Before the

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                  | * | File No. EB-03-IH-0162[^1]   |
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| Complaints Against Various        | ) |                              |
| Licensees Regarding Their         | * |                              |
| Broadcast of the Fox Television   | * |                              |
| Network Program "Married By       |   |                              |
| America" on April 7, 2003         | * |                              |
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**FORFEITURE ORDER**

**Adopted: February 21, 2008 Released: February 22, 2008**

By the Commission:

**I. INTRODUCTION**

1.  In this Forfeiture Order, issued pursuant to section 503 of the
    Communications Act of 1934, as amended, and section 1.80 of the
    Commission\'s rules,[^2] we find that the FOX Television Network
    stations listed in Attachment A, *infra*, broadcast indecent
    material during an episode of the program "Married By America" on
    April 7, 2003, in willful violation of 18 U.S.C. § 1464 and section
    73.3999 of the Commission's rules.[^3] Based on our review of the
    facts and circumstances in this case, we conclude that the licensees
    of these stations are liable for a forfeiture in the amount of
    \$7,000 per station.

    **II. BACKGROUND**

2.  "Married By America" was a weekly, hour-long "reality-based" program
    that was carried on the FOX Television Network in the spring
    of 2003. It featured several single adults who agreed to be engaged
    to and potentially marry each other, even though they had never
    previously met. The April 7, 2003 episode of the program focused on
    Las Vegas bachelor and bachelorette parties for two couples that
    featured sexually oriented entertainment provided by male and female
    strippers. Following the broadcast, the Commission received
    complaints alleging that the "Married By America" episode contained
    indecent material. After reviewing the complaints and a videotape of
    the subject episode, the Enforcement Bureau directed a letter of
    inquiry to TVT License, Inc., licensee of Station WTVT(TV), Tampa,
    Florida, seeking further information about the episode.[^4] By
    letters dated August 11 and September 9, 2003, FOX Entertainment
    Group, Inc. ("FEG") responded to the LOI.[^5] In its LOI responses,
    FEG identified the licensees of 169 FOX Television Network Stations
    that had aired the April 7, 2003 episode prior to 10:00 p.m. FEG
    maintained that the "Married By America" episode in question did not
    contain descriptions or depictions of sexual or excretory organs or
    activities and, even if it did, the material was not patently
    offensive as measured by contemporary community standards for the
    broadcast medium.

3.  On October 12, 2004, the Commission released the *NAL*, finding that
    the material at issue apparently violated the broadcast indecency
    standard. Applying its two-prong indecency analysis, the Commission
    first found that the material depicted sexual or excretory organs or
    activities.[^6] The Commission then concluded that the material
    satisfied the second prong of the indecency analysis, finding it
    patently offensive as measured by contemporary community standards
    for the broadcast medium. Looking to the three principal factors in
    our contextual analysis, we first determined that the material
    presented in the episode was "sufficiently graphic and explicit to
    be indecent."[^7] Turning to the second principal factor in our
    patent offensiveness inquiry, whether the material dwells on or
    repeats at length depictions or descriptions of sexual or excretory
    organs or activities, the Commission rejected FOX's claim that the
    sexual material in the episode is fleeting, instead finding that the
    sexual matter is plainly dwelled upon.[^8] Finally, the Commission
    concluded that the material was pandering and titillating,
    explaining, among other things, that "\[t\]he episode depicts the
    prolonged appearance of strippers attempting to sexually arouse the
    party-goers . . . . "[^9]

4.  Accordingly, the NAL found the licensees of 169 stations that
    broadcast the episode apparently liable for forfeitures in the
    amount of \$7,000 per station for broadcasting indecent material, in
    apparent willful violation of 18 U.S.C. § 1464 and section 73.3999
    of the Commission's rules. In response to the NAL, numerous letters
    and pleadings were filed[^10] with the Commission.[^11]

    **III. DISCUSSION**

5.  Respondents raise multiple arguments, each of which is discussed
    below. Generally, they assert that the subject episode of "Married
    By America" is not actionably indecent under the Commission's
    prevailing indecency standard.[^12] Respondents further contend
    that, even if the episode is actionably indecent, the FOX Affiliates
    against whom the NAL was directed should not be sanctioned for
    having broadcast the program. Moreover, they argue that the
    Commission's indecency standard is unconstitutional on its face and
    as applied in the NAL. We reject these arguments, but, for the
    reasons noted above, confine our forfeiture action to those stations
    about which we received complaints.[^13]

    **A. Application of Indecency Test to "Married By America"**

6.  Respondents collectively argue that the NAL should be rescinded
    because the episode in question of "Married By America" does not
    satisfy the Commission's indecency test. In this regard,
    Respondents, such as FOX/Affiliates Group, argue that the subject
    bachelor and bachelorette scenes included no descriptions or
    depictions of sexual organs or activities,[^14] and, even if they
    did, the material was not presented in a context that could
    reasonably be construed as patently offensive because the material
    was not explicit or graphic; the episode did not dwell on or repeat
    any indecent material; and the broadcast did not pander to,
    titillate, or shock the audience.[^15] We reject Respondents'
    arguments.

7.  Before addressing these arguments in detail, however, it is
    instructive to briefly summarize the material in question.  The
    program focuses on a bachelorette party for two brides-to-be and a
    separate bachelor party for the would-be grooms.  It depicts various
    scenes from the two parties, each of which features sexually
    oriented entertainment provided by nude or semi-nude female and male
    "strippers."  In one of the first scenes of the bachelorette party,
    a male stripper wearing pants and no shirt performs on top of a
    woman wearing a miniskirt who is lying on her back on the floor. 
    From the rear, the camera shows him thrusting his crotch into her
    face and then moving down her body toward her upper thighs, where
    whipped cream is shown on her bare legs just below her crotch.  He
    places his face directly above the spot, apparently to lick off the
    whipped cream.  Then, another woman is shown kneeling behind a
    topless male stripper, her hands smearing whipped cream on his
    stomach.  The dancer is then shown from the front, wearing only
    shorts, holding the woman's hand by the wrist and moving it down his
    chest and stomach towards his crotch, apparently about to place her
    hand in his shorts.  One of the brides-to-be is shown placing her
    lips over a stripper's nipple, which is covered in whipped cream. 

8.  Meanwhile, at the bachelor party, two female strippers arrive. 
    Initially, they are wearing tops but their buttocks are pixilated,
    presumably to obscure portions of their buttocks as well as the
    g-strings that cover their genitals.  The camera shows close-ups of
    their stomachs, crotches and hips as they dance and remove their
    clothing.  One of the grooms-to-be is shown from above and behind,
    sitting on a couch without his shirt as the two performers, now
    topless, straddle him, apparently kissing one another as a female
    voice sings seductively in the background.  On the voice-over, the
    groom-to-be states the strippers' names and informs the audience
    that they are sisters.  He also informs the audience that they
    removed his shirt and pants, and he is then shown on all fours on
    the floor.  The two strippers, who are clad only in thongs (their
    breasts are pixilated), remove his pants.  One kneels beside him as
    the other spanks him from behind with a whip or a belt.  He is
    finally shown lying on his back, shirtless, with the two strippers
    above him caressing his chest. 

9.  Back at the bachelorette party, a female stripper arrives.  She sits
    on the laps of the two brides-to-be and kisses one.  She is then
    shown lying topless on a couch, cupping her breasts with her hands
    as a bride-to-be straddles her.  The other bride-to-be states that
    they both had fun with the stripper.  "I was touching her.  Jill was
    touching her.  I licked the whipped cream off her..."  The first
    bride-to-be- is then shown leaning over the stripper, who is again
    lying on the couch cupping her breasts, this time with whipped cream
    on her chest and stomach.  The bride-to-be's face moves up from the
    stripper's breasts toward her mouth as both women stick out their
    tongues, apparently about to kiss.  The other bride-to-be's refusal
    to engage in this same activity engenders hard feelings between the
    two brides-to-be, but she observes that she "didn't have to lick
    whipped cream off her stomach or her boobs." 

10. The program then returns to the bachelor party as one groom-to-be
    retires to a back room with one stripper (who is again shown wearing
    a top and with pixilated buttocks) while the other groom-to-be
    receives a lap dance.  As he describes his reluctance to engage in
    such activity in the voice-over, a stripper is shown straddling him
    on the couch, thrusting her crotch toward his, and removing her top
    (again, her breasts are pixilated) so that her breasts are a foot or
    so from his face.  The scene ends with one of the grooms-to-be, who
    is shown kissing one of the strippers, stating that there's "nothing
    wrong with kissing a stripper before you're married. Kissing a
    stripper after you're married, that's when the trouble begins."  

11. Indecency findings involve two fundamental 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."[^16]
    The material contained in the episode in question clearly described
    or depicted sexual activities and sexual organs. With respect to
    sexual activities, the scenes at issue contained depictions or
    descriptions of a myriad of activities designed to stimulate sexual
    arousal, including, among other things, the massaging and caressing
    of naked chests and stomachs, the thrusting of a male stripper's
    crotch into a woman's face, a topless female stripper performing a
    lap dance for one of the grooms-to-be, the licking of whipped cream
    off of naked "stomachs" and "boobs," a topless female stripper
    spanking with a whip or a belt the buttocks of a topless man who is
    on all fours, two topless female strippers kissing while straddling
    a shirtless man, and a female stripper cupping her own bare breasts
    and puckering her lips. Respondents' suggestion that the
    Commission's indecency definition is limited to the specific act of
    sexual intercourse finds no support in our precedent or in common
    sense. By any reasonable definition, many of the activities depicted
    and described at the bachelor and bachelorette parties constitute
    sexual activities. The scenes at issue also depicted sexual organs.
    While it is true that the nude female breasts and buttocks shown
    were pixilated, the Commission has never held that the full exposure
    of sexual or excretory organs is required to satisfy the first prong
    of the broadcast indecency standard.[^17]

12. We also find that, in context and on balance, the complained-of
    material is patently offensive as measured by contemporary community
    standards for the broadcast medium. Turning to the three principal
    factors in our contextual analysis, we first examine whether the
    material was explicit and graphic. Here, we reject Respondents'
    claims that the material was not explicit or graphic. To be sure,
    the pixilation of the female strippers' naked breasts and buttocks
    does render the material less explicit and graphic than it would
    have been in the absence of pixilation. However, the material is
    still sufficiently graphic and explicit to support an indecency
    finding. As discussed above, the party scenes were graphic in their
    depictions of strippers luring partygoers into engaging in sexual
    behavior. For example, they included the thrusting of a male
    stripper's crotch into a woman's face, a topless female stripper
    performing a lap dance for one of the grooms-to-be, a topless female
    stripper spanking with a whip or a belt the buttocks of a topless
    man who is on all fours, and a female stripper cupping her own bare
    breasts and puckering her lips. The fact that isolated body parts
    were "pixilated" did not obscure the overall graphic character of
    the depiction. The mere pixilation of sexual organs is not
    necessarily determinative under our analysis because the material
    must be assessed in its full context. Here, despite the obscured
    nature of the nudity, it is unmistakable that the partygoers are
    participating in sexual activities and that sexual organs are being
    exposed.[^18] Likewise, the fact that the scenes were carefully
    edited so that the camera cut away an instant before, for example, a
    bride-to-be licked a male stripper's whipped cream-covered nipple or
    locked tongues with a female stripper, does not prevent a finding
    that the scenes were sufficiently graphic and explicit to support a
    finding of patent offensiveness. Despite a few missing pieces of the
    visual jigsaw puzzle, a child watching this program easily could
    discern that partially nude adults are attending a party and
    participating in sexual activities.

