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 Federal  Communications  Commission  DA  05-  717 
 Before  the  Federal  Communications  Commission 
 Washington,  D.  C.  20554 


 In  the  Matter  of 
 Various  Complaints  Regarding  CNNs  Airing  of  the  2004  Democratic  National  Convention 
 )  ) 
 )  ) 
 ) 
 File  No.  EB-  04-  IH-  0329 


 MEMORANDUM  OPINION  AND  ORDER 
 Adopted:  March  17,  2005  Released:  March  17,  2005 
 By  the  Chief,  Enforcement  Bureau: 
 I.  INTRODUCTION 
 1.  In  this  Memorandum  Opinion  and  Order  (  MO&  O),  we  deny  complaints  alleging  that  on  July  29,  2004,  CNN  aired  live  program  material  during  the  2004  Democratic  National  Convention 


 (  DNC)  that  violated  federal  restrictions  regarding  the  broadcast  of  obscene,  indecent  and  profane  material.  As  set  forth  below,  the  Commission  has  indicated  that  it  does  not  regulate  indecency  and 
 profanity  on  cable  and  satellite  subscription  services,  so  we  deny  that  aspect  of  the  complaints.  Moreover,  nothing  in  the  record  indicates  that  the  material  at  issue  meets  the  legal  test  for  obscenity,  so 
 we  also  deny  that  aspect  of  the  complaints. 
 II.  BACKGROUND 
 2.  The  complaints  assert  that  at  the  conclusion  of  Senator  John  Kerrys  address  to  the  DNC,  CNN,  which  is  available  through  cable  or  satellite  service,  1  carried  a  feed  from  a  microphone  located  near 


 members  of  the  events  support  staff.  The  complaints  allege  that  this  microphone  captured  one  staff  member  who,  upset  by  problems  with  the  balloon  drop  that  was  supposed  to  follow  Senator  Kerrys 
 speech,  uttered  the  F-  word.  2 
 III.  DISCUSSION 
 3.  The  Commission  does  not  regulate  cable  indecency.  In  this  regard,  the  Commission  recently  stated:  Indecency  regulation  is  only  applied  to  broadcast  services,  not  cable.  3  In  declining  to  review 


 1  Unlike  broadcast  television,  which  sends  over-  the-  air  signals,  cable  television  operates  by  transmitting 
 programs  to  subscribers  through  coaxial  cables  or  wires.  Cruz  v.  Ferre,  755  F.  2d  1415,  1419  n.  4  (11  th  Cir.  1985)  (citations  omitted).  Satellite  television  is  transmitted  via  over-  the-  air  signals  but,  like  cable,  is 


 available  only  to  subscribers.  See  Subscription  Video,  Report  and  Order,  2  FCC  Rcd  1001,  1005,    32  (1987)  (subscription-  based  satellite  services  are  not  broadcasting  as  defined  by  the  Communications 
 Act),  affd  sub  nom.  National  Association  for  Better  Broadcasting  v.  FCC,  849  F.  2d  665  (D.  C.  Cir.  1988).  2 
 Specifically,  the  complainants  allege  that  the  staff  member  stated  goddammit  what  the  fuck  are  you  guys  doing  up  there. 


 3  See  Violent  Television  Programming  and  Its  Impact  on  Children,  Notice  of  Inquiry,  19  FCC  Rcd  14394, 
 14403,    21  (2004)  (  Violence  NOI). 
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 complaints  regarding  cable  indecency,  the  Commission  has  said  that  cable  services  are  not  broadcast  services,  but  subscription-  based  services,  which  do  not  call  into  play  the  issue  of  indecency.  4  Under  18 
 U.  S.  C.    1464,  the  Commission  has  express  statutory  authority  to  impose  sanctions  for  the  broadcast  of  any  obscene,  indecent,  or  profane  language  by  means  of  radio  communication.  5  As  the  Commission 
 recently  stated:  .  .  .  the  criminal  code  restriction  on  indecency  applies  only  to  means  of  radio  communication  and  therefore  not  cable  communications.  6  Thus,  the  Commission  does  not  regulate 
 cable  indecency.  More  generally,  the  Commission  also  has  made  clear  that  indecency  restrictions  do  not  apply  to  other  subscription  services:  [  T]  his  case,  which  involves  subscription  as  opposed  to 
 conventional  broadcast  service    does  not  call  into  play  the  issue  of  indecency.  7 
 4.  We  also  deny  the  complaints  to  the  extent  that  they  allege  that  CNNs  broadcast  of  the  DNC  is  obscene.  The  three-  part  obscenity  test  set  forth  in  Miller  v.  California  requires  that  (1)  an  average 


