Before the

Federal Communications Commission

Washington, D.C. 20554

+----------------------------------+---+------------------------------+
| In the Matter of                 | * | File No. EB-00-IH-0089       |
|                                  | * |                              |
| Industry Guidance On the         | ) |                              |
| Commission's                     | * |                              |
|                                  | * |                              |
| Case Law Interpreting 18 U.S.C.  |   |                              |
| § 1464                           | * |                              |
|                                  | * |                              |
| and Enforcement Policies         | ) |                              |
| Regarding                        | * |                              |
|                                  | * |                              |
| Broadcast Indecency              |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
+----------------------------------+---+------------------------------+

POLICY STATEMENT

**Adopted:** March 14, 2001 **Released:** April 6, 2001

By the Commission: Commissioners Ness and Furchtgott-Roth issuing
separate statements; Commissioner Tristani dissenting and issuing a
statement.

# INTRODUCTION

1.  The Commission issues this Policy Statement to provide guidance to
    the broadcast industry regarding our case law interpreting 18 U.S.C.
    § 1464 and our enforcement policies with respect to broadcast
    indecency. This document is divided into five parts. Section I gives
    an overview of this document. Section II provides the statutory
    basis for indecency regulation and discusses the judicial history of
    such regulation. Section III describes the analytical approach the
    Commission uses in making indecency determinations. This section
    also presents a comparison of selected rulings intended to
    illustrate the various factors that have proved significant in
    resolving indecency complaints. The cited material refers only to
    broadcast indecency actions and does not include any discussion of
    case law concerning indecency enforcement actions in other services
    regulated by this agency such as cable, telephone, or amateur radio.
    Section IV describes the Commission's broadcast indecency
    enforcement process. Section V is the conclusion.

# Statutory Basis/JUDICIAL HISTORY

2.  It is a violation of federal law to broadcast obscene or indecent
    programming. Specifically, Title 18 of the United States Code,
    Section 1464 (18 U.S.C. § 1464), prohibits the utterance of "any
    obscene, indecent, or profane language by means of radio
    communication.\"[^1] Congress has given the Federal Communications
    Commission the responsibility for administratively enforcing 18
    U.S.C. § 1464. In doing so, the Commission may revoke a station
    license, impose a monetary forfeiture, or issue a warning for the
    broadcast of indecent material.[^2] *See* 47 U.S.C. Sections
    312(a)(6) and 503(b)(1)(D).

3.  The FCC's enforcement policy under Section 1464 has been shaped by a
    number of judicial and legislative decisions. In particular, because
    the Supreme Court has determined that obscene speech is not entitled
    to First Amendment protection, obscene speech cannot be broadcast at
    any time. [^3] In contrast, indecent speech is protected by the
    First Amendment, and thus, the government must both identify a
    compelling interest for any regulation it may impose on indecent
    speech and choose the least restrictive means to further that
    interest. [^4] Even under this restrictive standard, the courts have
    consistently upheld the Commission's authority to regulate indecent
    speech, albeit with certain limitations.

4.  *FCC v. Pacifica Foundation,* 438 U.S. 726 (1978), provides the
    judicial foundation for FCC indecency enforcement. In that case, the
    Supreme Court held that the government could constitutionally
    regulate indecent broadcasts.[^5] In addition, the Court quoted the
    Commission's definition of indecency with apparent approval.[^6] The
    definition, "language or material that, in context, depicts or
    describes, in terms patently offensive as measured by contemporary
    community standards for the broadcast medium, sexual or excretory
    activities or organs," has remained substantially unchanged since
    the time of the *Pacifica* decision.[^7] Moreover, the definition
    has been specifically upheld against constitutional challenges in
    the *Action for Children's Television (ACT)* cases in the D.C.
    Circuit Court of Appeals.[^8] Further, in *Reno v. ACLU*, 521 U.S.
    844 (1997), the U.S. Supreme Court struck down an indecency standard
    for the Internet but did not question the constitutionality of our
    broadcast indecency standard. Rather, the Court recognized the
    "special justifications for regulation of the broadcast media that
    are not applicable to other speakers." *Reno v. ACLU*, 521 U.S. at
    868.[^9]

5.  Although the D.C. Circuit approved the FCC's definition of indecency
    in the *ACT* cases, it also established several restrictive
    parameters on FCC enforcement. The court's decisions made clear that
    the FCC had to identify the compelling government interests that
    warranted regulation and also explain how the regulations were
    narrowly tailored to further those interests. In *ACT I*, the court
    rejected as inadequately supported the Commission's determination
    that it could reach and regulate indecent material aired as late as
    11:00 p.m., and remanded the cases involved to the Commission for
    proceedings to ascertain the proper scope of the "safe harbor"
    period, that is, the time during which indecent speech may be
    legally broadcast. Before the Commission could comply with the
    court's remand order, however, Congress intervened and instructed
    the Commission to adopt rules that enforced the provisions of 18
    U.S.C. § 1464 on a "24 hour per day basis."[^10] The rule adopted to
    implement this legislative mandate was stayed and was ultimately
    vacated by the court in *ACT II* as unconstitutional. In 1992,
    responding to the decision in *ACT II*, Congress directed the
    Commission to adopt a new "safe harbor" -- generally 12 midnight to
    6:00 a.m., but 10:00 p.m. to 6:00 a.m. for certain noncommercial
    stations. The Commission implemented this statutory scheme in
    January 1993.[^11] Before this rule could become effective, however,
    the court stayed it pending judicial review. In 1995, the D.C.
    Circuit, *en banc*, held in *ACT III* that there was not a
    sufficient justification in the record to support a preferential
    "safe harbor" period for noncommercial stations and that the more
    restrictive midnight to 6:00 a.m. "safe harbor" for commercial
    stations was therefore unconstitutional. The court concluded,
    however, that the less restrictive 10:00 p.m. to 6:00 a.m. "safe
    harbor" had been justified as a properly tailored means of
    vindicating the government's compelling interest in the welfare of
    children and remanded the case to the Commission "with instructions
    to limit its ban on the broadcasting of indecent programs to the
    period from 6:00 a.m. to 10:00 p.m." *ACT III*, 58 F.3d at 669-70.
    The Commission implemented the court's instructions by appropriately
    conforming Section 73.3999 of its rules.[^12] These changes became
    effective on August 28, 1995.[^13]

6.  Thus, outside the 10:00 p.m. to 6:00 a.m. safe harbor, the courts
    have approved regulation of broadcast indecency to further the
    compelling government interests in supporting parental supervision
    of children and more generally its concern for children's well
    being. *Act III,* 58 F.3d at 661 (and cases cited therein).[^14] The
    principles of enforcement articulated below are intended to further
    these interests.

# Indecency Determinations

## [Analytical Approach]{.underline}

7.  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. *WPBN/WTOM License Subsidiary, Inc. (WPBN-TV and
    WTOM-TV)*, 15 FCC Rcd 1838, 1840-41 (2000).

8.  Second, the broadcast must be *patently offensive* as measured by
    contemporary community standards for the broadcast medium. In
    applying the \"community standards for the broadcast medium\"
    criterion, the Commission has stated:

> The determination as to whether certain programming is patently
> offensive is not a local one and does not encompass any particular
> geographic area. Rather, the standard is that of an average broadcast
> viewer or listener and not the sensibilities of any individual
> complainant.

*WPBN/WTOM License Subsidiary, Inc.*, 15 FCC Rcd at 1841.[^15]

9.  In determining whether material is patently offensive, the *full*
    *context* in which the material appeared is critically
    important.[^16] It is not sufficient, for example, to know that
    explicit sexual terms or descriptions were used, just as it is not
    sufficient to know only that no such terms or descriptions were
    used. Explicit language in the context of a *bona fide* newscast
    might not be patently offensive,[^17] while sexual innuendo that
    persists and is sufficiently clear to make the sexual meaning
    inescapable might be.[^18] Moreover, contextual determinations are
    necessarily highly fact-specific, making it difficult to catalog
    comprehensively all of the possible contextual factors that might
    exacerbate or mitigate the patent offensiveness of particular
    material. [^19] An analysis of Commission case law reveals that
    various factors have been consistently considered relevant in
    indecency determinations. By comparing cases with analogous
    analytical structures, but different outcomes, we hope to highlight
    how these factors are applied in varying circumstances and the
    impact of these variables on a finding of patent offensiveness.

## [Case Comparisons]{.underline}

10. The principal factors that have proved significant in our decisions
    to date are: (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*. In assessing all of the factors,
    and particularly the third factor, the overall context of the
    broadcast in which the disputed material appeared is critical. Each
    indecency case presents its own particular mix of these, and
    possibly other, factors, which must be balanced to ultimately
    determine whether the material is patently offensive and therefore
    indecent. No single factor generally provides the basis for an
    indecency finding. To illustrate the noted factors, however, and to
    provide a sense of the weight these considerations have carried in
    specific factual contexts, a comparison of cases has been organized
    to provide examples of decisions in which each of these factors has
    played a particularly significant role, whether exacerbating or
    mitigating, in the indecency determination made.

