Before the

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | * | File No. EB-04-IH-0589       |
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| 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"       | * |                              |
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**MEMORANDUM OPINION AND ORDER**

**Adopted: February 3, 2005 Released: February 28, 2005**

By the Commission: Chairman Powell issuing a separate statement;
Commissioner Martin issuing a separate statement at a later date.

**I. INTRODUCTION**

1.  In this *Memorandum Opinion and Order*, we deny complaints filed by
    members of the American Family Association ("AFA") and by others
    (collectively, the "Complainants") alleging that certain television
    stations affiliated with the ABC Television Network ("ABC")[^1]
    broadcast indecent and profane material on November 11, 2004, from
    approximately 8:00 to 11:00 p.m. Eastern Standard Time, during the
    ABC presentation of the film "Saving Private Ryan." After our review
    of the complaints and the videotape of the broadcast of the film so
    aired by these stations,[^2] we find that the material does not
    violate the applicable indecency and profanity prohibitions.

**II. BACKGROUND**

2.  On November 11, 2004, certain stations that are affiliates of ABC
    aired a special Veterans Day presentation of the 1998
    award-winning[^3] World War II motion picture "Saving Private Ryan."
    The film relates the story of a mission by eight U.S. soldiers to
    rescue Private James Francis Ryan, a soldier and the sole surviving
    son from a family of four brothers, three of whom were lost while
    also serving in the war. At the commencement of the broadcast, the
    film is introduced by Dr. Harold Baumgarten, a World War II veteran
    who survived the Allies' D-Day landing at Normandy Beach, which is
    depicted in the opening scenes of the film. Dr. Baumgarten, now in
    his eighties, was, at 19 years of age, a soldier who was wounded
    five times during 32 hours of combat at Normandy.[^4] He is joined
    in introducing the film by United States Senator John McCain, a
    distinguished Navy veteran who served in Vietnam.

3.  Senator McCain notes in his introductory remarks that the broadcast
    of the film is "an extraordinary tribute to a generation of brave
    men like Dr. Baumgarten," who fought to protect American
    freedom.[^5] The Senator expresses his opinion that it is important
    to present this "intense, emotional film unedited, with limited
    commercial interruption," because "\[i\]f we don't remember the
    past, we run the risk of repeating it."[^6] However, he also states
    that "the R-rated language and graphic content \[of the film\] is
    for mature audiences and not appropriate for children."[^7]
    Following this introduction, the text of an additional viewer
    advisory is aired, [^8] along with the letters "TV MA LV," the
    voluntary industry code warning parents that the broadcast is for
    mature audiences only and unsuitable for children due to the
    presence of violence and unacceptable language. [^9] Such warnings
    and codes are also aired after each of the 10 commercial breaks
    during the broadcast[^10] and were posted on the ABC website in
    advance of the broadcast.[^11]

4.  The Commission's Enforcement Bureau has previously ruled that
    Veterans Day broadcasts in 2001 and 2002 of the unedited version of
    the film did not violate the Commission's indecency
    prohibitions.[^12] Nevertheless, according to news reports,
    approximately 66 of a total of 225 stations affiliated with ABC
    declined to air the film, citing their uncertainty as to whether it
    contained indecent material, reportedly based, in part, on
    Commission indecency rulings subsequent to these previous broadcasts
    of the film.[^13] Following the November 11, 2004, broadcast, the
    Commission received the complaints, alleging that the aired film
    contains indecent or otherwise actionable material. The Complainants
    generally cite, among other things, film dialogue containing
    expletives including: "fuck," and variations thereof; "shit,"
    "bullshit," and variations thereof; "bastard," and "hell." In
    addition, the Complainants cite the presence in the film of other
    allegedly offensive language, such as "Jesus," and "God damn." They
    also object to the film's graphic depiction of wartime violence.
    Accordingly, the Complainants argue that the ABC Network Stations
    should be sanctioned for airing material that violates federal
    indecency and profanity restrictions.