13. We also reject Respondents' claims that the material was fleeting.
    While FOX/Affiliates Group argues that the strippers' images that
    the Commission found to be offensive appeared on screen for a mere
    10.5 seconds,[^19] the party scenes in this episode contain
    persistent sexual activities and run for six minutes, which is not
    fleeting as we have construed that term.[^20] Indeed, the scenes in
    question were imbued throughout with highly charged sexual content.
    Moreover, a central point of the entire episode \-- indeed the very
    drama which FOX/Affiliates Group insists the party scenes were
    intended to evoke \-- centered on whether the participants could be
    enticed into engaging in sexual conduct with male and female
    strippers.

14. Finally, we find that the material, in context, was presented in a
    pandering and titillating manner. Indeed, the whole point of the
    strippers' performances appears to be to titillate the brides- and
    grooms-to-be, and, by extension, the audience. Furthermore, in
    context, it is clear that the sexual activities were presented not
    to educate or inform but to arouse the participants and the viewers.
    Among other things, the episode depicted a topless female stripper
    spanking with a whip or a belt the buttocks of a topless man who is
    an all fours, a topless female stripper lying on a couch, cupping
    her breasts with her hands as a woman straddles her, two topless
    female strippers, who are characterized as sisters, straddling a
    shirtless man and kissing one another as a female voice sings
    seductively in the background, and those same strippers caressing
    the chest of the same shirtless man. This series of events and the
    others recounted above were clearly presented in a pandering and
    titillating manner.[^21]

15. Contrary to FOX/Affiliate Group's contentions, we did not in the NAL
    and are not here paying "lip service" to the importance of context
    in making an indecency determination. Indeed, it is in large part
    because of the context in which the material in question was
    presented that we conclude that the broadcast was indecent. There is
    no merit to FOX/Affiliate Group's claim that, because the material
    in question was supposedly an integral part of the episode in
    question, as it was in the movie "Saving Private Ryan," we are
    precluded from finding the broadcast to be indecent. This case is
    decidedly different from our decision involving ABC's broadcast of
    the movie "Saving Private Ryan."[^22] In denying complaints alleging
    that the broadcast contained indecent material because of the use of
    explicit language, the Commission reasonably determined that the
    language at issue in "Saving Private Ryan," reflecting "the
    soldiers' strong human reactions to, and often, revulsion at, those
    unspeakable conditions and the peril in which they find themselves,"
    was not used to pander, titillate or shock.[^23] It was entirely
    reasonable for the Commission to conclude that, in that context, the
    explicit language was not pandering or titillating. By contrast, in
    the instant case, the scenes showing strippers seducing bachelor and
    bachelorette partygoers clearly pandered to and titillated the
    viewing audience. It is no defense to argue that the lurid sexual
    activities depicted in the party scenes related to the theme of the
    program. Indeed, under FOX/Affiliate Group's reasoning, a graphic
    and explicit depiction of sexual intercourse could not be deemed
    patently offensive so long as it related to the show's theme of
    tempting engaged couples into sexual dalliances with hired
    strippers.

16. We also reject Respondents' claims that the "contemporary community
    standards for the broadcast medium" criterion is not ascertainable.
    The "contemporary community standards for the broadcast medium"
    criterion is that of an average broadcast listener or viewer and
    does not encompass any particular geographic area.[^24] Our approach
    to discerning community standards parallels that used in obscenity
    cases, where the jury is instructed to rely on its own knowledge of
    community standards in determining whether material is patently
    offensive.[^25] Here, however, the Commission has the added
    advantage of being an expert agency, and as we have explained
    before, "\[w\]e rely on our collective experience and knowledge,
    developed through constant interaction with lawmakers, courts,
    broadcasters, public interest groups and ordinary citizens, to keep
    abreast of contemporary community standards for the broadcast
    medium."[^26]

17. It is also important to stress that our decision to commence an
    investigation and, where appropriate, to impose administrative
    sanctions, is not based on whether a particular program receives
    high ratings or is the subject of multiple complaints. As a general
    matter, we will commence an investigation on the basis of even one
    properly filed complaint that raises legitimate concerns as to
    whether a licensee has engaged in misconduct. We have followed this
    course in the past[^27] and will continue to do so in the future.

    **B. Culpability of FOX Affiliates**

18. Respondents argue in the alternative that, even if the material that
    was broadcast during the April 7, 2003, episode of "Married By
    America" is actionably indecent, licensees of stations affiliated
    with the FOX Network should not be subject to a forfeiture penalty.
    Although we have already determined that this forfeiture order
    should be limited to licensees whose stations served markets from
    which we received complaints, we believe it appropriate nonetheless
    to address all parties' arguments regarding the subject of affiliate
    culpability.

    **1. Pre-Broadcast Preview**

19. Cunningham,[^28] Falls/Compass Group,[^29] FOX/Affiliates
    Group,[^30] Ft. Smith Group,[^31] Hill,[^32] Independent,[^33]
    Mission,[^34] Pappas Group,[^35] Sinclair,[^36] and Warwick/White
    Knight Group[^37] argue that FOX Affiliates had no role in the
    selection, planning or approval of the episode in question, which
    was transmitted by the network to the FOX Affiliates "precisely at
    the moment that the program was scheduled to air."[^38] Respondents
    rely on *Complaints Against Various Television Licensees Concerning
    their February 1, 2004, Broadcast of the Super Bowl XXXVIII Halftime
    Show*, Notice of Apparent Liability for Forfeiture, FCC 04-209 (rel.
    Sept. 22, 2004), in which the Commission declined to sanction
    licensees of the CBS affiliate stations that broadcast the 2004
    Super Bowl halftime show because the affiliates "could not have
    reasonably anticipated" that the show would contain apparently
    indecent material. Respondents argue that the FOX Affiliates in the
    instant case were in the same position with respect to the subject
    episode of "Married By America" as the CBS affiliates were with
    respect to the 2004 Super Bowl halftime telecast.[^39] Consequently,
    according to Respondents, they should receive the same treatment as
    the affiliates in the *Super Bowl* case. FOX/Affiliates Group argues
    that, because "Married By America" was a reality show which involved
    audience participation, producers were constrained by tight
    production schedules and the need to protect the integrity of the
    voting process. Consequently, FOX/Affiliates Group maintains that
    "Married By America" was more akin to a live sporting event than a
    scripted drama or comedy show, making it difficult for FOX
    Affiliates to have had a meaningful opportunity to review the
    program in advance. [^40] Ft. Smith Group further argues that, even
    if the episode had been available for advance review, "it is
    unrealistic to assume that individual stations, and especially small
    market affiliates, could muster the resources to review and analyze
    every network program."[^41]

20. We find no merit in these arguments. While "Married By America"
    producers may not have had the luxury of being able to film and edit
    each episode weeks in advance of air time as they might ordinarily
    do for a scripted series, Respondents fail to explain why FOX
    Television Network could not have provided FOX Affiliates with a
    tape of the episode in question at *some time* prior to April 7,
    particularly in light of the type of material that the producers
    intended to include in the episode. Indeed, FOX/Affiliates Group
    claims that the tight production schedule only makes it "difficult,"
    not impossible, for affiliates to review the program's content prior
    to air time. Furthermore, we note that, at the conclusion of the
    program episode that was broadcast a week earlier, FOX Television
    Network provided highlights of the then-upcoming April 7 episode.
    Such highlights included many of the scenes that are the subject of
    this Forfeiture Order. Consequently, although the April 7 episode
    may still have been in production a week before air time, FOX
    Television Network knew that it would include the subject
    bachelor/bachelorette party scenes, and FOX Affiliates were provided
    with advance notice of the nature of the material that was scheduled
    for broadcast. Thus, they should have been prepared to screen the
    program before airing it.

21. We also reject FOX/Affiliates Group's contention that "Married By
    America" is akin to a live sporting event because it involved
    audience participation. According to FOX/Affiliates Group, FOX
    Television Network transmitted the episode to FOX Affiliates at air
    time in order to safeguard the show's voting process. However, the
    decision not to provide an advance tape of the episode to FOX
    Affiliates appears to have been discretionary, not the result of
    circumstances over which FOX Television Network lacked control.
    Indeed, none of the Respondents contends that FOX Television Network
    was prevented from providing FOX Affiliates with a tape of the
    episode prior to broadcast, had they requested one. Under these
    circumstances, we believe that the comparison between "Married By
    America" and a live sporting event is not valid, and Respondent's
    reliance on our *Super Bowl* decision is accordingly misplaced.

22. Finally, we reject Ft. Smith Group's claim that it is unfair and
    unreasonable to expect affiliates to review and analyze the network
    programs that they broadcast. It is bedrock Commission policy that
    broadcast licensees are ultimately responsible for the material that
    they air, regardless of the source.[^42] It is fundamentally
    inconsistent with the obligations of a broadcast licensee to
    broadcast programming without regard to -- and without even being
    aware of \-- its content.

    **2. Network Affiliation Agreement**

23. Hill[^43] and Pappas Group[^44] assert that their network
    affiliation agreements with FOX prevent them from discharging their
    obligations as licensees by impeding their ability to determine
    which programming is suitable for viewers in their communities. They
    explain that their affiliation agreements place strict limits on the
    number of occasions that they may preempt network programming
    without advance approval from FOX and that an excessive number of
    "unauthorized preemptions" could result in FOX severing its
    affiliation with them, a consequence that could be financially
    devastating. They further maintain that obtaining advance approval
    to preempt a particular program is not practical when, as here, an
    affiliate is unable to preview the episode because it is being
    delivered to the station at the moment it is scheduled to be
    broadcast.[^45] Hill and Pappas Group conclude:

    Thus, the contractual and practical deprivation to the affiliates of
    a meaningful power to review and reject undesirable episodes of
    otherwise acceptable network program series forces the affiliates
    into a Hobson's Choice: either to acquiesce in the network's
    programming choices and potentially face Commission sanctions for
    content which the affiliates had no role in planning, producing, or
    approving, as well as suffer local viewer and advertiser wrath for
    airing programming that is deemed offensive to local tastes; or to
    decline to air an entire series of a program that is deemed (on the
    basis of one or more episodes) to run a risk of containing indecency
    or other actionable content, which will likely incur network
    reprisal, including possible withdrawal of the affiliation . . .
    ."[^46]

24. We do not agree that these circumstances serve to eliminate or
    diminish an affiliate's liability for having broadcast indecent
    material. First, as indicated above,[^47] the entitlement to hold a
    Commission license carries with it certain fundamental obligations,
    one of which is to ensure compliance with our rules and to take
    responsibility for the programs that a licensee airs. Second, our
    rules relating to network affiliation agreements specifically
    provide that network affiliation agreements can not prevent or
    hinder licensees from rejecting or refusing network programs "which
    the station reasonably believes to be unsatisfactory or unsuitable
    or contrary to the public interest . . . ."[^48] Third, as noted
    above,[^49] Respondents and the public at large were provided with
    notice of the kind of material that the April 7 episode was likely
    to contain a full week in advance of its scheduled broadcast.
    Neither Hill nor Pappas Group contends that it even attempted to
    seek permission from FOX Television Network to preempt the show.
    Consequently, we find no merit to their claims that the network
    affiliation agreements into which they voluntarily entered and from
    which they derive substantial benefits provide a basis for excusing
    them from liability for airing the indecent material at issue here.