11. It should be noted that the brief descriptions and excerpts from
    broadcasts that are reproduced in this document are intended only as
    a research tool and should not be taken as a meaningful selection of
    words and phrases to be evaluated for indecency purposes without the
    fuller context that the tapes or transcripts provide. The excerpts
    from broadcasts used in this section have often been shortened or
    compressed. In order to make the excerpts more readable, however, we
    have frequently omitted any indication of these ellipses from the
    text. Moreover, in cases where material was included in a complaint
    but not specifically cited in the decision based on the complaint,
    we caution against relying on the omission as if it were of
    decisional significance. For example, if portions of a voluminous
    transcript are the object of an enforcement action, those portions
    not included are not necessarily deemed not indecent. The omissions
    may be the result of an editing process that attempted to highlight
    the most significant material within its context. No inference
    should be drawn regarding the material deleted.

### [Explicitness/Graphic Description Versus Indirectness/Implication]{.underline}

12. The more explicit or graphic the description or depiction, the
    greater the likelihood that the material will be considered patently
    offensive. Merely because the material consists of double entendre
    or innuendo, however, does not preclude an indecency finding if the
    sexual or excretory import is unmistakable.

13. Following are examples of decisions where the explicit/graphic
    nature of the description of sexual or excretory organs or
    activities played a central role in the determination that the
    broadcast was indecent.

    **WYSP(FM), Philadelphia, PA "Howard Stern Show"**

> *God, my testicles are like down to the floor . . . you could really
> have a party with these . . . Use them like Bocci balls.*
>
> *(As part of a discussion of lesbians) I mean to go around porking
> other girls with vibrating rubber products . . .*
>
> *Have you ever had sex with an animal? Well, don't knock it. I was
> sodomized by Lambchop.*
>
> [Indecent -- Warning Issued]{.underline}*.* *Infinity Broadcasting
> Corporation of Pennsylvania (WYSP(FM)),* 2 FCC Rcd 2705 (1987),
> *aff'd* 3 FCC Rcd 930 (1987), *aff'd in part, vacated in part on other
> grounds, remanded sub nom. Act I*, 852 F.2d 1332 (D.C. Cir. 1988)
> (subsequent history omitted). Excerpted material (only some of which
> is cited above) consisted of "vulgar and lewd references to the male
> genitals and to masturbation and sodomy broadcast in the context of .
> . . 'explicit references to masturbation, ejaculation, breast size,
> penis size, sexual intercourse, nudity, urination, oral-genital
> contact, erections, sodomy, bestiality, menstruation and testicles.'"
> 3 FCC Rcd at 932.

**WSUC-FM, Cortland, NY "I'm Not Your Puppet" Rap Song**

*The only thing that was on my mind, was just shoving my dick up this
bitch\'s behind. I looked at the girl and said, babe, your ass ain\'t
nothing but a base hit. I\'m going to have to get rid of your ass, yeah,
\'cause you\'re on my dick, dick, ding-a-ling. Popped my dick in her
mouth, and we rocked it back and forth. Now that she sucked my dick and
Tony fuck you in the ass. I pulled out my dick, popped it in her mouth,
and she sucked it.*

[Indecent -- NAL Issued]{.underline}. *State University of New York
(WSUC-FM)*, 8 FCC Rcd 456 (1993), *forfeiture reduced* 13 FCC Rcd 23810
(1998) (forfeiture paid). The Commission concluded that the language
used in this broadcast "describes sexual activities in patently
offensive terms and is therefore indecent." 8 FCC Rcd at 456.

**WQAM(AM), Miami, FL "Uterus Guy" Song**

*I don't want to grow up, I'm a uterus guy. I want to spend a week or so
right here between your thighs. Inhale your clam, with my head jammed by
your quivering, crushing gams. No, I don't want to get up or get a towel
to dry, cause I wouldn't be a uterus guy. I don't want to get up, I'm a
uterus guy and I know where to lick and chew exactly where you like.
You'll have more fun when I make you come, with my nose between your
thighs.*

[Indecent -- NAL Issued]{.underline}. *WQAM License Limited Partnership
(WQAM(AM))*, 15 FCC Rcd 1475 (1999), *aff'd* 15 FCC Rcd 2518 (2000),
*recon. denied* FCC 00-266, released July 26, 2000. The Commission held
that the "song's sexual import is lewd, inescapable and understandable."
15 FCC Rcd at 2520.

**KROQ(FM), Los Angeles, CA "You Suck" Song**

*I know you're really proud cause you think you're well hung but I think
its time you learn how to use your tongue. You say you want things to be
even and you want things to be fair but you're afraid to get your teeth
caught in my pubic hair. If you're lying there expecting me to suck your
dick, you're going to have to give me more than just a token lick. . . .
Go down baby, you suck, lick it hard and move your tongue around. If
you're worried about babies, you can lower your risk, by giving me that
special cunnilingus kiss. . . . you can jiggle your tongue on my clit.
Don't worry about making me have an orgasm. . . . You asshole, you shit.
I know it's a real drag, to suck my cunt when I'm on the rag. . . . You
tell me it's gross to suck my yeast infection. How do you think I feel
when I gag on your erection.*

[Indecent -- NAL Issued]{.underline}. *Infinity Broadcasting Corporation
of Los Angeles (KROQ(FM))*, 13 FCC Rcd 25349 (MMB 1998), *aff'd* 15 FCC
Rcd 10667 (EB 2000), *petition for reconsideration pending* (graphically
and explicitly describes sexual and excretory organs or activities).

**WXTB(FM), Clearwater, FL "Bubba, The Love Sponge"**

*Most women don't like swallowing, but I do. The trick is you need to
swallow at the right time. Do it when you're deep throating. . . . I
like pleasure giving, I like a pleasure giving woman who really, really
likes to enjoy giving oral. . . . She does more than just go up and
down, she's creative by licking, nibbling and using overall different
techniques. . . . The sexy turn on for me is when I . . . expel into my
partner's mouth. . . . I don't mind giving BJs . . . if a man doesn't
get off, that means he wasn't quite excited by my techniques.*

[Indecent -- NAL Issued]{.underline}. *Citicasters Co. (WXTB(FM))*, 13
FCC Rcd 22004 (1998), *aff'd* FCC 00-230, released June 27, 2000
(forfeiture paid).

14. Less explicit material and material that relies principally on
    innuendo to convey a sexual or excretory meaning have also been
    cited by the Commission as actionably indecent where the sexual or
    excretory meaning was unmistakable.

    **KLOL(FM), Houston, TX "Stevens and Pruett Show"**

*The doctor was talking about size. The man complained earlier that he
was so large that it was ruining his marriages. Big is good if the guy
knows how to use it. She is so big she could handle anything. Some of
these guys, a very few of them, a hand full are like . . . two hands
full. Twelve inches, about the size of a beer can in diameter. So, now
could you handle something like that? It\'s actually ruined marriages. A
big organ for a big cathedral. Somebody big is just going to have to
find somebody that\'s big.*

[Indecent -- NAL Issued]{.underline}. *The Rusk Corporation (KLOL(FM))*,
8 FCC Rcd 3228 (1993) (forfeiture paid). As to the use of innuendo in
the cited passages, the Commission said: \"\[W\]hile \[the licensee\]
may have substituted innuendo and double entendre for more directly
explicit sexual references and descriptions in some instances,
unmistakable sexual references remain that render the sexual meaning of
the innuendo inescapable.\" 8 FCC Rcd at 3228.

**KGB-FM, San Diego, CA "Candy Wrapper" Song**

*I whipped out my Whopper and whispered, Hey, Sweettart, how\'d you like
to Crunch on my Big Hunk for a Million Dollar Bar? Well, she immediately
went down on my Tootsie Roll and you know, it was like pure Almond Joy.
I couldn\'t help but grab her delicious Mounds, \... this little Twix
had the Red Hots. \... as my Butterfinger went up her tight little Kit
Kat, and she started to scream Oh, Henry! Oh, Henry! Soon she was
fondling my Peter Paul, and Zagnuts and I knew it wouldn\'t be long
before I blew my Milk Duds clear to Mars and gave her a taste of the old
Milky Way. \... I said, Look \... why don\'t you just take my
Whatchamacallit and slip it up your Bit-O-Honey. Oh, what a piece of
Juicy Fruit she was too. She screamed Oh, Crackerjack. You\'re better
than the Three Musketeers! as I rammed my Ding Dong up her Rocky Road
and into her Peanut Butter Cup. Well, I was giving it to her Good \'n
Plenty, and all of a sudden, my Starburst. \... she started to grow a
bit Chunky and \... Sure enough, nine months later, out popped a Baby
Ruth.*

[Indecent -- NAL Issued.]{.underline} *KGB, Inc. (KGB-FM)*, 7 FCC Rcd
3207 (1992), *forfeiture reduced* 13 FCC Rcd 16396 (1998) (forfeiture
paid). *See also Great American Television and Radio Company, Inc.
(WFBQ(FM)/WNDE(AM)),* 6 FCC Rcd 3692, 3693 (MMB 1990) (forfeiture paid)
(\"While the passages arguably consist of double entendre and indirect
references, the language used in each passage was understandable and
clearly capable of a specific sexual meaning and, because of the
context, the sexual import was inescapable.\"); and *WIOD, Inc.
(WIOD(AM))*, 6 FCC Rcd 3704 (MMB 1989) (forfeiture paid)
("notwithstanding the use of candy bar names to symbolize sexual
activities, the titillating and pandering nature of the song makes any
thought of candy bars peripheral at best").