**III. DISCUSSION**

5.  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 Act prohibit
    the Commission from censoring program material and from interfering
    with broadcasters' freedom of expression.[^14] The Commission does,
    however, have the authority to enforce statutory and regulatory
    provisions restricting indecency. 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."[^15] In addition, section 73.3999 of the
    Commission's rules, which was promulgated for the civil enforcement
    of that statute and section 16(a) of the Public Telecommunications
    Act of 1992,[^16] as modified by a subsequent court decision,[^17]
    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.  Any consideration of government action against allegedly indecent
    programming must take into account the fact that such speech is
    protected under the First Amendment.[^18] The federal courts
    consistently have upheld Congress's authority to regulate the
    broadcast of indecent speech, as well as the Commission's
    interpretation and implementation of the governing statute.[^19]
    Nevertheless, the First Amendment is a critical constitutional
    limitation that demands that, in such determinations, we proceed
    cautiously and with appropriate restraint.[^20]

7.  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.[^21]

> 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.[^22]

8.  The complained-of material contained in the broadcast of the film
    includes at least one word (*i.e.* "fuck" and its variations) which
    falls within the first prong of our indecency definition.[^23]
    Therefore, the material 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, in context, is not patently offensive,
    and therefore, not indecent.

9.  In making indecency determinations, the Commission has indicated
    that the "*full context* in which the material appeared is
    critically important,"[^24] 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."*[^25] 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."[^26] In particular cases, one or two of the factors may
    outweigh the others, either rendering the broadcast material
    patently offensive and consequently indecent,[^27] or,
    alternatively, removing the broadcast material from the realm of
    indecency.[^28]

10. Contextual considerations are critical in making indecency
    determinations for two reasons, both of which implicate the First
    Amendment interests at stake. First, context is important in
    determining the potential impact of the allegedly indecent material
    on children -- the compelling governmental interest that the Supreme
    Court held justified regulation of broadcast indecency. As the
    Supreme Court noted in *Pacifica*:

The Commission's decision \[in *Pacifica*\] rested entirely on a
nuisance rationale

under which context is all-important. The concept requires consideration
of a host

of variables. The time of day was emphasized by the Commission. The
content of the

program in which the language is used will also affect the composition
of the audience...

*Pacifica* at 750. Thus, the Court observed that the broadcast of an
Elizabethan comedy or one of Chaucer's Canterbury Tales might raise
different considerations than the broadcast at issue in *Pacifica*.[^29]
The Court explained: "Even a prime-time recitation of Geoffrey Chaucer's
Miller's Tale would not be likely to command the attention of many
children who are both old enough to understand and young enough to be
adversely affected . . . "[^30] Thus, the content of the program, as
well as the time period during which it is broadcast, may affect how
many children are likely to be in the audience and the material's impact
on them.

11\. Second, we must consider context in order to minimize intrusion
into broadcasters' speech. Although the courts have upheld Congress'
authority to regulate the broadcast of indecent speech and the
Commission's implementation of the governing statute,[^31] we must
nevertheless proceed with "due respect for the high value our
Constitution places on freedom and choice in what the people say and
hear."[^32] Our decisions reflect this restraint. Thus, we do not find
indecent every depiction or description of sexual or excretory organs or
activities. Rather, as discussed above, we find material indecent only
if it is patently offensive based on an examination of the material's
explicit or graphic nature, whether it is dwelled upon or repeated, and
whether it appears to pander or is intended to titillate or shock the
audience. In connection with the third factor, we consider whether the
material has any social, scientific or artistic value, as finding that
material has such value may militate against finding that it was
intended to pander, titillate or shock.[^33] Of course, as the D.C.
Circuit has stated, "merit is properly treated as a factor in
determining whether material is patently offensive, but it does not
render such material *per se* not indecent."[^34]

12\. As discussed below, contextual considerations are important in
evaluating "Saving Private Ryan" for both reasons.

