Before the
Federal Communications Commission
Washington, D.C. 20554

In the Matter of

Industry Guidance On the Commissions
Case Law Interpreting 18 U.S.C.  1464
and Enforcement Policies Regarding
Broadcast Indecency
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File No. EB-00-IH-0089

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.

I. 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 Commissions broadcast indecency enforcement 
process.  Section V is the conclusion.
II. 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."   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.   See 47 U.S.C. Sections 312(a)(6) and 503(b)(1)(D).
3. The FCCs 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.   
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.    Even under this restrictive standard, the courts have 
consistently upheld the Commissions 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.   In addition, the Court quoted the Commissions definition 
of indecency with apparent approval.   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.   Moreover, the definition has been specifically upheld against 
constitutional challenges in the Action for Childrens Television (ACT) cases in the D.C. Circuit Court of 
Appeals.   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. 
5. Although the D.C. Circuit approved the FCCs definition of indecency in the ACT cases, 
it also established several restrictive parameters on FCC enforcement.  The courts 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 Commissions 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 courts 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.   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.   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 governments 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 courts 
instructions by appropriately conforming Section 73.3999 of its rules.   These changes became effective 
on August 28, 1995. 
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 childrens well being.  Act III, 58 F.3d at 661 
(and cases cited therein).   The principles of enforcement articulated below are intended to further these 
interests. 

III. INDECENCY DETERMINATIONS
A. Analytical Approach
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. 
 
9. In determining whether material is patently offensive, the full context in which the 
material appeared is critically important.   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,  while sexual innuendo that persists and is sufficiently clear to make the sexual meaning 
inescapable might be.  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.    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.
B. Case Comparisons
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.
1. Explicitness/Graphic Description Versus Indirectness/Implication
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, dont knock it.  I was sodomized by Lambchop.

Indecent  Warning Issued.  Infinity Broadcasting Corporation of Pennsylvania (WYSP(FM)), 2 
FCC Rcd 2705 (1987), affd 3 FCC Rcd 930 (1987), affd 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				Im 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.  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 dont want to grow up, Im 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 dont 
want to get up or get a towel to dry, cause I wouldnt be a uterus guy.  I dont want to get up, Im 
a uterus guy and I know where to lick and chew exactly where you like.  Youll have more fun 
when I make you come, with my nose between your thighs.

	Indecent  NAL Issued.  WQAM License Limited Partnership (WQAM(AM)), 15 FCC Rcd 1475 
(1999), affd 15 FCC Rcd 2518 (2000), recon. denied FCC 00-266, released July 26, 2000.  The 
Commission held that the songs sexual import is lewd, inescapable and understandable.  15 
FCC Rcd at 2520.

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

	I know youre really proud cause you think youre 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 youre 
afraid to get your teeth caught in my pubic hair.  If youre lying there expecting me to suck your 
dick, youre 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 youre worried about babies, you can lower your 
risk, by giving me that special cunnilingus kiss. . . . you can jiggle your tongue on my clit.  Dont 
worry about making me have an orgasm. . . . You asshole, you shit.  I know its a real drag, to 
suck my cunt when Im on the rag. . . . You tell me its gross to suck my yeast infection.  How do 
you think I feel when I gag on your erection.

	Indecent  NAL Issued.  Infinity Broadcasting Corporation of Los Angeles (KROQ(FM)), 13 
FCC Rcd 25349 (MMB 1998), affd 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 dont like swallowing, but I do.  The trick is you need to swallow at the right time.  
Do it when youre 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, shes 
creative by licking, nibbling and using overall different techniques. . . . The sexy turn on for me 
is when I . . . expel into my partners mouth. . . . I dont mind giving BJs . . . if a man doesnt get 
off, that means he wasnt quite excited by my techniques.

	Indecent  NAL Issued.  Citicasters Co. (WXTB(FM)), 13 FCC Rcd 22004 (1998), affd 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.  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.  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 hes 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.  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 its 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.  San Francisco Century Broadcasting, L.P. (KMEL(FM)), 7 FCC Rcd 
4857 (1992), affd 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 cant 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 thats 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!  Its Big Peter! (Laughter)  Big Peter with 40,000 Peterbilt horsepower under the 
hood.  Its massive!  Big Peter!  Formerly the Big Dicks 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!  Its coming!  Big Peter! (Laughter)

	Not Indecent.  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.  Ill sit on your face and tell you I love you, too.  I 
love to hear you moralize when Im between your thighs.  You blow me away.  Sit on my face and 
let me embrace you.  Ill sit on your face and then Ill love you (?) truly.  Life can be fine, if we 
both sixty-nine.  If we sit on faces (?) the ultimate place to play (?).  Well be blown away.
Indecent  NAL Issued.  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 whats 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.  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. 