**KSJO(FM), San Jose, CA Song to Tune of "Beverly Hillbillies"**

*Come a listen to a story about a man named Boas, a poor politician that
barely kept his winky fed, then one day he's poking a chick and up from
his pants came a bubbling crude. Winky oil. Honey pot. Jail Bait. . . .
So, he loaded up his winky and he did it with Beverly. Big Breasts. Only
15 years old.*

[Indecent -- NAL Issued]{.underline}. *Narragansett Broadcasting Company
of California, Inc. (KSJO(FM))*, 5 FCC Rcd 3821 (1990) (forfeiture
paid). "Even in the cases of double entendre, not only was the language
understandable and clearly capable of a specific sexual or excretory
meaning but, because of the context, the sexual and excretory import was
inescapable." 5 FCC Rcd at 3821.

**KMEL(FM), San Francisco, CA "Rick Chase Show"; "Blow Me" Song**

*Blow me, you hardly even know me, just set yourself below me and blow
me, tonight. Hey, a handy would certainly be dandy, but it's not enough
to slow (unintelligible) me, hey, you gotta blow me all night. Hey, when
you pat your lips that way, I want you night and day, when you squeeze
my balls so tight. I want to blow my love, hey, with all my might.*

[Indecent -- NAL Issued]{.underline}. *San Francisco Century
Broadcasting, L.P. (KMEL(FM))*, 7 FCC Rcd 4857 (1992), *aff'd* 8 FCC Rcd
498 (1993) (forfeiture paid). Commission found that the language dwelled
on descriptions of sexual organs and activities, "was understandable and
clearly capable of a specific sexual meaning and, because of the
context, the sexual import was inescapable." 8 FCC Rcd at 498.

15. Compare the following case in which the material aired was deemed
    not to be actionably indecent.

**WFBQ(FM)/WNDE(AM), Indianapolis, IN "Elvis" and "Power, Power,
Power"**

*As you know, you gotta stop the King, but you can't kill him . . . So
you talk to Dick Nixon, man you get him on the phone and Dick suggests
maybe getting like a mega-Dick to help out, but you know, you remember
the time the King ate mega-Dick under the table at a 095 picnic . . .
you think about getting mega-Hodgie, but that's no good because you
know, the King was a karate dude . . .*

*Power! Power! Power! Thrust! Thrust! Thrust! First it was Big Foot, the
monster car crunching 4x4 pickup truck. Well, move over, Big Foot! Here
comes the most massive power-packed monster ever! It's Big Peter!
(Laughter) Big Peter with 40,000 Peterbilt horsepower under the hood.
It's massive! Big Peter! Formerly the Big Dick's Dog Wiener Mobile. Big
Peter features a 75-foot jacked up monster body. See Big Peter crush and
enter a Volvo. (Laughter) . . . strapped himself in the cockpit and put
Big Peter through its paces. So look out Big Foot! Big Peter is coming!
Oh my God! It's coming! Big Peter! (Laughter)*

[Not Indecent]{.underline}. *Great American Television and Radio
Company, Inc. (WFBQ(FM)/WNDE(AM))*, 6 FCC Rcd 3692 (MMB 1990). The
licensee provided a fuller transcript of the cited "Elvis" excerpt and
explained the context in which it was aired, arguing that no sexual
meaning was intended and that no such meaning would be reasonably
understood from the material taken as a whole. The licensee also
explained the regional humor of the Power, Power, Power excerpt and the
context in which it was broadcast. The Mass Media Bureau held that the
material was not indecent because the "surrounding contexts do not
appear to provide a background against which a sexual import is
inescapable." 6 FCC Rcd at 3693.

16. In assessing explicitness, the Commission also looks to the
    audibility of the material as aired. If the material is difficult or
    impossible to understand, it may not be actionably indecent.
    However, difficulty in understanding part of the material or an
    attempt to obscure objectionable material will not preclude a
    finding of indecency where at least some of the material is
    recognizable or understandable.

    **KGB-FM, San Diego, CA "Sit on My Face" Song**

    *Sit on my face and tell me that you love me. I'll sit on your face
    and tell you I love you, too. I love to hear you moralize when I'm
    between your thighs. You blow me away. Sit on my face and let me
    embrace you. I'll sit on your face and then I'll love you (?) truly.
    Life can be fine, if we both sixty-nine. If we sit on faces (?) the
    ultimate place to play (?). We'll be blown away.*

    [Indecent -- NAL Issued]{.underline}. *KGB, Inc. (KGB-FM)*, 7 FCC
    Rcd 3207 (MMB 1992), *forfeiture reduced* 13 FCC Rcd 16396 (1998)
    (forfeiture paid). The song was found to be actionably indecent
    despite English accent and "ambient noise" because the lyrics were
    sufficiently understandable. 7 FCC Rcd at 3207.

**WWKX(FM), Woonsocket, RI "Real Deal Mike Neil Show"**

*Douche bag, hey what's up, fu(Bleep)ck head? . . . You his fuck (Bleep)
ho or what? You his fuck (Bleep) bitch man, where you suck his dick
every night? . . . Suck some di(Bleep)ck make some money for Howard and
pay your pimp okay?*

[Indecent -- NAL Issued]{.underline}. *Back Bay Broadcasting
(WWKX(FM))*, 14 FCC Rcd 3997, 3998 (MMB 1999) (forfeiture paid).
Material was found to be actionably indecent despite attempt to obscure
objectionable language because "editing was ineffective and merely
resulted in a "bleep" in the middle of clearly recognizable words (or in
some cases a "bleep" after the word)." The Mass Media Bureau held that
"\[b\]ecause the words were recognizable, notwithstanding the editing,"
they were indecent within the context used in this broadcast.

### [Dwelling/Repetition versus Fleeting Reference]{.underline}

17. Repetition of and persistent focus on sexual or excretory material
    have been cited consistently as factors that exacerbate the
    potential offensiveness of broadcasts. In contrast, where sexual or
    excretory references have been made once or have been passing or
    fleeting in nature, this characteristic has tended to weigh against
    a finding of indecency.

**WXTB(FM), Clearwater, FL "Bubba, The Love Sponge"**

*Could you take the phone and rub it on you Chia Pet? Oh, let me make
sure nobody is around. Okay, hang on a second (Rubbing noise). Okay I
did it. . . . Now that really your little beaver? That was mine. Your
what? That was my little beaver? Oh I love when a girl says beaver. Will
you say it again for me honey please? It was my little beaver. . . .
Will you say, Bubba come get my beaver? Bubba, would come get my little
beaver? . . . tell me that doesn't do something for you. That is pretty
sexy. . . . bring the beaver. It will be with me. We got beaver chow. I
can't wait, will you say it for me one more time? Say what? My little
beaver or Bubba come get my little beaver? Okay, Bubba come get my
beaver. Will you say, Bubba come hit my beaver? Will you say it? Bubba,
come hit my beaver. That is pretty sexy, absolutely. Oh, my God,
beaver.*

> [Indecent -- NAL Issued]{.underline}. *Citicasters Co. (WXTB(FM))*, 13
> FCC Rcd 15381 (MMB 1998) (forfeiture paid).

**WXTB(FM), Clearwater, FL "Bubba, The Love Sponge"**

> *Well, it was nice big fart. I'm feeling very gaseous at this point
> but there, so far has been no enema reaction, as far as. There's been
> no, there's been no expelling? No expelling. But I feel mucus rising.
> . . . Can't go like. (Grunting sound) Pushing, all I keep doing is
> putting out little baby farts. . . . on the toilet ready to go. . . .
> Push it, strain it. It looks normal. Just average, average. Little
> rabbit one. Little rabbit pellets. I imagine maybe, we'll break loose.
> Push hard Cowhead. I'm pushing, I got veins popping out of my
> forehead. Go ahead, those moles might pop right off. You can tell he's
> pushing. I'm out of breath. One more, last one. One big push.*
>
> [Indecent -- NAL Issued]{.underline}. *Citicasters Co. (WXTB(FM))*, 13
> FCC Rcd 22004 (1998), *aff'd* FCC 00-230, released June 27, 2000
> (forfeiture paid). The cited material dwells on excretory activities
> and the Commission found it to be patently offensive.

18. Compare the following cases where material was found not indecent
    because it was fleeting and isolated.

    **WYBB(FM), Folly Beach, SC "The Morning Show"**

    *The hell I did, I drove mother-fucker, oh. Oh.*

    [Not Indecent]{.underline}. *L.M. Communications of South Carolina,
    Inc. (WYBB(FM))*, 7 FCC Rcd 1595 (MMB 1992). The "broadcast
    contained only a fleeting and isolated utterance which, within the
    context of live and spontaneous programming, does not warrant a
    Commission sanction." 7 FCC Rcd at 1595.

    **KPRL(AM)/KDDB(FM), Paso Robles, CA News Announcer Comment**

    *Oops, fucked that one up.*

    [Not Indecent]{.underline}. *Lincoln Dellar, Renewal of License for
    Stations KPRL(AM) and KDDB(FM)*, 8 FCC Rcd 2582, 2585 (ASD, MMB
    1993). The "news announcer's use of single expletive" does not
    "warrant further Commission consideration in light of the isolated
    and accidental nature of the broadcast."

19. In contrast, even relatively fleeting references may be found
    indecent where other factors contribute to a finding of patent
    offensiveness. Examples of such factors illustrated by the following
    cases include broadcasting references to sexual activities with
    children and airing material that, although fleeting, is graphic or
    explicit.