 person,  applying  contemporary  community  standards,  would  find  that  the  material,  as  a  whole,  appeals  to  the  prurient  interest;  (2)  the  material  depicts  or  describes,  in  a  patently  offensive  way,  sexual  conduct 
 specifically  defined  by  applicable  law;  and  (3)  the  material,  taken  as  a  whole,  lacks  serious  literary,  artistic,  political,  or  scientific  value.  8  This  test  is  designed  to  isolate  hard  core  pornography  from 
 expression  protected  by  the  First  Amendment.  9  Nothing  in  the  record  indicates  that  CNNs  broadcast  coverage  of  the  DNC  depicts  the  kind  of  hard  core  pornography  covered  by  Miller,  or  that,  as  a  whole, 
 it  appeals  to  the  prurient  interest  or  lacks  serious  literary,  artistic,  political,  or  scientific  value. 
 5.  Finally,  although  the  Commission  does  not  regulate  cable  indecency,  we  note  that  the  Act  provides  a  number  of  tools,  available  through  current  technology,  for  those  who  wish  to  selectively  block 


 unwanted  television  programming.  As  the  Commission  has  noted,  [  f]  irst,  as  section  640  requires,  a  cable  operator  must  block  programming,  using  any  means,  if  such  a  request  is  made  by  a  particular 


 4  Applications  for  Consent  to  the  Transfer  of  Control  of  Licenses  from  Comcast  Corporation  and  AT&  T 
 Corp.,  Transferors,  to  AT&  T  Comcast  Corporation,  Transferee,  Memorandum  Opinion  and  Order,  17  FCC  Rcd  23246,  23328,    213  (2002)  (subsequent  history  omitted). 


 5  18  U.  S.  C.    1464  (  Whoever  utters  any  obscene,  indecent,  or  profane  language  by  means  of  radio 
 communications  shall  be  fined  under  this  title  or  imprisoned  not  more  than  two  years,  or  both.);  compare  id.  with  18  U.  S.  C.    1468(  a)  (  Whoever  knowingly  utters  any  obscene  language  or  distributes  any  obscene 


 matter  by  means  of  cable  television  or  subscription  services  on  television,  shall  be  punished  by  imprisonment  for  not  more  than  2  years  or  by  a  fine  in  accordance  with  this  title,  or  both.).  See  also 
 Telecommunications  Act  of  1992,  Pub.  L.  No.  102-  356,    16a,  106  Stat.  949,  954  (1992)  (requiring  Commission  to  implement  indecency  time  of  day  restrictions  on  radio  or  television  broadcast  station[  s]) 
 (emphasis  added);  47  C.  F.  R.    73.  3999  (applying  indecency  restrictions  to  broadcast  but  not  to  cable).  6 
 Violence  NOI,  19  FCC  Rcd  at  14403,  n.  45  (quoting  18  U.  S.  C.    1464).  The  Commission  also  noted  there  that  its  rules  regarding  section  1464  do  not  apply  to  cable.  The  Commissions  authority  over  profanity  and 


 indecency  derives  from  the  same  criminal  statute  and  Commission  rules.  Because  the  Commissions  authority  over  profanity  is  coextensive  with  its  authority  over  indecency,  the  limits  on  its  authority  over 
 indecency  on  cable  and  satellite  services  also  apply  to  its  authority  over  profanity  in  the  same  circumstances. 
 7  See  Harriscope  of  Chicago,  Inc.,  Memorandum  Opinion  and  Order,  3  FCC  Rcd  757,  760  n.  2  (1988) 
 (subsequent  history  omitted)  (indecency  restrictions  not  applied  to  subscription  service  provided  by  television  licensee;  Consistent  with  existing  case  law,  the  Commission  does  not  impose  regulations 


 regarding  indecency  on  services  lacking  the  indiscriminate  access  to  children  that  characterizes  broadcasting.);  see  also  Litigation  Recovery  Trust,  Memorandum  Opinion  and  Order,  17  FCC  Rcd  21852, 
 21856,    8  (2002)  (indecency  restrictions  not  applicable  to  satellite  programming  provided  to  hotels;  [  s]  uch  subscription-  based  services  do  not  call  into  play  the  issue  of  indecency.). 
 8  Miller  v.  California,  413  U.  S.  15,  24  (1973). 
 9  Id.  at  29. 
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 subscriber.  Second,  a  cable  subscriber  may  obtain  a  lock-  box  from  the  local  cable  operator  if  he  or  she  wants  to  selectively  block  unwanted  material.  10  Satellite  subscription  services  have  similar  tools.  11 
 IV.  ORDERING  CLAUSE 
 6.  Accordingly,  IT  IS  ORDERED,  that  the  complaints  filed  against  CNNs  airing  of  the  2004  Democratic  National  Convention  are  hereby  DENIED. 


 FEDERAL  COMMUNICATIONS  COMMISSION 


 David  H.  Solomon  Chief,  Enforcement  Bureau 


 10  Implementation  of  Section  505  of  the  Telecommunications  Act  of  1996,  Order,  16  FCC  Rcd  20915, 
 20918,    9  (2001);  see  47  U.  S.  C.    544(  d)(  2),  560.  For  further  information  on  how  consumers  can  restrict  access  to  unwanted  television  programming,  see  http://  www.  fcc.  gov/  parents/. 


 11  See  http://  www.  directv.  com/  DTVAPP/  learn/  LocksLimits.  dsp; 
 http://  www.  dishnetwork.  com/  content/  programming/  parental_  control/  index.  shtml. 
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