13\. The film, as aired by the ABC Network Stations on November 11,
2004, contains numerous expletives and other potentially offensive
language generally as part of soldiers' dialogue, some of which is cited
by the Complainants. Such language includes: "fuck," and its variations;
"hell"; "ass" and "asshole"; "crap"; "son of a bitch"; "bastard"; "shit"
and its variations, including "bullshit" and "shitty"; "prick"; and
"pee." For the purpose of this discussion, we will assume *arguendo*,
that this material meets the first and second components to our analysis
of whether it is patently offensive, in that at least some of the
language is graphic and explicit, and is repeated throughout the course
of the three and a half-hour broadcast of the film. Nevertheless, for
the reasons discussed below, in light of the overall context in which
this material is presented, we conclude that such findings with respect
to the first two factors are outweighed in this instance by the third
component of the analysis. For the following reasons, here, the
complained-of material, in context, is not pandering and is not used to
titillate or shock.

14\. The subject matter of the film, the portrayal of a mission to save
the last surviving son of an Iowa farm family, involves events that
occurred during World War II. As stated in the introduction to the
broadcast, in relating this story, the motion picture realistically
depicts the fierce combat during the Normandy invasion, including,
according to a veteran who participated in and witnessed these events,
"things that no one should ever have to see."[^35] Essential to the
ability of the filmmaker to convey to viewers the extraordinary
conditions in which the soldiers conducted themselves with courage and
skill are the reactions of these ordinary Americans to the barbaric
situations in which they were placed. The expletives uttered by these
men as these events unfold realistically reflect the soldiers' strong
human reactions to, and, often, revulsion at, those unspeakable
conditions and the peril in which they find themselves. Thus, in
context, the dialogue, including the complained-of material, is neither
gratuitous nor in any way intended or used to pander, titillate or
shock. Indeed, it is integral to the film's objective of conveying the
horrors of war through the eyes of these soldiers, ordinary Americans
placed in extraordinary situations. Deleting all of such language or
inserting milder language or bleeping sounds into the film would have
altered the nature of the artistic work and diminished the power,
realism and immediacy of the film experience for viewers. In short, the
vulgar language here was not gratuitous and could not have been deleted
without materially altering the broadcast. In this context, we must
proceed with caution and exercise restraint given "the high value our
Constitution places on freedom and choice in what the people say and
hear."[^36]

15\. Moreover, the presentation by the ABC Network Stations is not
intended as family entertainment, a fact clearly and explicitly stated
in the introduction that precedes the film and is repeated in the aural
and visual viewer advisory and voluntary parental code that follow each
commercial break during the broadcast. Thus, parents had ample warning
that this film contained material that might be unsuitable for children
and could have exercised their own judgment about the suitability of the
language for their children in the context of this film.

16\. The Commission has found similar material depicting an historical
view of World War II and wartime atrocities to be not patently
offensive, and thus not actionably indecent.[^37] We see no reason to
conclude otherwise with respect to the film at issue here. Thus, in
light of the overall context of the film, including the fact that it is
designed to show the horrors of war, its presentation to honor American
veterans on the national holiday specifically designated for that
purpose, the introduction, which articulated the importance of
presenting the film in its unedited form, and the clear and repeated
warnings provided by ABC, not only in the introduction but also at each
commercial break, we find that the complained-of material is not
patently offensive as measured by contemporary community standards for
the broadcast medium, and, therefore, not indecent. For the same
reasons, and based on the same contextual analysis, we conclude that the
language referred to above is not profane in context here.[^38]

17\. Further, we conclude that uses of the words "Jesus," "Jesus
Christ," "God," "God damn" and its variations, and "damn" and its
variations, are not actionable under section 1464 for the reasons set
forth in *Raycom America, Inc.*, Memorandum Opinion and Order, 18 FCC
Rcd 4186 (2003). Finally, although some of the Complainants also
reference the violence depicted in the film, the Commission's current
standard for determining whether material falls within the prohibitions
of section 1464 is not applicable to violent programming.[^39]

18\. In so concluding, we find that this case is distinguishable from
that in which we previously found the use of the word "fucking" during
the broadcast of the 2003 Golden Globe Awards ceremony to be indecent
and profane in context.[^40] The contextual differences between the
expletives contained in the broadcast of the film here and that
contained in the 2003 broadcast of the Golden Globe Awards ceremony are
critical to our analysis under section 1464. The utterance of the word
"fucking" by a performer during the Golden Globe Awards telecast
occurred in the context of a live awards program in which use of the
word was shocking and gratuitous, where no claim of "any political,
scientific or other independent value" was made, and during which
children were expected to be in the audience.[^41] Consequently, we
concluded that, in context, the use of the word "fucking" in that
instance was indecent and profane.[^42] In contrast, and as discussed
above, in the different context presented here, the complained-of
material broadcast during the presentation of the film "Saving Private
Ryan" is not indecent or profane.