**KUPD-FM, Tempe, AZ Announcer Joke**

*What is the best part of screwing an eight-year-old? Hearing the pelvis
crack.*

[Indecent -- NAL Issued]{.underline}. *Tempe Radio, Inc. (KUPD-FM)*, 12
FCC Rcd 21828 (MMB 1997) (forfeiture paid). Although fleeting, the
language clearly refers to sexual activity with a child and was found to
be patently offensive.

> **WEZB-FM, New Orleans, LA Announcer Joke**

*What's the worst part of having sex with your brother? . . . You got to
fix the crib after it breaks and then you got to clean the blood off the
diaper.*

[Indecent -- NAL Issued]{.underline}. *EZ New Orleans, Inc. (WEZB(FM))*,
12 FCC Rcd 4147 (MMB 1997) (forfeiture paid).

**KLBJ(FM), Austin, TX DJ Comments**

*Suck my dick you fucking cunt.*

[Indecent -- NAL Issued]{.underline}. *LBJS Broadcasting Company, L.P.
(KLBJ(FM))*, 13 FCC Rcd 20956 (MMB 1998) (forfeiture paid). Although
fleeting, the material is explicit and was found to be indecent.

### [Presented in a Pandering or Titillating Manner or for Shock Value]{.underline}

20. The apparent purpose for which material is presented can
    substantially affect whether it is deemed to be patently offensive
    as aired. In adverse indecency findings, the Commission has often
    cited the pandering or titillating character of the material
    broadcast as an exacerbating factor. Presentation for the shock
    value of the language used has also been cited. As Justice Powell
    stated in his opinion in the Supreme Court\'s decision affirming the
    Commission\'s determination that the broadcast of a comedy routine
    was indecent, \"\[T\]he language employed is, to most people, vulgar
    and offensive. It was chosen specifically for this quality, and it
    was repeated over and over as a sort of verbal shock treatment.\"
    *FCC v. Pacifica Foundation,* 438 U.S. 726, 757 (1978) (Powell, J.,
    concurring in part and concurring in the judgment). On the other
    hand, 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. In the
    following cases, the decisions looked to the manner of presentation
    as a factor supporting a finding of indecency.

**KLOL(FM), Houston, TX "Stevens & Pruett Show"**

*Sex survey lines are open. Today\'s question, it\'s a strange question
and we hope we have a lot of strange answers. What makes your hiney
parts tingle? When my husband gets down there and goes (lips noise). ...
I love oral sex. ... Well, my boyfriend tried to put Hershey kisses
inside of me and tried to lick it out and it took forever for him to do
it.*

[Indecent -- NAL Issued]{.underline}. *Rusk Corporation (KLOL(FM))*, 5
FCC Rcd 6332 (MMB 1990) (forfeiture paid). Explicit description in a
program that focused on sexual activities in a lewd, vulgar, pandering
and titillating manner.

**WEBN(FM), Cincinnati, OH "Bubba, The Love Sponge"**

*All I can say is, if you were listening to the program last night you
heard Amy and Stacy . . . come in here, little lesbians that they are.
Little University of Cincinnati ho's and basically that we could come
over and watch them. We got over to the house. . . . They start making
out a little bit. They go to bed. They get, they start, they're starting
like a mutual 69 on the bed. Guido all of a sudden whips it out. . . .
Rather than take care of each other . . . Guido is like knee deep with
the butch bitch and all of a sudden here is the fem bitch looking at me.
Hot. I get crazy. I hook up a little bit. Then Guido says, hey, I done
got mine, how about we switching? So I went into the private bedroom
with the butch bitch and then got another one.*

[Indecent -- NAL Issued]{.underline}. *Jacor Broadcasting Corporation
(WEBN(FM))*, 13 FCC Rcd 4152 (MMB 1997), *aff'd* 13 FCC Rcd 5825 (MMB
1997) (forfeiture paid).

**WXTB(FM), Clearwater, FL "Bubba, The Love Sponge"**

*Take the phone and I want you to rub it on it hard. I want to hear the
telephone, okay? Okay honey. (Rubbing noises) You hear that? A little
bit longer though please. I'm on the edge right now. A little bit
faster. (Rubbing noises) You get that? That's nice. Could you do it
again and then scream my name out, please? Like you're having an orgasm?
Yeah. Go ahead. Okay. (Rubbing noises) Mm mm. That's it? It's got to be
longer than that Ginny, come on work with me. Be a naughty girl. Be a
little slutty bitch that you are. One more time. Okay. (Rubbing
Noises).*

[Indecent -- NAL Issued]{.underline}. *Citicasters Co. (WXTB(FM))*, 13
FCC Rcd 15381 (MMB 1998) (forfeiture paid).

21. In determining whether broadcasts are presented in a pandering or
    titillating manner, the context of the broadcast is particularly
    critical. Thus, even where language is explicit, the matter is
    graphic, or where there is intense repetition of vulgar terms, the
    presentation may not be pandering or titillating, and the broadcast
    may not be found actionably indecent.

    **KING-TV, Seattle, WA "Teen Sex: What About the Kids?"**

*Broadcast of portions of a sex education class in a local high school
that included the use of very realistic sex organ models and simulated
demonstrations of various methods of birth control as well as frank
discussions of sexual topics.*

[Not Indecent]{.underline}. *King Broadcasting Co. (KING-TV)*, 5 FCC Rcd
2971 (1990)*.* The Commission held that although the program dealt
explicitly with sexual issues and included the use of very graphic sex
organ models, \"the material presented was clinical or instructional in
nature and not presented in a pandering, titillating or vulgar manner.\"
5 FCC Rcd at 2971.

**WABC-TV, New York, NY "Oprah Winfrey Show"**

**(How to Make Romantic Relations with**

**Your Mate Better)**

*Okay, for all you viewers out there with children watching, we\'re
doing a show today on how to make romantic relations with your mate
better. Otherwise known as s-e-x. \... I\'m very aware there are a
number of children who are watching and so, we\'re going to do our best
to keep this show rated \"G\" but just in case, you may want to send
your kids to a different room. And we\'ll pause for a moment while you
do that. \... According to experts and recent sex surveys the biggest
complaints married women have about sex are \... their lovemaking is
boring \... American wives all across the country have confessed to
using erotic aids to spice up their sex life and \... thousands of women
say they fantasize while having sex with their husbands. \... And most
women say they are faking it in the bedroom.*

*\[Quiz:\] I like the way my partner looks in clothing. \... I like the
way my partner looks naked. \... I like the way my partner\'s skin
feels. \... I like the way my partner tastes. \...*

*\[Psychologist and panelists:\] Do you know that you can experience
orgasm, have you experienced that by yourself? No, I have not \... Okay,
one of the things that, well, you all know what I\'m talking about. \...
You need to at least know how to make your body get satisfied by
yourself. Because if you don\'t know how to do it, how is he going to
figure it out? He doesn\'t have your body parts, he doesn\'t know.*

> [Not Indecent]{.underline}. Letter from Chief, Complaints and
> Investigations Branch, Enforcement Division, Mass Media Bureau to
> Chris Giglio (July 20, 1994). Subject matter alone does not render
> material indecent. Thus, while material may be offensive to some
> people, in context, it might not be actionably indecent.
>
> **KTVI-TV, St. Louis, MO "Geraldo Rivera Show"**

**(Unlocking the Great Mysteries of Sex)**

*We have seen such a slew of sex books ...\"Your G-spot,\" \"How to Have
Triple Orgasms.\" One of the biggest myths ... either we go all the way
or we do nothing. ... He just missed an opportunity to make love, not
all the way ... but to share a moment of passion and a moment of
closeness. ... It\'s important that a man learn to use the penis the way
an artist uses a paintbrush ... and if a woman is also willing to learn
how to move her vagina. ... With good control of PC muscles, a man can
separate orgasm from ejaculation and have more than one orgasm. ...
Really great sex is always based on feeling safe enough with your
partner to open up. Passion is just the expression of a tremendous sense
of connection you feel. If you think sex is pleasurable, try making love
and having sex at the same time for turning pleasure into ecstasy.*

[Not Indecent]{.underline}. Letter from Chief, Complaints and
Investigations Branch, Enforcement Division, Mass Media Bureau, to
Gerald P. McAtee (October 26, 1989). While offensive to some, the
material was not found to be indecent.

**WSMC-FM, Collegedale, TN "All Things Considered"**

**\[National Public Radio\]**

*Mike Schuster has a report and a warning. The following story contains
some very rough language. \[Excerpt from wiretap of telephone
conversation in which organized crime figure John Gotti uses \"fuck\" or
\"fucking\" 10 times in 7 sentences (110 words).\]*

[Not Indecent]{.underline}. *Peter Branton*, 6 FCC Rcd 610 (1991)
(subsequent history omitted). Explicit language was integral part of a
bona fide news story concerning organized crime; the material aired was
part of a wiretap recording used as evidence in Gotti\'s widely reported
trial. The Commission explained that it did "not find the use of such
\[coarse\] words in a legitimate news report to have been gratuitous,
pandering, titillating or otherwise "patently offensive" as that term is
used in our indecency definition." 6 FCC Rcd at 610.

