**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

In the Matter of )

)

Complaints by Parents Television Council ) File No. EB-03-IH-0357, *et
al.*[^1]

Against Various Broadcast Licensees )

Regarding Their Airing Of )

Allegedly Indecent Material )**\
**

## 

## MEMORANDUM OPINION AND ORDER

**Adopted: December 8, 2004** **Released: January 24, 2005**

By the Commission: Commissioner Copps approving in part, dissenting in
part and issuing a statement; Commissioner Martin approving in part,
dissenting in part and issuing a statement at a later date.

**I. INTRODUCTION**

1\. In this *Memorandum Opinion and Order*, we deny 21 complaints filed
by the Parents Television Council ("PTC") against various television
broadcast licensees alleging violations of the federal restrictions
regarding the broadcast of indecent material.[^2] PTC provided a
transcript of the segments it considers indecent and provided videotapes
of each of the programs referenced in the complaints. PTC asks that,
should the Commission find the material in each complaint indecent, it
issue a notice of apparent liability for forfeiture against the licensee
and every other licensee that aired the material. After reviewing the
material provided by PTC, we conclude that the complained of material is
not patently offensive pursuant to contemporary community standards for
the broadcast medium and is therefore not indecent.

**II. DISCUSSION**

2\. It is a violation of federal law to broadcast obscene, indecent or
profane programming. Specifically, title 18 of the United States Code,
section 1464 prohibits the utterance of "any obscene, indecent or
profane language by means of radio communication."[^3] The Federal
Communications Commission, which is authorized to license radio and
television broadcast stations, is responsible for enforcing the
statutory and regulatory provisions restricting obscenity, indecency and
profanity.[^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 Communications Act of 1934, as
amended[^7] (the "Act"), 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.

3\. The Commission's role in overseeing program content is limited,
however, by the First Amendment to the United States Constitution and
section 326 of the Act, which prohibit the Commission from interfering
with broadcasters' freedom of expression and from censoring program
material.[^8] Thus, any consideration of government action against
allegedly indecent programming must take into account the fact that such
speech is protected under the First Amendment, and demands that we
proceed cautiously and with appropriate restraint when considering
enforcement action in such matters.[^9]

4\. 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.[^10]

> 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.[^11]

None of the broadcasts described below meets the second part of our
standard.[^12]

5\. In determining whether material is patently offensive, 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]

6.  Outlined below is a description of the allegedly indecent material
    cited in PTC's

complaints.

> a\. "[Everwood," September 16, 2002, 9 p.m. EST]{.underline}: a
> character remarks to another:

"I got this black eye because of you, dick."[^18]

b.  "[Fastlane," September 18, 2002, 9 p.m. EST]{.underline}: one
    character threatens another by stating: "...in my next life I'm
    coming back as a pair of pliers and pull off your nutsack."[^19]

c.  "[Girls Club," October 21, 2002, 9 p.m. EST]{.underline}: a young
    female attorney says to an older male attorney: ". . . those power
    dicks are going to start giving me trials." The attorney responds:
    "Is that what you call us? Power dicks?"[^20]

d.  ""[Girls Club," October 28, 2002, 9 p.m. EST]{.underline}: a female
    character remarks: "I'm

not feeling too sexual these days . . . . Especially here, I'm having a
little trouble with one of the power dicks."[^21]

e.  "[Dawson's Creek," October 30, 2002, 8 p.m. EST]{.underline}: one
    character remarks to

another: "Listen, I know that you're pissed at your dad for flaking on
you. It doesn't mean he's a bad dad, and it doesn't mean he doesn't love
you.[^22] Another character responds: "No, it just means he's a
dick."[^23]

f.  "[Dawson's Creek," December 11, 2002, 8 p.m. EST]{.underline}: one
    character tells another:

". . . you're being a dick."[^24]

g.  "[Austin Powers: The Spy Who Shagged Me," January 8, 2003, 8 p.m.
    EST]{.underline}: musical

number during which the title character's naked torso and genital area
are blocked by objects, furniture, and, in one instance, by his
hands.[^25] Later scenes include the use of the phrase "fat bastard,"
and the word "testicles."[^26] In another scene from this film, a male
and a female character are in bed together, but no sexual or excretory
organs or activities are depicted or discussed.[^27]

h.  "[NYPD Blue," April 8, 2003, 9 p.m. CST]{.underline}: a character
    states: "That dickhead in a

wheelchair."[^28]

i.  "[Friends," May 1, 2003, 8 p.m. EST]{.underline}: a female character
    and her husband encounter

the husband's former girlfriend at a medical office.[^29] After a
conversation concerning fertility treatment, the female character says
that she has to go because she's got "an invasive vaginal exam to get
to."[^30]

j.  "[The Diary of Ellen Rimbauer," May 12, 2003, 9 p.m.
    EST]{.underline}: one scene depicts two

female characters and one male character in bed together; all three are
under the covers and there are no sexual or excretory organs or
activities depicted.[^31] Another scene depicts a male character tying a
female character to a bed and then applying ice to her abdomen. The
female character moans and writhes. A third scene depicts a maid
undressing while a male character surreptitiously watches. A portion of
the side of the maid's breast is shown, but her nipple is not
exposed.[^32]

k.  "[Jamie Kennedy Experiment," October 23, 2003, 8:30 p.m.
    EST]{.underline}: the title character

Jamie pulls a prank on the mother of one of his friends. The mother
believes that she is participating in a serious television interview
about Jamie.[^33] The interviewer, who is in on the prank, mentions that
Jamie reported that the "hottest night of his life" occurred when he
became "intimate" with the mother, and that Jamie and the woman's son
used to play a game called "you show me yours, I'll show you mine."[^34]
Later, the woman confronts her son and tells him that Jamie said he'd
"had sex" with her. She asks her son "you didn't show \[Jamie\] your
penis or something, did you?"[^35] When the joke is revealed, the woman
calls Jamie a "bastard" and threatens to "kick his ass." In another
scene, involving a fake funeral home, Jamie says "it's gonna be my
ass."[^36]

l.  "[Run of the House," October 23, 2003, 9 p.m. EST]{.underline}: a
    female character teases her

brother about dating a woman who looks like his mother and, after her
brother and his girlfriend have been in the hot tub, tells him "I know
what you're doing."[^37]

m.  "[Scrubs," November 13, 2003, 9:30 p.m. EST]{.underline}: in one
    scene, there is a discussion

among a male character, his fiancée, and her brother in which the male
character antagonizes the brother by telling the fiancée he wants to
"love her up and down and all around," and that they should "go put some
more of your footprints on the ceiling."[^38] The brother reacts
angrily, saying "that's it you son of a bitch."[^39] In another scene, a
male doctor tells a female resident that he would rather listen to her
"go on and on about the joys of dolphin sex."[^40]

n.  "[Gilmore Girls," November 18, 2003, 8 p.m. EST]{.underline}: in one
    scene, a character's

grandfather reminisces about college pranks involving nudity; in another
scene, two current college students discuss the night the male student
spent nude in a dorm hallway.[^41] There is also another scene in which
a female character listens to a brief message on her answering machine
in which a male caller makes a reference to "growing a pair."[^42]

o.  "[One Tree Hill," November 18, 2003, 9 p.m. EST]{.underline}: in a
    school hallway, a male

character tells a female character, "I've got something for you," and
she replies, "I know you do, gorgeous."[^43] He then gives her a book,
telling her she might want to "check it out," and she replies, "Oh, I
definitely want to check it out. I suppose I could read the book,
too."[^44]

p.  "[Steve Harvey's Big Time," November 20, 2003, 8 p.m.
    EST]{.underline}: a fully clothed

