**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

In the Matter of )

)

Complaints by Parents Television Council ) File No. EB-03-IH-0362, *et
al.*[^1]

Against Various Broadcast Licensees )

Regarding Their Airing Of )

Allegedly Indecent Material )**\
**

## 

## MEMORANDUM OPINION AND ORDER

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

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

## 

**I. INTRODUCTION**

1\. In this *Memorandum Opinion and Order*, we deny 15 complaints filed
by the Parents Television Council ("PTC")[^2] against various television
broadcast licensees alleging violations of the federal restrictions
regarding the broadcast of indecent material.[^3] PTC provided
transcripts of the segments it considers indecent and provided
videotapes of each of the 15 programs referenced in the complaints. PTC
asks that, should the Commission find the material in each complaint
indecent, it issue a notice of apparent liability for forfeiture against
the licensee and every other licensee that aired the material. After
reviewing the material provided by PTC, we conclude that the complained
of material is not patently offensive pursuant to contemporary community
standards for the broadcast medium and is therefore not indecent.

**II. DISCUSSION**

2\. It is a violation of federal law to broadcast obscene, indecent or
profane programming. Specifically, title 18 of the United States Code,
section 1464 prohibits the utterance of "any obscene, indecent or
profane language by means of radio communication."[^4] The Federal
Communications Commission, which is authorized to license radio and
television broadcast stations, is responsible for enforcing the
statutory and regulatory provisions restricting obscenity, indecency and
profanity.[^5] Consistent with a subsequent statute and court case,[^6]
section 73.3999 of the Commission's rules provides that radio and
television stations shall not broadcast obscene material at any time,
and shall not broadcast indecent material during the period 6 a.m.
through 10 p.m.[^7] The Commission may impose a monetary forfeiture,
pursuant to section 503(b)(1) of the Communications Act of 1934, as
amended[^8] (the "Act"), upon a finding that a licensee has broadcast
obscene, indecent or profane material in violation of 18 U.S.C. § 1464
and section 73.3999 of the rules.

3\. The Commission's role in overseeing program content is limited,
however, by the First Amendment to the United States Constitution and
section 326 of Act, which prohibit the Commission from interfering with
broadcasters' freedom of expression and from censoring program
material.[^9] Thus, any consideration of government action against
allegedly indecent programming must take into account the fact that such
speech is protected under the First Amendment and demands that we
proceed cautiously and with appropriate restraint when considering
enforcement action in such matters.[^10]

4\. The Commission defines indecent speech as language that, in context,
depicts or describes sexual or excretory activities or organs in terms
patently offensive as measured by contemporary community standards for
the broadcast medium.[^11]

> Indecency findings involve at least two fundamental determinations.
> First, the material alleged to be indecent must fall within the
> subject matter scope of our indecency definition---that is, the
> material must describe or depict sexual or excretory organs or
> activities. . . . Second, the broadcast must be *patently offensive*
> as measured by contemporary community standards for the broadcast
> medium.[^12]

None of the broadcasts described below meets the second part of our
standard.[^13]

5\. In determining whether material is patently offensive, the
Commission has indicated that the "*full context* in which the material
appeared is critically important,"[^14] and has articulated three
"principal factors" for its analysis: "(1) the *explicitness or graphic
nature* of the description or depiction of sexual or excretory organs or
activities; (2) whether the material *dwells on or repeats at length*
descriptions of sexual or excretory organs or activities; (3) *whether
the material appears to pander or is used to titillate,* or *whether the
material appears to have been presented for its shock value."*[^15] In
examining these three factors, we must weigh and balance them to
determine whether the broadcast material is patently offensive because
"\[e\]ach indecency case presents its own particular mix of these, and
possibly, other factors."[^16] In particular cases, one or two of the
factors may outweigh the others, either rendering the broadcast material
patently offensive and consequently indecent,[^17] or, alternatively,
removing the broadcast material from the realm of indecency.[^18]

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

complaints.