2. Dwelling/Repetition versus Fleeting Reference
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 doesnt do something for 
you.  That is pretty sexy. . . . bring the beaver.  It will be with me.  We got beaver chow.  I cant 
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.  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.  Im feeling very gaseous at this point but there, so far has been no 
enema reaction, as far as.  Theres been no, theres been no expelling?  No expelling.  But I feel 
mucus rising. . . . Cant 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, well break loose.  Push hard 
Cowhead.  Im pushing, I got veins popping out of my forehead.  Go ahead, those moles might 
pop right off.  You can tell hes pushing.  Im out of breath.  One more, last one.  One big push.

Indecent  NAL Issued.  Citicasters Co. (WXTB(FM)), 13 FCC Rcd 22004 (1998), affd 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.  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.  Lincoln Dellar, Renewal of License for Stations KPRL(AM) and KDDB(FM), 8 
FCC Rcd 2582, 2585 (ASD, MMB 1993).  The news announcers 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.  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

	Whats 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.  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.  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.

3. Presented in a Pandering or Titillating Manner or for Shock Value
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.  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 hos 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, theyre 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.  Jacor Broadcasting Corporation (WEBN(FM)), 13 FCC Rcd 4152 
(MMB 1997), affd 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.  Im on the edge right 
now.  A little bit faster.  (Rubbing noises)  You get that?  Thats nice.  Could you do it again and 
then scream my name out, please?  Like youre having an orgasm?  Yeah.  Go ahead.  Okay. 
(Rubbing noises)  Mm mm.  Thats it?  Its 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.  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.  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.  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.   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.  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				Schindlers List Film
	WTOM-TV, Cheboygan, MI

Schindlers 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. 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 Schindlers 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 complainants network, the Sun Radio Network as Suck Harder Radio Network.

Not Indecent.  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

	Ive 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 . . . Im 
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 its going to explode, but hes frustrated and determined, 
determined enough that within minutes hes inside me and hes on top and hes holding my arms. 
Hes 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, dont you ever come 
around here Jim Bakker or were going to cut that thing off.

	Indecent  NAL Issued.  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 Ill 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.  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 Agapes 
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.  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.  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.  

IV. 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;  (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,  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.   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.
V. CONCLUSION
30. The Commission issues this Policy Statement to provide guidance to broadcast licensees 
regarding compliance with the Commissions indecency regulations.   By summarizing the regulations 
and explaining the Commissions 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 Commissions analysis thereof, requires review of the tapes or transcripts and the Commissions 
rulings thereon.

VI. 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 Commissions 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 publics 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.   

That said, the Supreme Court has seen fit, despite declining broadcast audience shares, to 
reaffirm the FCCs broadcast indecency enforcement role, given the pervasive and invasive 
characteristics of the free over the air broadcast medium.   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. 

Recommended Procedural Improvements 

We should strive to make our complaint procedures as user-friendly as possible.   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.   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.

Broadcasters Are Part of a National Community

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 Commissions 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.   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  and its progeny, FCC v. Pacifica,  have not yet been overruled.  Nevertheless, 
their continuing validity is highly doubtful from both an empirical and jurisprudential point of 
view. 

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.  As the Commission has long recognized, the facts underlying this justification are no 
longer true.  Today, the video marketplace is rife with an abundance of programming,  
distributed by several types of content providers.  A competitive radio marketplace is evolving as 
well, with dynamic new outlets for speech on the horizon.   Because of these market 
transformations, the ability of the broadcast industry to corral content and control information 
flow has greatly diminished.  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.    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. 

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 COMMISSIONS CASE LAW INTERPRETING 
18 U.S.C. 1464 AND ENFORCEMENT POLICIES REGARDING BROADCAST INDECENCY, EB 
FILE NO. 00-IH-0089

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 Agencys attention and resources away from the ongoing problem 
of lax enforcement, which is a pressing concern of Americas citizens.

The Statement notes that on February 22, 1994 the Commission entered into a 
Settlement Agreement with Evergreen Media Corporation (hereinafter Agreement).   
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. 

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. 

Six and one half years later, it is clear the FCC did not observe the terms of the 
Agreement. While I cannot support the FCCs 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.   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 
agencys inaction for almost 7 years.   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.   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 Agreements terms attached.  Finally, the Agreement does not bind the 
Commission to provide to Evergreens assigns the relief set forth in the Agreement.   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. 