contortionist appears and manipulates his body, including twisting his
upper body around and between his legs, and stepping through a tennis
racquet frame such that he reaches between his legs to move the racquet
so that he can step out of it.[^45] The show's host remarks that the
contortionist is a "skinny-ass little dude" and grabs his genital area
as the contortionist pushes his body through the tennis racquet
frame.[^46]

q.  "[Will & Grace," November 20, 2003, 9 p.m. EST]{.underline}: a male
    character studying to

become a nurse remarks to a male friend that he's taken his own blood
pressure many times, to which the friend replies, "yeah, and how many
times on your arm?"[^47] Later, the nursing student tells his fellow
students that "he can name all the bones in the human penis."[^48]

r.  "[Scrubs," November 20, 2003, 9:30 p.m. EST]{.underline}: a male
    character and a female

character is depicted in bed, under the covers.[^49] The male character
asks the female character if it's "a good time to start talking about a
nickname for \[his\] penis."

s.  "[Charmed," November 23, 2003, 8 p.m. EST]{.underline}: three female
    characters are talking, one

remarks that she's late because she was "tied up," and another asks
"where, at Richard's?"[^50] Later, one of the female characters talks
about being afraid to "take it to the next level" with her boyfriend,
and another character tells her to "relax and let it happen." She
replies: "That's easy for you to say, you weren't the one sleeping with
an angel for three years."

t.  "[Gilmore Girls," February 10, 2004, 9 p.m. EST]{.underline}: one
    character says to another:

"you're a dick." [^51]

u.  "[Angel," February 11, 2004, 9 p.m. EST]{.underline}: one character
    says to another: "you're still a

dick."[^52]

7\. To support a finding of indecency, we must first determine whether
any of the material cited by PTC meets the Commission's definition of
"patently offensive" -- namely, does any of the material graphically or
explicitly depict or describe sexual organs or activities, does any of
the material dwell on or repeat depictions or descriptions of sexual
organs or activities, and is any of the material designed to pander,
titillate, or shock. Based on our review of the programs listed above,
we find that none of the material referenced in PTC's complaints rises
to the level of being patently offensive under our indecency definition.

8\. A number of complaints cite isolated uses of the word "dick" or
variations thereof. In context and as used in the complained of
broadcasts, these were epithets intended to denigrate or criticize their
subjects. Their use in this context was not sufficiently explicit or
graphic and/or sustained to be patently offensive. Although use of such
words may, depending on the nature of the broadcast at issue, contribute
to a finding of indecency, their use here was not patently offensive and
therefore not indecent. Similarly, we find that the fleeting uses of the
words "penis," "testicle," "vaginal," "ass," "bastard" and "bitch,"
uttered in the context of the programs cited in the complaints, do not
render the material patently offensive under contemporary community
standards for the broadcast medium.

9\. Several complaints cited material that depicted partial nudity. Many
of these complaints involved characters whose sexual and/or excretory
organs were covered by bedclothes, household objects, or pixilation,
however, and none of the material cited in the complaints actually
depicted sexual or excretory organs. In context, we do not find the
material to be sufficiently graphic or explicit, or sustained, to rise
to the level of being patently offensive.

10\. The remaining complaints focus on vague references or innuendo to
sexual organs or activities. In context, the references and innuendos
cited in the complaints were not sufficiently graphic or explicit and
were not repeated or dwelled upon.

**III. CONCLUSION**

11\. For the reasons discussed above, we find that none of the material
contained in the 21 PTC complaints is patently offensive as measured by
contemporary community standards for the broadcast medium. We therefore
conclude that none of the material in the 21 complaints is indecent.

**IV. ORDERING CLAUSES**

12\. Accordingly, IT IS ORDERED, that the 21 complaints listed in the
Appendix are hereby DENIED.

13\. IT IS FURTHER ORDERED that a copy of this *Memorandum Opinion and
Order* shall be sent by Certified Mail Return Receipt Requested to The
Parents Television Council, 707 Wilshire Boulevard, Los Angeles,
California 90017, and to the licensees that are the subject of the
instant complaints.

