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 Federal  Communications  Commission  FCC  05-  36 
 Before  the  Federal  Communications  Commission 
 Washington,  D.  C.  20554 

 In  the  Matter  of  )  ) 
 FOX  TELEVISION  STATIONS,  INC.  )  File  No.  EB-  03-  IH-  0672  ) 
 Licensee  of  Station  WTTG(  TV)  )  Facility  ID  No.  22207  Washington,  D.  C.  ) 

 MEMORANDUM  OPINION  AND  ORDER 
 Adopted:  February  14,  2005  Released:  February  28,  2005 
 By  the  Commission: 

 I.  INTRODUCTION 
 1.  In  this  Memorandum  Opinion  and  Order,  we  deny  a  complaint  1  filed  by  the  Parents  Television  Council  (  PTC),  alleging  that  Fox  Television  Stations,  Inc.,  licensee  of  Station 
 WTTG(  TV),  Washington,  D.  C.,  aired  an  episode  of  the  program  Arrested  Development  in  violation  of  the  federal  restrictions  regarding  the  broadcast  of  indecent  material.  2 

 2.  PTC  alleges  that  Station  WTTG(  TV)  and  other  television  stations  affiliated  with  the  Fox  Television  Network  (  Fox  Affiliates)  broadcast  indecent  material  on  November  16, 
 2003,  at  9:  30  p.  m.  Eastern  Standard  Time  contained  in  an  episode  of  the  Arrested  Development  program.  PTC  complains  about  several  scenes  in  the  episode.  Specifically,  according  to  the 
 Complaint,  There  are  multiple  scripted  bleeps,  and  some  sexual  innuendo  dealing  with  homosexuality.  In  particular,  the  episode  contains  a  reference  to  making  corn-  holes  and  then 
 corn-  holing  (which  the  Complaint  describes  as  slang  for  anal  sex),  within  the  context  of  discussions  of  a  corn  baller,  an  implement  for  making  popcorn  balls.  After  review  of  the 
 Complaint  and  the  videotape  of  the  subject  episode  provided  by  PTC,  we  find  that  the  material  is  not  patently  offensive,  as  defined  by  Commission  precedent,  and  therefore  does  not  violate  our 
 indecency  prohibition. 

 1  Letter  from  Lara  Mahaney,  Parents  Television  Council,  to  David  H.  Solomon,  Chief,  Enforcement 
 Bureau,  Federal  Communications  Commission,  dated  November  24,  2003,  at  2  (  Complaint).  A  copy  of  the  Complaint  is  provided  in  the  Attachment. 

 2  See  18  U.  S.  C.    1464;  47  C.  F.  R.    73.  3999. 
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 II.  DISCUSSION 
 3.  The  Federal  Communications  Commission  is  authorized  to  license  radio  and  television  broadcast  stations  and  is  responsible  for  enforcing  the  Commissions  rules  and 
 applicable  statutory  provisions  concerning  the  operation  of  those  stations.  The  Commissions  role  in  overseeing  program  content  is  very  limited.  The  First  Amendment  to  the  United  States 
 Constitution  and  section  326  of  the  Communications  Act  of  1934,  as  amended  (the  Act),  prohibit  the  Commission  from  censoring  program  material  and  from  interfering  with 
 broadcasters  freedom  of  expression.  3  The  Commission  does,  however,  have  the  authority  to  enforce  statutory  and  regulatory  provisions  restricting  obscenity,  indecency  and  profanity. 
 Specifically,  it  is  a  violation  of  federal  law  to  broadcast  obscene,  indecent  or  profane  programming.  Title  18  of  the  United  States  Code,  section  1464  prohibits  the  utterance  of  any 
 obscene,  indecent  or  profane  language  by  means  of  radio  communication.  4  Consistent  with  a  subsequent  statute  and  court  case,  5  section  73.3999  of  the  Commissions  rules  provides  that  radio 
 and  television  stations  shall  not  broadcast  obscene  material  at  any  time,  and  shall  not  broadcast  indecent  material  during  the  period  6  a.  m.  through  10  p.  m.  6  The  Commission  may  impose  a 
 monetary  forfeiture,  pursuant  to  section  503(  b)(  1)  of  the  Act,  7  upon  a  finding  that  a  licensee  has  broadcast  obscene,  indecent  or  profane  material  in  violation  of  18  U.  S.  C.    1464  and  section 
 73.3999  of  the  rules. 
 4.  Any  consideration  of  government  action  against  allegedly  indecent  programming  must  take  into  account  the  fact  that  such  speech  is  protected  under  the  First  Amendment.  8  The 
 federal  courts  consistently  have  upheld  Congresss  authority  to  regulate  the  broadcast  of  indecent  speech,  as  well  the  Commissions  interpretation  and  implementation  of  the  governing  statute.  9 
 Nevertheless,  the  First  Amendment  is  a  critical  constitutional  limitation  that  demands  that,  in  such  determinations,  we  proceed  cautiously  and  with  appropriate  restraint.  10 

 3  U.  S.  CONST.,  amend.  I;  47  U.  S.  C.    326  (2002). 
 4  18  U.  S.  C.    1464. 
 5  Public  Telecommunications  Act  of  1992,  Pub.  L.  No.  102-  356,  106  Stat.  949  (1992),  as  modified  by 
 Action  for  Childrens  Television  v.  FCC,  58  F.  3d  654  (D.  C.  Cir.  1995)  (en  banc),  cert.  denied,  516  U.  S.  1043  (1996)  (  ACT  III). 