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 FCCs, or the U.S. 
Supreme Courts, cases on broadcast indecency.  In fact Evergreen agreed to issue to its 
employees a policy statement that was to be based upon the FCCs definition of 
broadcast indecency.   It his difficult to understand how Evergreen could both issue a 
policy statement containing the FCCs definition of indecency to its employees and 
simultaneously be unable to understand the FCCs 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 
FCCs 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.

  Obscene and profane language and depictions are not within the scope of this Policy Statement.
  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 Childrens 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.
  See Miller v. California, 413 U.S. 15 (1973), rehg. 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.
  Sable v. FCC, 492 U.S. at 126. 
  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.). 
  Id. at 732.
  Enforcement of Prohibitions Against Broadcast Indecency in 18 U.S.C.  1464, 8 FCC Rcd 704, n. 10 (1993).  See 
also Action for Childrens Television v. FCC, 852 F.2d 1332, 1338 (D.C.Cir. 1988) and Action for Childrens 
Television v. FCC , 58 F.3d 654, 657 (D.C. Cir. 1995) (see n. 8 for full case history). 
  Action for Childrens Television v. FCC, 852 F.2d 1332, 1339 (D.C.Cir. 1988) (ACT I); Action for Childrens 
Television v. FCC, 932 F.2d 1504, 1508 (D.C. Cir. 1991), cert. denied, 112 S. Ct. 1282 (1992) (ACT II); Action 
for Childrens Television v. FCC , 58 F.3d 654, 657 (D.C. Cir. 1995), cert. denied, 116 S. Ct. 701 (1996) (ACT 
III). 
  These special justifications included the history of extensive government regulation of the broadcast medium, the 
scarcity of available frequencies at its inception, and broadcasts invasive nature.  Id.  See also Commissions 
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 Commissions indecency standard).
  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).
  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).
  Enforcement of Prohibitions Against Broadcast Indecency in 18 U.S.C.  1464, Memorandum Opinion and 
Order, 10 FCC Rcd 10558 (1995).
  60 FR 44439 (August 28, 1995).
  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.  
  The Commissions interpretation of the term contemporary community standards flows from its analysis of the 
definition of that term set forth in the Supreme Courts decision in Hamling v. United States, 418 U.S. 87 (1974), 
rehg 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 decisionmakers 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.

  WPBN/WTOM License Subsidiary, Inc., 15 FCC Rcd at 1841; Infinity Broadcasting Corp., 3 FCC Rcd 930, 931-
32 (1987), affd in part, vacated in part, remanded sub nom. Act I, 852 F.2d 1332 (D.C. Cir. 1988) (subsequent 
history omitted).
  Peter Branton, 6 FCC Rcd 610 (1991), affd sub nom. Branton v. FCC, 993 F.2d 906 (D.C. Cir. 1993), cert. 
denied 511 U.S. 1052 (1994).
  See Great American Television and Radio Company, Inc. (WFBQ(FM)), 6 FCC Rcd 3692 (MMB 1990) ("Candy 
Wrapper").
  See e.g., Infinity Broadcasting Corp., 3 FCC Rcd 930, 931-32 (1987), affd in part, vacated in part on 
other grounds, remanded sub nom. Act I, 852 F.2d 1332 (D.C. Cir. 1988) (subsequent history omitted).

  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.).
  In Act IV, the court rejected a facial challenge to the Commissions procedures for imposing forfeitures for the 
broadcast of indecent materials.  Action for Childrens Television v. FCC, 59 F.3d 1249 (D.C. Cir. 1995), cert. 
denied, 116 S. Ct. 773 (1996) (Act IV).
  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).
  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 FCCs 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.
  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).
   See, Reno v. ACLU, 521 U.S. 844, 868 (1997).
   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).
    Policy Statement at para. 24.
 Action for Childrens Television v. FCC, 852 F.2d 1332, 1338 (1998) (internal quotation and citation 
omitted).
 395 U.S. 367 (1969).
 438 U.S. 726 (1978).
 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 Assn 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).
 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").
 See 1985 Fairness Report, 102 FCC 2d 145, 198-221 (1985); Syracuse Peace Council, 2 FCC Rcd 5043, 
5053 (1985).
 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.
 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.
 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.
 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).
 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.
 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).

  See United States v. Evergreen Media Corp., Civ. No. 92 C 5600 (N.D. Ill., E. Div. 1994).
  See Policy Statement at p. 17-18, n.23.
  See Settlement Agreement at p. 3.
  See e.g. Powell v. Zuckert, 366 F.2d 634, 636 (D.C.Cir.1966).

  See e.g., Buffum v. Peter Barceloux Co., 289 U.S. 227, 234 (1933).
  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.
  See Settlement Agreement at p. 4.
  See Statement at p.1.
  See Settlement Agreement, at p. 3.
 
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