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###### Federal Communications Commission

          - [FCC File No. EB-00-IH-0089/FCC 01-90] 

# AGENCY:

Federal Communications Commission. 

# ACTION:

Notice; policy statement.

# SUMMARY:

This document was issued by the Federal Communications Commission to provide guidance to the broadcast industry regarding the case law interpreting 18 U.S.C. 1464 and the FCC's enforcement policies with respect to broadcast indecency. By summarizing the regulations and explaining the FCC's analytical approach to reviewing allegedly indecent material, the FCC provides a framework by which broadcast licensees can assess the legality of airing potentially indecent material. Commissioner Ness and Commissioner Furchtgott-Roth of the FCC issued separate statements available from the FCC. Commissioner Tristani of the FCC dissented and issued a statement available from the FCC. 

# FOR FURTHER INFORMATION CONTACT:

                        Norman Goldstein, Assistant Chief, or Catherine Withers, Attorney, Investigations and Hearings Division, Enforcement Bureau, Federal Communications Commission, (202) 418-1420. This document is available from the FCC's web site at                         *http://www.fcc.gov/​Bureaus/​Enforcement/​Orders/​2001/​fcc01090.doc*                         or you may visit the Reference Information Center at the FCC's headquarters located at 445 12th Street, SW., Room CY-A257, Washington, DC 20554. The FCC reference center is open to the public Monday through Thursday from 8 a.m. until 4:30 p.m. and Friday from 8 a.m. to 11:30 a.m. You may also reach the reference center at (202) 418-0270. As                               ( print page 21985)                            an alternative, information that is routinely available to the public can be obtained from International Transcription Services (ITS), a private government contractor. ITS has an office at the FCC's Washington, DC location and can be reached directly at (202) 857-3800.                     

# SUPPLEMENTARY INFORMATION:

                    It is a violation of federal law to broadcast obscene or indecent programming. 18 U.S.C. 1464. 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.[1]                                          The Policy Statement is divided into five parts. Section I gives an overview of the Policy Statement. Section II provides the statutory basis for indecency regulation and discusses the judicial history of such regulation. In addition, Section II explains that in accordance with judicial precedent, § 73.3999 of the Commission's rules limits the ban on the broadcasting of indecent programming so as to provide a “safe harbor” from 10 p.m. to 6 a.m. Thus, § 73.3999 provides that “[n]o licensee of a radio or television broadcast station shall broadcast on any day between 6 a.m. and 10 p.m. any material which is indecent.” 47 CFR 73.3999(b).                 

                    Section III describes the analytical approach the Commission uses in making indecency determinations. 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. In applying the “community standards for the broadcast medium” criterion, the Commission has ruled that the standard is not a local one, but rather is that of an average broadcast viewer or listener and not the sensibilities of any individual complainant.                 

                    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.                 

                    Section III also sets out the principal factors that have proved significant in our decisions to date : (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, Section III contains a comparison of cases that 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. The comparison of selected rulings is intended to illustrate the various factors that have proved significant in resolving indecency complaints. The cited material refers only to broadcast indecency actions and does not include any discussion of case law concerning indecency enforcement actions in other services regulated by this agency such as cable, telephone, or amateur radio.                 

Section IV describes the Commission's broadcast indecency enforcement process. 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, SW., Washington, DC 20554. 

                    If a complaint does not contain the supporting material described, 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. 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 CFR 0.311).                           ( print page 21986)    

                    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.                 

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. 

                    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.                 

Section V is the conclusion. The Commission has issued the Policy Statement to provide guidance to broadcast licensees regarding compliance with the Commission's indecency regulations. By summarizing the regulations and explaining the Commission's analytical approach to reviewing allegedly indecent material, the Commission provides a framework by which broadcast licensees can assess the legality of airing potentially indecent material. Numerous examples are provided in this document in an effort to assist broadcast licensees. However, the Policy Statement 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, the excerpts from broadcasts quoted in the Policy Statement are intended only as a research tool. A complete understanding of the material, and the Commission's analysis thereof, requires review of the tapes or transcripts and the Commission's rulings thereon. 

Federal Communications Commission. 

Magalie Roman Salas, 

Secretary. 

# Footnotes

1.                             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).                    
        Back to Citation      

[FR Doc. 01-10869 Filed 5-1-01; 8:45 am] 

BILLING CODE 6712-01-P