> FEDERAL COMMUNICATIONS COMMISSION

Marlene H. Dortch

Secretary

**[APPENDIX]{.underline}**

+------------+-------------+-------------------+----------------------+
| **CASE     | **CALL      | **LICENSEE**      | **Program/Air        |
| NUMBER**   | SIGN/**     |                   | Date/Time**          |
|            |             |                   |                      |
|            | **          |                   |                      |
|            | COMMUNITY** |                   |                      |
|            |             |                   |                      |
|            | **OF        |                   |                      |
|            | LICENSE**   |                   |                      |
+------------+-------------+-------------------+----------------------+
| EB-        | WBDC-TV     | WBDC              | Everwood, September  |
| 03-IH-0463 |             | Broadcasting,     | 16, 2002, 9 p.m. EST |
|            | Washington, | Inc.              |                      |
|            | DC          |                   |                      |
+------------+-------------+-------------------+----------------------+
| EB-        | WTTG(TV)    | Fox Television    | Fastlane, September  |
| 03-IH-0405 |             | Stations, Inc.    | 18, 2002, 9 p.m. EST |
|            | Washington, |                   |                      |
|            | DC          |                   |                      |
+------------+-------------+-------------------+----------------------+
| EB-        | WTTG(TV)    | Fox Television    | Girls Club, October  |
| 03-IH-0462 |             | Stations, Inc.    | 21, 2002, 9 p.m. EST |
|            | Washington, |                   |                      |
|            | DC          |                   |                      |
+------------+-------------+-------------------+----------------------+
| EB-        | WTTG(TV)    | Fox Television    | Girls Club, October  |
| 03-IH-0461 |             | Stations, Inc.    | 28, 2002, 9 p.m. EST |
|            | Washington, |                   |                      |
|            | DC          |                   |                      |
+------------+-------------+-------------------+----------------------+
| EB-        | WBDC-TV     | WBDC              | Dawson's Creek,      |
| 03-IH-0464 |             | Broadcasting,     |                      |
|            | Washington, | Inc.              | October 30, 2002, 8  |
|            | DC          |                   | p.m. EST             |
+------------+-------------+-------------------+----------------------+
| EB-        | WBDC-TV     | WBDC              | Dawson's Creek,      |
| 03-IH-0465 |             | Broadcasting,     |                      |
|            | Washington, | Inc.              | December 11, 2002, 8 |
|            | DC          |                   | p.m. EST             |
+------------+-------------+-------------------+----------------------+
| EB-        | WTTG(TV)    | Fox Television    | Austin Powers: The   |
| 03-IH-0406 |             | Stations, Inc.    | Spy Who Shagged Me,  |
|            | Washington, |                   | January 8, 2003, 8   |
|            | DC          |                   | p.m. EST             |
+------------+-------------+-------------------+----------------------+
| EB-        | KMBC-TV     | Hearst-Argyle     | NYPD Blue, April 8,  |
| 03-IH-0357 |             | Television, Inc.  | 2003, 9 p.m. CST     |
|            | Kansas      |                   |                      |
|            | City, KS    |                   |                      |
+------------+-------------+-------------------+----------------------+
| EB-        | WRC-TV      | [NBC]{.smallcaps} | Friends, May 1,      |
| 03-IH-0456 |             | Telemundo License | 2003, 8 p.m. EST     |
|            | Washington, | [C]{.smallcaps    |                      |
|            | DC          | }o[.]{.smallcaps} |                      |
+------------+-------------+-------------------+----------------------+
