**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

In the Matter of **)**

**)**

**FOX TELEVISION STATIONS, INC**. **)** File No. EB-03-IH-0672

**)**

Licensee of Station WTTG(TV) **)** Facility ID No. 22207

Washington, D.C. **)**

## MEMORANDUM OPINION AND ORDER

**Adopted: February 14, 2005** **Released: February 28, 2005**

**By the Commission:**

## I. INTRODUCTION

1\. In this *Memorandum Opinion and Order*, we deny a complaint[^1]
filed by the Parents Television Council ("PTC"), alleging that Fox
Television Stations, Inc., licensee of Station WTTG(TV), Washington,
D.C., aired an episode of the program *Arrested Development* in
violation of the federal restrictions regarding the broadcast of
indecent material.[^2]

2\. PTC alleges that Station WTTG(TV) and other television stations
affiliated with the Fox Television Network ("Fox Affiliates") broadcast
indecent material on November 16, 2003, at 9:30 p.m. Eastern Standard
Time contained in an episode of the *Arrested Development* program. PTC
complains about several scenes in the episode. Specifically, according
to the Complaint, "There are multiple scripted bleeps, and some sexual
innuendo dealing with homosexuality." In particular, the episode
contains a reference to "making corn-holes" and then "corn-holing"
(which the Complaint describes as "slang for anal sex"), within the
context of discussions of a corn baller, an implement for making popcorn
balls. After review of the Complaint and the videotape of the subject
episode provided by PTC, we find that the material is not patently
offensive, as defined by Commission precedent, and therefore does not
violate our indecency prohibition.

**II. DISCUSSION**

3\. The Federal Communications Commission is authorized to license radio
and television broadcast stations and is responsible for enforcing the
Commission's rules and applicable statutory provisions concerning the
operation of those stations. The Commission's role in overseeing program
content is very limited. The First Amendment to the United States
Constitution and section 326 of the Communications Act of 1934, as
amended (the "Act"), prohibit the Commission from censoring program
material and from interfering with broadcasters' freedom of
expression.[^3] The Commission does, however, have the authority to
enforce statutory and regulatory provisions restricting obscenity,
indecency and profanity. Specifically, it is a violation of federal law
to broadcast obscene, indecent or profane programming. Title 18 of the
United States Code, section 1464 prohibits the utterance of "any
obscene, indecent or profane language by means of radio communication."
[^4] Consistent with a subsequent statute and court case,[^5] section
73.3999 of the Commission's rules provides that radio and television
stations shall not broadcast obscene material at any time, and shall not
broadcast indecent material during the period 6 a.m. through 10 p.m.[^6]
The Commission may impose a monetary forfeiture, pursuant to section
503(b)(1) of the Act,[^7] upon a finding that a licensee has broadcast
obscene, indecent or profane material in violation of 18 U.S.C. § 1464
and section 73.3999 of the rules.

4\. Any consideration of government action against allegedly indecent
programming must take into account the fact that such speech is
protected under the First Amendment.[^8] The federal courts consistently
have upheld Congress's authority to regulate the broadcast of indecent
speech, as well the Commission's interpretation and implementation of
the governing statute.[^9] Nevertheless, the First Amendment is a
critical constitutional limitation that demands that, in such
determinations, we proceed cautiously and with appropriate
restraint.[^10]

5\. The Commission defines indecent speech as language that, in context,
depicts or describes sexual or excretory activities or organs in terms
patently offensive as measured by contemporary community standards for
the broadcast medium.[^11]

> Indecency findings involve at least two fundamental determinations.
> First, the material alleged to be indecent must fall within the
> subject matter scope of our indecency definition---that is, the
> material must describe or depict sexual or excretory organs or
> activities. . . . Second, the broadcast must be *patently offensive*
> as measured by contemporary community standards for the broadcast
> medium.[^12]

6\. The material aired during the *Arrested Development* program
arguably describes sexual activities and, therefore, warrants further
scrutiny to determine whether it is patently offensive as measured by
contemporary community standards. For the reasons set forth below,
however, we conclude that the material is not patently offensive, and
therefore, not indecent.