    **C. Other Arguments**

25. JW, licensee of Low Power Television Station K02NQ, Columbia
    Missouri;[^50] Mission, licensee of Stations KHMT(TV), Hardin,
    Montana, and WBAK-TV, Terre Haute, Indiana;[^51] and Smith,
    permittee of Station WFFF-TV, Burlington, Vermont,[^52] request
    cancellation of the NAL on the basis that they did not hold the
    authorizations for their respective stations at the time of the
    subject broadcast. We have already determined that the NAL should be
    cancelled as to all licensees whose stations serve markets from
    which no specific complaints were received, a category which
    includes these markets. Accordingly, the arguments herein raised by
    JW, Mission, and Smith are dismissed as moot.

26. In response to the NAL, Sunbeam, licensee of Station WSVN(TV),
    Miami, Florida, tendered a check made payable to the Commission in
    the amount of \$7,000, subject to final agency action with respect
    to the FOX/Affiliates Consolidated Response. Having determined that
    the NAL should be canceled as to all licensees against which no
    specific complaint was filed, including Sunbeam, Sunbeam may file
    appropriate documents requesting a refund of the amount it tendered.

    **D. Constitutional Issues**

27. Respondents argue that the Commission's indecency standard is
    unconstitutional on its face. In support, they collectively assert
    that the justifications that existed for adopting the current
    indecency standard are no longer valid; the current indecency
    standard is impermissibly vague; the availability of new blocking
    technologies has rendered the current indecency standard overbroad;
    and the Commission has not demonstrated that children are harmed by
    indecent broadcasts. Respondents also argue that the Commission's
    application of its indecency test in the instant case was
    unconstitutional because the Commission failed to exhibit restraint
    and caution during its investigation and because the Respondents
    were denied due process. For the reasons discussed below, we reject
    Respondents' arguments.

28. *Validity of Indecency Test.* FOX/Affiliates Group argues that the
    underpinnings of the Commission's current indecency standard date
    back to the Supreme Court's decision in *Federal Communications
    Commission v. Pacifica Foundation,*[^53] and that the justifications
    upon which the Court relied in its decision -- the uniquely
    pervasive presence of the broadcast medium and the unique
    accessibility of broadcasting to children \-- are no longer viable.
    In this regard, FOX/Affiliates Group argues that cable and satellite
    transmissions now reach the vast majority of the nation's television
    households and offer hundreds of channels as well as the signals of
    broadcast stations.[^54] FOX/Affiliates Group also maintains that
    younger people today have ready and unfettered access to numerous
    video sources as well as the Internet.[^55]

29. We disagree with Respondents' claim that the justifications upon
    which the Supreme Court relied in *Pacifica* are no longer valid and
    note that the D.C. Circuit has rejected this precise argument:
    "Despite the increasing availability of receiving television, such
    as cable . . . there can be no doubt that the traditional broadcast
    media are properly subject to more regulation than is generally
    permissible under the First Amendment."[^56] Notwithstanding
    Respondents' arguments to the contrary, the broadcast media continue
    to have a "uniquely pervasive presence" in American life. The
    Supreme Court has recognized that "\[d\]espite the growing
    importance of cable television and alternative technologies,
    'broadcasting is demonstrably a principal source of information and
    entertainment for a great part of the Nation\'s population."[^57] In
    2003, 98.2% of households had at least one television, and 99% had
    at least one radio.[^58] Although the majority of households with
    television subscribe to a cable or satellite service, millions of
    households continue to rely exclusively on broadcast
    television,[^59] and the National Association of Broadcasters
    estimates that there are some 73 million broadcast-only television
    sets in American households.[^60] Moreover, many of those
    broadcast-only televisions are in children's bedrooms.[^61] Although
    the broadcast networks have experienced declines in the number of
    viewers over the last several years, the programming they offer
    remains by far the most popular and is available to almost all
    households.[^62]

30. The broadcast media are also "uniquely accessible to children." In
    this respect, broadcast television differs from cable and satellite
    television. Parents who subscribe to cable exercise some choice in
    their selection of a package of channels, and they may avoid
    subscribing to some channels that present programming that, in their
    judgment, is inappropriate for children. Indeed, upon the request of
    a subscriber, cable providers are required by statute to "fully
    block the audio and video programming of each channel carrying such
    programming so that one not a subscriber does not receive it."[^63]
    In contrast, as the D.C. Circuit has observed, "broadcast audiences
    have no choice but to 'subscribe' to the entire output of
    traditional broadcasters."[^64] The V-chip provides parents with
    some ability to control their children's access to broadcast
    programming, but, as explained in further detail below, it does not
    eliminate the need for the Commission to vigorously enforce its
    indecency rules.[^65] Broadcast television is also significantly
    different from the Internet. The Internet, unlike television, is not
    accessible to children "too young to read."[^66] And parents who
    wish to control older children's access to inappropriate material
    can use widely available filtering software \-- an option that,
    whatever its flaws, lacks an effective analog in the context of
    broadcast television[^67] in light of the numerous problems with the
    V-chip and program ratings discussed below. Accordingly, there is no
    merit to Respondents' claim that *Pacifica* -- and more importantly,
    our indecency rules -- are invalid, obsolete or outdated.

31. *Vagueness and Overbreadth.* FOX/Affiliates Group argues that the
    Commission's indecency standard is unconstitutionally vague, citing
    *Reno v. ACLU*,[^68] a case addressing the constitutionality of
    provisions of the Communications Decency Act ("CDA") which sought to
    protect minors from harmful material on the Internet. The Court
    determined that the CDA's indecency standard was impermissibly vague
    because it failed to define key terms, thereby provoking uncertainty
    among speakers and preventing them from discerning what speech would
    violate the statute.[^69] FOX/Affiliates Group asserts that, because
    the CDA definition of indecency was determined by the Court to be
    fatally imprecise, and the Commission's definition of indecency is
    similar to the CDA definition, it follows that the Commission's
    definition is similarly flawed.[^70] FOX/Affiliates Group further
    argues that the Commission's vague indecency standards and fear of
    government sanctions create a chilling effect on broadcasters'
    exercise of their First Amendment rights.[^71]

32. We reject Respondents' arguments that the Commission's indecency
    standard is vague. That standard is essentially the same as the one
    used in the order that was reviewed in *FCC v. Pacifica
    Foundation*,[^72] and the Supreme Court had no difficulty applying
    that definition and using it to conclude that the broadcast at issue
    in that case was indecent. We therefore agree with the D.C. Circuit
    that "implicit in Pacifica" is an acceptance of the FCC's generic
    definition of 'indecent' as capable of surviving a vagueness
    challenge."[^73]

33. We also believe that Respondents' reliance on *Reno* is without
    merit. The Court in *Reno* expressly distinguished *Pacifica*,
    giving three different reasons for doing so.[^74] Thus, far from
    casting doubt on *Pacifica's* vagueness holding, *Reno* recognizes
    its continuing vitality. In addition, contrary to Respondents'
    claims, we do not believe that requiring broadcasters to exercise
    care to avoid airing a patently offensive depiction of sexual
    activity prior to 10 p.m. unduly "chills" exercise of their First
    Amendment rights. As reviewed above, we do not believe that our
    indecency standard is unconstitutionally vague and as the D.C.
    Circuit observed, "some degree of self-censorship is inevitable and
    not necessarily undesirable so long as proper standards are
    available."[^75]

34. FOX/Affiliates Group further argues that, even if the Commission's
    indecency standard is not impermissibly vague, it is
    unconstitutionally overbroad, again relying on *Reno v. ACLU*,
    wherein the Court held that a "burden on adult speech is
    unacceptable if less restrictive alternatives would be at least as
    effective in achieving the legitimate purpose that the statute was
    enacted to serve."[^76] According to FOX/Affiliates Group, the
    Commission's current approach to regulating indecency relegates
    protected speech to the "wee hours of the morning"[^77] and impedes
    the First Amendment rights of broadcasters. We disagree. By
    channeling indecent broadcasting to times of day in which fewer
    children are in the audience, but which nonetheless remain
    accessible to adult viewers and listeners, the Commission
    permissibly advances the government's interests "without unduly
    infringing on the adult population's right to see and hear indecent
    material."[^78] Indeed, 10:00 PM hardly qualifies as the "wee hours
    of the morning," and the D.C. Circuit upheld the "safe harbor"
    period in *ACT III*.

35. FOX/Affiliates Group also assert that television viewers today are
    able to effectively prevent reception of any programming that they
    consider unsuitable for children through the use of voluntary
    ratings of programs by the entertainment industry and so-called
    "V-Chip" technology.[^79] The existence of a less intrusive
    solution, according to FOX/Affiliates Group, thus renders the
    Commission's regulatory scheme unconstitutionally overbroad.[^80]

36. We reject this argument. While we agree that the V-chip provides
    some assistance in protecting children from indecent material, it
    does not eliminate the need for the Commission to enforce its
    indecency rules. Numerous televisions do not contain a V-chip, and
    most parents who have a television set with a V-chip are unaware of
    its existence or do not know how to use it.[^81] In addition, we
    note that some categories of programming, including news and sports,
    are not rated and, therefore, are not subject to blocking by V-chip
    technology.[^82] Finally, numerous studies have raised serious
    questions about the accuracy of the television ratings on which the
    effectiveness of a V-chip depends.[^83]

37. *Harm to Children.* FOX/Affiliates Group argues that the
    Commission's indecency test is flawed because the Commission has
    never made the requisite showing of harm to children from indecent
    programming. This argument is without merit. The Supreme Court did
    not require such evidence in *Pacifica* and the D.C. Circuit
    rejected the need for such evidence in *ACT III*, noting that "the
    Supreme Court has never suggested that a scientific demonstration of
    psychological harm is required in order to establish the
    constitutionality of measures protecting minors from indecent
    speech."[^84] It cannot reasonably be disputed that the government
    has a "compelling" interest "in protecting the physical and
    psychological well-being of minors," nor that this interest "extends
    to shielding minors from the influence of literature that is not
    obscene by adult standards."[^85] The government's interests in the
    "well-being of its youth" and in supporting "parent's claim to
    authority in their own household" can justify "the regulation of
    otherwise protected expression."[^86] Just as clearly, "the
    Government has a compelling interest in protecting children under
    the age of 18 from exposure to indecent broadcasts."[^87]