| EB-        | WJLA-TV     | ACC Licensee,     | The Diary of Ellen   |
| 03-IH-0364 |             | Inc.              | Rimbauer, May 12,    |
|            | Washington, |                   | 2003, 9 p.m. EST     |
|            | DC          |                   |                      |
+------------+-------------+-------------------+----------------------+
| EB-        | WBDC-TV     | WBDC              | Jamie Kennedy        |
| 03-IH-0682 |             | Broadcasting,     | Experiment, October  |
|            | Washington, | Inc.              | 23, 2003, 8:30 p.m.  |
|            | DC          |                   | EST                  |
+------------+-------------+-------------------+----------------------+
| EB-        | WBDC-TV     | WBDC              | Run of the House,    |
| 03-IH-0679 |             | Broadcasting,     | October 23, 2003, 9  |
|            | Washington, | Inc.              | p.m. EST             |
|            | DC          |                   |                      |
+------------+-------------+-------------------+----------------------+
| EB-        | WRC-TV      | [NBC]{.smallcaps} | Scrubs, November 13, |
| 03-IH-0667 | Washington, | Telemundo License | 2003,                |
|            | DC          | Co.               |                      |
|            |             |                   | 9:30 p.m. EST        |
+------------+-------------+-------------------+----------------------+
| EB-        | WBDC-TV     | WBDC              | Gilmore Girls,       |
| 03-IH-0680 |             | Broadcasting,     | November 18, 2003, 8 |
|            | Washington, | Inc.              | p.m. EST             |
|            | DC          |                   |                      |
+------------+-------------+-------------------+----------------------+
| EB-        | WBDC-TV     | WBDC              | One Tree Hill,       |
| 03-IH-0669 |             | Broadcasting,     | November 18, 2003, 9 |
|            | Washington, | Inc.              | p.m. EST             |
|            | DC          |                   |                      |
+------------+-------------+-------------------+----------------------+
| EB-        | WBDC-TV     | WBDC              | Steve Harvey's Big   |
| 03-IH-0711 | Washington, | Broadcasting,     | Time, November 20,   |
|            | DC          | Inc.              | 2003, 8 p.m. EST     |
+------------+-------------+-------------------+----------------------+
| EB-        | WRC-TV      | [NBC]{.smallcaps} | Will & Grace,        |
| 03-IH-0716 | Washington, | Telemundo License | November 20, 2003, 9 |
|            | DC          | Co.               | p.m. EST             |
+------------+-------------+-------------------+----------------------+
| EB-        | WRC-TV      | [NBC]{.smallcaps} | Scrubs, November 20, |
| 03-IH-0712 | Washington, | Telemundo License | 2003, 9:30 p.m. EST  |
|            | DC          | Co.               |                      |
+------------+-------------+-------------------+----------------------+
| EB-        | WBDC-TV     | WBDC              | Charmed, November    |
| 03-IH-0713 | Washington, | Broadcasting,     | 23, 2003, 8 p.m. EST |
|            | DC          | Inc.              |                      |
+------------+-------------+-------------------+----------------------+
| EB-        | WBDC-TV     | [WBDC             | Gilmore Girls,       |
| 04-IH-0167 | Washington, | B]{.small         | February 10, 2004, 9 |
|            | DC          | caps}roadcasting, | p.m. EST             |
|            |             | Inc.              |                      |
+------------+-------------+-------------------+----------------------+
| EB-        | WBDC-TV     | [WBDC             | Angel, February 11,  |
| 04-IH-0168 | Washington, | B]{.small         | 2004, 9 p.m. EST     |
|            | DC          | caps}roadcasting, |                      |
|            |             | Inc.              |                      |
+------------+-------------+-------------------+----------------------+

