**Before the**

**FEDERAL COMMUNICATIONS COMMISSION**

**Washington, D.C. 20554**

In the Matter of )

)

WPBN/WTOM LICENSE )

SUBSIDIARY, INC. )

)

Licensee of Stations WPBN-TV, )

Traverse City, and WTOM-TV, )

Cheboygan, Michigan )

**MEMORANDUM OPINION AND ORDER**

Adopted: January 11, 2000 Released: January 14, 2000

By the Commission:

1\. In this Order, we deny a \"Petition for Reconsideration,\" filed on
September 25, 1998, by Thomas B. North (\"North\"). North seeks
reconsideration or review of an August 26, 1998, letter from the Mass
Media Bureau (\"MMB\"), acting pursuant to delegated authority,
explaining MMB's earlier action effectively denying his complaint
alleging that two Michigan television stations, WPBN-TV, Traverse City,
and WTOM-TV, Cheboygan, broadcast indecent material when, on February
23, 1997, they broadcast the NBC network presentation of the film
*Schindler\'s List.* For the reasons stated below, North\'s request is
denied.[^1]

**Background**

2\. On March 3, 1997, North filed a complaint alleging that the nudity
contained in the network presentation of *Schindler\'s List,*
specifically that which was broadcast before 10 p.m., is actionably
indecent. By letter dated April 30, 1997, the Chief, Complaints and
Political Programming Branch of MMB\'s former Enforcement Division
(\"C&PP\"), advised North that the material identified in the complaint
did not meet the legal standard for indecent programming.[^2] *See,
e.g., FCC v. Pacifica Foundation,* 438 U.S. 726 (1978). That letter
further explained that subject matter alone does not render material
indecent and that nudity is not *per se* actionably indecent.

3\. On August 19, 1997, North sought further clarification of the
staff\'s response to his complaint. North specifically questioned the
authority of the Chief, C&PP, to address his complaint, and alleged that
the April 30, 1997, staff letter was a \"summary conclusion that appears
to be without basis.\" By letter dated August 26, 1998, North was
informed by the Chief, C&PP, that his complaint was evaluated by MMB
staff pursuant to the authority delegated in Section 0.283 of the
Commission\'s Rules, 47 C.F.R. §0.283. Moreover, that letter expanded on
and further explained the basis for the staff\'s conclusion that the
adult frontal nudity he viewed in this particular presentation of
*Schindler\'s List* does not meet the legal definition of indecency and
therefore does not warrant further Commission action. Specifically, the
staff letter explained that broadcast material such as that he objected
to is actionably indecent when presented in a patently offensive manner,
and that material which may be patently offensive in one context may not
be so if presented under other circumstances. The staff concluded that
although this airing of *Schindler's List* did contain incidental
frontal nudity, the material broadcast depicted a historical view of
World War II and wartime atrocities which, viewed in that context, was
not presented in a pandering, titillating or vulgar manner or in any way
that would be considered patently offensive and, therefore, actionably
indecent.

4\. In his September 25, 1998, pleading, North alleges that the staff
exceeded its delegated authority as set forth in Section 0.283 of the
Commission\'s Rules because his original complaint \"*may* contain new
or novel arguments not previously considered by the Commission, and/or
present facts or arguments which *appear* to justify a change of
Commission policy\" (italics added). In this regard, he maintains that
the Commission has historically misapplied or misinterpreted the
relevant legal standard to enforcement matters relating to indecent
broadcasts, resulting in actions that are contrary to federal law. Among
those errors, he asserts, are the staff\'s findings that, in this case,
the adult frontal nudity shown prior to 10 p.m. is not actionably
indecent.

5\. North contends that the staff employed the wrong standard to
evaluate his complaint by emphasizing the \"context\" of the broadcast
rather than whether its depictions or descriptions were patently
offensive as measured by contemporary community standards. North argues
that it is contemporary community standards, not context, that determine
whether something is patently offensive under the definition of indecent
programming, and \"then and only then should the Commission look to the
context to see if it negates any finding of patent offensiveness.\" In
this regard, North contends that the \"Commission\'s \[August 26, 1998\]
letter, answering \[his\] request as to which elements \[of indecency\]
are not present, does not anywhere contend that the complained of nudity
in the movie is not in violation of contemporary community standards,
and \[the Commission\] therefore admits that element in agreement with
\[him\].\" Moreover, North states, it \"cannot be disputed with any
amount of intelligence

. . . \[that\] there is nothing in human existence, short of death,
severe injury, or legal obscenity that is more disturbing to the mind or
emotions that \[sic\] the uninvited sight of adult frontal nudity.\"[^3]

6\. North also challenges the staff\'s conclusions based on the context
of the presentation. He concedes, as the staff concluded, that the
portions of the movie he objects to were not presented to pander or
titillate, and he does not claim that the movie was otherwise without
merit. However, North asserts that the staff\'s consideration of those
factors improperly establishes additional requirements for the
evaluation of whether particular programming is indecent. Similarly, he
objects to the staff\'s conclusions that the material was not presented
in a shocking or vulgar manner and that the viewer advisories aired
during the broadcast of the film are relevant. He asserts that the
viewer advisories were not part of this movie, are not part of the
context to be considered, and therefore have no bearing on whether this
broadcast was indecent or not. Moreover, North argues that even if the
presentation of something \"vulgar\" or \"shocking\" were an element of
the indecency definition, any reasonable person would agree that adult
frontal nudity meets that definition, and \"when that nudity is
presented in the context of the Holocaust, a further degree of 'shock'
is added.\" Thus, he maintains that this broadcast of *Schindler\'s
List* was clearly presented in a vulgar and shocking manner, contrary to
the staff\'s conclusion.