  -----------------------------------------------------------------------

  -----------------------------------------------------------------------

38. *Cautious Approach to Enforcement.* FOX/Affiliates Group and others
    challenge on various grounds the Commission's issuance of the NAL
    against stations that were not the subject of viewer complaints
    regarding the April 7, 2003 "Married By America" episode. We need
    not address these arguments in light of our decision, consistent
    with our commitment to an appropriately restrained enforcement
    policy and recent Commission practice, to limit the imposition of
    forfeiture penalties to licensees whose stations serve markets from
    which specific complaints were received.[^88] FOX/Affiliates
    Group,[^89] Cunningham,[^90] and Falls/Compass Group also accuse the
    Commission of impermissibly denying all of the licensees that were
    subject to the NAL, save the one to which the letter of inquiry was
    directed, any opportunity to respond to the Commission's concerns
    before the Commission issued its NAL. According to FOX/Affiliates
    Group, the Commission's "blunderbuss approach is both unfair to
    licensees and contrary to the First Amendment."[^91] We find no
    merit to this argument, which demonstrates a misunderstanding of the
    nature of the Commission's forfeiture process and confuses a notice
    of apparent liability for a forfeiture with a forfeiture order.
    Pursuant to section 1.80 of the Commission's rules, before imposing
    a forfeiture penalty, the Commission must provide each licensee with
    a written notice of apparent liability which includes an explanation
    of the nature of the misconduct, the rule section that the
    Commission believes was violated, and the proposed forfeiture
    amount. The NAL in this instance provided such required notice.
    There is no requirement that the Commission direct a letter of
    inquiry to a licensee as part of an investigation of alleged
    indecent programming aired by a broadcast station before issuing an
    NAL. Moreover, section 1.80 of the Commission's rules specifies that
    each licensee to which such notice is provided may file a written
    response demonstrating why a forfeiture penalty should not be
    imposed or should be reduced. By their various filings, Respondents
    availed themselves of the opportunity to respond the Commission's
    concerns, belying their claims to the contrary.

    **IV. CONCLUSION**

39. Section 503(b) of the Act, 47 U.S.C. § 503(b), and section 1.80(a)
    of the Commission's rules, 47 C.F.R § 1.80, both state that any
    person who willfully or repeatedly fails to comply with the
    provisions of the Act or the rules shall be liable for a forfeiture
    penalty. For purposes of section 503(b) of the Act, the term
    "willful" means that the violator knew it was taking the action in
    question, irrespective of any intent to violate the Commission's
    rules.[^92] Based on our determination that the stations in question
    willfully broadcast this episode of "Married by America" and the
    material before us, we find that the FOX Television Network Stations
    listed in Attachment A willfully violated 18 U.S.C. § 1464 and
    section 73.3999 of the Commission's rules, by airing indecent
    programming during the "Married By America" program on April 7,
    2003.[^93]

40. The Commission's *Forfeiture Policy Statement* sets a base
    forfeiture amount of \$7,000 for the transmission of indecent or
    obscene materials.[^94] The *Forfeiture Policy Statement* also
    specifies that the Commission shall adjust a forfeiture based upon
    consideration of the factors enumerated in Section 503(b)(2)(D) of
    the Act, 47 U.S.C. § 503(b)(2)(D), such as "the nature,
    circumstances, extent and gravity of the violation, and, with
    respect to the violator, the degree of culpability, any history of
    prior offenses, ability to pay, and such other matters as justice
    may require."[^95]

41. We have thoroughly considered Respondents' arguments as well as the
    factors listed in Section 503(b)(2)(D) of the Act. On reflection, we
    believe that the forfeiture penalty in the base amount of \$7,000
    proposed against each of the stations listed in Attachment A in the
    *NAL* is unduly low in light of the nature and gravity of the
    violation and the ability of the licensees to pay. If we were
    proposing a forfeiture for the first time here, we would be inclined
    to propose a significantly higher forfeiture per station.[^96]
    However, we cannot, consistent with our rules,[^97] increase the
    forfeiture amount without issuing another *NAL*, and we are
    concerned that issuing another NAL at this late date could
    jeopardize our ability to enforce the forfeiture.[^98] Therefore, we
    will impose the forfeiture proposed in the NAL on each of the
    stations listed in Attachment A.

    **V. ORDERING CLAUSES**

42. **ACCORDINGLY, IT IS ORDERED**, pursuant to section 503(b) of the
    Communications Act of 1934, as amended, and section 1.80 of the
    Commission's rules,[^99] that each of the stations listed in
    Attachment A of this Forfeiture Order is liable for a forfeiture in
    the amount of \$7,000 for broadcasting indecent material, in willful
    violation of 18 U.S.C. § 1464 and section 73.3999 of the
    Commission's rules.

43. **IT IS FURTHER ORDERED** that the *NAL* is cancelled as to all
    other licensees referenced in the NAL.

44. **IT IS FURTHER ORDERED** that the Commission will entertain
    appropriate documents filed by Sunbeam requesting a refund of the
    \$7,000 forfeiture that it previously paid in this proceeding.

45. **IT IS FURTHER ORDERED**, pursuant to section 1.80 of the
    Commission's rules, that within thirty (30) days of the release of
    this Forfeiture Order, the stations listed in Attachment A of this
    Forfeiture Order **SHALL PAY** the full amount of its respective
    forfeiture.

46. **IT IS FURTHER ORDERED** that payment of the forfeiture must be
    made by check or similar instrument, payable to the order of the
    Federal Communications Commission. The payment must include the
    appropriate NAL Account Number and FRN Number referenced in
    Attachment A. Payment by check or money order may be mailed to
    Federal Communications Commission, P.O. Box 979088, St. Louis, MO
    63197-9000. Payment by overnight mail may be sent to U.S. Bank --
    Government Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St.
    Louis, MO 63101. Payment\[s\] by wire transfer may be made to ABA
    Number 021030004, receiving bank TREAS/NYC, and account
    number 27000001. For payment by credit card, an FCC Form 159
    (Remittance Advice) must be submitted.  When completing the FCC Form
    159, enter the NAL Account number in block number 23A (call
    sign/other ID), and enter the letters "FORF" in block number 24A
    (payment type code). Requests for full payment under an installment
    plan should be sent to:  Chief Financial Officer \-- Financial
    Operations, 445 12th Street, S.W., Room 1-A625, Washington, D.C. 
    20554.   Please contact the Financial Operations Group Help Desk at
    1-877-480-3201 or Email: <ARINQUIRIES@fcc.gov> with any questions
    regarding payment procedures.

47. **IT IS FURTHER ORDERED** that the Commission will not consider
    reducing or canceling a forfeiture in response to a claim of
    inability to pay unless the respondent submits: (1) federal tax
    returns for the most recent three-year period; (2) financial
    statements prepared according to generally accepted accounting
    practices ("GAAP"); or (3) some other reliable and objective
    documentation that accurately reflects the respondent's current
    financial status. Any claim of inability to pay must specifically
    identify the basis for the claim by reference to the financial
    documentation submitted.

48. **IT IS FURTHER ORDERED** that a copy of this Forfeiture Order shall
    be sent, by Certified Mail/Return Receipt Requested, to each of the
    licensees identified in Attachment A hereto and to their respective
    counsel and representatives identified in Attachment C hereto.

