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Before the
FEDERAL COMMUNICATIONS COMMISSION
Washington, D.C. 20554
In the Matter of )
)
WPBN/WTOM LICENSE )
SUBSIDIARY, INC. )
)
Licensee of Stations WPBN-TV, )
Traverse City, and WTOM-TV, )
Cheboygan, Michigan )
MEMORANDUM OPINION AND ORDER
Adopted: January 11, 2000 Released: January 14,
2000
By the Commission:
1. In this Order, we deny a "Petition for Reconsideration,"
filed on September 25, 1998, by Thomas B. North ("North"). North
seeks reconsideration or review of an August 26, 1998, letter
from the Mass Media Bureau ("MMB"), acting pursuant to delegated
authority, explaining MMB's earlier action effectively denying
his complaint alleging that two Michigan television stations,
WPBN-TV, Traverse City, and WTOM-TV, Cheboygan, broadcast
indecent material when, on February 23, 1997, they broadcast the
NBC network presentation of the film Schindler's List. For the
reasons stated below, North's request is denied.1
Background
2. On March 3, 1997, North filed a complaint alleging that
the nudity contained in the network presentation of Schindler's
List, specifically that which was broadcast before 10 p.m., is
actionably indecent. By letter dated April 30, 1997, the Chief,
Complaints and Political Programming Branch of MMB's former
Enforcement Division ("C&PP"), advised North that the material
identified in the complaint did not meet the legal standard for
indecent programming.2 See, e.g., FCC v. Pacifica Foundation,
438 U.S. 726 (1978). That letter further explained that subject
matter alone does not render material indecent and that nudity is
not per se actionably indecent.
3. On August 19, 1997, North sought further clarification
of the staff's response to his complaint. North specifically
questioned the authority of the Chief, C&PP, to address his
complaint, and alleged that the April 30, 1997, staff letter was
a "summary conclusion that appears to be without basis." By
letter dated August 26, 1998, North was informed by the Chief,
C&PP, that his complaint was evaluated by MMB staff pursuant to
the authority delegated in Section 0.283 of the Commission's
Rules, 47 C.F.R. §0.283. Moreover, that letter expanded on and
further explained the basis for the staff's conclusion that the
adult frontal nudity he viewed in this particular presentation of
Schindler's List does not meet the legal definition of indecency
and therefore does not warrant further Commission action.
Specifically, the staff letter explained that broadcast material
such as that he objected to is actionably indecent when presented
in a patently offensive manner, and that material which may be
patently offensive in one context may not be so if presented
under other circumstances. The staff concluded that although this
airing of Schindler's List did contain incidental frontal nudity,
the material broadcast depicted a historical view of World War II
and wartime atrocities which, viewed in that context, was not
presented in a pandering, titillating or vulgar manner or in any
way that would be considered patently offensive and, therefore,
actionably indecent.
4. In his September 25, 1998, pleading, North alleges that
the staff exceeded its delegated authority as set forth in
Section 0.283 of the Commission's Rules because his original
complaint "may contain new or novel arguments not previously
considered by the Commission, and/or present facts or arguments
which appear to justify a change of Commission policy" (italics
added). In this regard, he maintains that the Commission has
historically misapplied or misinterpreted the relevant legal
standard to enforcement matters relating to indecent broadcasts,
resulting in actions that are contrary to federal law. Among
those errors, he asserts, are the staff's findings that, in this
case, the adult frontal nudity shown prior to 10 p.m. is not
actionably indecent.
5. North contends that the staff employed the wrong
standard to evaluate his complaint by emphasizing the "context"
of the broadcast rather than whether its depictions or
descriptions were patently offensive as measured by contemporary
community standards. North argues that it is contemporary
community standards, not context, that determine whether
something is patently offensive under the definition of indecent
programming, and "then and only then should the Commission look
to the context to see if it negates any finding of patent
offensiveness." In this regard, North contends that the
"Commission's [August 26, 1998] letter, answering [his] request
as to which elements [of indecency] are not present, does not
anywhere contend that the complained of nudity in the movie is
not in violation of contemporary community standards, and [the
Commission] therefore admits that element in agreement with
[him]." Moreover, North states, it "cannot be disputed with any
amount of intelligence
. . . [that] there is nothing in human existence, short of death,
severe injury, or legal obscenity that is more disturbing to the
mind or emotions that [sic] the uninvited sight of adult frontal
nudity."3 6. North also challenges the staff's conclusions based on
the context of the presentation. He concedes, as the staff
concluded, that the portions of the movie he objects to were not
presented to pander or titillate, and he does not claim that the
movie was otherwise without merit. However, North asserts that
the staff's consideration of those factors improperly establishes
additional requirements for the evaluation of whether particular
programming is indecent. Similarly, he objects to the staff's
conclusions that the material was not presented in a shocking or
vulgar manner and that the viewer advisories aired during the
broadcast of the film are relevant. He asserts that the viewer
advisories were not part of this movie, are not part of the
context to be considered, and therefore have no bearing on
whether this broadcast was indecent or not. Moreover, North
argues that even if the presentation of something "vulgar" or
"shocking" were an element of the indecency definition, any
reasonable person would agree that adult frontal nudity meets
that definition, and "when that nudity is presented in the
context of the Holocaust, a further degree of `shock' is added."