a.  [Boston Public," October 29, 2001, 8 p.m. EST]{.underline}: a
    student challenges a teacher's

assignment, and the teacher says to the student, "Did you know, Mr.
Pratt, that you are a big dick? Do we have any other big dicks with us
today?"[^19] In a subsequent scene, another character asks the teacher
whether he wants to get fired, and the teacher responds, "Is this about
me calling a student a dick?"[^20] The other character admonishes him,
"No more dick talk."[^21]

b.  "[AUSA," March 18, 2003, 9:30 p.m. EST]{.underline}: one scene
    depicts Adam, a lawyer, lying

on a hotel bed watching an adult movie on the hotel's video system (no
video images are visible).[^22] Dialogue from one video, "Here Comes the
Judge," is audible: Male voice: "The defense rests." Female voice: "Not
tonight. Now hand over those briefs."[^23] The next scene shows the
lawyer waking up and realizing that the adult channel continued to play
while he slept.[^24] Remaining scenes contain jokes about his watching
adult entertainment all night, to wit: Adam: "What's \[my boss\] going
to say when he finds out I spent nine of my 16 hours here in Arizona
watching porn?" Clerk: "You're a sad, lonely man with remarkable
stamina." Another scene depicts a woman asking Adam if "he's decent,"
and he remarks: "I'm buttered from the waist down."[^25] Another scene
has a character listing the movies Adam paid for: "Jurassic Pork, Laid
in Manhattan, Catch Me in the Can."

c.  [Night of Too Many Stars," May 31, 2003, 8 p.m. EDT]{.underline}:
    comedian Dana Carvey,

reprising his role as the Saturday Night Live character, "Church Lady,"
says to the actor Macaulay Culkin: "...then we jumped on the puberty
train and got all tingly . . . we want to fornicate, so we thought it
would be nifty to get married when we were twelve."[^26] Dana Carvey
later discusses Michael Jackson and says of him: "Did he ever dangle
anything in front of you at the sleepovers? . . . Say, his happy
man-loaf? . . . When he moon walked, he didn't moon you as he walked,
did he? . . . Did he ever get into Billy's jeans?"[^27] Another
character asks whether "his \[Jackson's\] shalonthaz \[sic\] ever rose
up to salute you? You never played hide the toast?"[^28]

d.  "[Friends," October 23, 2003, 8 p.m. EDT]{.underline}: in an
    apparent mix-up, a bakery

inadvertently substitutes a cake shaped like a penis for a child's
birthday cake (the cake is not shown). A female character exclaims,
"Ahh! They put my baby's face on a penis!"[^29] A male character
replies, "Uhh, is it okay that I still think it looks delicious?"[^30]
Another male character says: "I am this close to tugging on my testicles
again."[^31] When the mix-up is corrected, a male character again
comments that the cake "looked more delicious when it was a penis."[^32]

e.  "[The Next Joe Millionaire," October 28, 2003, 8 p.m.
    EST]{.underline}: the complaint alleges

that a character says "fuck off."[^33] Based on our review of the tape,
however, this description is inaccurate in that no character appears to
utter the quoted language.

f.  "[One Tree Hill," October 28, 2003, 9 p.m. EST]{.underline}: one
    female character is depicted

putting her lips to a hose that had been inserted into a gas tank.[^34]
Seeing this, another female character quips, "Had a lot of practice?
Siphoning gas, what'd you think I meant?"[^35]

k.  "[A Minute with Stan Hooper," October 29, 2003, 8:30 p.m.
    EST]{.underline}: The title character

interviews two men who are married \[to each other\] and asks how they
decided to use one surname over the other.[^36] They respond that, since
the surname of one of the pair was Cockburn, they thought that it would
be an inappropriate married name for two gay men (the man named Cockburn
fans his genital area with his apron).[^37]

l.  "[Friends," November 6, 2003, 8 p.m. EST]{.underline}: certain
    characters use the words "hell,"