FEDERAL COMMUNICATIONS COMMISSION

Marlene H. Dortch

Secretary

**ATTACHMENT A**

**Licensees and Stations**

+--------------+---------+--------+------------+-------+-------------+
| **Licensee   | **FRN   | **NAL  | **Station  | **Fac | *           |
| Name and     | No.**   | Acct.  | Call Sign  | ility | *Forfeiture |
| Mailing      |         | No.**  | and        | ID    | Amount**    |
| Address**    |         |        | Community  | No.** |             |
|              |         |        | of         |       |             |
|              |         |        | License**  |       |             |
+==============+=========+========+============+=======+=============+
| FOX          | 1529056 | 200832 | WJBK,      | 73123 | \$7,000     |
| Television   |         | 080064 | Detroit,   |       |             |
| Stations,    |         |        | MI         |       |             |
| Inc.         |         |        |            |       |             |
|              |         |        |            |       |             |
| 5151         |         |        |            |       |             |
| Wisconsin    |         |        |            |       |             |
| Ave., N.W.,  |         |        |            |       |             |
| Washington   |         |        |            |       |             |
| D.C. 20016   |         |        |            |       |             |
+--------------+---------+--------+------------+-------+-------------+
| FOX          | 1529056 | 200832 | KMSP-TV,   | 68883 | \$7,000     |
| Television   |         | 080065 | Mi         |       |             |
| Stations,    |         |        | nneapolis, |       |             |
| Inc.         |         |        | MN         |       |             |
|              |         |        |            |       |             |
| 5151         |         |        |            |       |             |
| Wisconsin    |         |        |            |       |             |
| Ave., N.W.,  |         |        |            |       |             |
| Washington   |         |        |            |       |             |
| D.C. 20016   |         |        |            |       |             |
+--------------+---------+--------+------------+-------+-------------+
| FOX          | 1529056 | 200832 | WTTG,      | 22207 | \$7,000     |
| Television   |         | 080066 | W          |       |             |
| Stations,    |         |        | ashington, |       |             |
| Inc.         |         |        | DC         |       |             |
|              |         |        |            |       |             |
| 5151         |         |        |            |       |             |
| Wisconsin    |         |        |            |       |             |
| Ave., N.W.,  |         |        |            |       |             |
| Washington,  |         |        |            |       |             |
| D.C. 20016   |         |        |            |       |             |
+--------------+---------+--------+------------+-------+-------------+
| TVT License, | 1811074 | 200832 | WTVT,      | 68569 | \$7,000     |
| Inc.         |         | 080067 | Tampa, FL  |       |             |
|              |         |        |            |       |             |
| 5151         |         |        |            |       |             |
| Wisconsin    |         |        |            |       |             |
| Ave., N.W.,  |         |        |            |       |             |
| Washington,  |         |        |            |       |             |
| D.C. 20016   |         |        |            |       |             |
+--------------+---------+--------+------------+-------+-------------+
| WDAF         | 3476421 | 200832 | WDAF-TV,   | 11291 | \$7,000     |
| License,     |         | 080068 | Kansas     |       |             |
| Inc.         |         |        | City, MO   |       |             |
|              |         |        |            |       |             |
| 5151         |         |        |            |       |             |
| Wisconsin    |         |        |            |       |             |
| Ave., N.W.,  |         |        |            |       |             |
| Washington,  |         |        |            |       |             |
| D.C. 20016   |         |        |            |       |             |
+--------------+---------+--------+------------+-------+-------------+
| GB Roanoke   | 1       | 200832 | WFXR-TV,   | 24813 | \$7,000     |
| Licensing    | 7270307 | 080069 | Roanoke,   |       |             |
| LLC          |         |        | VA         |       |             |
|              |         |        |            |       |             |
| 915 Middle   |         |        |            |       |             |
| River Drive, |         |        |            |       |             |
| Suite 409,   |         |        |            |       |             |
| Ft.          |         |        |            |       |             |
| Lauderdale,  |         |        |            |       |             |
| FL 33304     |         |        |            |       |             |
+--------------+---------+--------+------------+-------+-------------+
| Journal      | 2710192 | 200832 | WSYM-TV,   | 74094 | \$7,000     |
| Broadcast    |         | 080070 | Lansing,   |       |             |
| Corporation  |         |        | MI         |       |             |
|              |         |        |            |       |             |
| 3355 S.      |         |        |            |       |             |
| Valley View  |         |        |            |       |             |
| Blvd., Las   |         |        |            |       |             |
| Vegas, NV    |         |        |            |       |             |
| 89102        |         |        |            |       |             |
+--------------+---------+--------+------------+-------+-------------+
| KDSM         | 5019195 | 200832 | KDSM-TV,   | 56527 | \$7,000     |
| Licensee,    |         | 080071 | Des        |       |             |
| LLC          |         |        | Moines, IA |       |             |
| Pillsbury    |         |        |            |       |             |
| Winthrop     |         |        |            |       |             |
| Shaw Pittman |         |        |            |       |             |
| LLP, Attn.   |         |        |            |       |             |
| Kathryn R.   |         |        |            |       |             |
| Schmeltzer,  |         |        |            |       |             |
| 2300 N       |         |        |            |       |             |
| Street,      |         |        |            |       |             |
| N.W.,        |         |        |            |       |             |
| Washington,  |         |        |            |       |             |
| D.C. 20037   |         |        |            |       |             |
+--------------+---------+--------+------------+-------+-------------+
| Lingard      | 4348322 | 200832 | WLOV-TV,   | 37732 | \$7,000     |
| Broadcasting |         | 080072 | West       |       |             |
| Corporation  |         |        | Point, MS  |       |             |
|              |         |        |            |       |             |
| P.O. Box     |         |        |            |       |             |
| 1732,        |         |        |            |       |             |
| Tupelo, MS   |         |        |            |       |             |
| 38802        |         |        |            |       |             |
+--------------+---------+--------+------------+-------+-------------+
| Meredith     | 5878004 | 200832 | WHNS,      | 72300 | \$7,000     |
| Corporation  |         | 080073 | G          |       |             |
|              |         |        | reenville, |       |             |
| 1716 Locust  |         |        | SC         |       |             |
| Street, Des  |         |        |            |       |             |
| Moines, IA   |         |        |            |       |             |
| 50309        |         |        |            |       |             |
+--------------+---------+--------+------------+-------+-------------+
| Mountain     | 6175939 | 200832 | KCYU-LP,   | 58694 | \$7,000     |
| Licenses,    |         | 080074 | Yakima, WA |       |             |
| L.P. 2111    |         |        |            |       |             |
| University   |         |        |            |       |             |
| Park Drive,  |         |        |            |       |             |
| Suite 650,   |         |        |            |       |             |
| Okemos, MI   |         |        |            |       |             |
| 48864        |         |        |            |       |             |
+--------------+---------+--------+------------+-------+-------------+
| WVAH         | 7283054 | 200832 | WVAH-TV,   | 417   | \$7,000     |
| Licensee,    |         | 080075 | C          |       |             |
| LLC 2000 W.  |         |        | harleston, |       |             |
| 41st.        |         |        | WV         |       |             |
| Street,      |         |        |            |       |             |
| Baltimore,   |         |        |            |       |             |
| MD 21211     |         |        |            |       |             |
+--------------+---------+--------+------------+-------+-------------+
| WZTV         | 6551758 | 200832 | WZTV,      | 418   | \$7,000     |
| Licensee,    |         | 080076 | Nashville, |       |             |
| LLC          |         |        | TN         |       |             |
| Pillsbury    |         |        |            |       |             |
| Winthrop     |         |        |            |       |             |
| Shaw         |         |        |            |       |             |
| Pittman,     |         |        |            |       |             |
| LLC, Attn:   |         |        |            |       |             |
| Kathryn R.   |         |        |            |       |             |
| Schmeltzer   |         |        |            |       |             |
| 2300 N       |         |        |            |       |             |
| Street,      |         |        |            |       |             |
| N.W.,        |         |        |            |       |             |
| Washington,  |         |        |            |       |             |
| D.C. 20037   |         |        |            |       |             |
+--------------+---------+--------+------------+-------+-------------+

**ATTACHMENT B**

**Responses to NAL**

-   Letter to William H. Davenport, Chief, Investigations and Hearings
    Division, Enforcement Bureau, Federal Communications Commission,
    from Henry Goldberg, Esquire, Goldberg, Godles, Wiener & Wright,
    counsel for Bluenose Broadcasting of Savannah, LLC ("Bluenose"),
    dated December 3, 2004 ("Bluenose Response");

-   Cunningham Opposition to Notice of Apparent Liability for
    Forfeiture, filed by Cunningham Broadcasting Corporation
    ("Cunningham") on December 3, 2004 ("Cunningham Response");

-   Joint Response in Opposition to the Notice of Apparent Liability for
    Forfeiture, filed jointly by Falls Broadcasting Company and Compass
    Communications of Idaho, Inc. (collectively, "Falls/Compass Group")
    on December 2, 2004 ("Falls/Compass Joint Response);

-   Opposition to Notice of Apparent Liability for Forfeiture, filed by
    FOX Broadcasting Company and the Licensees of the Television
    Broadcast Stations Affiliated with the FOX Television Network
    ("FOX/Affiliates Group") on December 3, 2004 ("FOX/Affiliates
    Consolidated Response");

-   Letter to William H. Davenport, Chief, Investigations and Hearings
    Division, Enforcement Bureau, Federal Communications Commission,
    from Peter Tannenwald, Esquire, Irwin, Campbell & Tannenwald, P.C.,
    counsel for Ft. Smith 46, Inc., Marquette Broadcasting, Inc.,
    Montana License Sub, Inc., Montgomery Communications, Inc., and
    TV67, Inc. (collectively, "Ft. Smith Group"), dated December 3, 2004
    ("Ft. Smith Consolidated Response");

-   Response to Notice of Apparent Liability for Forfeiture, filed by
    Hill Broadcasting Company, Inc. ("Hill") on December 3, 2004 ("Hill
    Response");

-   Response to Notice of Apparent Liability for Forfeiture, filed by
    Independent Communications, Inc. ("Independent") on November 12,
    2004 ("Independent Response");

-   Letter to Marlene H. Dortch, Secretary, Federal Communications
    Commission, from Gregory L. Masters, Esquire, Wiley Rein & Fielding
    LLP, counsel for JW Broadcasting LLC ("JW"), dated November 5, 2004
    ("JW Response");

-   Opposition to Notice of Apparent Liability for Forfeiture, filed by
    Lingard Broadcasting Corporation ("Lingard") on December 3, 2004
    ("Lingard Response");

-   Letter to William H. Davenport, Chief, Investigations and Hearings
    Division, Enforcement Bureau, Federal Communications Commission,
    from Howard M. Liberman, Esquire, Drinker Biddle & Reath, LLP,
    counsel for Mission Broadcasting , Inc. ("Mission"), dated December
    7, 2004 ("Mission Response");

-   Response to Notice of Apparent Liability for Forfeiture, filed
    jointly by KMPH(TV) License, LLC; KPTM(TV) License, LLC; and Pappas
    Telecasting of Sioux City, L.P. (collectively, "Pappas Group") on
    December 3, 2004 ("Pappas Consolidated Response").

-   Opposition to Notice of Apparent Liability for Forfeiture, filed by
    Sinclair Broadcast Group, Inc. ("Sinclair") on December 3, 2004
    ("Sinclair Response");

-   Letter to William H. Davenport, Chief, Investigations and Hearings
    Division, Enforcement Bureau, Federal Communications Commission,
    from Jeffrey J. Gee, Esquire, Dow Lohnes & Albertson, PLLC, counsel
    for Smith Media License Holdings, LLC ("Smith"), dated December 3,
    2004 ("Smith Response");

-   Letter to Forfeiture Collections Agency, Finance Branch, Federal
    Communications Commission, from Marvin Rosenberg, Esquire, Holland &
    Knight, counsel for Sunbeam Television Corporation ("Sunbeam"),
    dated November 29, 2004 ("Sunbeam Response");

-   Opposition to Notice of Apparent Liability for Forfeiture, filed by
    United Communications Corporation ("United") on December 3, 2004
    ("United Response"); and,

-   Opposition to Notice of Apparent Liability for Forfeiture, filed
    jointly by Warwick Communications, Inc. and White Knight
    Broadcasting of Natchez License Corp. (collectively, "Warwick/White
    Knight Group") on December 3, 2004 ("Warwick/White Knight Joint
    Response").

**ATTACHMENT C**

**Licensees' Counsel and Representatives**

John C. Quale, Esquire

Skadden, Arps, Slate, Meagher & Flom LLP

1440 New York Avenue, N.W.

Washington, DC 20005

(Counsel for FOX Broadcasting Company)

John C. Quale, Esquire

Skadden, Arps, Slate, Meagher & Flom LLP

1440 New York Avenue, N.W.

Washington, DC 20005

(Counsel for FOX Television Holdings, Inc., FOX Television Stations,
Inc.)

Maureen A. O.Connell

Vice President Regulatory and Government Affairs

The News Corporation Limited

444 North Capitol Street, N.W., Suite 740

Washington, DC 20001

James A. Koerner, Esquire

Koerner & Olender PC

5809 Nicholson Lane, Suite 124

Rockville, MD 20852

(Counsel for Blue Bonnet Communications, Inc.; GE Media, Inc.; National
Communications, Inc.; Pacific Media Corporation)

Joseph A. Godles, Esquire

Goldberg, Godles, Wiener & Wright

1229 19^th^ Street, N.W.

Washington, DC 20036

(Counsel for Bluenose Broadcasting of Savannah LLC)

Dennis Corbett, Esquire

Leventhal, Senter & Lerman PLLC\
2000 K Street, N.W., Suite 600

Washington, DC 20006

(Counsel for Broadcasting Licenses, L.P.; Davis Television Clarksburg,
LLC; Davis Television Wausau, LLC; Mountain Licenses, L.P.; Ramar
Communications II, Ltd.; Stainless Broadcasting, L.P.)

Kathleen A. Kirby, Esquire

Wiley Rein & Fielding LLP

1776 K Street, N.W.

Washington, DC 20006

(Counsel for California Oregon Broadcasting, Inc.)

Clark Wadlow, Esquire

Sidley Austin Brown and Wood

1501 K Street, N.W.

Washington, DC 20005

(Counsel for Channel 40, Inc.; Tribune Television Company; Tribune
Television Holdings, Inc.; Tribune Television Norhtwest, Inc.)