**WPBN-TV, Traverse City, MI "Schindler's List" Film**

**WTOM-TV, Cheboygan, MI**

> *"Schindler's List" is a film that depicted a historical view of World
> War II and wartime atrocities. The movie contained depictions of adult
> frontal nudity.*
>
> [Not Indecent]{.underline}. *WPBN/WTOM License Subsidiary, Inc.
> (WPBN-TV and WTOM-TV)*, 15 FCC Rcd 1838 (2000). The Commission ruled
> that full frontal nudity is not *per se* indecent. Rather, the "full
> context" of the nudity is controlling. Looking at "the subject matter
> of the film, the manner of its presentation, and the warnings that
> accompanied the broadcast," the Commission held that the nudity in
> "Schindler's List" was not actionably indecent.
>
> **WFLA(AM), Tampa, FL Announcer Comments**
>
> *Announcers allegedly referred to complainant, Chuck Harder, as "Suck
> Harder," "Suck," and "Suckie" throughout the broadcast and called the
> complainant a "useless piece of crap." Also referred to complainant's
> network, the Sun Radio Network as "Suck Harder Radio Network."*
>
> [Not Indecent]{.underline}. *Jacor Broadcasting of Tampa Bay, Inc.,
> Renewal of License of Station WFLA(AM)*, 7 FCC Rcd 1826 (ASD, MMB
> 1992). Cited language was used in the context of a discussion of a
> radio network that provided programming to a station competitor and
> was found, in context, not actionably indecent.

22. Compare the following cases where licensees unsuccessfully claimed
    that, because of the context of the broadcasts (*i.e.*, alleged news
    stories), the broadcasts were not pandering.

**KSD-FM, St. Louis, MO "The Breakfast Club"**

*I've got this Jessica Hahn interview here in Playboy. I just want to
read one little segment . . . the good part.*

*\"\[Jim Bakker\] has managed to completely undress me and he\'s sitting
on my chest. He\'s really pushing himself, I mean the guy was forcing
himself. He put his penis in my mouth . . . I'm crying, tears are
coming, and he is letting go. The guy came in my mouth. My neck hurts,
my throat hurts, my head feels like it's going to explode, but he's
frustrated and determined, determined enough that within minutes he's
inside me and he's on top and he's holding my arms. He's just into this,
he\'s inside me now. Saying, when you help the shepherd, you\'re helping
the sheep.\"*

*(followed by air personality making sheep sounds) This was rape. Yeah,
don't you ever come around here Jim Bakker or we're going to cut that
thing off.*

[Indecent -- NAL Issued]{.underline}. *Pacific and Southern Company,
Inc. (KSD-FM)*, 6 FCC Rcd 3689 (MMB 1990) (forfeiture paid). The
broadcast contained excerpts from a *Playboy* magazine account of the
alleged rape of Jessica Hahn by the Rev. Jim Bakker. The licensee
explained the broadcast was newsworthy "banter by two on-air
personalities reflecting public concern, criticism, and curiosity about
a public figure whose reputedly notorious behavior was a widespread
media issue at the time." Responding to the licensee\'s argument, the
Mass Media Bureau stated that \"although the program . . . arguably
concerned an incident that was at the time 'in the news,' the particular
material broadcast was not only exceptionally explicit and vulgar, it
was . . . presented in a pandering manner. In short, the rendition of
the details of the alleged rape was, in context, patently offensive.\" 6
FCC Rcd at 3689.

**KNON(FM), Dallas, TX "I Want to Be a Homosexual" Song**

*But if you really want to give me a blowjob, I guess I'll let you as
long as you respect me in the morning. Suck it baby. Oh yeah, suck it
real good. . . . Are you sure this is your first rim job?. . . Stick it
up your punk rock ass. You rub your little thing, when you see phony
dikes in Penthouse magazine. . . . Call me a faggot, call me a
butt-loving fudge-packing queer. . . You rub your puny thing, when you
see something (?) pass you on the street.*

[Indecent -- NAL Issued]{.underline}. *Agape Broadcasting Foundation,
Inc. (KNON(FM))*, 9 FCC Rcd 1679 (MMB 1994), *forfeiture reduced* 13 FCC
Rcd 9262 (MMB 1998) (forfeiture paid). Licensee claimed that "'the words
and the song constitute political speech' aired in a good faith attempt
to present meaningful public affairs programming . . . to challenge
those who would use such language to stigmatize . . . members of the gay
community." 13 FCC Rcd at 9263. The Mass Media Bureau responded that the
licensee has "considerable discretion as to the times of the day . . .
when it may broadcast indecent material. ... Consequently, we find
unavailing Agape's argument that, in essence, its duty to air public
affairs programming required a mid-afternoon presentation of lyrics
containing repeated, explicit, and vulgar descriptions of sexual
activities and organs." *Id*.

**KSJO(FM), San Jose, California Lamont & Tonelli Show**

*"...she should go up and down the shaft about five times, licking and
sucking and on the fifth swirl her tongue around the head before going
back down...."*

*"Show us how its done" (evidently the guest had some sort of a prop).*

*"Well, if this was a real penis, it would have a \*\*\*\*ridge, I would
like (sic) around the ridge like this..."*

*\[laughter, comments such as 'oh yeah, baby'\]*.

[Indecent -- NAL Issued]{.underline}. *Citicasters Co., licensee of
Station KSJO(FM), San Jose, California*, 15 FCC Rcd 19095 (EB 2000)
(forfeiture paid). The licensee claimed that the program was a clinical
discussion of oral sex. The Enforcement Bureau rejected this argument on
the grounds that the disc jockeys' comments on her material showed that
the material was offered in a pandering and titillating manner. "The
disc jockeys' invitation to have Dr. Terry use a prop on a radio
program, and their laughter and statements (such as "oh yeah, baby")
while she conducted that demonstration shown that the material was
intended to be pandering and titillating as opposed to a clinical
discussion of sex."

23. The absence of a pandering or titillating nature, however, will not
    necessarily prevent an indecency determination, as illustrated by
    the following case.

    **WIOD(AM), Miami, FL "Penis Envy" Song**

*If I had a penis, \... I\'d stretch it and stroke it and shove it at
smarties \... I\'d stuff it in turkeys on Thanksgiving day. \... If I
had a penis, I\'d run to my mother, Comb out the hair and compare it to
brother. I\'d lance her, I\'d knight her, my hands would indulge. Pants
would seem tighter and buckle and bulge. (Refrain) A penis to plunder, a
penis to push, \'Cause one in the hand is worth one in the bush. A penis
to love me, a penis to share, To pick up and play with when nobody\'s
there. \... If I had a penis, \... I\'d force it on females, I\'d pee
like a fountain. If I had a penis, I\'d still be a girl, but I\'d make
much more money and conquer the world.*

[Indecent -- NAL Issued]{.underline}. *WIOD, Inc. (WIOD(AM))*, 6 FCC Rcd
3704 (MMB 1989) (forfeiture paid). The Mass Media Bureau found the
material to be patently offensive. In response to the licensee\'s
assertion that this song was not pandering or titillating and therefore
should not be considered indecent, the Bureau stated: \"We believe . . .
that it is not necessary to find that the material is pandering or
titillating in order to find that its references to sexual activities
and organs are patently offensive. (Citations omitted.) Moreover, humor
is no more an absolute defense to indecency . . . than is music or any
other one component of communication.\" 6 FCC Rcd at 3704.

# Enforcement Process

24. The Commission does not independently monitor broadcasts for
    indecent material. Its enforcement actions are based on documented
    complaints of indecent broadcasting received from the public. Given
    the sensitive nature of these cases and the critical role of context
    in an indecency determination, it is important that the Commission
    be afforded as full a record as possible to evaluate allegations of
    indecent programming. In order for a complaint to be considered, our
    practice is that it must generally include: (1) a full or partial
    tape or transcript or significant excerpts of the program;[^20] (2)
    the date and time of the broadcast; and (3) the call sign of the
    station involved. Any tapes or other documentation of the
    programming supplied by the complainant, of necessity, become part
    of the Commission\'s records and cannot be returned. Documented
    complaints should be directed to the FCC, Investigations and
    Hearings Division, Enforcement Bureau, 445 Twelfth Street, S.W.,
    Washington, D.C. 20554.

25. If a complaint does not contain the supporting material described
    above, or if it indicates that a broadcast occurred during \"safe
    harbor\" hours or the material cited does not fall within the
    subject matter scope of our indecency definition, it is usually
    dismissed by a letter to the complainant advising of the deficiency.
    In many of these cases, the station may not be aware that a
    complaint has been filed.

26. If, however, the staff determines that a documented complaint meets
    the subject matter requirements of the indecency definition and the
    material complained of was aired outside \"safe harbor\" hours, then
    the broadcast at issue is evaluated for patent offensiveness. Where
    the staff determines that the broadcast is not patently offensive,
    the complaint will be denied. If, however, the staff determines that
    further enforcement action might be warranted,[^21] the Enforcement
    Bureau, in conjunction with other Commission offices, examines the
    material and decides upon an appropriate disposition, which might
    include any of the following: (1) denial of the complaint by staff
    letter based upon a finding that the material, in context, is not
    patently offensive and therefore not indecent; (2) issuance of a
    Letter of Inquiry (LOI) to the licensee seeking further information
    concerning or an explanation of the circumstances surrounding the
    broadcast; (3) issuance of a Notice of Apparent Liability (NAL) for
    monetary forfeiture; and (4) formal referral of the case to the full
    Commission for its consideration and action.[^22] Generally, the
    last of these alternatives is taken in cases where issues beyond
    straightforward indecency violations may be involved or where the
    potential sanction for the indecent programming exceeds the
    Bureau\'s delegated forfeiture authority of \$25,000 (47 C.F.R. §
    0.311).