Thus, he maintains that this broadcast of Schindler's List was
clearly presented in a vulgar and shocking manner, contrary to
the staff's conclusion.
7. Finally, North concedes that it is not illegal to air an
unedited version of Schindler's List. Rather, he argues, it was
illegal to do so, prior to 10 p.m., without editing out the adult
frontal nudity. Noting the concern for the protection of
children and unconsenting adults against intrusion by offensive
broadcasts, North states that, if the frontal nudity in
Schindler's List is not indecent, the practical effect of that
ruling would be that such nudity can be legally broadcast by any
television station during any part of the day, including those
times when children and unconsenting adults are likely to be in
the audience.
Discussion
8. We have reviewed the staff's actions of April 30, 1997
and August 26, 1998, and affirm them.4 Rather, we find it was
within the Bureau's delegated authority to address the original
complaint, which applied an established indecency standard to the
facts at issue. 47 C.F.R. § 0.283. From a procedural
standpoint, we note that the allegation that the staff exceeded
its delegated authority because his original complaint "may have"
contained new or novel arguments not previously considered by the
Commission fails to set forth with any particularity the new or
novel questions he contends were improperly addressed by the
staff. Review of his prior submissions indicates that such new
or novel arguments were neither pleaded nor apparent. Moreover,
North has not set forth with any particularity how the staff may
have otherwise exceeded its delegated authority, and we find no
support for his allegation in that regard.
9. From a substantive perspective, we concur with the
staff's rejection of North's fundamental premise that the
presentation of adult frontal nudity prior to 10 p.m. per se
constitutes indecent programming, mandating further Commission
action in all cases, including this particular presentation of
Schindler's List. Indecency findings involve at least two
distinct 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. Once the
Commission determines that the material aired falls within that
definition, we must then evaluate whether the broadcast is
patently offensive as measured by contemporary community
standards for the broadcast medium. See Infinity Broadcasting
Corp., 3 FCC Rcd 930 (1987), aff'd in part and remanded in part
sub nom. Action for Children's Television v. FCC, 852 F.2d 1332
(D.C. Cir. 1988). There is no dispute that the program at issue,
as aired, satisfies the first component of this standard. We
agree with the staff's view, however, that the material, as
aired, was not patently offensive.
10. The determination as to whether certain programming is
patently offensive is not a local one and does not encompass any
particular geographic area. Rather, the standard is that of an
average broadcast viewer or listener and not the sensibilities of
any individual complainant. See Sagittarius Broadcasting
Corporation, 5 FCC Rcd 7291, 7292 (MMB 1990) (citations omitted),
aff'd, 7 FCC Rcd 6873 (MMB 1992), vacated pursuant to a
settlement agreement, 10 FCC Rcd 12245 (1995). Nor is subject
matter alone the basis for an indecency determination. The full
context in which the material appeared must be considered in
determining whether material is patently offensive. See Infinity
Broadcasting Corp., supra. See also Action for Children's
Television v. FCC, 932 F.2d 1504 (D.C. Cir. 1991); Letter to
Peter Branton, 6 FCC Rcd 610 (1991); appeal dismissed sub nom.
Branton v. FCC, 993 F.2d 906 (D.C. Cir. 1993); cert. denied, 511
U. S. 1052 (1994). It is not sufficient, for example, to know
simply that explicit sexual terms or descriptions were used.
Pacifica Foundation v. FCC, 438 U.S. 726, 750 (1978). Contextual
determinations involve a host of potential variables. The
interplay of these variables will vary depending on the facts
presented in any given case.5 Thus, all of the possible
contextual factors that might bear on an evaluation of the patent
offensiveness of any particular material cannot simply be
cataloged comprehensively and applied mechanically. Accordingly,
we reject North's contention that because the staff did not
specifically list which elements of indecency were not present in
its evaluation of his complaint concerning this particular
showing of Schindler's List, the Commission, presumably by
default, agrees with or concedes to his assessment that this
material is patently offensive.6
11. Contrary to North's ultimate conclusions, nudity
itself is not per se indecent. If the definition of what
constitutes actionably indecent programming were as absolute as
claimed by North, there simply would be no need for or practical
impact of the remainder of that definition -- that the
programming in question be measured against the contemporary
community standards for the broadcast medium. Moreover, we find
no legal basis to conclude that "the contemporary community
standards for the broadcast medium" are as inflexible as North
describes, preclude Commission evaluation of the full context of
the presentation of the subject programming, or, even considering
the context of the presentation, compel a finding that nudity
shown before 10 p.m. is so "vulgar" as to render it necessarily
indecent.