**IV. ORDERING CLAUSES**

19\. ACCORDINGLY, IT IS ORDERED, that the Complaints filed against the
licensees of the ABC Network Stations regarding their broadcast on
November 11, 2004, of the film "Saving Private Ryan" ARE HEREBY DENIED.

20\. IT IS FURTHER ORDERED that a copies of this *Memorandum Opinion and
Order* shall be sent by Certified Mail Return Receipt Requested to
Donald E. Wildmon, American Family Association, P.O. Drawer 2440,
Tupelo, Mississippi 38803, to Susan L. Fox, Vice President, Government
Relations, The Walt Disney Company, 1150 17^th^ Street, N.W., Suite 400,
Washington, D.C. 20036 and to John W. Zucker, Senior Vice President, Law
& Regulation, ABC, Inc., 77 West 66^th^ Street, New York, N.Y. 10024.

FEDERAL COMMUNICATIONS COMMISSION

Marlene H. Dortch

Secretary

**STATEMENT OF**

**CHAIRMAN MICHAEL K. POWELL**

*Re: Complaints Against Various Licensees Regarding Their Broadcast on
November 11, 2004, of ABC Television Network's Presentation of the Film
"Saving Private Ryan,"*

Today, we reaffirm that content cannot be evaluated without careful
consideration of context. *Saving Private Ryan* is filled with
expletives and material arguably unsuitable for some audiences, but it
is not indecent in the unanimous view of the Commission.

This film is a critically acclaimed artwork that tells a gritty
story---one of bloody battles and supreme heroism. The horror of war and
the enormous personal sacrifice it draws on cannot be painted in airy
pastels. The true colors are muddy brown and fire red and any accurate
depiction of this significant historical tale could not be told properly
without bringing that sense to the screen. It is for these reasons that
the FCC has previously declined to rule this film indecent.

This, of course, is not to suggest that legal content is not otherwise
objectionable to many Americans. Recognizing that fact, it is the
responsible broadcaster that will provide full and wide disclosure of
what viewers are likely to see and hear, to allow individuals and
families to make their own well-informed decisions whether to watch or
not. I believe ABC and its affiliated stations made a responsible effort
to do just that in this case.

Fair warning is appropriately an important consideration in indecency
cases. In complaints you often find that Americans are not excessively
prudish, only that they are fed up with being ambushed with content at
times and places they least expect it. It is insufficient to tell
consumers not to watch objectionable content, if the "shock" value is
dependent on the element of surprise. This is particularly true in
broadcast television, where viewers are accustomed and encouraged to
order their viewing by parts of the day---morning shows, daytime TV and
late night have long been the zones in which expectations are set. When
those lines are blurred, the consumer loses a degree of control, a
degree of choice.

Context remains vital to any consideration of whether profanity or
sexual content constitutes legally actionable indecency. The Commission
must stay faithful to considering complaints within their setting and
temper any movement toward stricter liability if it hopes to give full
effect to the confines of the First Amendment.

[^1]: For purposes of this *Memorandum Opinion and* *Order*, "ABC
    Network Stations" are those stations that are affiliates of ABC and
    aired the film "Saving Private Ryan" on November 11, 2004. As
    explained below, not all ABC affiliates aired the film.

[^2]: The videotape contains a running reference to the time of the
    broadcast by hour, minute and second, commencing at 8:00 p.m.,
    presumably the Eastern Standard Time of the broadcast.. All
    references herein to the tape will be to the "Videotape" and provide
    the time designation of the material so referenced.