"damn," and the phrase "sons of bitches."[^38] There is also a scene in
which one character asks a man to guess which person had received a
grant, and the man answers, "Well, unless it's the creepy guy with his
hand up his kilt, I'm gonna say congratulations."[^39] Later, the
character is wondering aloud how he can get someone to issue him a
grant, and he asks the man, "Is there anything I can do to butter him
up?" The man replies, "He does have a pretty serious latex fetish."[^40]

m.  "[Will & Grace," November 6, 2003, 9 p.m. EST]{.underline}: a male
    character with a very strong

attachment to his mother describes the greatest tragedy of his life as
"the day they yanked me from the breast of that saint."[^41] A female
character, Karen, has a grudge against a woman named Lorraine; when
Karen locates her, she says "I could do to her what she did to Stan --
have sex with her until she dies. Yep, that's what I'm gonna do."[^42]
She then knocks on a door and says, "Open up, Lorraine, and put on a
condom."[^43] There is another scene in which Karen talks about
"sex\[ing\] the life out of" Lorraine. Certain characters say the words
"bitch," "bosom," and "whore." The show also contains several scenes in
which male characters talk about kissing men and female characters talk
about kissing women.

n.  "[Scrubs," November 6, 2003, 9:30 EST]{.underline}: one character
    says the word "bastards," and

another character describes a woman as having "huge cans."[^44] One
scene contains the following dialogue: Dan: "I heard there's a bed in
the on-call room. You ever get hot and heavy in there? JD: "No, I
usually am there by myself." Dan: "So yes."[^45] In another scene, a
male character takes a pair of boxer shorts from the freezer, and
another male character says "Make sure you're nice and dry down there.
Otherwise, you could get a tongue-on-the-flagpole situation."[^46] There
is another scene in which two female characters discuss whether they've
ever had "phone sex" with their boyfriends. One of the character's
responds that when her boyfriend, Turk, returned home for Thanksgiving,
she called and was surprised by how much "Turk's eleven year-old nephew
sounds like him . . . and how worldly he is."[^47] In a later scene, one
of the women is shown standing alone in a cornfield, at night, talking
on the phone with her boyfriend, and she says: "Hi sweetie -- are you
naked? OK, um, now imagine me taking off my shirt, kissing down your
neck . . . now I am licking your nipples all over. Your nipples." She is
then interrupted by a group of boy scouts hiking through the field and
ends her conversation abruptly by saying, "I don't care how close you
are. I'll call you later."

o.  "[Friends," November 13, 2003, 8 p.m. EST]{.underline}: certain
    characters use the words "hell,"

"crap," "pissed," "bastard," and the phrase "son of a bitch."[^48] One
character says he "didn't say the F-word."[^49] Other characters ponder
where a male character may have hidden "porn."[^50] A male character
states, "You broke my heart. Do you know how many women I had to sleep
with to get over you?"[^51]

p.  "[The Simpsons," November 16, 2003, 8 p.m. EST]{.underline}: in this
    animated program, a scene

depicts students carrying picket signs that read "Don't cut off my
pianissimo" and "What would Jesus glue?"[^52] A male character says
"Well, I guess this story has a happy ending after all. Just like my
last massage."[^53]

q.  "[Run of the House," November 20, 2003, 9:30 p.m. EST]{.underline}:
    one character, Kirk, says to

a policeman, "Thanks for stopping by, dick." The policeman remarks that
he is a patrolman, not a detective, and asks why Kirk called him a
"dick." Kirk retorts, "you seem like such a dick to me."[^54]

r.  "[King of the Hill," November 23, 2003, 7:30 p.m. EST]{.underline}:
    in this animated program, a

cartoon boy is shown about to enter a communal shower at his school. An
off-screen voice emanating from the shower asks, "Is that a pimple or
another nipple?"[^55] As the cartoon boy removes his towel and enters
the shower, his buttocks are briefly depicted.[^56]

s.  "[Scrubs," December 11, 2003, 9:30 p.m. EST]{.underline}: a female
    patient emits moans of

pleasure while a female doctor gives her a pelvic exam.[^57] A male
doctor ribs the female doctor by saying, "Don't be embarrassed. You're
not the first person to give a patient an orgasm during a pelvic exam."
The male doctor fantasizes about the female doctor's examining an
attractive woman wearing a lacey bra. Another doctor comments that the
other male doctor "never really satisfied a woman," to which the doctor
responds, "Well, you might want to double check with your mom."[^58]

