**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

In the Matter of **)**

**)**

**WBDC BROADCASTING, INC. )** Facility ID No. 30576

**)** File No. EB-03-IH-0710

Licensee of Station WBDC-TV **)**

Washington, D.C. **)**

**)**

##  

## MEMORANDUM OPINION AND ORDER

**Adopted:** February 14, 2005 **Released:** February 25, 2005

**By the Commission:**

## I. INTRODUCTION

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

2\. PTC alleges that WBDC-TV and other television licensees affiliated
with The WB Television Network ("WB Affiliates") broadcast indecent
material on November 19, 2003, during the *Angel* program, which was
broadcast by WBDC-TV at 9:00 p.m. Eastern Standard Time. PTC complains
about several scenes during the episode, which involves, *inter alia,* a
rivalry between the program's characters Angel and Spike.[^2] After
review of the Complaint and a 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.

**A. Indecency Analysis**

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 *Angel* program depicts 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 two scenes -- several minutes apart\-- during
the November 19, 2003, episode of *Angel.* We have attached PTC's
Complaint which summarizes these scenes from the subject episode. After
review of the Complaint and the videotape of the episode provided by
PTC, we conclude that the material is not "patently offensive" as
defined by Commission precedent, because the cited material is not
sufficiently graphic or explicit. Both scenes are brief. Neither scene
at issue contains any nudity and neither is sufficiently graphic or
explicit to render the program patently offensive as measured by
contemporary community standards.[^18] Consequently, we conclude that
the material in question is not indecent.

**III. ORDERING CLAUSES**

9\. Accordingly, IT IS ORDERED, that the Complaint alleging that WBDC
Broadcasting, Inc., licensee of Station WBDC-TV, Washington, DC, and
other WB Television Network affiliates, broadcast indecent material
during the *Angel* program on November 19, 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 a copy of this *Memorandum Opinion and
Order* shall be sent by Certified Mail Return Receipt Requested to the
licensee of Station WBDC-TV, WBDC Broadcasting, Inc., 2121 Wisconsin
Avenue, N.W., Suite 350, Washington, D.C., 20007, and to the Parents
Television Council, 707 Wilshire Boulevard, Los Angeles, California
90017.

> FEDERAL COMMUNICATIONS COMMISSION

Marlene H. Dortch

Secretary

[^1]: *See* 18 U.S.C. § 1464 (2002); 47 C.F.R. § 73.3999 (2002).

[^2]: Letter from Lara Mahaney, Parents Television Council, to David H.
    Solomon, Chief, Enforcement Bureau, Federal Communications
    Commission, dated December 4, 2003, at 2 ("Complaint"). A copy of
    the Complaint is provided as an Attachment.

[^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 the 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,* Memorandum
    Opinion and Order, 2 FCC Rcd 2705 (1987) (subsequent history
    omitted) (*citing Pacifica Foundation*, Memorandum Opinion and
    Order, 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*, Policy Statement, 16 FCC Rcd 7999, 8002 (2001)
    *("Indecency Policy Statement")* (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)*, Notice of
    Apparent Liability, 12 FCC Rcd 21828 (Mass Media Bur. 1997)
    (forfeiture paid) (extremely graphic or explicit nature of
    references to sex with children outweighed the fleeting nature of
    the references); *EZ New Orleans, Inc. (WEZB(FM))*, Notice of
    Apparent Liability, 12 FCC Rcd 4147 (Mass Media Bur. 1997)
    (forfeiture paid) (same).

[^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, e.g., KSAZ License, Inc. (KSAZ(TV)),* Memorandum Opinion
    and Order, 19 FCC Rcd 15999 (2004); *Complaint Against Various
    Broadcast 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 (2004).