7\. Finally, North concedes that it is not illegal to air an unedited
version of *Schindler\'s List*. Rather, he argues, it was illegal to do
so, prior to 10 p.m., without editing out the adult frontal nudity.
Noting the concern for the protection of children and unconsenting
adults against intrusion by offensive broadcasts, North states that, if
the frontal nudity in *Schindler\'s List* is not indecent, the practical
effect of that ruling would be that such nudity can be legally broadcast
by any television station during any part of the day, including those
times when children and unconsenting adults are likely to be in the
audience.

**Discussion**

8\. We have reviewed the staff\'s actions of April 30, 1997 and August
26, 1998, and affirm them.[^4] Rather, we find it was within the
Bureau's delegated authority to address the original complaint, which
applied an established indecency standard to the facts at issue. 47
C.F.R. § 0.283. From a procedural standpoint, we note that the
allegation that the staff exceeded its delegated authority because his
original complaint \"may have\" contained new or novel arguments not
previously considered by the Commission fails to set forth with any
particularity the new or novel questions he contends were improperly
addressed by the staff. Review of his prior submissions indicates that
such new or novel arguments were neither pleaded nor apparent. Moreover,
North has not set forth with any particularity how the staff may have
otherwise exceeded its delegated authority, and we find no support for
his allegation in that regard.

9\. From a substantive perspective, we concur with the staff\'s
rejection of North\'s fundamental premise that the presentation of adult
frontal nudity prior to 10 p.m. *per se* constitutes indecent
programming, mandating further Commission action in all cases, including
this particular presentation of *Schindler\'s List*. Indecency findings
involve at least two distinct determinations. First, the material
alleged to be indecent must fall within the subject matter scope of our
indecency definition \-- *i.e.,* the material must describe or depict
sexual or excretory organs or activities. Once the Commission determines
that the material aired falls within that definition, we must then
evaluate whether the broadcast is patently offensive as measured by
contemporary community standards for the broadcast medium. *See Infinity
Broadcasting Corp.,* 3 FCC Rcd 930 (1987), *aff\'d in part and remanded
in part sub nom. Action for Children\'s Television v. FCC,* 852 F.2d
1332 (D.C. Cir. 1988). There is no dispute that the program at issue, as
aired, satisfies the first component of this standard. We agree with the
staff's view, however, that the material, as aired, was not patently
offensive.

10\. The determination as to whether certain programming is patently
offensive is not a local one and does not encompass any particular
geographic area. Rather, the standard is that of an average broadcast
viewer or listener and not the sensibilities of any individual
complainant. *See Sagittarius Broadcasting Corporation,* 5 FCC Rcd 7291,
7292 (MMB 1990) (citations omitted), *aff\'d,* 7 FCC Rcd 6873 (MMB
1992), *vacated pursuant to a settlement agreement*, 10 FCC Rcd 12245
(1995). Nor is subject matter alone the basis for an indecency
determination. The full context in which the material appeared must be
considered in determining whether material is patently offensive. *See
Infinity Broadcasting Corp., supra. See also Action for Children\'s
Television v. FCC,* 932 F.2d 1504 (D.C. Cir. 1991); *Letter to Peter
Branton,* 6 FCC Rcd 610 (1991); *appeal dismissed sub nom. Branton v.
FCC,* 993 F.2d 906 (D.C. Cir. 1993); *cert. denied,* 511 U. S. 1052
(1994). It is not sufficient, for example, to know simply that explicit
sexual terms or descriptions were used. *Pacifica Foundation v. FCC,*
438 U.S. 726, 750 (1978). Contextual determinations involve a host of
potential variables. The interplay of these variables will vary
depending on the facts presented in any given case.[^5] Thus, all of the
possible contextual factors that might bear on an evaluation of the
patent offensiveness of any particular material cannot simply be
cataloged comprehensively and applied mechanically. Accordingly, we
reject North\'s contention that because the staff did not specifically
list which elements of indecency were *not* present in its evaluation of
his complaint concerning this particular showing of *Schindler\'s List*,
the Commission, presumably by default, agrees with or concedes to his
assessment that this material is patently offensive.[^6]

11\. Contrary to North\'s ultimate conclusions, nudity itself is not
*per se* indecent. If the definition of what constitutes actionably
indecent programming were as absolute as claimed by North, there simply
would be no need for or practical impact of the remainder of that
definition \-- that the programming in question be measured against the
contemporary community standards for the broadcast medium. Moreover, we
find no legal basis to conclude that \"the contemporary community
standards for the broadcast medium\" are as inflexible as North
describes, preclude Commission evaluation of the full context of the
presentation of the subject programming, or, even considering the
context of the presentation, compel a finding that nudity shown before
10 p.m. is so \"vulgar\" as to render it necessarily indecent.