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

8\. Two complaints cite uses of the word "dick." In context and as used
in the complained of broadcasts, these were epithets intended to
denigrate or were a play on words. Their use in these contexts was not
sufficiently explicit or graphic and/or sustained to be patently
offensive. Similarly, we find that fleeting uses of the words "hell,"
damn," "orgasm," "penis," "testicles," "breast," "nipples," "can,"
"pissed," "crap," "bastard," and "bitch," uttered in the context of the
programs cited in a number of complaints, are not profane and do not
represent graphic descriptions of sexual or excretory organs or
activities such that the material is rendered patently offensive by
contemporary community standards for the broadcast medium. Although use
of such words may, depending on the nature of the broadcast at issue,
contribute to a finding of indecency, their use here was not patently
offensive and therefore not indecent. We also find that the material
containing inaudible or bleeped expletives do not render the broadcasts
patently offensive. In such cases, the broadcaster has exercised
appropriate editorial control over its programming by deleting or
editing out utterances that might otherwise constitute indecent
material. Finally, we find that none of these words, in context, was
profane.

9\. One of the complaints cites material that depicts partial nudity.
That complaint involved the animated program "King of the Hill," which
contained a rudimentary depiction of a cartoon boy's buttocks was
fleeting. In context, we do not find the material to be sufficiently
graphic or explicit, or sustained, to rise to the level of being
patently offensive.

10\. Several complaints concern material that alludes to sexual activity
or depicts men and women engaging in physical activity that implies
sexual activity. None of the complained of material was sufficiently
graphic or sustained to rise to the level of being patently offensive
for the broadcast medium, however.

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

**III. CONCLUSION**

12\. For the reasons discussed above, we find that none of the material
contained in the 15 complaints is patently offensive as measured by
contemporary community standards for the broadcast medium. We therefore
conclude that none of the material in the complaints is indecent.

**IV. ORDERING CLAUSES**

13\. Accordingly, IT IS ORDERED, that the 15complaints listed in the
Appendix are hereby DENIED.