7\. In making indecency determinations, the Commission has indicated
that the "*full context* in which the material appeared is critically
important,"[^13] and has articulated three "principal factors" for its
analysis: "(1) the *explicitness or graphic nature* of the description
or depiction of sexual or excretory organs or activities; (2) whether
the material *dwells on or repeats at length* descriptions of sexual or
excretory organs or activities; (3) *whether the material appears to
pander or is used to titillate,* or *whether the material appears to
have been presented for its shock value."* [^14] In examining these
three factors, we must weigh and balance them to determine whether the
broadcast material is patently offensive because "\[e\]ach indecency
case presents its own particular mix of these, and possibly, other
factors."[^15] In particular cases, one or two of the factors may
outweigh the others, either rendering the broadcast material patently
offensive and consequently indecent,[^16] or, alternatively, removing
the broadcast material from the realm of indecency.[^17]

8\. PTC complains about four scenes contained in the November 16, 2003,
episode of *Arrested Development.* After review of the Complaint and the
videotape of the episode, we conclude that the material is not patently
offensive, as defined by Commission precedent, because the cited
dialogue is neither sufficiently graphic nor explicit.[^18] As PTC
acknowledges in its Complaint, virtually all of the language to which it
objects was edited from the program prior to broadcast, so that it is
not decipherable by viewers.[^19] The remaining non-edited language
cited in the Complaint as sexual innuendo is ambiguous. Consequently, we
conclude that the material in question is not indecent.[^20]

**III. ORDERING CLAUSES**

9\. Accordingly, IT IS ORDERED, that the Complaint alleging that Fox
Television Stations, Inc., licensee of Station WTTG(TV), Washington,
D.C., and other Fox Affiliates broadcast indecent material contained in
the *Arrested Development* program on November 16, 2003, in violation of
18 U.S.C. § 1464 and 47 C.F.R. § 73.3999, is hereby DENIED.

10\. IT IS FURTHER ORDERED, that copies of this *Memorandum Opinion and
Order* shall be sent by Certified Mail, Return Receipt Requested, to Fox
Television Stations, Inc., 5151 Wisconsin Avenue, N.W., Washington, D.C.
20015, and to the Parents Television Council, 707 Wilshire Boulevard,
#2075, Los Angeles, California 90017.

> FEDERAL COMMUNICATIONS COMMISSION

Marlene H. Dortch

Secretary

[^1]: Letter from Lara Mahaney, Parents Television Council, to David H.
    Solomon, Chief, Enforcement Bureau, Federal Communications
    Commission, dated November 24, 2003, at 2 ("Complaint"). A copy of
    the Complaint is provided in the Attachment.

[^2]: *See* 18 U.S.C. § 1464; 47 C.F.R. § 73.3999.

[^3]: U.S. [Const.]{.smallcaps}, amend. I; 47 U.S.C. § 326 (2002).

[^4]: 18 U.S.C. § 1464.

[^5]: Public Telecommunications Act of 1992, Pub. L. No. 102-356, 106
    Stat. 949 (1992), *as modified by Action for Children's Television
    v. FCC,* 58 F.3d 654 (D.C. Cir. 1995) (*en banc*), *cert. denied,*
    516 U.S. 1043 (1996) ("*ACT III*").

[^6]: *See* 47 C.F.R. § 73.3999.

[^7]: *See* 47 U.S.C. § 503(b)(1). *See also* 47 U.S.C. § 312(a)(6)
    (authorizing license revocation for indecency violations).

[^8]: U.S. [Const.]{.smallcaps}, amend. I; *See Action for Children's
    Television v. FCC*, 852 F.2d 1332, 1344 (D.C. Cir. 1988) ("*ACT
    I*").

