version of "Saving Private
Ryan" did not, when considered in the context in which it was broadcast,
contain indecent material.
See 438 U.S. at 732.
Action for Children's Television v. FCC, 852 F.2d 1332, 1339 (D.C. Cir.
1988) ("ACT I"); accord ACT III, 58 F.3d at 659.
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.
Action for Children's Television v. FCC, 59 F.3d 1249, 1261 (D.C. Cir.
1995) ("ACT IV"); see ACT III, 58 F.3d at 666 ("Whatever chilling effect
may be said to inhere in the regulation of indecent speech, these have
existed ever since the Supreme Court first upheld the FCC's enforcement of
section 1464 of the Radio Act.").
521 U.S. at 868. Fox/Affiliates Group also relies on Ashcroft v. American
Civil Liberties Union, in which the Court stated that unnecessarily broad
content-based regulation will not survive scrutiny if there is "a more
specific technological solution that [is] available to parents . . . ."
124 S. Ct. 2783, 2794 (2004) (citing United States v. Playboy
Entertainment Group, Inc., 529 U.S. 803, 825 (2000)).
FOX/Affiliates Consolidated Response at 21.
ACT III, 58 F.3d at 665.
See FOX/Affiliates Consolidated Response at 15-21.
Id. at 20-21.
See Super Bowl Order on Reconsideration, 21 FCC Rcd at 6667 P: 37. In
congressional testimony given after Fox's broadcast of "Married by
America", Fox's President of Entertainment acknowledged that the V-chip
and television ratings were "underutilized." H.R. 3717, the `Broadcast
Decency Enforcement Act of 2004': Hearing Before the Subcommittee on
Telecommunications and the Internet of the House Comm. On Energy &
Commerce, 107th Congress (Feb. 26, 2004) (statement of Gail Berman).
According to a 2003 study, parents' low level of V-chip use is explained
in part by parents' unawareness 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.").
ACT III, 58 F.3d at 661-62.
Sable Communications of California v. FCC, 492 U.S. 115, 126 (1989).
Pacifica, 438 U.S. at 749.
ACT III, 58 F.3d at 656. See Pacifica, 438 U.S. at 750 ("The ease with
which children may obtain access to broadcast material, coupled with the
concerns recognized in Ginsberg [v. New York, 390 U.S. 629 (1968)], amply
justify special treatment of indecent broadcasting.").
See supra note 2.
See FOX/Affiliates Consolidated Response at 25, 40.
Cunningham Response at 3.
FOX/Affiliates Consolidated Response at 25.
See Southern California Broadcasting Co., 6 FCC Rcd at 4387-88.
We reject Ft. Smith's undeveloped argument that the broadcasts were not
"willful" due to the alleged unavailability of the program for advance
review and the impracticality of individual episode review. Ft. Smith
Consolidated Response at 2 n.1. Here, the affiliate stations consciously
and deliberately broadcast the episode at issue, and, as discussed above,
the relevant legal standard does not require any intent to violate the
Commission's rules. In addition, the episode was taped in advance, and, as
discussed above, there is no merit to Respondents' argument that they are
not culpable for their actions in airing the episode. See supra paragraphs
9-22. Moreover, the affiliates were provided with notice of the type of
material that the episode would contain. In particular, the conclusion of
the prior week's episode provided highlights of the upcoming episode that
included many of the scenes that are the subject of this Forfeiture Order.
Finally, the sexually explicit material in the episode lasted for six
minutes, and the affiliates did not terminate the broadcast even though
the nature of the material was readily apparent near the beginning of the
bachelor and bachelorette parties.
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).
Forfeiture Policy Statement, 12 FCC Rcd at 17110.
The maximum forfeiture permitted at the time this program was aired was
$27,500.
See 47 C.F.R. S: 1.80(f)(1) (NAL must specify, inter alia, amount of
apparent forfeiture penalty), S: 1.80(f)(4) (if the proposed forfeiture is
not paid in full in response to the NAL, the Commission will issue an
order cancelling or reducing the proposed forfeiture or requiring that it
be paid in full).
See 28 U.S.C. S: 2462.
47 C.F.R. S: 1.80.
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