27. Where an LOI is issued, the licensee\'s comments are generally
    sought concerning the allegedly indecent broadcast to assist in
    determining whether the material is actionable and whether a
    sanction is warranted. If it is determined that no further action is
    warranted, the licensee and the complainant will be so advised.
    Where a *preliminary* determination is made that the material was
    aired and was indecent, an NAL is issued. If the Commission
    previously determined that the broadcast of the same material was
    indecent, the subsequent broadcast constitutes egregious misconduct
    and a higher forfeiture amount is warranted. *KGB, Inc. (KGB-FM)*,
    13 FCC Rcd 16396 (1998) ("higher degree of culpability for the
    subsequent broadcast of material previously determined by the
    Commission to be indecent").

28. The licensee is afforded an opportunity to respond to the NAL, a
    step which is required by statute. 47 U.S.C. § 503(b). Once the
    Commission or its staff has considered any response by the licensee,
    it may order payment of a monetary penalty by issuing a Forfeiture
    Order. Alternatively, if the preliminary finding of violation in the
    NAL is successfully rebutted by the licensee, the NAL may be
    rescinded. If a Forfeiture Order is issued, the monetary penalty
    assessed may either be the same as specified in the NAL or it may be
    a lesser amount if the licensee has demonstrated that mitigating
    factors warrant a reduction in forfeiture.

29. A Forfeiture Order may be appealed by the licensee through the
    administrative process under several different provisions of the
    Commission\'s rules. The licensee also has the legal right to refuse
    to pay the fine. In such a case, the Commission may refer the matter
    to the U.S. Department of Justice, which can initiate a trial *de
    novo* in a U.S. District Court. The trial court may start anew to
    evaluate the allegations of indecency.

# CONCLUSION

30. The Commission issues this Policy Statement to provide guidance to
    broadcast licensees regarding compliance with the Commission's
    indecency regulations.[^23] By summarizing the regulations and
    explaining the Commission's analytical approach to reviewing
    allegedly indecent material, the Commission provides a framework by
    which broadcast licensees can assess the legality of airing
    potentially indecent material. Numerous examples are provided in
    this document in an effort to assist broadcast licensees. However,
    this document is not intended to be an all-inclusive summary of
    every indecency finding issued by the Commission and it should not
    be relied upon as such. There are many additional cases that could
    have been cited. Further, as discussed above, the excerpts from
    broadcasts quoted in this document are intended only as a research
    tool. A complete understanding of the material, and the Commission's
    analysis thereof, requires review of the tapes or transcripts and
    the Commission's rulings thereon.

# ORDERING CLAUSE

31. Accordingly, it is ORDERED that this Policy Statement is ADOPTED.

    FEDERAL COMMUNICATIONS COMMISSION

    Magalie Roman Salas

Secretary

Separate Statement of Commissioner Susan Ness

**In Re: Industry Guidance on the Commission's Case Law Interpreting**

**18 U.S.C. 1464 and Enforcement Policies Regarding Broadcast
Indecency**

Our enforcement of the broadcast indecency statute compels the FCC to
reconcile two competing fundamental obligations: (1) to ensure that the
airwaves are free of indecent programming material during prescribed
hours when children are most likely to be in the audience; and (2) to
respect the First Amendment rights of broadcasters regarding program
content.

Understandably, the public is outraged by the increasingly coarse
content aired on radio and television at all hours of the day, including
times when children are likely to be listening or watching. The flood of
letters and e-mails we receive reflect a high degree of anger. As a
parent, I share the public's frustration. Many parents feel that they
cannot enjoy watching daytime or primetime television with their
children for fear that their youngsters will be exposed to indecent
material -- content that just a few years ago would have been
unimaginable on broadcast television.

Despite an onslaught of on-air smut, the Commission necessarily walks a
delicate line when addressing content issues, and must be careful not to
tread on the First Amendment \-- the constitutional bulwark of our free
society. Even words that might be construed as indecent are subject to
some constitutional protection against government regulation.[^24]

That said, the Supreme Court has seen fit, despite declining broadcast
audience shares, to reaffirm the FCC's broadcast indecency enforcement
role, given the "pervasive" and "invasive" characteristics of the free
over the air broadcast medium.[^25] Our Policy Statement on indecency
reconciles our statutory mandate and constitutional obligation by
providing helpful guidance to broadcasters and the public alike. The
guidance we offer -- a restatement of existing statutory, regulatory,
and judicial law -- establishes a measure of clarity in an inherently
subjective area.

##  {#section .unnumbered}

## Recommended Procedural Improvements  {#recommended-procedural-improvements .unnumbered}

We should strive to make our complaint procedures as user-friendly as
possible.[^26] I believe that our complaint process could be improved
if, prior to acting on an indecency complaint, the Commission routinely
forwarded the complaint to the licensee in question. The Policy
Statement concedes that in "many \[indecency\] cases, the station may
not be aware that a complaint has been filed."[^27] Moreover, many
consumers feel that the Commission mechanically dismisses their
complaints. I do not believe that broadcasters' First Amendment rights
would be threatened if we were to send broadcasters a courtesy copy of
complaints filed with the FCC. Indeed, most broadcasters *want* to be
made aware of audience complaints. And consumers would be reassured that
their views were being treated seriously.

##  {#section-1 .unnumbered}

## Broadcasters Are Part of a National Community {#broadcasters-are-part-of-a-national-community .unnumbered}

Release of this Policy Statement alone will not solve the festering
problem of indecency on the airwaves. However, it is entirely within the
power of broadcasters to address it \-- and to do so *without government
intrusion*. It is not a violation of the First Amendment for
broadcasters on their own to take responsibility for the programming
they air, and to exercise that power in a manner that celebrates rather
than debases humankind.

It is time for broadcasters to consider reinstating a voluntary code of
conduct. I encourage broadcasters, the Bush Administration, and Congress
swiftly to resolve any antitrust impediments to such action and move
ahead.

We all are part of a National Community. As stewards of the airwaves,
broadcasters play a vital leadership role in setting the cultural tone
of our society. They can choose to raise the standard or to lower it. I
hope that broadcasters will rise to the occasion by reaffirming the
unique role of broadcasting as a family friendly medium. The public
deserves no less.

Separate Statement of Commissioner Harold W. Furchtgott-Roth

In the Matter of Guidance on the Commission's Case Law Interpreting

18 U.S.C. Section 1464 and Enforcement Policies Regarding Broadcast
Indecency

The Commission is obliged, under a settlement agreement, to issue
guidance on its broadcast indecency policies. As the courts have noted,
there is a certain "vagueness inherent in \[this\] subject matter."[^28]
I find that the policy statement establishes necessary boundaries for
this elusive and highly subjective area of the law.

I must note, however, that Commission action to enforce the indecency
guidelines would set the stage for a new constitutional challenge
regarding our authority to regulate content. To be sure, *Red Lion v.
FCC*[^29] and its progeny, *FCC v. Pacifica*,[^30] have not yet been
overruled. Nevertheless, their continuing validity is highly doubtful
from both an empirical and jurisprudential point of view.[^31]

If rules regulating broadcast content were ever a justifiable
infringement of speech, it was because of the relative dominance of that
medium in the communications marketplace of the past.[^32] As the
Commission has long recognized, the facts underlying this justification
are no longer true.[^33] Today, the video marketplace is rife with an
abundance of programming,[^34] distributed by several types of content
providers.[^35] A competitive radio marketplace is evolving as well,
with dynamic new outlets for speech on the horizon.[^36] Because of
these market transformations, the ability of the broadcast industry to
corral content and control information flow has greatly diminished.[^37]
In my judgment, as alternative sources of programming and distribution
increase, broadcast content restrictions must be eliminated.

For these reasons, I believe that the lenient constitutional standard
for reviewing broadcast speech, formally announced in *Red Lion*, rests
on a shaky empirical foundation.[^38] Technology, especially digital
communications, has advanced to the point where broadcast deregulation
is not only warranted, but long overdue. In my view, the bases for
challenging broadcast indecency has been well laid, and the issue is
ripe for court review.[^39]

I must note my amazement that it has taken over seven years for the
Commission to fulfill its obligation to issue this item. While broadcast
indecency is a delicate issue to discuss, it has not benefited the
industry or the Commission to ignore the matter. I commend the Chairman
for taking the initiative to move this item. Norm Goldstein and others
staff members deserve special credit for crafting a document that makes
the best of a difficult situation for the Commission.

With these observations in mind, I vote to adopt this policy statement.

Dissenting Statement of Commissioner Gloria Tristani

[In the Matter of Industry Guidance on the Commission's Case Law
Interpreting]{.smallcaps}

[18 U.S.C. §1464 and Enforcement Policies Regarding Broadcast Indecency,
EB]{.smallcaps}

[File No. 00-IH-0089]{.smallcaps}

I dissent from the issuance of this "Policy Statement" (hereinafter
"Statement") for three reasons. First, the Statement creates a false
impression that it satisfies an obligation assumed by the Commission in
1994. Second, the Statement perpetuates the myth that broadcast
indecency standards are too vague and compliance so difficult that a
Policy Statement is necessary to provide further guidance. Most
importantly, this Statement diverts this Agency's attention and
resources away from the ongoing problem of lax enforcement, which is a
pressing concern of America's citizens.