**STATEMENT OF COMMISSIONER MICHAEL J. COPPS,**

**APPROVING IN PART, DISSENTING IN PART**

*Re: Complaints by Parents Television Council against Various Broadcast
Licensees Regarding Their Airing of Allegedly Indecent Material*

We continue to hear from citizens who are concerned about sexually
explicit and profane programming on the airwaves and the potentially
detrimental effects of this programming on our children. As an initial
matter, I would note that this Commission has a solemn obligation to
respond to consumer complaints. These complaints are increasing
exponentially from a few hundred only a couple of years ago to over 1
million in 2004. And in the last few years, complaints about television
broadcasts have equaled or exceeded those about radio broadcasts. Yet,
although the Commission recently has begun to take action against
indecency on television, some citizens remain concerned that the FCC
summarily dismisses their complaints. At the same time, some
broadcasters contend that the Commission has not been adequately clear
about how it determines whether a broadcast is indecent. Today's rather
cursory decisions do little to address any of these concerns.

In these two Orders, the Commission combines 36 unrelated complaints
with no apparent rhyme or reason other than that they concern television
broadcasts. The Commission then denies these complaints with hardly any
analysis of each individual broadcast, relying instead on generalized
pronouncements that none of these broadcasts violates the statutory
prohibition against indecency on the airwaves. I believe that some of
these broadcasts present a much closer call. Exemplary of the complaints
that should not have been summarily denied is one concerning *The Diary
of Ellen Rimbauer,* which I believe may very well violate the statutory
prohibition against indecency.

Although it may never be possible to provide 100 percent certainty
because we must always take into account the specific context,
developing guidance and establishing precedents are critically important
Commission responsibilities. We serve neither concerned consumers nor
the broadcast industry with the approach adopted in today's item.

[^1]: *See* Appendix for a listing of the complaints addressed in this
    *Order*, filed between July 3, 2003, and February 17, 2004. Other
    pending PTC complaints will be addressed separately.

[^2]: *See* 18 U.S.C. § 1464 (2002); 47 C.F.R. § 73.3999 (2002).

[^3]: 18 U.S.C. § 1464.

[^4]: 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. *FCC v.
    Pacifica Foundation*, 438 U.S. 726 (1978). *See also Action for
    Children's Television v. FCC*, 852 F.2d 1332, 1339 (D.C. Cir. 1988)
    ("*ACT I*"); *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*"); *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*").

[^5]: Public Telecommunications Act of 1992, Pub. L. No. 102-356, 106
    Stat. 949 (1992), *as modified by ACT III,* 58 F.3d 654.

[^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; 47 U.S.C. § 326.

[^9]: *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.").

[^10]: *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)).

[^11]: *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).

[^12]: Because we deny the complaints due to their failure to meet the
    "patently offensive" factor in our indecency analysis, we need not
    address whether any of the complaints fail to depict or describe
    sexual or excretory organs or activities.

[^13]: *Indecency Policy Statement* (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* 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); *EZ New Orleans, Inc. (WEZB(FM))*, 12 FCC
    Rcd 4147 (MMB 1997) (forfeiture paid) (same)).

[^17]: *Indecency Policy Statement* at 8010 ("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* Letter from Lara Mahaney, Director of Corporate and
    Entertainment Affairs, PTC, to David Solomon, Chief, Enforcement
    Bureau, dated August 22, 2003 (EB-03-IH-0463).

[^19]: *See* Letter from Lara Mahaney, Director of Corporate and
    Entertainment Affairs, PTC, to David Solomon, Chief, Enforcement
    Bureau, dated August 22, 2003 (EB-03-IH-0405).

[^20]: *See* Letter from Lara Mahaney, Director of Corporate and
    Entertainment Affairs, PTC, to David Solomon, Chief, Enforcement
    Bureau, dated August 22, 2003 (EB-03-IH-0462).

[^21]: *See* Letter from Lara Mahaney, Director of Corporate and
    Entertainment Affairs, PTC, to David Solomon, Chief, Enforcement
    Bureau, dated August 22, 2003 (EB-03-IH-0461).

[^22]: *See* Letter from Lara Mahaney, Director of Corporate and
    Entertainment Affairs, PTC, to David Solomon, Chief, Enforcement
    Bureau, dated August 22, 2003 (EB-03-IH-0464).

[^23]: *Id*.

[^24]: *See* Letter from Lara Mahaney, Director of Corporate and
    Entertainment Affairs, PTC, to David Solomon, Chief, Enforcement
    Bureau, dated August 22, 2003 (EB-03-IH-0465).