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

> FEDERAL COMMUNICATIONS COMMISSION

Marlene H. Dortch

Secretary

**[APPENDIX]{.underline}**

+------------+-------------+-------------------+----------------------+
| **CASE     | **CALL      | **LICENSEE**      | **Program/Air        |
| NUMBER**   | SIGN/**     |                   | Date/Time**          |
|            |             |                   |                      |
|            | **          |                   |                      |
|            | COMMUNITY** |                   |                      |
|            |             |                   |                      |
|            | **OF        |                   |                      |
|            | LICENSE**   |                   |                      |
+------------+-------------+-------------------+----------------------+
| EB-        | WTTG(TV)    | Fox Television    | Boston Public,       |
| 03-IH-0419 |             | Stations, Inc.    | October 29, 2001, 8  |
|            | Washington, |                   | p.m. EST             |
|            | DC          |                   |                      |
+------------+-------------+-------------------+----------------------+
| EB-        | WRC-TV      | NBC Telemundo     | AUSA, March 18,      |
| 03-IH-0363 |             | License Co.       | 2003, 9:30 p.m. EST  |
|            | Washington, |                   |                      |
|            | DC          |                   |                      |
+------------+-------------+-------------------+----------------------+
| EB-        | WRC-TV      | NBC Telemundo     | Night of Too Many    |
| 03-IH-0362 |             | License Co.       | Stars, May 31, 2003, |
|            | Washington, |                   | 8 p.m. EDT           |
|            | DC          |                   |                      |
+------------+-------------+-------------------+----------------------+
| EB-        | WRC-TV      | NBC Telemundo     | Friends, October 23, |
| 03-IH-0661 | Washington, | License Co.       | 2003, 8 p.m. EDT     |
|            | DC          |                   |                      |
+------------+-------------+-------------------+----------------------+
| EB-        | WTTG(TV)    | Fox Television    | The Next Joe         |
| 03-IH-0681 |             | Stations, Inc.    | Millionaire, October |
|            | Washington, |                   | 28, 2003, 8 p.m. EST |
|            | DC          |                   |                      |
+------------+-------------+-------------------+----------------------+
| EB-        | WBDC-TV     | WBDC              | One Tree Hill,       |
| 03-IH-0668 | Washington, | Broadcasting,     | October 28, 2003, 9  |
|            | DC          | Inc.              | p.m. EST             |
+------------+-------------+-------------------+----------------------+
| EB-        | WTTG(TV)    | Fox Television    | A Minute with Stan   |
| 03-IH-0678 | Washington, | Stations, Inc.    | Hooper, October 29,  |
|            | DC          |                   | 2003, 8:30 p.m. EST  |
+------------+-------------+-------------------+----------------------+
| EB-        | WRC-TV      | NBC Telemundo     | Friends, November 6, |
| 03-IH-0662 | Washington, | License Co.       | 2003, 8 p.m. EST     |
|            | DC          |                   |                      |
+------------+-------------+-------------------+----------------------+
| EB-        | WRC-TV      | NBC Telemundo     | Will & Grace,        |
| 03-IH-0664 | Washington, | License Co.       | November 6, 2003, 9  |
|            | DC          |                   | p.m. EST             |
+------------+-------------+-------------------+----------------------+
| EB-        | WRC-TV      | NBC Telemundo     | Scrubs, November 6,  |
| 03-IH-0666 | Washington, | License Co.       | 2003, 9:30 p.m. EST  |
|            | DC          |                   |                      |
+------------+-------------+-------------------+----------------------+
| EB-        | WRC-TV      | NBC Telemundo     | Friends, November    |
| 03-IH-0663 | Washington, | License Co.       | 13, 2003, 8 p.m. EST |
|            | DC          |                   |                      |
+------------+-------------+-------------------+----------------------+
| EB-        | WTTG(TV)    | Fox Television    | The Simpsons,        |
| 03-IH-0671 |             | Stations, Inc.    | November 16, 2003, 8 |
|            | Washington, |                   | p.m. EST             |
|            | DC          |                   |                      |
+------------+-------------+-------------------+----------------------+
| EB-        | WBDC-TV     | WBDC              | Run of the House,    |
| 03-IH-0715 |             | Broadcasting,     | November 20, 2003,   |
|            | Washington, | Inc.              | 9:30 p.m. EST        |
|            | DC          |                   |                      |
+------------+-------------+-------------------+----------------------+
| EB-        | WTTG(TV)    | Fox Television    | King of the Hill,    |
| 03-IH-0714 | Washington, | Stations, Inc.    | November 23, 2003,   |
|            | DC          |                   | 7:30 p.m. EST        |
+------------+-------------+-------------------+----------------------+
| EB-        | WRC-TV      | NBCTelemundo      | Scrubs, December 11, |
| 04-IH-0087 | Washington, | License Co.       | 2003, 9:30 p.m. EST  |
|            | DC          |                   |                      |
+------------+-------------+-------------------+----------------------+

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

**APPROVING IN PART, DISSENTING IN PART**

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

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

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

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

[^1]: *See* Appendix for a listing of the complaints addressed in this
    *Order*, filed between July 3, 2003, and January 22, 2004.

[^2]: Between July 3, 2003, and January 22, 2004, PTC filed 15 separate
    complaints discussed herein against various television licensees.
    Each complaint alleges that each of the subject licensees broadcast
    indecent material on programs aired between October 29, 2001, and
    December 11, 2003.

[^3]: *See* 18 U.S.C. § 1464; 47 C.F.R. § 73.3999.

[^4]: 18 U.S.C. § 1464.