Roger C. Goodspeed

Assistant General Counsel

Tribune Company

220 East 42^nd^ Street, Suite 400

New York, NY 10017

Charles J. Sennet

Senior Counsel/Broadcasting and Entertainment

Tribune Company

435 North Michigan Avenue, Suite 600

Chicago, IL 60611

Clifford M. Harrington, Esquire

Shaw Pittman LLP

2300 N Street, N.W.

Washington, DC 20037

(Counsel for Columbus (WTTE-TV) Licensee, Inc.; WRGT Licensee, LLC; WTAT
Licensee, LLC; WVAH Licensee, LLC)

Kathryn R. Schmeltzer, Esquire

Shaw Pittman LLP

2300 N Street, N.W.

Washington, DC 20037

(Counsel for Chesapeake Television Licensee, LLC; KABB Licensee, LLC;
KBSI Licensee L.P.; KDSM Licensee, LLC; KOKH Licensee, LLC; Warwick
Communications, Inc.; WDKY Licensee, LLC; WEMT Licensee L.P.; White
Knight Broadcasting of Natchez License Corp.; WMSN Licensee, LLC; WPGH
Licensee, LLC; WRLH Licensee, LLC; WSMH Licensee, LLC; WSYT Licensee
L.P.; WUHF Licensee, LLC; WUTV Licensee, LLC; WYZZ Licensee, LLC; WZTV
Licensee, LLC)

Vincent J. Curtis, Jr., Esquire

Fletcher, Heald & Hildreth, P.L.C.

1300 North 17^th^ Street, 11^th^ Floor

Arlington, VA 22209

(Counsel for Comcorp of Baton Rouge License Corp.; Comcorp of Texas
License Corp.; Morris Network of Mississippi, Inc.)

Jonathan Lichstein

Corporate FCC Counsel

Sunbelt Communications Company

1500 Foremaster Lane

Las Vegas, NV 89101

(Counsel for Compass Communications of Idaho, Inc.; Falls Broadcasting
Company)

Kenneth E. Satten, Esquire

Wilkinson Barker Knauer, LLP

2300 N Street, N.W., Suite 700

Washington, DC 20037

(Counsel for Grant Broadcasting Systems II, Inc.; rant Media LLC;
Huntsville Television Acquisition Corp.; Quad Cities Television
Acquisition Corp.; Quincy Broadcasting Co.; WSJV Television, Inc.)

Peter Tannenwald, Esquire

Irwin, Campbell & Tannenwald, P.C.

1730 Rhode Island Avenue, N.W., Suite 200

Washington, DC 20036-3120

(Counsel for Forth Smith 46, Inc.; Marquette Broadcasting, Inc.; Montana
License Sub, Inc.; Montgomery Communications, Inc.; TV 67, Inc.)

Lewys Carlini

General Manager, KIIT

Greater Nebraska Television, Inc.

8020 N. Highway 83

North Platte, NE 69101

John R. Feore, Esquire

Dow, Lohnes & Albertson, PLLC

1200 New Hampshire Avenue, N.W., Suite 800

Washington, DC 20036-6802

(Counsel for Idaho Independent Television, Inc.; Independence Television
Company)

Mace Rosenstein, Esquire

Hogan & Hartson, L.L.P.

555 13^th^ Street, N.W.

Washington, DC 20004

(Counsel for Journal Broadcast Corporation)

William Reyner

President and CEO

KEVN, Inc.

1031 East Mountain Drive

Santa Barbara, CA 93108

John Harvey Rees

800 Gold Creek Road

Ohio City, CO 81237

Howard M. Weiss, Esquire

Fletcher, Heald & Hildreth, P.L.C.

1300 North 17^th^ Street, 11^th^ Floor

Arlington, VA 22209

(Counsel for KADN-15, Inc.; Sage Broadcasting Corporation; Star
Broadcasting Limited)

James R. Bayes, Esquire

Wiley Rein & Fielding LLP

1776 K Street, N.W.

Washington, DC 20006

(Counsel for KMSB-TV, Inc.)

Charles R. Naftalin, Esquire

Holland & Knight LLP

2099 Pennsylvania Avenue, N.W., Suite 100

Washington, DC 20006-6801

(Counsel for KQDS Acquisition Corp.; Red River Broadcast Co., LLC)

John R. Feore, Esquire

Dow, Lohnes & Albertson, PLLC

1200 New Hampshire Avenue, N.W., Suite 800

Washington, DC 20036-6802

(Counsel for KVVU Broadcasting Corporation; Meredith Corporation)

Perry Bradshaw

Meredith Corporation

1716 Locust Street

Des Moines, IA 50309-3023

Kevin F. Reed, Esquire

Dow, Lohnes & Albertson, PLLC

1200 New Hampshire Avenue, N.W., Suite 800

Washington, DC 20036-6802

(Counsel for KTVU Partnership; KVOA Communications, Inc.; Peak Media of
PA Licensee LLC)

Robert E. Levine, Esquire

Law Offices of Robert E. Levine

1920 N Street, N.W., Suite 800

Washington, DC 20036

(Counsel for Lingard Broadcasting Corporation)

Howard M. Liberman, Esquire

Drinker Biddle & Reath LLP

1500 K Street, N.W., Suite 1100

Washington, DC 20005

(Counsel for Nexstar Broadcasting, Inc.; WYDC, Inc.)

Harry C. Martin, Esquire

Fletcher, Heald & Hildreth, P.L.C.

1300 North 17^th^ Street, 11^th^ Floor

Arlington, VA 22209

(Counsel for Ottumwa Media Holdings, LLC; Southwestern Media Holdings,
Inc.)

Russell J. Schwartz

Vice President Business Affairs and General Counsel

Bahakel Communications, Ltd.

1 Television Place

Charlotte, NC 28205

Joseph M. Di Scipio, Esquire

Cohn and Marks LLP

1920 N Street, N.W., Suite 300

Washington, DC 20036

(Counsel for Piedmont Television of Anchorage License LLC; Piedmont
Television of Eastern Carolina License LLC; Piedmont Television of Macon
License LLC; Piedmont Television of Youngstown License LLC)

John B. Tupper, Esquire

Kepper, Tupper and Company

112 High Ridge Avenue

Ridgefield, CT 06877

(Counsel for Prime Cities Broadcasting, Inc.)

Eve Klindera Reed, Esquire

Wiley Rein & Fielding LLP

1776 K Street, N.W.

Washington, DC 20006

(Counsel for Rockfleet Broadcasting II, LLC)

John E. Fiorini III, Esquire

Wiley Rein & Fielding LLP

1776 K Street, N.W.

Washington, DC 20006

(Counsel for Seal Rock Broadcasters, L.L.C.)

Kurt A. Wimmer, Esquire

Covington & Burling

1201 Pennsylvania Avenue, N.W.

Washington, DC 20004

(Counsel for Raycom America License Subsidiary, LLC; Raycom National,
Inc.; Raycom National License Subsidiary, LLC; WAVY Broadcasting, LLC;
WUPW Broadcasting, LLC)

Gregg P. Skall, Esquire

Womble Carlyle Sandridge & Rice, PLLC

1401 I Street, N.W., 7^th^ Floor

Washington, DC 20005-2225

(Counsel for Sainte Partners II, L.P.; Sainte Sepulveda, Inc.)

David Tillotson, Esquire

Law Office of David Tillotson

4606 Charleston Terrace, N.W.

Washington, DC 20007

(Counsel for Second Generation of Iowa, Ltd.)

Howard J. Braun, Esquire

Katten Muchin Zavis Rosenman

1025 Thomas Jefferson Street, N.W., Suite 700 East Lobby

Washington, DC 20007

(Counsel for Shockley Broadcasting, LLC)

Harry F. Cole, Esquire

Fletcher, Heald & Hildreth, P.L.C.

1300 North 17^th^ Street, 11^th^ Floor

Arlington, VA 22209

(Counsel for Surtsey Media, LLC)

Paul H. Brown, Esquire

Wood, Maines & Brown Chartered

1827 Jefferson Place, N.W.

Washington, DC 20036

(Counsel for United Communications Corporation)

Jeffrey J. Gee. Esquire

Dow, Lohnes & Albertson, PLLC

1200 New Hampshire Avenue, N.W., Suite 800

Washington, DC 20036-6802

(Counsel for Smith Media License Holdings, LLC (as successor to Smith
Broadcasting of Vermont, LLC))

William St. Pierre

President

Tanana Valley Television Company

3650 Bradock Street, Suite 2

Fairbanks, AK 99701

David D. Oxenford, Esquire

Shaw Pittman LLP

2300 N Street, N.W.

Washington, DC 20037

(Counsel for WDSI License Corp.; WOLF License Corp.; WTLH License Corp.)

M. Anne Swanson, Esquire

Dow, Lohnes & Albertson, PLLC

1200 New Hampshire Avenue, N.W., Suite 800

Washington, DC 20036-6802

(Counsel for WNAC, LLC)

Mark Nalbone

Secretary

Wyomedia Corporation

1856 Skyview Drive

Casper, WY 82601

Aaron Shainis, Esquire

Shainis & Peltzman, Chartered

1850 M Street, N.W., Suite 240

Washington, DC 20036

(Counsel for Woods Communications Corporation)

Dennis F. Begley, Esquire

Reddy, Begley & McCormick, LLP

1156 15^th^ Street, Suite 610

Washington, DC 20005-1770

(Counsel for Independent Communications, Inc.)

Clifford M. Harrington, Esquire

Shaw Pittman LLP

2300 N Street, N.W.

Washington, DC 20037

(Counsel for Cunningham Broadcasting Corporation)

John Griffith Johnson, Jr., Esquire

Paul, Hastings, Janofsky & Walker LLP

1299 Pennsylvania Avenue, N.W., Tenth Floor

Washington, DC 20004-2400

(Counsel for KMPH(TV) License, LLC; KPTM(TV) License, LLC; Pappas
Telecasting Sioux City, L.P.)

William H. Crispin, Esquire

Crispin & Associates, P.L.L.C.

555 13^th^ Street, N.W., Suite 420 West

Washington, DC 20004

(Counsel for Hill Broadcasting company, Inc.)

Howard M. Liberman, Esquire

Drinker Biddle & Reath LLP

1500 K Street, N.W., Suite 1100

Washington, DC 20005

(Counsel for Mission Broadcasting, Inc.)

Kathryn R. Schmeltzer, Esquire

Shaw Pittman LLP

2300 N Street, N.W.

Washington, DC 20037

(Counsel for Sinclair Broadcast Group, Inc.)

Gregory L. Masters, Esquire

Wiley Rein & Fielding LLP

1776 K Street, N.W.

Washington, DC 20006

(Counsel for JW Broadcasting LLC)

Jeffrey J. Gee, Esquire

Dow, Lohnes & Albertson, PLLC

1200 New Hampshire Avenue, N.W., Suite 800

Washington, DC 20036-6802

(Counsel for Smith Media License Holdings, LLC)

Marvin Rosenberg, Esquire

Holland & Knight

2099 Pennsylvania Avenue, N.W., Suite 100

Washington, DC 20006

(Counsel for Sunbeam Television Corporation)

[^1]: The NAL Acct. No. and FRN No. for each licensee subject to this
    Forfeiture Order are listed in Attachment A, *infra*.

[^2]: *See* 47 U.S.C. § 503; 47 C.F.R. § 1.80.