The Statement notes that on February 22, 1994 the Commission entered
into a Settlement Agreement with Evergreen Media Corporation
(hereinafter "Agreement").[^40] At fn 23 the Statement cites the terms
of the Agreement as the source of our obligation to produce this
Statement:

> Specifically, in paragraph 2(b) of the settlement agreement, the
> Commission agreed to \"publish industry guidance relating to its
> caselaw interpreting 18 U.S.C. § 1464 and the FCCs enforcement
> policies with respect to broadcast indecency."[^41]

The Agreement actually imposed a significantly more restricted
obligation.

> *Within nine months of the date of this Agreement*, the FCC shall
> publish industry guidance relating to its caselaw interpreting 18
> U.S.C. § 1464 and the FCCs enforcement policies with respect to
> broadcast indecency.[^42]

Six and one half years later, it is clear the FCC did not observe the
terms of the Agreement. While I cannot support the FCC's failure to
comply with the timeline set forth in the original Agreement, the record
does not disclose a single effort by Evergreen to seek specific
performance under the Agreement. It is well settled that "equity aids
the vigilant, not those who slumber on their rights," and doctrines such
as laches are designed to promote diligence and prevent enforcement of
stale claims.[^43] The public interest is not served by permitting
Evergreen to sit silently on the sidelines while Commission after
Commission failed to act. Even if the FCC shirked its duty under the
Agreement, as long as Evergreen retained the benefit of dismissal of
indecency cases against it as set out in the Agreement, a strong case
exists that Evergreen ratified this agency's inaction for almost 7
years.[^44] If Evergreen Media Corporation had an enforceable interest
in the Agreement, it has long since been waived.

Moreover, the obligation to issue the Statement was subject to several
conditions precedent that bound Evergreen Media.[^45] The Statement
itself does not disclose whether Evergreen complied with its
obligations, and with the exception of noting payment of \$10,000
forfeiture, the record on file at the Commission is silent on the same
point. FCC Mass Media Bureau records disclose that Evergreen Media no
longer owns the license to which the Agreement's terms attached.
Finally, the Agreement does not bind the Commission to provide to
Evergreen's assigns the relief set forth in the Agreement.[^46] In the
absence of the party executing the Agreement, and no successor to accede
to those interests, it appears there is no extant legal duty or
enforceable right upon which the issuance of the Statement can be based.

I turn next to the underpinnings of the need for this statement. The
Statement provides:

> The Commission issues this Policy Statement to provide guidance to the
> broadcast industry regarding our case law interpreting 18 U.S.C. §
> 1464 and our enforcement policies with respect to broadcast
> indecency.[^47]

First, settlement of a case involving a single licensee should not
compel the FCC to adopt our most significant industry-wide Policy
Statement on this subject, particularly when doing so does not serve the
public interest. Second, there is nothing in the record demonstrating
that Evergreen Media failed to understand the FCC's, or the U.S. Supreme
Court's, cases on broadcast indecency. In fact Evergreen agreed to issue
to its employees a "policy statement" that was to be based upon "the
FCC's definition of broadcast indecency."[^48] It his difficult to
understand how Evergreen could both issue a policy statement containing
the FCC's definition of indecency to its employees *and* simultaneously
be unable to understand the FCC's definition. But leaving that quirk
aside, there is simply no proof that broadcast licensees are in need of
this Policy Statement. No factual basis exists for concluding that
confusion about the standards or overreaching enforcement by the FCC
requires this Statement.

Moreover, I am aware of no rush of inquiries by broadcast licensees
seeking to learn whether their programs comply with our indecency
caselaw. In the absence of such requests, this Policy Statement will
likely become instead a "how-to" manual for those licensees who wish to
tread the line drawn by our cases. It likely may lead to responses to
future enforcement actions that cite the Statement as establishing false
safe harbors. In the absence of proof that the Statement addresses
concerns supported by the FCC's history of enforcement, or the record of
the Evergreen case, the Statement is nothing more than a remedy in
search of a problem. It would better serve the public if the FCC got
serious about enforcing the broadcast indecency standards. For these
reasons, I dissent.

[^1]: Obscene and profane language and depictions are not within the
    scope of this Policy Statement.

[^2]: Although Section 1464 is a criminal statutue, the Commission has
    authority to impose civil penalties for the broadcast of indecent
    material without regard to the criminal nature of the statute. *FCC
    v. Pacifica Foundation*, 438 U.S. 726, 739, n. 13 (1978); *see also
    Action for Children's Television v. FCC,* 852 F.2d 1332, 1335
    (D.C.Cir. 1988) (see n. 8 for full case history) (Commission has
    authority to sanction licensees for broadcast of indecent material).
    The Department of Justice is responsible for prosecution of criminal
    violations of the statute.

[^3]: *See Miller v. California,* 413 U.S. 15 (1973), *reh'g. denied*,
    414 U.S. 881 (1973); *Sable Communications of California, Inc. v.
    FCC*, 492 U.S. 115 (1989); 47 C.F.R. § 73. 3999(a). Obscene speech
    is defined by a three-part test: (1) an average person, applying
    contemporary community standards, must find that the material, as a
    whole, appeals to the prurient interest; (2) the material must
    depict or describe, in a patently offensive way, sexual conduct
    specifically defined by applicable law; and (3) the material, taken
    as a whole, must lack serious literary, artistic, political, or
    scientific value. *Miller v. California*, 413 U.S. at 24.

[^4]: *Sable v. FCC,* 492 U.S. at 126.

[^5]: *Id.* at 748-50 (upholding Commission declaratory order that
    afternoon broadcast of a recording of a 12 minute monologue entitled
    "Filthy Words" was indecent as broadcast); *see also* 742-47
    (Stevens, J.) and 757-61 (Powell, J.).

[^6]: *Id.* at 732.

[^7]: *Enforcement of Prohibitions Against Broadcast Indecency in 18
    U.S.C. § 1464, 8 FCC Rcd 704, n. 10 (1993). See also Action for
    Children's Television v. FCC,* 852 F.2d 1332, 1338 (D.C.Cir. 1988)
    and *Action for Children's Television v. FCC ,* 58 F.3d 654, 657
    (D.C. Cir. 1995) (see n. 8 for full case history)*.*

[^8]: *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*, 112 S.
    Ct. 1282 (1992) *("ACT II"); Action for Children's Television v. FCC
    ,* 58 F.3d 654, 657 (D.C. Cir. 1995*)*, *cert. denied, 116 S. Ct.
    701 (1996) ("ACT III").*

[^9]: These special justifications included the history of extensive
    government regulation of the broadcast medium, the scarcity of
    available frequencies at its inception, and broadcast's "invasive"
    nature. *Id*. *See also Commission's Forfeiture Policy Statement and
    Amendment of Section 1.80 of the Rules to Incorporate the Forfeiture
    Guidelines*, 15 FCC Rcd 303, 305-06 (1999) ("courts have repeatedly
    upheld the Commission's indecency standard").

[^10]: *Making Appropriations for the Departments of Commerce, Justice,
    and State, the Judiciary and Related Agencies for the Fiscal Year
    Ending September 30, 1989, and for Other Purposes*, Pub. L. No.
    100-459, Section 608, 102 Stat. 2186, 2228 (1988).

[^11]: *Public Telecommunications Act of 1992*, Pub. L. No. 102-356, §
    16(a), 106 Stat. 949, 954 (1992); *Enforcement of Prohibitions
    Against Broadcast Indecency in 18 U.S.C. § 1464, Report and Order*,
    8 FCC Rcd 704 (1993).

[^12]: *Enforcement of Prohibitions Against Broadcast Indecency in 18
    U.S.C. § 1464, Memorandum Opinion and Order*, 10 FCC Rcd 10558
    (1995).

[^13]: 60 FR 44439 (August 28, 1995).

[^14]: The Commission has also identified "protection of the home
    against intrusion by offensive broadcasts" as a compelling
    government interest. The court did not address the validity of that
    interest. *ACT III,* 58 F.3d at 660-61*.* The Supreme Court has
    noted, however, that the "uniquely pervasive presence" of the
    broadcast media, with the audience continually tuning in and out, so
    as to make content warnings less effectual, is a reason for
    affording broadcast media more limited First Amendment protections
    as compared to other forms of communications. *FCC v. Pacifica
    Foundation*, 438 U.S. at 748-49.

[^15]: The Commission's interpretation of the term "contemporary
    community standards" flows from its analysis of the definition of
    that term set forth in the Supreme Court's decision in *Hamling v.
    United States*, 418 U.S. 87 (1974), *reh'g denied*, 419 U.S. 885
    (1974). In *Infinity Broadcasting Corporation of Pennsylvania
    (WYSP(FM))*, 3 FCC Rcd 930 (1987) (subsequent history omitted), the
    commission observed that in *Hamling*, which involved obscenity,
    "the Court explained that the purpose of 'contemporary community
    standards' was to ensure that material is judged neither on the
    basis of a decisionmaker's personal opinion, nor by its effect on a
    particularly sensitive or insensitive person or group." 3 FCC Rcd at
    933, *citing* 418 U.S. at 107. The Commission also relied on the
    fact that the Court in *Hamling* indicated that decisionmakers need
    not use any precise geographic area in evaluating material. 3 FCC
    Rcd at 933, *citing* 418 U.S. at 104-05. Consistent with *Hamling*,
    the Commission concluded that its evaluation of allegedly indecent
    material is "not one based on a local standard, but one based on a
    broader standard for broadcasting generally." 3 FCC Rcd at 933.