[^5]: Federal courts consistently have upheld Congress's authority to
    regulate the broadcast of indecent speech, as well the Commission's
    interpretation and implementation of the governing statute. *FCC v.
    Pacifica Foundation*, 438 U.S. 726 (1978). *See also Action for
    Children's Television v. FCC*, 852 F.2d 1332, 1339 (D.C. Cir. 1988)
    ("*ACT I*"); *Action for Children's Television v. FCC,* 932 F.2d
    1504, 1508 (D.C. Cir. 1991)*, cert. denied,* 503 U.S. 914 (1992)
    ("*ACT II*"); *Action for Children's Television v. FCC,* 58 F.3d 654
    (D.C. Cir. 1995) (*en banc*), *cert. denied,* 516 U.S. 1043 (1996)
    ("*ACT III*")*.*

[^6]: *See* Public Telecommunications Act of 1992, Pub. L. No. 102-356,
    106 Stat. 949 (1992), *as modified by ACT III*.

[^7]: *See* 47 C.F.R. § 73.3999.

[^8]: *See* 47 U.S.C. § 503(b)(1). *See also* 47 U.S.C. § 312(a)(6)
    (authorizing license revocation for indecency violations).

[^9]: U.S. [Const.]{.smallcaps}, amend. I; 47 U.S.C. § 326.

[^10]: *ACT I,* 852 F.2d at 1344 ("Broadcast material that is indecent
    but not obscene is protected by the First Amendment; the FCC may
    regulate such material only with due respect for the high value our
    Constitution places on freedom and choice in what people may say and
    hear."); *id.* at 1340 n.14 ("the potentially chilling effect of the
    FCC's generic definition of indecency will be tempered by the
    Commission's restrained enforcement policy.").

[^11]: *Infinity Broadcasting Corporation of Pennsylvania,* Memorandum
    Opinion & Order, 2 FCC Rcd 2705 (1987) (subsequent history omitted)
    (*citing Pacifica Foundation*, Memorandum Opinion & Order, 56 FCC 2d
    94, 98 (1975), *aff'd sub nom. FCC v. Pacifica Foundation*, 438 U.S.
    726 (1978)).

[^12]: *Industry Guidance on the Commission's Case Law Interpreting 18
    U.S.C. §1464 and Enforcement Policies Regarding Broadcast
    Indecency,* Policy Statement*,* 16 FCC Rcd 7999, 8002 (2001)
    *("Indecency Policy Statement")* (emphasis in original).

[^13]: Because we deny the complaints due to their failure to meet the
    "patently offensive" factor in our indecency analysis, we need not
    address whether any of the complaints fail to depict or describe
    sexual or excretory organs or activities.

[^14]: *Indecency Policy Statement*, 16 FCC Rcd at 8002, ¶ 9 (emphasis
    in original). In *Pacifica,* the Court "emphasize\[d\] the
    narrowness of \[its\] holding and noted that under the Commission
    rationale that it upheld, "context is all-important." 438 U.S. at
    750.

[^15]: *Indecency Policy Statement*, 16 FCC Rcd at 8003, ¶ 10 (emphasis
    in original).

[^16]: *Id.*

[^17]: *Id.* at 8009, ¶ 19 (*citing Tempe Radio, Inc (KUPD-FM)*, Notice
    of Apparent Liability, 12 FCC Rcd 21828 (MMB 1997) (forfeiture paid)
    (extremely graphic or explicit nature of references to sex with
    children outweighed the fleeting nature of the references); *EZ New
    Orleans, Inc. (WEZB(FM))*, Notice of Apparent Liability, 12 FCC Rcd
    4147 (MMB 1997) (forfeiture paid) (same)).

[^18]: *Indecency Policy Statement,* 16 FCC Rcd at 8010, ¶ 20 ("the
    manner and purpose of a presentation may well preclude an indecency
    determination even though other factors, such as explicitness, might
    weigh in favor of an indecency finding").

[^19]: *See* Letter from Lara Mahaney, Director of Corporate and
    Entertainment Affairs, PTC, to David Solomon, Chief, Enforcement
    Bureau, dated August 22, 2003 (EB-03-IH-0419).

