**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | *  | File No. EB-04-IH-0329       |
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| Various Complaints Regarding     | ** |                              |
| CNN's Airing of the 2004         |    |                              |
| Democratic National Convention   | *  |                              |
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**MEMORANDUM OPINION AND ORDER**

**Adopted: March 17, 2005 Released: March 17, 2005**

By the Chief, Enforcement Bureau:

# INtroduction

1.  In this *Memorandum Opinion and Order* ("*MO&O*"), we deny
    complaints alleging that on July 29, 2004, CNN aired live program
    material during the 2004 Democratic National Convention ("DNC") that
    violated federal restrictions regarding the broadcast of obscene,
    indecent and profane material. As set forth below, the Commission
    has indicated that it does not regulate indecency and profanity on
    cable and satellite subscription services, so we deny that aspect of
    the complaints. Moreover, nothing in the record indicates that the
    material at issue meets the legal test for obscenity, so we also
    deny that aspect of the complaints.

# BACKGROUND

2.  The complaints assert that at the conclusion of Senator John Kerry's
    address to the DNC, CNN, which is available through cable or
    satellite service,[^1] carried a feed from a microphone located near
    members of the event's support staff. The complaints allege that
    this microphone captured one staff member who, upset by problems
    with the balloon drop that was supposed to follow Senator Kerry's
    speech, uttered the "F-word."[^2]

# 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.[^3] 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."[^4] 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."[^5] As the Commission recently stated: ". . . the
    criminal code restriction on indecency applies only to 'means of
    radio communication' and therefore not cable communications."[^6]
    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."[^7]

4.  We also deny the complaints to the extent that they allege that
    CNN's broadcast of the DNC 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.[^8] This test is designed "to
    isolate 'hard core' pornography from expression protected by the
    First Amendment."[^9] Nothing in the record indicates that CNN's
    broadcast coverage of the DNC depicts the kind of "hard core
    pornography" covered by *Miller*, or that, *as a whole*, it 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."[^10] Satellite subscription services have similar
    tools.[^11]

# ordering clause

6.  Accordingly, IT IS ORDERED, that the complaints filed against CNN's
    airing of the 2004 Democratic National Convention are hereby DENIED.

    FEDERAL COMMUNICATIONS COMMISSION

    David H. Solomon

    Chief, Enforcement Bureau

[^1]: "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]: Specifically, the complainants allege that the staff member stated
    "goddammit...what the fuck are you guys doing up there."

[^3]: *See Violent Television Programming and Its Impact on Children*,
    Notice of Inquiry, 19 FCC Rcd 14394, 14403, ¶ 21 (2004) ("*Violence
    NOI*").

[^4]: *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).

[^5]: 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).

[^6]: *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. The Commission's authority over
    profanity and indecency derives from the same criminal statute and
    Commission rules. Because the Commission's authority over profanity
    is coextensive with its authority over indecency, the limits on its
    authority over indecency on cable and satellite services also apply
    to its authority over profanity in the same circumstances.

[^7]: *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.").

[^8]: *Miller v. California*, 413 U.S. 15, 24 (1973).

[^9]: *Id.* at 29.

[^10]: *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/>.

[^11]: *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>.