12\. Finally, North\'s assertion that unless the broadcast of this
programming is sanctioned, he faces the probability of exposure in the
future to indecency over the airwaves does not present a basis for
further action in this case. The staff\'s conclusion that the material
he objects to in this broadcast of *Schindler\'s List* is not actionably
indecent is confined to the specific facts before it and does not depart
from our established policies. Thus, we cannot agree that the effect of
this response is to authorize the indiscriminate presentation of nudity
at any time of the day or in any context without regard to those in the
audience.

13\. In this specific case, the staff properly concluded that the
material North objects to in this particular broadcast of *Schindler\'s
List* is not patently offensive as measured by contemporary community
standards for the broadcast medium. That determination was properly
based on the full context of its presentation as outlined by the staff
in response to North\'s complaints \-- including the subject matter of
the film, the manner of its presentation, and the warnings that
accompanied the broadcast of this film \-- and not the standards of any
particular community or individual viewer or complainant. Other than
North\'s continuing objection to this result, he has not shown that the
staff misapplied the law in this case, and his instant pleading presents
no basis to revisit the staff\'s actions. Thus, we affirm the previous
actions of the Mass Media Bureau effectively denying his complaints.

14\. ACCORDINGLY, IT IS ORDERED, that North's "Petition for
Reconsideration" is DENIED.

FEDERAL COMMUNICATIONS COMMISSION

Magalie Roman Salas

Secretary

[^1]: North suggests that, as an alternative, the Commission consider
    his September 25, 1998, pleading as an Application for Review under
    Section 1.115 of the Commission\'s Rules. This is North\'s third
    attempt to require the imposition of sanctions for this particular
    broadcast of *Schindler\'s List.* In the interest of efficiency,
    therefore, we will treat his current pleading as an application for
    Commission review of an action taken by the staff pursuant to
    delegated authority. See 47 C.F.R. § 1.106(a)(1).

[^2]: \"Indecent programming\" is defined as material \"that (depicts
    or) describes in terms patently offensive as measured by
    contemporary community standards for the broadcast medium, sexual or
    excretory activities or organs.\" *Infinity Broadcasting Corp.,* 3
    FCC Rcd 930 (1987), *aff\'d in part and remanded in part sub nom.
    Action For Children\'s Television v. FCC,* 852 F.2d 1332 (D.C. Cir.
    1988). Indecent material is actionable under the Commission\'s Rules
    if it is aired between 6 a.m. and 10 p.m. 47 C.F.R. §73.3999(b).

[^3]: In his original complaint, North alleged that this material was
    patently offensive as measured by contemporary community standards
    for the broadcast medium. In support, he asserted that

    > the broadcast medium standards in every community in the United
    > States are and always have been that adult\'s sexual organs simply
    > not be shown on television in any context. These standards have
    > not ever changed \-- if they could change, they would not be
    > 'standards' because 'standards' by definition are something that
    > do not change, so that other things could be measured by them.
    > Community standards throughout the nation are that some things are
    > off limits to public broadcast and that includes the showing of
    > sexual organs.

[^4]: Our decision affirming the Division Order effectively moots
    North\'s delegated authority argument. *See Motions For Declaratory
    Rulings Regarding Commission Rules and Policies for Frequency
    Coordination in the Private Land Mobile Radio Services*, Memorandum
    Opinion and Order, 14 FCC Rcd 12752 (1999)*; Beehive Telephone, Inc.
    v. Bell Operating Cos.*, Memorandum Opinion & Order, 12 FCC Rcd
    17930, 17938-39 (para. 16) (1997) (delegation of authority rules are
    a matter between the Commission and its staff and do not give
    private parties rights), *petition for review dismissed in part and
    denied in part*, *Beehive Telephone Co., Inc. v. FCC*, 179 F.3d 941
    (D.C.Cir. 1999).

[^5]: The Supreme Court has observed that contextual assessments may
    involve (and are not limited to) an examination of whether the
    actual words or depictions in context are, for example, "vulgar" or
    "shocking," a review of the manner in which the words or depictions
    are portrayed, and an analysis of whether the allegedly indecent
    material is isolated or fleeting. The merit of a work is also one of
    the many variables that that make up a work's context. *Pacifica
    Foundation v. FCC,* at 747-750 & n.29.

[^6]: In this regard, the staff responded to the specific allegations
    made concerning the programming objected to in the presentation of
    this movie, and North\'s apparent displeasure with that outcome does
    not obviate the responsibility to set forth allegations which, if
    true, establish a *prima facie* case of licensee misconduct
    warranting further action. That burden of pleading rests with the
    complainant, not with the Commission or its staff. *See, e.g.,
    Astroline Communications Co. v. FCC,* 857 F.2d 1556, 1561 (D.C. Cir.
    1988).