[^3]: "Saving Private Ryan" was the recipient of the 1999 Golden Globe
    awards for best motion picture-drama and best direction. That same
    year, the film received Academy Awards for best direction,
    cinematography, film editing, sound and sound effects editing.
    http://www.casenet.com/movie/savingprivateryan.htm.

[^4]: Videotape at approximately 8:00:12-46 p.m.

[^5]: *Id.* at approximately 8:00:48-58 p.m.

[^6]: *Id.* at approximately 8:01:11-15 p.m.

[^7]: *Id.* at approximately 8:01:05-10 p.m.

[^8]: The warning is accompanied by audio delivery of the following:
    "This film contains prolonged depictions of graphic, realistic WWII
    violence, as well as intense adult language. The original content of
    the film has not been altered for this TV broadcast. Parental and
    viewer discretion is strongly advised."

[^9]: In addition to serving as a warning, the presence of these codes
    allows parents to lock out the telecast on sets equipped with the
    V-chip. <http://www.fcc.gov/cgb/consumerfacts/vchip.html>. *See
    also* *Implementation of Section 551 of the Telecommunications Act
    of 1996, Video Programming Ratings*, 13 FCC Rcd 8232 (1998);
    *Technical Requirements to Enable Blocking of Video Programming
    Based on Program Ratings*, 13 FCC Rcd 11248 (1998).

[^10]: In connection with each of the viewer advisories that follow
    commercial breaks, the following appears on screen: "This film is
    being presented uncut with graphic violence and intense adult
    language. Viewer discretion is strongly advised." Audio accompanying
    this text repeats the admonition that "viewer discretion is strongly
    advised." The viewer advisories containing the warning, along with
    the program codes, appear at approximately 8:37:05, 9:09:32,
    9:19:28, 9:30:30, 9:44:52, 9:57:16, 10:12:38, 10:21:59, 10:35:13,
    and 11:01:37. *See* Videotape, *passim*.

[^11]: See <http://abc.go.com/movies/savingprivateryan.html> ("Due to
    graphic violence and intense adult language, viewer discretion is
    strongly advised.")

[^12]: *See, e.g.,* Letter from Charles W. Kelley, Chief, Investigations
    and Hearings Division, Enforcement Bureau, to Mr. and Mrs. John
    Schmeling, Jr., dated December 19, 2002, EB-02-IH-0838; Letter from
    Charles W. Kelley, Chief, Investigations and Hearings Division,
    Enforcement Bureau, to Tim Wildmon, Vice President, American Family
    Association, dated June 7, 2002, EB-02-IH-0085.

[^13]: *See* David Bauder, "66 ABC affiliates chose not to run 'Saving
    Private Ryan,'" THE DETROIT NEWS, November 13, 2004,
    [www.detnews.com/2004/screens/0411/18](http://www.detnews.com/2004/screens/0411/18).
    However, all 10 ABC-affiliated stations owned and operated by ABC,
    Inc. did air the film. *Id.*

[^14]: *See* 47 U.S.C. § 326.

[^15]: 18 U.S.C. § 1464.

[^16]: Pub. L. No. 102-356, § 16(a), 106 Stat. 949, 954 (1992).

[^17]: *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*").

[^18]: 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*").

[^19]: *FCC v. Pacifica Foundation*, 438 U.S. 726 (1978) ("*Pacifica*").
    *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.*

[^20]: *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.")

[^21]: *Infinity Broadcasting Corporation of Pennsylvania,* Memorandum
    Opinion and Order, 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)).

[^22]: *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).

[^23]: *Complaints Against Various Broadcast Licensees Regarding Their
    Airing Of The "Golden Globe Awards" Program,* Memorandum Opinion and
    Order, 19 FCC Rcd 4975, 4978, ¶ 8 (2004) *petitions for stay and
    reconsideration pending* ("*Golden Globe Awards Order*") ("\[g\]iven
    the core meaning of the "F-Word," any use of that word, or a
    variation, in any context, inherently has a sexual connotation and
    therefore falls within the first prong of our indecency
    definition").

[^24]: *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. In so holding, the Court observed
    that "indecency is largely a function of context -- it cannot be
    adequately judged in the abstract." Id. at 742.