 6  See  47  C.  F.  R.    73.  3999. 
 7  See  47  U.  S.  C.    503(  b)(  1).  See  also  47  U.  S.  C.    312(  a)(  6)  (authorizing  license  revocation  for  indecency 
 violations). 
 8  U.  S.  CONST.,  amend.  I;  See  Action  for  Childrens  Television  v.  FCC,  852  F.  2d  1332,  1344  (D.  C.  Cir. 
 1988)  (  ACT  I). 
 9  FCC  v.  Pacifica  Foundation,  438  U.  S.  726  (1978).  See  also  ACT  I,  852  F.  2d  at  1339;  Action  for 
 Childrens  Television  v.  FCC,  932  F.  2d  1504,  1508  (D.  C.  Cir.  1991),  cert.  denied,  503  U.  S.  914  (1992)  (  ACT  II);  ACT  III. 

 .  10  ACT  I,  852  F.  2d  at  1344  (  Broadcast  material  that  is  indecent  but  not  obscene  is  protected  by  the  First 
 Amendment;  the  FCC  may  regulate  such  material  only  with  due  respect  for  the  high  value  our  Constitution  places  on  freedom  and  choice  in  what  people  may  say  and  hear);  id.  at  1340  n.  14  (  the  potentially  chilling 
 effect  of  the  FCCs  generic  definition  of  indecency  will  be  tempered  by  the  Commissions  restrained  enforcement  policy). 
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 5.  The  Commission  defines  indecent  speech  as  language  that,  in  context,  depicts  or  describes  sexual  or  excretory  activities  or  organs  in  terms  patently  offensive  as  measured  by 
 contemporary  community  standards  for  the  broadcast  medium.  11 
 Indecency  findings  involve  at  least  two  fundamental  determinations.  First,  the  material  alleged  to  be  indecent 
 must  fall  within  the  subject  matter  scope  of  our  indecency  definition  that  is,  the  material  must  describe  or  depict 
 sexual  or  excretory  organs  or  activities.  .  .  .  Second,  the  broadcast  must  be  patently  offensive  as  measured  by 
 contemporary  community  standards  for  the  broadcast  medium.  12 

 6.  The  material  aired  during  the  Arrested  Development  program  arguably  describes  sexual  activities  and,  therefore,  warrants  further  scrutiny  to  determine  whether  it  is  patently 
 offensive  as  measured  by  contemporary  community  standards.  For  the  reasons  set  forth  below,  however,  we  conclude  that  the  material  is  not  patently  offensive,  and  therefore,  not  indecent. 

 7.  In  making  indecency  determinations,  the  Commission  has  indicated  that  the  full  context  in  which  the  material  appeared  is  critically  important,  13  and  has  articulated  three 
 principal  factors  for  its  analysis:  (  1)  the  explicitness  or  graphic  nature  of  the  description  or  depiction  of  sexual  or  excretory  organs  or  activities;  (2)  whether  the  material  dwells  on  or  repeats 
 at  length  descriptions  of  sexual  or  excretory  organs  or  activities;  (3)  whether  the  material  appears  to  pander  or  is  used  to  titillate,  or  whether  the  material  appears  to  have  been  presented  for  its 
 shock  value.  14  In  examining  these  three  factors,  we  must  weigh  and  balance  them  to  determine  whether  the  broadcast  material  is  patently  offensive  because  [  e]  ach  indecency  case  presents  its 
 own  particular  mix  of  these,  and  possibly,  other  factors.  15  In  particular  cases,  one  or  two  of  the  factors  may  outweigh  the  others,  either  rendering  the  broadcast  material  patently  offensive  and 
 consequently  indecent,  16  or,  alternatively,  removing  the  broadcast  material  from  the  realm  of  indecency.  17 

 11  Infinity  Broadcasting  Corporation  of  Pennsylvania,  2  FCC  Rcd  2705  (1987)  (subsequent  history 
 omitted)  (citing  Pacifica  Foundation,  56  FCC  2d  94,  98  (1975),  affd  sub  nom.  FCC  v.  Pacifica  Foundation,  438  U.  S.  726  (1978)). 

 12  Industry  Guidance  on  the  Commissions  Case  Law  Interpreting  18  U.  S.  C.  1464  and  Enforcement 
 Policies  Regarding  Broadcast  Indecency  (  Indecency  Policy  Statement),  16  FCC  Rcd  7999,  8002  (2001)  (emphasis  in  original). 