[^25]: *See* Letter from Lara Mahaney, Director of Corporate and
    Entertainment Affairs, PTC, to David Solomon, Chief, Enforcement
    Bureau, dated August 22, 2003 (EB-03-IH-0406).

[^26]: *Id.*

[^27]: *Id.*

[^28]: *See* Letter from Lara Mahaney, Director of Corporate and
    Entertainment Affairs, PTC, to David Solomon, Chief, Enforcement
    Bureau, dated July 3, 2003 (EB-03-IH-0357).

[^29]: *See* Letter from Lara Mahaney, Director of Corporate and
    Entertainment Affairs, PTC, to David Solomon, Chief, Enforcement
    Bureau, dated August 27, 2003 (EB-03-IH-0456).

[^30]: *Id.*

[^31]: *See* Letter from Lara Mahaney, Director of Corporate and
    Entertainment Affairs, PTC, to David Solomon, Chief, Enforcement
    Bureau, dated July 3, 2003 (EB-03-IH-0364).

[^32]: *Id*

[^33]: *See* Letter from Lara Mahaney, Director of Corporate and
    Entertainment Affairs, PTC, to David Solomon, Chief, Enforcement
    Bureau, dated November 3, 2003 (EB-03-IH-0682).

[^34]: *Id.*

[^35]: *Id.*

[^36]: *Id.*

[^37]: *See* Letter from Lara Mahaney, Director of Corporate and
    Entertainment Affairs, PTC, to David Solomon, Chief, Enforcement
    Bureau, dated November 3, 2003 (EB-03-IH-0679).

[^38]: *See* Letter from Lara Mahaney, Director of Corporate and
    Entertainment Affairs, PTC, to David Solomon, Chief, Enforcement
    Bureau, dated November 24, 2003 (EB-03-IH-0667).

[^39]: *Id.*

[^40]: *Id.*

[^41]: *See* Letter from Lara Mahaney, Director of Corporate and
    Entertainment Affairs, PTC, to David Solomon, Chief, Enforcement
    Bureau, dated November 24, 2003 (EB-03-IH-0680).

[^42]: *Id.*

[^43]: *See* Letter from Lara Mahaney, Director of Corporate and
    Entertainment Affairs, PTC, to David Solomon, Chief, Enforcement
    Bureau, dated November 24, 2003 (EB-03-IH-0669).

[^44]: *Id.*

[^45]: *See* Letter from Lara Mahaney, Director of Corporate and
    Entertainment Affairs, PTC, to David Solomon, Chief, Enforcement
    Bureau, dated December 4, 2003 (EB-03-IH-0711).

[^46]: *Id.*

[^47]: *See* Letter from Lara Mahaney, Director of Corporate and
    Entertainment Affairs, PTC, to David Solomon, Chief, Enforcement
    Bureau, dated December 4, 2003 (EB-03-IH-0716).

[^48]: *Id.*

[^49]: *See* Letter from Lara Mahaney, Director of Corporate and
    Entertainment Affairs, PTC, to David Solomon, Chief, Enforcement
    Bureau, dated December 4, 2003 (EB-03-IH-0712).

[^50]: *See* Letter from Lara Mahaney, Director of Corporate and
    Entertainment Affairs, PTC, to David Solomon, Chief, Enforcement
    Bureau, dated December 4, 2003 (EB-03-IH-0713).

[^51]: *See* Letter from Lara Mahaney, Director of Corporate and
    Entertainment Affairs, PTC, to David Solomon, Chief, Enforcement
    Bureau, dated February 17, 2004 (EB-04-IH-0167).

[^52]: *See* Letter from Lara Mahaney, Director of Corporate and
    Entertainment Affairs, PTC, to David Solomon, Chief, Enforcement
    Bureau, dated February 17, 2004 (EB-04-IH-0168).