[^16]: *WPBN/WTOM License Subsidiary, Inc.*, 15 FCC Rcd at 1841;
    *Infinity Broadcasting Corp.*, 3 FCC Rcd 930, 931-32 (1987), *aff'd
    in part, vacated in part, remanded sub nom. Act I*, 852 F.2d 1332
    (D.C. Cir. 1988) (subsequent history omitted).

[^17]: *Peter Branton*, 6 FCC Rcd 610 (1991), *aff'd sub nom. Branton v.
    FCC*, 993 F.2d 906 (D.C. Cir. 1993), *cert. denied 511 U.S. 1052*
    (1994).

[^18]: *See Great American Television and Radio Company, Inc.
    (WFBQ(FM)),* 6 FCC Rcd 3692 (MMB 1990) (\"Candy Wrapper\").

[^19]: *See e.g.*, *Infinity Broadcasting Corp.*, 3 FCC Rcd 930, 931-32
    (1987), *aff'd in part, vacated in part on other grounds, remanded
    sub nom. Act I*, 852 F.2d 1332 (D.C. Cir. 1988) (subsequent history
    omitted*).*

[^20]: *See* *Citicasters Co., licensee of Station KSJO(FM), San Jose,
    California*, 15 FCC Rcd 19095 (EB 2000) (forfeiture paid) ("While
    the complainant did not provide us with an exact transcript of the
    broadcast, we find that she has provided us with sufficient context
    to make the determination that the broadcast was indecent.").

[^21]: In *Act IV*, the court rejected a facial challenge to the
    Commission's procedures for imposing forfeitures for the broadcast
    of indecent materials. *Action for Children's Television v. FCC*, 59
    F.3d 1249 (D.C. Cir. 1995), *cert. denied*, 116 S. Ct. 773 (1996)
    ("*Act IV*").

[^22]: This section discusses the typical process. The Commission also
    has authority to send forfeiture cases to a hearing, in which case
    the procedures discussed here differ. *See* 47 U.S.C. § 503(b)(3).
    *See also* 47 U.S.C. § 312(b) (revocation hearing for violation of
    18 U.S.C. § 1464).

[^23]: This Policy Statement addresses the February 22, 1994, Agreement
    for Settlement and Dismissal with Prejudice between the United
    States of America, by and through the Department of Justice and
    Federal Communications Commission, and Evergreen Media Corporation
    of Chicago, AM, Licensee of Radio Station WLUP(AM). Specifically, in
    paragraph 2(b) of the settlement agreement, the Commission agreed to
    "publish industry guidance relating to its caselaw interpreting 18
    U.S.C. § 1464 and the FCC's enforcement policies with respect to
    broadcast indecency." *United States v. Evergreen Media Corp.*, Civ.
    No. 92 C 5600 (N.D. Ill., E. Div. 1994). The settlement agreement
    also provides that the forfeiture order imposed in *Evergreen Media
    Corporation of Chicago AM WLUP(AM))*, 6 FCC Rcd 502 (MMB 1991), is
    null and void and expunged from the record. It further specifies
    that the Notice of Apparent Liability issued to WLUP on February 25,
    1993, *Evergreen Media Corporation of Chicago AM (WLUP(AM))*, 8 FCC
    Rcd 1266 (1993), became null and void and expunged from the record
    six months from the date of the agreement. Accordingly, those
    decisions are officially vacated.

[^24]: *FCC v. Pacifica Foundation*, 438 U.S. 726, 746 (1978) (while
    offensive words might "ordinarily lack literary, political, or
    scientific value, they are not entirely outside the protection of
    the First Amendment), *cf.* *id.* at 745 ("obscenity may be wholly
    prohibited").

[^25]: See, *Reno v. ACLU*, 521 U.S. 844, 868 (1997).

[^26]: The Policy Statement is careful to point out that complaints need
    not be letter perfect, *see, e.g.,* n. 20 (citing Bureau decision
    that an inexact transcript may be sufficient to meet procedural
    requirements).

[^27]: Policy Statement at para. 24.

[^28]: *Action for Children's Television v. FCC*, 852 F.2d 1332, 1338
    (1998) (internal quotation and citation omitted).

[^29]: 395 U.S. 367 (1969).

[^30]: 438 U.S. 726 (1978).

[^31]: Since *Pacifica*, the Courts have repeatedly struck down
    indecency regulations and other content-based restrictions. *See*,
    *e.g*., *United States v. Playboy Entertainment Group, Inc*., 120
    S.Ct. 1878 (2000) (striking down statutory adult cable channel
    scrambling requirements); *Greater New Orleans Broadcasting Ass'n v.
    U.S.*, 527 U.S. 173 (1999) (striking down the statutory and
    regulatory bans on casino advertising for broadcast stations); *Reno
    v. ACLU*, 117 S.Ct. 2329 (1997) (striking down statutory internet
    indecency requirements); *Denver Area Educ. Telecomms. Consortium,
    Inc. v. FCC*, 518 U.S. 727 (1996) (striking down certain statutory
    indecency requirements for commercial leased access and public
    access channels on cable television systems); and *Sable
    Communications v. FCC*, 492 U.S. 115 (1989) (striking down a ban on
    indecent telephone messages). *See also*, *Time Warner Entertainment
    Co. v. FCC*, \_\_ F.3d. \_\_ (D.C. Cir. 2001) (striking down FCC
    cable ownership cap and channel occupancy limits); and *Charter
    Communications v. County of Santa Cruz*, \_\_ F.Supp. \_\_ (N.D.
    Cal. 2001) (striking down local cable franchise transfer
    requirements).

[^32]: *See, e.g*., *FCC v. Pottsville Broadcasting Co.*, 309 U.S. 134,
    137 (1940) (ownership rules justified by \"a widespread fear that in
    the absence of governmental control the public interest might be
    subordinated to monopolistic domination\"); *see also* *Red Lion
    Broadcasting Co. v. FCC*, 395 U.S. 367 (1969) (justifying, at that
    point in history, a \"less rigorous standard of First Amendment
    scrutiny\" on the basis of \"spectrum scarcity\").

[^33]: *See 1985 Fairness Report*, 102 FCC 2d 145, 198-221 (1985);
    *Syracuse Peace Council*, 2 FCC Rcd 5043, 5053 (1985).

[^34]: There are well over two hundred channels of video programming
    developed by the cable and broadcast industries. In addition,
    hyper-localized programming, produced by public, educational and
    governmental entities, is now available on cable systems throughout
    the United States. Also, dozens of pay-per-view programming options
    exist for cable and satellite subscribers. Finally, internet users
    have access to tens of thousands of audio programming sources and
    streaming video technology will soon advance to the point that
    broadcast quality television will be available to anyone connected
    to the world wide web.

[^35]: Cable operators, cable overbuilders, OVS operators, internet
    service providers, wireless video systems, SMATV, common carriers,
    and satellite carriers are just some of the possible outlets for
    distributing video content. The promise of multiplexed digital
    television signals, available to everyone over-the-air, adds even
    more video programming choices for the American public.

[^36]: Satellite radio will debut soon and digital audio broadcasting
    holds out much promise for the future of terrestrial radio
    transmission. Both types of services will offer listeners more
    channels of programming at higher quality levels than is available
    today. Moreover, hundreds of radio stations are currently streaming
    content over the internet, with thousands of more to follow.

[^37]: *See* Joint Statement of Commissioners Powell and
    Furchtgott-Roth, *In re Personal Attack and Political Editorial
    Rules*, FCC Gen. Docket No. 83-484, at 5 and n. 15 (citing
    statistics on boom in communications outlets).

[^38]: It is ironic that streaming video or audio content from a
    television or radio station would likely receive more constitutional
    protection, *see* *Reno*, than would the same exact content
    broadcast over-the-air. A more interesting First Amendment question
    will soon arise when digital television stations begin offering
    subscription services over-the-air. Will intermediate scrutiny apply
    because the pay service is akin to cable television or will a lesser
    standard apply because it is available over-the-air? The same
    inquiries attach to radio signals delivered to listeners on a
    subscription basis via satellite.

[^39]: Dissenting Statement of Commissioner Harold W. Furchtgott-Roth,
    *In the Matter of 1998 Biennial Regulatory Review: Review of the
    Commission\'s Broadcast Ownership Rules and Other Rules Adopted
    Pursuant to Section 202 of the Communications Act* (rel. June 20,
    2000).

[^40]: *See United States v. Evergreen Media Corp*., Civ. No. 92 C 5600
    (N.D. Ill., E. Div. 1994).

[^41]: *See Policy Statement* at p. 17-18, n.23.

[^42]: *See Settlement Agreement* at p. 3.

[^43]: *See e.g. Powell v. Zuckert*, 366 F.2d 634, 636 (D.C.Cir.1966).

[^44]: *See e.g., Buffum v. Peter Barceloux Co*., 289 U.S. 227, 234
    (1933).

[^45]: The Agreement provides the parties exchanged "consideration and
    mutual promises hereinafter stated." *See Settlement Agreement* at
    p. 2 The Agreement describes, at Para. 3, several actions to be
    undertaken by Evergreen. The Agreement is a form of an executory
    contract the terms of which require timely satisfaction to
    constitute compliance. Failure by either party to perform would make
    the Agreement voidable or unenforceable.

[^46]: *See Settlement Agreement* at p. 4.

[^47]: *See Statement* at p.1.

[^48]: *See Settlement Agreement,* at p. 3.