[^9]: *FCC v. Pacifica Foundation*, 438 U.S. 726 (1978). *See also ACT
    I*, 852 F.2d at 1339; *Action for Children's Television v. FCC,* 932
    F.2d 1504, 1508 (D.C. Cir. 1991)*, cert. denied,* 503 U.S. 914
    (1992) ("*ACT II*"); *ACT III.*

    *.*

[^10]: *ACT I,* 852 F.2d at 1344 ("Broadcast material that is indecent
    but not obscene is protected by the First Amendment; the FCC may
    regulate such material only with due respect for the high value our
    Constitution places on freedom and choice in what people may say and
    hear"); *id.* at 1340 n.14 ("the potentially chilling effect of the
    FCC's generic definition of indecency will be tempered by the
    Commission's restrained enforcement policy").

[^11]: *Infinity Broadcasting Corporation of Pennsylvania,* 2 FCC Rcd
    2705 (1987) (subsequent history omitted) (*citing Pacifica
    Foundation*, 56 FCC 2d 94, 98 (1975), *aff'd sub nom. FCC v.
    Pacifica Foundation*, 438 U.S. 726 (1978)).

[^12]: *Industry Guidance on the Commission's Case Law Interpreting 18
    U.S.C. §1464 and Enforcement Policies Regarding Broadcast Indecency
    ("Indecency Policy Statement")*, 16 FCC Rcd 7999, 8002 (2001)
    (emphasis in original).

[^13]: *Id.* (emphasis in original). In *Pacifica,* the Court
    "emphasize\[d\] the narrowness of \[its\] holding and noted that
    under the Commission rationale that it upheld, "context is
    all-important." 438 U.S. at 750.

[^14]: *Indecency Policy Statement,* 16 FCC Rcd at 8003 (emphasis in
    original).

[^15]: *Id.*

[^16]: *Id.* at 8009 (*citing Tempe Radio, Inc. (KUPD-FM)*, 12 FCC Rcd
    21828 (MMB 1997) (forfeiture paid) (extremely graphic or explicit
    nature of references to sex with children outweighed the fleeting
    nature of the references), and *EZ New Orleans, Inc. (WEZB(FM))*, 12
    FCC Rcd 4147 (MMB 1997) (forfeiture paid)).

[^17]: *Indecency Policy Statement,* 16 FCC Rcd at 8010, ¶ 20 ("the
    manner and purpose of a presentation may well preclude an indecency
    determination even though other factors, such as explicitness, might
    weigh in favor of an indecency finding").

[^18]: *See KSAZ License, Inc.*, Memorandum Opinion and Order, 19 FCC
    Rcd 15999, 16001, ¶ 6 (2004); *Complaints Against Various Licensees
    Regarding Their Airing of the UPN Network Program "Buffy the Vampire
    Slayer" on November 20, 2001*, Memorandum Opinion and Order, 19 FCC
    Rcd 15995, 15998, ¶ 6 (2004).

[^19]: *Complaint* at 2, 3 ("These are extended bleeps, where more than
    one offensive item is said, but you can't make out what is being
    said; These are extended bleeps where you cannot decipher what the
    character is saying, but it offends other characters."). Thus, the
    parentheticals in the transcript submitted by PTC are, in virtually
    all cases, PTC's guess regarding what the deleted word was.

[^20]: We note that, in the Complaint, PTC cites as indecent a line in
    which expletives (stated by a character who was burned by the corn
    baller implement) are edited out, leaving the word "Christ" at the
    end of the exclamation. The 9^th^ Circuit held that such statements
    are not a violation under 18 U.S.C. § 1464. *See Gagliardo v. United
    States*, 366 F.2d 720, 725 (9^th^ Cir. 1966) ("God damn it" not a
    violation under 18 U.S.C. § 1464), and *Warren B. Appleton*, 28 FCC
    2d 36 (B'cast Bur. 1971) ("damn" not a violation under 18 U.S.C. §
    1464); *see also Burstyn v. Wilson*, 343 U.S. 495, 505 (1952)
    (government shall not "suppress real or imagined attacks upon a
    particular religious doctrine"); *Raycom America (WMC-TV)*,
    Memorandum Opinion and Order, 18 FCC Rcd 4186 (2003).