 13  Id.  (emphasis  in  original).  In  Pacifica,  the  Court  emphasize[  d]  the  narrowness  of  [its]  holding  and  noted 
 that  under  the  Commission  rationale  that  it  upheld,  context  is  all-  important.  438  U.  S.  at  750. 
 14  Indecency  Policy  Statement,  16  FCC  Rcd  at  8003  (emphasis  in  original). 

 15  Id. 
 16  Id.  at  8009  (citing  Tempe  Radio,  Inc.  (KUPD-  FM),  12  FCC  Rcd  21828  (MMB  1997)  (forfeiture  paid) 
 (extremely  graphic  or  explicit  nature  of  references  to  sex  with  children  outweighed  the  fleeting  nature  of  the  references),  and  EZ  New  Orleans,  Inc.  (WEZB(  FM)),  12  FCC  Rcd  4147  (MMB  1997)  (forfeiture  paid)). 

 17  Indecency  Policy  Statement,  16  FCC  Rcd  at  8010,    20  (  the  manner  and  purpose  of  a  presentation  may 
 well  preclude  an  indecency  determination  even  though  other  factors,  such  as  explicitness,  might  weigh  in  favor  of  an  indecency  finding). 
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 8.  PTC  complains  about  four  scenes  contained  in  the  November  16,  2003,  episode  of  Arrested  Development.  After  review  of  the  Complaint  and  the  videotape  of  the  episode,  we 
 conclude  that  the  material  is  not  patently  offensive,  as  defined  by  Commission  precedent,  because  the  cited  dialogue  is  neither  sufficiently  graphic  nor  explicit.  18  As  PTC  acknowledges  in  its 
 Complaint,  virtually  all  of  the  language  to  which  it  objects  was  edited  from  the  program  prior  to  broadcast,  so  that  it  is  not  decipherable  by  viewers.  19  The  remaining  non-  edited  language  cited  in 
 the  Complaint  as  sexual  innuendo  is  ambiguous.  Consequently,  we  conclude  that  the  material  in  question  is  not  indecent.  20 

 III.  ORDERING  CLAUSES 
 9.  Accordingly,  IT  IS  ORDERED,  that  the  Complaint  alleging  that  Fox  Television  Stations,  Inc.,  licensee  of  Station  WTTG(  TV),  Washington,  D.  C.,  and  other  Fox  Affiliates 

 broadcast  indecent  material  contained  in  the  Arrested  Development  program  on  November  16,  2003,  in  violation  of  18  U.  S.  C.    1464  and  47  C.  F.  R.    73.3999,  is  hereby  DENIED. 

 10.  IT  IS  FURTHER  ORDERED,  that  copies  of  this  Memorandum  Opinion  and  Order  shall  be  sent  by  Certified  Mail,  Return  Receipt  Requested,  to  Fox  Television  Stations,  Inc., 
 5151  Wisconsin  Avenue,  N.  W.,  Washington,  D.  C.  20015,  and  to  the  Parents  Television  Council,  707  Wilshire  Boulevard,  #2075,  Los  Angeles,  California  90017. 

 FEDERAL  COMMUNICATIONS  COMMISSION 
 Marlene  H.  Dortch  Secretary 

 18  See  KSAZ  License,  Inc.,  Memorandum  Opinion  and  Order,  19  FCC  Rcd  15999,  16001,    6  (2004); 
 Complaints  Against  Various  Licensees  Regarding  Their  Airing  of  the  UPN  Network  Program  Buffy  the  Vampire  Slayer  on  November  20,  2001,  Memorandum  Opinion  and  Order,  19  FCC  Rcd  15995,  15998,    6 

 (2004). 
 19  Complaint  at  2,  3  (  These  are  extended  bleeps,  where  more  than  one  offensive  item  is  said,  but  you  cant 
 make  out  what  is  being  said;  These  are  extended  bleeps  where  you  cannot  decipher  what  the  character  is  saying,  but  it  offends  other  characters.).  Thus,  the  parentheticals  in  the  transcript  submitted  by  PTC  are,  in 

 virtually  all  cases,  PTCs  guess  regarding  what  the  deleted  word  was. 
 20  We  note  that,  in  the  Complaint,  PTC  cites  as  indecent  a  line  in  which  expletives  (stated  by  a  character 
 who  was  burned  by  the  corn  baller  implement)  are  edited  out,  leaving  the  word  Christ  at  the  end  of  the  exclamation.  The  9  th  Circuit  held  that  such  statements  are  not  a  violation  under  18  U.  S.  C.    1464.  See 

 Gagliardo  v.  United  States,  366  F.  2d  720,  725  (9  th  Cir.  1966)  (  God  damn  it  not  a  violation  under  18  U.  S.  C.    1464),  and  Warren  B.  Appleton,  28  FCC  2d  36  (Bcast  Bur.  1971)  (  damn  not  a  violation  under 
 18  U.  S.  C.    1464);  see  also  Burstyn  v.  Wilson,  343  U.  S.  495,  505  (1952)  (government  shall  not  suppress  real  or  imagined  attacks  upon  a  particular  religious  doctrine);  Raycom  America  (WMC-  TV),  Memorandum 
 Opinion  and  Order,  18  FCC  Rcd  4186  (2003). 
4