[^3]: *See* 18 U.S.C. § 1464; 47 C.F.R. § 73.3999. The Notice of
    Apparent Liability for Forfeiture in this proceeding included 169
    FOX Television Network stations that are owned and operated, or
    ultimately controlled by, FOX Entertainment Group, Inc.
    (collectively "FOX O&Os") and other television stations that are
    network program affiliates of the FOX Television Network
    (collectively "FOX Affiliates"). *See* *Complaints Against Various
    Licensees Regarding Their Broadcast Of The FOX Television Network
    Program "*Married *By America" On April 7, 2003*, Notice of
    Apparently Liability for Forfeiture, 19 FCC Rcd 20191 (2004)
    ("*NAL*"). Consistent with our policy of restrained enforcement in
    indecency proceedings, we have limited the instant Forfeiture Order
    to stations in markets from which we received indecency complaints
    about the subject episode of "Married By America." *See Complaints
    Against Various Television Licensees Concerning Their February 1,
    2004 Broadcast of the Super Bowl XXXVIII Halftime Show*, Order on
    Reconsideration, 21 FCC Rcd 6653, 6665 ¶ 30 (2006) ("*Super Bowl
    Order on Reconsideration*"), *pet. for review pending, CBS Corp. v.
    FCC*, No. 06-3575 (3d Cir. Filed July 28, 2006); *In the Matter of
    Complaints Regarding Various Television Broadcasts Between February
    2, 2002 and March 8, 2005,* 21 FCC Rcd 2664, 2673 ¶ 32 (2006),
    *vacated in part on other grounds*, 21 FCC Rcd 13299 (2006)
    (*"Omnibus Order"*) (subsequent history omitted). Accordingly, the
    stations listed in Attachment A, *infra*, are a subset of those
    named in the *NAL*.

[^4]: *See* Letter to TVT License, Inc., from Maureen F. Del Duca,
    Chief, Investigations and Hearings Division, Enforcement Bureau,
    dated July 10, 2003 ("LOI").

[^5]: *See* Letter to Melanie A. Godschall, Investigations and Hearings
    Division, Enforcement Bureau, from John C. Quale, Skadden, Arps,
    Slate, Meagher & Flom, LLP, dated August 11, 2003; Letter to William
    D. Freedman, Deputy Chief, Investigations and Hearings Division,
    Enforcement Bureau, from John C. Quale, Skadden, Arps, Slate,
    Meagher & Flom, LLP, dated September 9, 2003.

[^6]: *NAL*, 19 FCC Rcd at 20193-194.

[^7]: *Id.* at 20194.

[^8]: *Id.* at 20195.

[^9]: *Id*.

[^10]: In accordance with Section 1.80 of the Commission's rules, 47
    C.F.R. § 1.80, the *NAL* ordered each licensee, within 30 days of
    release thereof, to either pay its respective proposed forfeiture in
    full or file a written statement seeking reduction or cancellation
    of the proposed forfeiture. *See* 19 FCC Rcd at 20196 ¶ 19. In
    response to multiple requests, the Commission granted extensions of
    time, to December 3, 2004, within which to respond to the *NAL*.
    Mission Broadcasting, Inc. asked for and was granted an extension
    until December 7, 2004 to interpose a response. Although some
    licensees have styled their filings as oppositions to the *NAL*, the
    Commission's rules do not contemplate the filing of an opposition to
    a proposed action. Consequently, each filing is appropriately
    characterized herein as a "response," pursuant to Section 1.80(f)(3)
    of the Commission's rules, 47 C.F.R. § 1.80(f)(3). The entities that
    filed responses are hereafter collectively referred to as
    "Respondents."

[^11]: *See* Attachment B, *infra*, for a list of these submissions.

[^12]: One respondent, Sunbeam Television Corporation, licensee of
    Station WSVN(TV), Miami, Florida, paid its forfeiture in full,
    subject to the outcome of the Commission's final action with respect
    to the FOX/Affiliates Consolidated Response.

[^13]: *See* *supra* note 2.

[^14]: *See* FOX/Affiliates Consolidated Response at 26-30.

[^15]: *See id*. at 31-39.

[^16]: *See 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 ¶ 7 (2001)
    *("Indecency Policy Statement")*.

[^17]: *See Omnibus Order*, 21 FCC Rcd at 2671 ¶ 24 (pixilated views of
    nude breasts and a nude body, as well as other sexual images and
    innuendo, depicted or described sexual activities and organs for
    purposes of first prong of indecency analysis). *See* FOX/Affiliate
    Group's reliance on *KSAZ License, Inc.*, 19 FCC Rcd 15999 (2004)
    (denying indecency complaint against "Will and Grace" episode), is
    misplaced. *See* FOX/Affiliates Consolidated Response at 27. The
    Commission's decision in that case was based on the conclusion that
    the material in question failed to satisfy the *second* prong of the
    indecency standard because "\[b\]oth characters are fully clothed,
    and there is no evidence that the activity depicted was dwelled
    upon, or was used to pander, titillate or shock the audience." *KSAZ
    License, Inc.*, 19 FCC Rcd at 16001. Further, the context in which
    the activity at issue in "Will and Grace" was presented arguably
    made it more difficult to determine whether activity itself was
    sexual in nature, whereas here the subject of the scenes in question
    was sexually oriented entertainment provided by strippers.

[^18]: *See Omnibus Order*, 21 FCC Rcd at 2672 ¶ 25.

[^19]: *See* FOX/Affiliates Consolidated Response at 34-35.

[^20]: *See, e.g., Young Broadcasting of San Francisco, Inc*., Notice of
    Apparent Liability for Forfeiture, 19 FCC Rcd 1751, 1755 ¶ 12 (2004)
    (finding that a broadcast of a performer\'s penis was fleeting in
    that it occurred for less than a second), response pending.

[^21]: Respondents' reliance (*see* FOX/Affiliates Consolidated Response
    at 32) on *In re Complaints Against Various Broadcast Licensees
    Regarding Their Airing of The UPN Network Program \"Buffy the
    Vampire Slayer\" on November 20, 2001*, 19 FCC Rcd 15995, 15998
    (2004), lacks merit. Both scenes may have involved "kissing and
    straddling," but they are not "strikingly similar." *Id.* The
    "Buffy" scene depicted two fully-clothed actors ostensibly fighting
    one another, whereas the instant case, as set forth above, featured
    sexually oriented entertainment performed by partially clad
    strippers.

[^22]: *See* *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*,"
    Memorandum Opinion and Order, 20 FCC Rcd 4507 (2005) ("*Saving
    Private Ryan Order*").

[^23]: *Id.* at 4512-13 ¶ 14.

[^24]: *Indecency Policy Statement*, 16 FCC Rcd at 8002 ¶ 8 & n.15.

[^25]: *See* *Smith v. United States*, 431 U.S. 291, 305 (1977).

[^26]: *Infinity Radio License, Inc.*, Memorandum Opinion and Order, 19
    FCC Rcd 5022, 5026 (2004).

[^27]: *See, e.g*., *FCC v. Pacifica*, 438 U.S. 726 (1978) (A father who
    heard an indecent broadcast while driving with his young son
    complained to the Commission, which, after forwarding the complaint
    for comment to and receiving a response from the licensee, issued a
    declaratory order granting the complaint.).

[^28]: *See* Cunningham Response at 2-3.

[^29]: *See* Falls/Compass Joint Response at 5-6.

[^30]: *See* FOX/Affiliates Consolidated Response at 41-47.

[^31]: *See* Ft. Smith Consolidated Response at 1-2.

[^32]: *See* Hill Response at 2-5.

[^33]: *See* Independent Response at 2-3.

[^34]: *See* Mission Response at 3.

[^35]: *See* Pappas Consolidated Response at 2-6.

[^36]: *See* Sinclair Response at 1-2.

[^37]: *See* Warwick/White Knight Joint Response at 1-2.

[^38]: Pappas Consolidated Response at 3.

[^39]: *See, e.g.*, Independent Response at 2-3; Mission Response at 1.

[^40]: *See* FOX/Affiliates Group Consolidated Response at 41-43.

[^41]: Ft. Smith Consolidated Response at 2.

[^42]: *See* *Report and Statement of Policy re: Commission en banc
    Programming Inquiry*, 44 FCC Rcd 2303, 2313 (1960). *See also Yale
    Broadcasting Co. v. FCC*, 478 F.2d 594 (D.C. Cir. ), *cert. denied*,
    414 U.S. 914 (1973) (affirmed action of Commission reminding
    broadcast licensees of their duty to have knowledge of the content
    of their programming and on the basis of this knowledge to evaluate
    the desirability of broadcasting music dealing with drug use);
    *Gaffney Broadcasting, Inc.,* 23 FCC 2d 912, 913 (1970) ("licensees
    are responsible for the selection and presentation of program
    material over their stations, including . . . acts or omissions of
    their employees"); *Alabama Educational Television Commission,* 50
    FCC 2d 461, 464 (1975) (AETC lost its license in part because it
    failed to maintain exclusive authority over all of its programming
    decisions); *WCHS-AM-TV Corp.,* 8 FCC 2d 608, 609 (1967)
    (maintenance of control over programming is a most fundamental
    obligation of the licensee).

[^43]: *See* Hill Response at 5-7.

[^44]: *See* Pappas Consolidated Response at 6-8.

[^45]: *See* Hill Response at 5-7; Pappas Consolidated Response at 6-8.

[^46]: Hill Response at 6; Pappas Consolidated Response at 8.

[^47]: *See supra* paragraph 22.

[^48]: 47 C.F.R. § 73.658(e).

[^49]: *See* *supra* paragraph 20.

[^50]: *See* JW Response at 1.

[^51]: *See* Mission Response at n. 3.

[^52]: *See* Smith Response at 1.

[^53]: *See* 438 U.S. 726 (1978).

[^54]: *See* FOX/Affiliates Consolidated Response at 7.

[^55]: *See id*. at 7-8.

[^56]: *Action for Children's Television v. FCC*, 58 F.3d 654, 660 (D.C.
    Cir. 1995) (en banc) ("*ACT III*"). *See also Prometheus Radio
    Project v. FCC*, 373 F.3d 372, 401-402 (3d Cir. 2004) (rejecting
    argument that broadcast ownership regulations should be subjected to
    higher level of scrutiny in light of rise of "non-broadcast media").

[^57]: *Turner Broadcasting Sys., Inc. v. FCC*, 520 U.S. 180, 190 (1997)
    (*quoting U.S. v. Southwestern Cable Co.*, 392 U.S. 157, 177
    (1968)). According to the Court in *Turner Broadcasting*, although
    broadcast television is "but one of many means for communication, by
    tradition and use for decades now it has been an essential part of
    the national discourse on subjects across the whole broad spectrum
    of speech, thought, and expression." 520 U.S. at 194.

[^58]: *See* U.S. Census Bureau, *Statistical Abstract of the United
    States* 737 (2006).

[^59]: *See* *Annual Assessment of the Status of Competition in the
    Market for the Delivery of Video Programming*, Twelfth Annual
    Report, 21 FCC Rcd 2503, ¶¶ 8, 15 (2006) ("*Annual Assessment*").