12. Finally, North's assertion that unless the broadcast of
this programming is sanctioned, he faces the probability of
exposure in the future to indecency over the airwaves does not
present a basis for further action in this case. The staff's
conclusion that the material he objects to in this broadcast of
Schindler's List is not actionably indecent is confined to the
specific facts before it and does not depart from our established
policies. Thus, we cannot agree that the effect of this response
is to authorize the indiscriminate presentation of nudity at any
time of the day or in any context without regard to those in the
audience.
13. In this specific case, the staff properly concluded
that the material North objects to in this particular broadcast
of Schindler's List is not patently offensive as measured by
contemporary community standards for the broadcast medium. That
determination was properly based on the full context of its
presentation as outlined by the staff in response to North's
complaints -- including the subject matter of the film, the
manner of its presentation, and the warnings that accompanied the
broadcast of this film -- and not the standards of any particular
community or individual viewer or complainant. Other than
North's continuing objection to this result, he has not shown
that the staff misapplied the law in this case, and his instant
pleading presents no basis to revisit the staff's actions. Thus,
we affirm the previous actions of the Mass Media Bureau
effectively denying his complaints.
14. ACCORDINGLY, IT IS ORDERED, that North's ``Petition for
Reconsideration'' is DENIED.
FEDERAL COMMUNICATIONS COMMISSION
Magalie Roman Salas
Secretary
_________________________
1 North suggests that, as an alternative, the Commission
consider his September 25, 1998, pleading as an Application for
Review under Section 1.115 of the Commission's Rules. This is
North's third attempt to require the imposition of sanctions for
this particular broadcast of Schindler's List. In the interest
of efficiency, therefore, we will treat his current pleading as
an application for Commission review of an action taken by the
staff pursuant to delegated authority. See 47 C.F.R. §
1.106(a)(1).
2 "Indecent programming" is defined as material "that (depicts
or) describes in terms patently offensive as measured by
contemporary community standards for the broadcast medium, sexual
or excretory activities or organs." Infinity Broadcasting Corp.,
3 FCC Rcd 930 (1987), aff'd in part and remanded in part sub nom.
Action For Children's Television v. FCC, 852 F.2d 1332 (D.C. Cir.
1988). Indecent material is actionable under the Commission's
Rules if it is aired between 6 a.m. and 10 p.m. 47 C.F.R.
§73.3999(b).
3 In his original complaint, North alleged that this material
was patently offensive as measured by contemporary community
standards for the broadcast medium. In support, he asserted that
the broadcast medium standards in every community in
the United States are and always have been that adult's
sexual organs simply not be shown on television in any
context. These standards have not ever changed -- if
they could change, they would not be `standards'
because `standards' by definition are something that do
not change, so that other things could be measured by
them. Community standards throughout the nation are
that some things are off limits to public broadcast and
that includes the showing of sexual organs.
4 Our decision affirming the Division Order effectively moots
North's delegated authority argument. See Motions For
Declaratory Rulings Regarding Commission Rules and Policies for
Frequency Coordination in the Private Land Mobile Radio Services,
Memorandum Opinion and Order, 14 FCC Rcd 12752 (1999); Beehive
Telephone, Inc. v. Bell Operating Cos., Memorandum Opinion &
Order, 12 FCC Rcd 17930, 17938-39 (para. 16) (1997) (delegation
of authority rules are a matter between the Commission and its
staff and do not give private parties rights), petition for
review dismissed in part and denied in part, Beehive Telephone
Co., Inc. v. FCC, 179 F.3d 941 (D.C.Cir. 1999).
5 The Supreme Court has observed that contextual assessments may
involve (and are not limited to) an examination of whether the
actual words or depictions in context are, for example,
``vulgar'' or ``shocking,'' a review of the manner in which the
words or depictions are portrayed, and an analysis of whether the
allegedly indecent material is isolated or fleeting. The merit
of a work is also one of the many variables that that make up a
work's context. Pacifica Foundation v. FCC, at 747-750 & n.29.
6 In this regard, the staff responded to the specific
allegations made concerning the programming objected to in the
presentation of this movie, and North's apparent displeasure with
that outcome does not obviate the responsibility to set forth
allegations which, if true, establish a prima facie case of
licensee misconduct warranting further action. That burden of
pleading rests with the complainant, not with the Commission or
its staff. See, e.g., Astroline Communications Co. v. FCC, 857
F.2d 1556, 1561 (D.C. Cir. 1988).