**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

+----------------------------------+----+------------------------------+
| In the Matter of                 | *  | File Nos. EB-03-IH-0468;     |
|                                  | *) | EB-03-IH-0563 through 0567;  |
| Various Complaints Against the   | ** | EB-03-IH-0732; EB-05-IH-0040 |
| Cable/Satellite Television       |    |                              |
| Program "Nip/Tuck"               | *  |                              |
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+----------------------------------+----+------------------------------+

**MEMORANDUM OPINION AND ORDER**

**Adopted: March 3, 2005 Released: March 4, 2005**

By the Chief, Enforcement Bureau:

# INtroduction

1.  In this *Memorandum Opinion and Order*, we deny complaints received
    from individuals who have alleged that the television program
    "Nip/Tuck," shown on the FX Network, or various episodes of the
    program, violate federal restrictions regarding indecent and obscene
    material. As set forth below, the Commission has indicated that it
    does not regulate cable indecency or indecency on satellite
    subscription services, so we deny that aspect of the complaints.
    Moreover, nothing in the record indicates that "Nip/Tuck" meets the
    legal test for obscenity, so we deny that aspect of the complaints
    as well.

# BACKGROUND

2.  The television program "Nip/Tuck," a drama involving plastic
    surgeons, is shown on the FX Network, which is available through
    cable or satellite service.[^1] Some complaints allege that the
    program generally is indecent and/or obscene, and other complaints
    allege that various, specific episodes are indecent and/or obscene.
    Although the complaints vary in the degree of detail provided, they
    generally allege that the program depicts actors engaged in an array
    of simulated sexual acts, including oral, anal, and genital
    intercourse, as well as nudity. Some complaints also focus on the
    program's graphic portrayal of medical procedures such as
    liposuction and rhinoplasty.

# DISCUSSION

3.  The Commission does not regulate cable indecency. In this regard,
    the Commission recently stated: "Indecency regulation is only
    applied to broadcast services," not cable.[^2] In declining to
    review complaints regarding cable indecency, the Commission has said
    that cable services "are not broadcast services, but
    subscription-based services, which do not call into play the issue
    of indecency."[^3] Under 18 U.S.C. § 1464, the Commission has
    express statutory authority to impose sanctions for the broadcast of
    "any obscene, indecent, or profane language by means of radio
    communication."[^4] As the Commission recently stated: ". . . the
    criminal code restriction on indecency applies only to 'means of
    radio communication' and therefore not cable communications."[^5]
    Thus, the Commission does not regulate cable indecency. More
    generally, the Commission also has made clear that indecency
    restrictions do not apply to other subscription services: "\[T\]his
    case, which involves subscription as opposed to conventional
    broadcast service -- does not call into play the issue of
    indecency."[^6]

4.  We also deny the complaints to the extent that they allege that
    "Nip/Tuck" is obscene. The three-part obscenity test set forth in
    *Miller v. California* requires that (1) an average person, applying
    contemporary community standards, would find that the material, as a
    whole, appeals to the prurient interest; (2) the material depicts or
    describes, in a patently offensive way, sexual conduct specifically
    defined by applicable law; and (3) the material, taken as a whole,
    lacks serious literary, artistic, political, or scientific
    value.[^7] This test is designed "to isolate 'hard core' pornography
    from expression protected by the First Amendment."[^8] The
    complaints, even those that cite to and describe specific episodes,
    do not allege that the program actually depicts the kind of "hard
    core" pornography covered by *Miller*. Further, nothing in the
    record indicates that "Nip/Tuck" *as a whole* appeals to the
    prurient interest or lacks serious literary, artistic, political, or
    scientific value.

5.  Finally, although the Commission does not regulate cable indecency,
    we note that the Act provides a number of tools, available through
    current technology, for those who wish to selectively block unwanted
    television programming. As the Commission has noted, "\[f\]irst, as
    section 640 requires, a cable operator must block programming, using
    any means, if such a request is made by a particular

    subscriber. Second, a cable subscriber may obtain a lock-box from
    the local cable operator if he or she wants to selectively block
    unwanted material."[^9] Satellite subscription services have similar
    tools.[^10]

# ordering clauses

6.  Accordingly, IT IS ORDERED, that the complaints filed against the FX
    Network television program "Nip/Tuck" are hereby DENIED.