[^60]: *See id.* at 2552 ¶ 97. It also has been estimated that almost
    half of direct broadcast satellite subscribers receive their
    broadcast channels over the air, *Media Bureau Staff Report
    Concerning Over-the-Air Broadcast Television Viewers*, MB Docket No.
    04-210, ¶ 9 (MB Feb. 28, 2005), and many subscribers to cable and
    satellite still rely on broadcast for some of the televisions in
    their households. *See* *Annual Assessment*, 21 FCC Rcd at 2508 ¶
    15.

[^61]: *See* Kaiser Family Foundation, *Generation M: Media in the Lives
    of 8-18 Year-olds* 77 (2005). According to the Kaiser Family
    Foundation report, 68 percent of children aged 8 to 18 have a
    television set in their bedrooms, and nearly half of those sets do
    not have cable or satellite connections.

[^62]: A large disparity in viewership still exists between broadcast
    and cable television programs. For example, during the week of
    February 4, 2008, each of the top ten programs on broadcast
    television had more than 12.5 million viewers, while only two
    programs on cable television that week -- both professional
    wrestling programs -- managed to attract more than 5 million
    viewers. *See* Nielsen Media Research, "Trend Index," available at
    <http://www.nielsen.com/media/toptens_television.html> (visited Feb.
    14, 2008). Indeed, that same week, 90 of the top 100-rated programs
    appeared on broadcast channels, and the highest rated cable program
    was number 71. *See* Television Bureau of Advertising, "Top 100
    Programs on Broadcast and Subscription TV: Households," *available
    at* <http://www.tvb.org/nav/build_frameset.aspx> (visited Feb. 14,
    2008).

[^63]: 47 U.S.C. § 560 (2000). *See United States v. Playboy
    Entertainment Group*, *Inc.*, 529 U.S. 803 (2000).

[^64]: *Act III*, 58 F.3d at 660.

[^65]: *See infra.* paragraph 36.

[^66]: *Pacifica*, 438 U.S. at 749. *See, e.g., Youth, Pornography, and
    the Internet,* ed. by Dick Thornburgh and Herbert S. Lin, p. 115
    (National Academy Press 2002) ("As a general rule, young children do
    not have the cognitive skills needed to navigate the Internet
    independently. Knowledge of search strategies is limited if not
    nonexistent, and typing skills are undeveloped.").

[^67]: *See Reno v. American Civil Liberties Union*, 521 U.S. 844, 877
    (1997). Filtering software, for example, can block access to a
    website based on the software's evaluation of the site's content.
    The V-chip, in contrast, does not evaluate television programs
    itself and therefore is only effective if the programs have been
    given accurate ratings. However, to the extent that filtering
    software is ineffective and children are still able to access
    indecent material on the Internet, we note that Congress has sought
    to address this problem through the Child Online Protection Act, a
    statute whose validity is still being litigated. *See Ashcroft v.
    ACLU*, 542 U.S. 656 (2004) (affirming preliminary injunction).

[^68]: *See* 521 U.S. 844 (1997).

[^69]: *See id*. at 871.

[^70]: *See* FOX/Affiliates Consolidated Response at 10-11.

[^71]: By way of example, FOX/Affiliates Group states that a number of
    ABC Television Network affiliates refused, out of fear of government
    sanctions, to carry ABC's unedited broadcast of the Oscar-winning
    movie *Saving Private Ryan* on Veterans Day in 2004, despite the
    fact that the network had broadcast the same uncut version of the
    movie on Veterans Day in 2001 and 2002 without sanction. *See*
    FOX/Affiliates Consolidated Response at 12-13. We note that, in
    *Saving Private Ryan Order, supra* note Error: Reference source not
    found*,* the Commission concluded that the unedited version of
    "Saving Private Ryan" did not, when considered in the context in
    which it was broadcast, contain indecent material.

[^72]: *See* 438 U.S. at 732.

[^73]: *Action for Children's Television v. FCC*, 852 F.2d 1332, 1339
    (D.C. Cir. 1988) ("*ACT I*"); *accord ACT III*, 58 F.3d at 659.

[^74]: *Reno v. ACLU*, 521 U.S. 844, 867 (1997). First, the Court noted
    that the Commission is "an agency that \[has\] been regulating radio
    stations for decades," and that the Commission's regulations simply
    "designate when---rather than whether---it would be permissible" to
    air indecent material." *Id.* The CDA, in contrast, was not
    administered by an expert agency, and it contained "broad
    categorical prohibitions" that were "not limited to particular
    times." *Id.* Second, the CDA was a criminal statute, whereas the
    Commission has no power to impose criminal sanctions for indecent
    broadcasts. *See id.* at 867, 872. Third, unlike the Internet, the
    broadcast medium has traditionally "received the most limited First
    Amendment protection." *Id.* at 867.

[^75]: *Action for Children's Television v. FCC,* 59 F.3d 1249, 1261
    (D.C. Cir. 1995) ("*ACT IV*"); *see ACT III*, 58 F.3d at 666
    ("Whatever chilling effect may be said to inhere in the regulation
    of indecent speech, these have existed ever since the Supreme Court
    first upheld the FCC's enforcement of section 1464 of the Radio
    Act.").

[^76]: 521 U.S. at 868. Fox/Affiliates Group also relies on *Ashcroft v.
    American Civil Liberties Union*, in which the Court stated that
    unnecessarily broad content-based regulation will not survive
    scrutiny if there is "a more specific technological solution that
    \[is\] available to parents . . . ." 124 S. Ct. 2783, 2794 (2004)
    (citing *United States v. Playboy Entertainment Group, Inc*., 529
    U.S. 803, 825 (2000)).

[^77]: FOX/Affiliates Consolidated Response at 21.

[^78]: *ACT III*, 58 F.3d at 665.

[^79]: *See* FOX/Affiliates Consolidated Response at 15-21.

[^80]: *Id*. at 20-21.

[^81]: *See* *Super Bowl Order on Reconsideration*, 21 FCC Rcd at 6667 ¶
    37. In congressional testimony given after Fox's broadcast of
    "Married by America", Fox's President of Entertainment acknowledged
    that the V-chip and television ratings were "underutilized." H.R.
    3717, the 'Broadcast Decency Enforcement Act of 2004': Hearing
    Before the Subcommittee on Telecommunications and the Internet of
    the House Comm. On Energy & Commerce, 107^th^ Congress (Feb. 26,
    2004) (statement of Gail Berman). According to a 2003 study,
    parents' low level of V-chip use is explained in part by parents'
    unawareness of the device and the "multi-step and often confusing
    process" necessary to use it. Annenberg Public Policy Center,
    *Parents' Use of the V-Chip to Supervise Children's Television Use*
    3 (2003). Only 27 percent of mothers in the study group could figure
    out how to program the V-Chip, and "many mothers who might otherwise
    have used the V-Chip were frustrated by an inability to get it to
    work properly." *Id.* at 4.

[^82]: *See Implementation of Section 551 of the Telecommunications Act
    of 1996*, Report and Order, 13 FCC Rcd 8232, 8242-43 ¶ 21 (1998).

[^83]: *See, e.g.,* Barbara K. Kaye & Barry S. Sapolsky, *Offensive
    Language in Prime-Time Television: Four Years After Television Age
    and Content Ratings*, 48 Journal of Broadcasting & Electronic Media
    554, 563-64 (2004) (finding that there was more coarse language
    broadcast during TV-PG programs than those rated TV-14, just the
    opposite of what these age-based ratings would lead a viewer to
    believe); Henry J. Kaiser Family Foundation, *Parents, Media and
    Public Policy: A Kaiser Family Foundation Survey* 5 (2004) (nearly 4
    in 10 parents of children aged 2-17 stated that most television
    programs are not rated accurately); David A. Walsh & Douglas A.
    Gentile, *A Validity Test of Movie, Television, and Video-Game
    Ratings*, 107 Pediatrics 1302, 1306 (2001) (study finding that
    parents concluded that half of television shows the industry had
    rated as appropriate for teenagers were in fact inappropriate, "a
    signal that the ratings are misleading.").

[^84]: *ACT III*, 58 F.3d at 661-62.

[^85]: *Sable Communications of California v. FCC*, 492 U.S. 115, 126
    (1989).

[^86]: *Pacifica*, 438 U.S. at 749.

[^87]: *ACT III*, 58 F.3d at 656. *See Pacifica*, 438 U.S. at 750 ("The
    ease with which children may obtain access to broadcast material,
    coupled with the concerns recognized in *Ginsberg* \[*v. New York,*
    390 U.S. 629 (1968)\], amply justify special treatment of indecent
    broadcasting.").

[^88]: *See* *supra* note 2.

[^89]: *See* FOX/Affiliates Consolidated Response at 25, 40.

[^90]: Cunningham Response at 3.

[^91]: FOX/Affiliates Consolidated Response at 25.

[^92]: *See Southern California Broadcasting Co*., 6 FCC Rcd at 4387-88.

[^93]: We reject Ft. Smith's undeveloped argument that the broadcasts
    were not "willful" due to the alleged unavailability of the program
    for advance review and the impracticality of individual episode
    review. Ft. Smith Consolidated Response at 2 n.1. Here, the
    affiliate stations consciously and deliberately broadcast the
    episode at issue, and, as discussed above, the relevant legal
    standard does not require any intent to violate the Commission's
    rules. In addition, the episode was taped in advance, and, as
    discussed above, there is no merit to Respondents' argument that
    they are not culpable for their actions in airing the episode. *See
    supra* paragraphs 9-22. Moreover, the affiliates were provided with
    notice of the type of material that the episode would contain. In
    particular, the conclusion of the prior week's episode provided
    highlights of the upcoming episode that included many of the scenes
    that are the subject of this Forfeiture Order. Finally, the sexually
    explicit material in the episode lasted for six minutes, and the
    affiliates did not terminate the broadcast even though the nature of
    the material was readily apparent near the beginning of the bachelor
    and bachelorette parties.

[^94]: *The Commission's Forfeiture Policy Statement and Amendment of
    Section 1.80 of the Rules to Incorporate the Forfeiture Guidelines*,
    Memorandum Opinion and Order, 12 FCC Rcd 17087, 17113 (1997),
    *recons. denied* 15 FCC Rcd 303 (1999) ("*Forfeiture Policy
    Statement");* 47 C.F.R. § 1.80(b).

[^95]: *Forfeiture Policy Statement*, 12 FCC Rcd at 17110.

[^96]: The maximum forfeiture permitted at the time this program was
    aired was \$27,500.

[^97]: *See* 47 C.F.R. § 1.80(f)(1) (NAL must specify, *inter alia*,
    amount of apparent forfeiture penalty), § 1.80(f)(4) (if the
    proposed forfeiture is not paid in full in response to the NAL, the
    Commission will issue an order cancelling or reducing the proposed
    forfeiture or requiring that it be paid in full).

[^98]: *See* 28 U.S.C. § 2462.

[^99]: 47 C.F.R. § 1.80.