[^20]: *Id*.

[^21]: *Id*.

[^22]: *See* Letter from Lara Mahaney, Director of Corporate and
    Entertainment Affairs, PTC, to David Solomon, Chief, Enforcement
    Bureau, dated July 3, 2003 (EB-03-IH-0363).

[^23]: *Id.*

[^24]: *Id*.

[^25]: *Id*.

[^26]: *See* Letter from Lara Mahaney, Director of Corporate and
    Entertainment Affairs, PTC, to David Solomon, Chief, Enforcement
    Bureau, dated July 3, 2003 (EB-03-IH-0362).

[^27]: *Id*.

[^28]: *Id*.

[^29]: *See* Letter from Lara Mahaney, Director of Corporate and
    Entertainment Affairs, PTC, to David Solomon, Chief, Enforcement
    Bureau, dated October 29, 2003 (EB-03-IH-0661).

[^30]: *Id.*

[^31]: *Id*.

[^32]: *Id*.

[^33]: *See* Letter from Lara Mahaney, Director of Corporate and
    Entertainment Affairs, PTC, to David Solomon, Chief, Enforcement
    Bureau, dated November 3, 2003 (EB-03-IH-0681).

[^34]: *See* Letter from Lara Mahaney, Director of Corporate and
    Entertainment Affairs, PTC, to David Solomon, Chief, Enforcement
    Bureau, dated November 3, 2003 (EB-03-IH-0668).

[^35]: *Id.*

[^36]: *See* Letter from Lara Mahaney, Director of Corporate and
    Entertainment Affairs, PTC, to David Solomon, Chief, Enforcement
    Bureau, dated November 12, 2003 (EB-03-IH-0678).

[^37]: *Id*.

[^38]: *See* Letter from Lara Mahaney, Director of Corporate and
    Entertainment Affairs, PTC, to David Solomon, Chief, Enforcement
    Bureau, dated November 12, 2003 (EB-03-IH-0662).

[^39]: *Id*.

[^40]: *Id*.

[^41]: *See* Letter from Lara Mahaney, Director of Corporate and
    Entertainment Affairs, PTC, to David Solomon, Chief, Enforcement
    Bureau, dated November 12, 2003 (EB-03-IH-0664).

[^42]: *Id*.

[^43]: *Id*.

[^44]: *See* Letter from Lara Mahaney, Director of Corporate and
    Entertainment Affairs, PTC, to David Solomon, Chief, Enforcement
    Bureau, dated November 17, 2003 (EB-03-IH-0666).

[^45]: *Id*.

[^46]: *Id.*

[^47]: *Id*.

[^48]: *See* Letter from Lara Mahaney, Director of Corporate and
    Entertainment Affairs, PTC, to David Solomon, Chief, Enforcement
    Bureau, dated November 12, 2003 (EB-03-IH-0663).

[^49]: *Id.*

[^50]: *Id*.

[^51]: *Id*.

[^52]: *See* Letter from Lara Mahaney, Director of Corporate and
    Entertainment Affairs, PTC, to David Solomon, Chief, Enforcement
    Bureau, dated November 24, 2003 (EB-03-IH-0671).

[^53]: *Id*.

[^54]: *See* Letter from Lara Mahaney, Director of Corporate and
    Entertainment Affairs, PTC, to David Solomon, Chief, Enforcement
    Bureau, dated December 4, 2003 (EB-03-IH-0715).

[^55]: *See* Letter from Lara Mahaney, Director of Corporate and
    Entertainment Affairs, PTC, to David Solomon, Chief, Enforcement
    Bureau, dated December 4, 2003 (EB-03-IH-0714).

[^56]: *Id*.

[^57]: *See* Letter from Lara Mahaney, Director of Corporate and
    Entertainment Affairs, PTC, to David Solomon, Chief, Enforcement
    Bureau, dated January 22, 2004 (EB-03-IH-0087).

[^58]: *Id*.