[^25]: *Indecency Policy Statement,* 16 FCC Rcd at 8003 (emphasis in
    original).

[^26]: *Id.*

[^27]: *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).

[^28]: *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").

[^29]: *Id*. at 750 and n. 29.

[^30]: *Id*. at n. 29.

[^31]: *Pacifica,* 438 U.S. 726. *See also ACT I*, 852 F.2d at 1339;
    *ACT II*; *ACT III*.

[^32]: *ACT I*, 852 F.2d at 1344. *See also id* at 1340 n. 14 ("the
    potentially chilling effect of the FCC's generic definition will be
    tempered by the Commission's restrained enforcement policy.")

[^33]: *See WPBN/WTOM License Subsidiary, Inc. (WPBN-TV and WTOM-TV*),
    Order on Review, 15 FCC Rcd 1838 (2000). *See also Golden Globe*
    *Awards Order,* 19 FCC Rcd at 4979, ¶ 9 (use of the word "fuck"
    during a live awards ceremony telecast was "shocking and
    gratuitous").

[^34]: *See ACT I*, at 1340 (\"since the overall value of a work will
    not necessarily alter the impact of certain words or phrases on
    children, the FCC's approach is permissible under controlling case
    law; merit is properly treated as a factor in determining whether
    material is patently offensive, but it does not render such material
    per se not indecent\").

[^35]: Videotape at approximately 8:00:43 p.m. One reviewer
    characterized the scenes in the film depicting the landing at
    Normandy, in which the majority of the expletives are uttered by the
    soldiers, as "a chaos of noise, mud, blood, vomit and death."
    http://rogerebert.suntimes.com/apps/pbcs.dll/article?AID=/19980724/REVIEWS/807240.

[^36]: *ACT I* at 1344. In any event, we also note that ABC was
    apparently barred by the copyright holder from altering the film in
    any way. *See* <http://abc.go.com/movies/savingprivateryan.html>.

[^37]: *See WPBN/WTOM License Subsidiary, Inc.,*15 FCC Rcd 1838 (2000),
    in which the Commission found not to be patently offensive and
    accordingly not indecent adult frontal nudity depicted during a
    broadcast of the film "Schindler's List." In that decision, the
    Commission held that the staff of the then-Mass Media Bureau had
    properly concluded that the broadcast was not patently offensive as
    measured by contemporary community standards for the broadcast
    medium, based upon the full context of its presentation, including
    the subject matter of the film, the manner of presentation, and the
    warnings that accompanied the broadcast of the film. The staff
    determined, and the Commission agreed that, in the particular
    broadcast of the film at issue, the depiction of adult frontal
    nudity was incidental to the broadcast material's rendering of a
    historical view of World War II and wartime atrocities, which,
    viewed in context, was not presented in a pandering, titillating or
    vulgar manner. *Id.* at 1839-40, ¶¶ 3, 13. *See also Peter Branton*,
    Letter By Direction of the Commission, 6 FCC Rcd 610 (1991)
    (concluding that repeated use of "fuck" in a recorded news interview
    program not indecent in context).

[^38]: *See Golden Globe Awards Order,* 19 FCC Rcd at 4981, ¶¶ 13-14
    (defining profanity for purposes of section 1464).

[^39]: We note, however, that the Commission has issued a *Notice of
    Inquiry* to seek comment on issues relating to the presentation of
    violence on television, including whether the agency should restrict
    such programming. *Violent Television Programming And Its Impact on
    Children*, Notice of Inquiry, 19 FCC Rcd 14394 (2004).

[^40]: *See Golden Globe Awards Order,* 19 FCC Rcd 4975. We note that
    the Commission made clear in this Order that its holding related
    specifically to the context at issue. *Id.* at 4975, ¶ 2, 4979, ¶ 9,
    4982, ¶¶ 16-17 (indecency), 4981, ¶¶ 13-14 (profanity).

[^41]: *Id.* at 4979, ¶¶ 9, 10.

[^42]: *Id.* at 4979-81, ¶¶ 9-13.