    FEDERAL COMMUNICATIONS COMMISSION

    David H. Solomon

    Chief, Enforcement Bureau

[^1]: *See* [www.fxnetworks.com](http://www.fxnetworks.com/). "Unlike
    broadcast television, which sends over-the-air signals, cable
    television operates by transmitting programs to subscribers through
    coaxial cables or wires." *Cruz v. Ferre*, 755 F.2d 1415, 1419 n.4
    (11^th^ Cir. 1985) (citations omitted). Satellite television is
    transmitted via "over-the-air signals" but, like cable, is available
    only to subscribers. *See Subscription Video*, Report and Order, 2
    FCC Rcd 1001, 1005, ¶ 32 (1987) (subscription-based satellite
    services are not "broadcasting" as defined by the Communications
    Act), *aff'd sub nom. National Association for Better Broadcasting
    v. FCC*, 849 F.2d 665 (D.C. Cir. 1988).

[^2]: *See Violent Television Programming and Its Impact on Children*,
    Notice of Inquiry, 19 FCC Rcd 14394, 14403, ¶ 21 (2004) ("*Violence
    NOI*").

[^3]: *Applications for Consent to the Transfer of Control of Licenses
    from Comcast Corporation and AT&T Corp., Transferors, to AT&T
    Comcast Corporation, Transferee*, Memorandum Opinion and Order, 17
    FCC Rcd 23246, 23328, ¶ 213 (2002) (subsequent history omitted).

[^4]: 18 U.S.C. § 1464 ("Whoever utters any obscene, indecent, or
    profane language by means of radio communications shall be fined
    under this title or imprisoned not more than two years, or both.");
    *compare id. with* 18 U.S.C. § 1468(a) ("Whoever knowingly utters
    any obscene language or distributes any obscene matter by means of
    cable television or subscription services on television, shall be
    punished by imprisonment for not more than 2 years or by a fine in
    accordance with this title, or both."). *See also*
    Telecommunications Act of 1992, Pub. L. No. 102-356, § 16a, 106
    Stat. 949, 954 (1992) (requiring Commission to implement indecency
    time of day restrictions on "radio or television *broadcast*
    station\[s\]") (emphasis added); 47 C.F.R. § 73.3999 (applying
    indecency restrictions to broadcast but not to cable).

[^5]: *Violence NOI*, 19 FCC Rcd at 14403, n.45 (quoting 18 U.S.C. §
    1464). The Commission also noted there that its rules regarding
    section 1464 do not apply to cable.

[^6]: *See Harriscope of Chicago, Inc.,* Memorandum Opinion and Order, 3
    FCC Rcd 757, 760 n.2 (1988) (subsequent history omitted) (indecency
    restrictions not applied to subscription service provided by
    television licensee; "Consistent with existing case law, the
    Commission does not impose regulations regarding indecency on
    services lacking the indiscriminate access to children that
    characterizes broadcasting."); *see also Litigation Recovery Trust*,
    Memorandum Opinion and Order, 17 FCC Rcd 21852, 21856, ¶ 8 (2002)
    (indecency restrictions not applicable to satellite programming
    provided to hotels; "\[s\]uch subscription-based services do not
    call into play the issue of indecency.").

[^7]: *Miller v. California*, 413 U.S. 15, 24 (1973).

[^8]: *Id.* at 29.

[^9]: *Implementation of Section 505 of the Telecommunications Act of
    1996*, Order, 16 FCC Rcd 20915, 20918, ¶ 9 (2001); *see* 47 U.S.C.
    §§ 544(d)(2), 560. For further information on how consumers can
    restrict access to unwanted television programming, *see*
    <http://www.fcc.gov/parents/>.

[^10]: *See*
    [http://www.directv.com/DTVAPP/learn/LocksLimits.dsp](http://www.directtv/DTNAPP/learn/LocksLimits.dsp);
    <http://www.dishnetwork.com/content/programming/parental_control/index.shtml>.