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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
Industry Guidance On the ) File No. EB-00-IH-0089
Commission's )
Case Law Interpreting 18 U.S.C. )
§ 1464 )
and Enforcement Policies )
Regarding
Broadcast Indecency
POLICY STATEMENT
Adopted: March 14, 2001 Released: April 6, 2001
By the Commission: Commissioners Ness and Furchtgott-Roth
issuing separate statements; Commissioner Tristani dissenting
and issuing a statement.
I. INTRODUCTION
The Commission issues this Policy Statement to provide guidance
to the broadcast industry regarding our case law interpreting 18
U.S.C. § 1464 and our enforcement policies with respect to
broadcast indecency. This document is divided into five parts.
Section I gives an overview of this document. Section II
provides the statutory basis for indecency regulation and
discusses the judicial history of such regulation. Section III
describes the analytical approach the Commission uses in making
indecency determinations. This section also presents a
comparison of selected rulings intended to illustrate the various
factors that have proved significant in resolving indecency
complaints. The cited material refers only to broadcast
indecency actions and does not include any discussion of case law
concerning indecency enforcement actions in other services
regulated by this agency such as cable, telephone, or amateur
radio. Section IV describes the Commission's broadcast indecency
enforcement process. Section V is the conclusion.
II. STATUTORY BASIS/JUDICIAL HISTORY
It is a violation of federal law to broadcast obscene or indecent
programming. Specifically, Title 18 of the United States Code,
Section 1464 (18 U.S.C. § 1464), prohibits the utterance of ``any
obscene, indecent, or profane language by means of radio
communication."1 Congress has given the Federal Communications
Commission the responsibility for administratively enforcing 18
U.S.C. § 1464. In doing so, the Commission may revoke a station
license, impose a monetary forfeiture, or issue a warning for the
broadcast of indecent material.2 See 47 U.S.C. Sections
312(a)(6) and 503(b)(1)(D).
The FCC's enforcement policy under Section 1464 has been shaped
by a number of judicial and legislative decisions. In
particular, because the Supreme Court has determined that obscene
speech is not entitled to First Amendment protection, obscene
speech cannot be broadcast at any time. 3 In contrast, indecent
speech is protected by the First Amendment, and thus, the
government must both identify a compelling interest for any
regulation it may impose on indecent speech and choose the least
restrictive means to further that interest. 4 Even under this
restrictive standard, the courts have consistently upheld the
Commission's authority to regulate indecent speech, albeit with
certain limitations.
FCC v. Pacifica Foundation, 438 U.S. 726 (1978), provides the
judicial foundation for FCC indecency enforcement. In that case,
the Supreme Court held that the government could constitutionally
regulate indecent broadcasts.5 In addition, the Court quoted the
Commission's definition of indecency with apparent approval.6
The definition, ``language or material that, in context, depicts
or describes, in terms patently offensive as measured by
contemporary community standards for the broadcast medium, sexual
or excretory activities or organs,'' has remained substantially
unchanged since the time of the Pacifica decision.7 Moreover,
the definition has been specifically upheld against
constitutional challenges in the Action for Children's Television
(ACT) cases in the D.C. Circuit Court of Appeals.8 Further, in
Reno v. ACLU, 521 U.S. 844 (1997), the U.S. Supreme Court struck
down an indecency standard for the Internet but did not question
the constitutionality of our broadcast indecency standard.
Rather, the Court recognized the ``special justifications for
regulation of the broadcast media that are not applicable to
other speakers.'' Reno v. ACLU, 521 U.S. at 868.9
Although the D.C. Circuit approved the FCC's definition of
indecency in the ACT cases, it also established several
restrictive parameters on FCC enforcement. The court's decisions
made clear that the FCC had to identify the compelling government
interests that warranted regulation and also explain how the
regulations were narrowly tailored to further those interests.
In ACT I, the court rejected as inadequately supported the
Commission's determination that it could reach and regulate
indecent material aired as late as 11:00 p.m., and remanded the
cases involved to the Commission for proceedings to ascertain the
proper scope of the ``safe harbor'' period, that is, the time
during which indecent speech may be legally broadcast. Before
the Commission could comply with the court's remand order,
however, Congress intervened and instructed the Commission to
adopt rules that enforced the provisions of 18 U.S.C. § 1464 on a
``24 hour per day basis.''10 The rule adopted to implement this
legislative mandate was stayed and was ultimately vacated by the
court in ACT II as unconstitutional. In 1992, responding to the
decision in ACT II, Congress directed the Commission to adopt a
new ``safe harbor'' - generally 12 midnight to 6:00 a.m., but
10:00 p.m. to 6:00 a.m. for certain noncommercial stations. The
Commission implemented this statutory scheme in January 1993.11
Before this rule could become effective, however, the court
stayed it pending judicial review. In 1995, the D.C. Circuit, en
banc, held in ACT III that there was not a sufficient
justification in the record to support a preferential ``safe
harbor'' period for noncommercial stations and that the more
restrictive midnight to 6:00 a.m. ``safe harbor'' for commercial
stations was therefore unconstitutional. The court concluded,
however, that the less restrictive 10:00 p.m. to 6:00 a.m. ``safe
harbor'' had been justified as a properly tailored means of
vindicating the government's compelling interest in the welfare
of children and remanded the case to the Commission ``with
instructions to limit its ban on the broadcasting of indecent
programs to the period from 6:00 a.m. to 10:00 p.m.'' ACT III,
58 F.3d at 669-70. The Commission implemented the court's
instructions by appropriately conforming Section 73.3999 of its
rules.12 These changes became effective on August 28, 1995.13
Thus, outside the 10:00 p.m. to 6:00 a.m. safe harbor, the courts
have approved regulation of broadcast indecency to further the
compelling government interests in supporting parental
supervision of children and more generally its concern for
children's well being. Act III, 58 F.3d at 661 (and cases cited
therein).14 The principles of enforcement articulated below are
intended to further these interests.
III. INDECENCY DETERMINATIONS
I.A. Analytical Approach
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).
Second, the broadcast must be patently offensive as measured by
contemporary community standards for the broadcast medium. In
applying the "community standards for the broadcast medium"
criterion, the Commission has stated:
The determination as to whether certain
programming is patently offensive is not a local
one and does not encompass any particular
geographic area. Rather, the standard is that of
an average broadcast viewer or listener and not
the sensibilities of any individual complainant.
WPBN/WTOM License Subsidiary, Inc., 15 FCC Rcd at 1841.15
In determining whether material is patently offensive, the full
context in which the material appeared is critically important.16
It is not sufficient, for example, to know that explicit sexual
terms or descriptions were used, just as it is not sufficient to
know only that no such terms or descriptions were used. Explicit
language in the context of a bona fide newscast might not be
patently offensive,17 while sexual innuendo that persists and is
sufficiently clear to make the sexual meaning inescapable might
be.18 Moreover, contextual determinations are necessarily highly
fact-specific, making it difficult to catalog comprehensively all
of the possible contextual factors that might exacerbate or
mitigate the patent offensiveness of particular material. 19 An
analysis of Commission case law reveals that various factors have
been consistently considered relevant in indecency
determinations. By comparing cases with analogous analytical
structures, but different outcomes, we hope to highlight how
these factors are applied in varying circumstances and the impact
of these variables on a finding of patent offensiveness.
I.B. Case Comparisons
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.
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.
III.A.1. Explicitness/Graphic Description Versus
Indirectness/Implication
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.
Following are examples of decisions where the explicit/graphic
nature of the description of sexual or excretory organs or
activities played a central role in the determination that the
broadcast was indecent.
WYSP(FM), Philadelphia, PA ``Howard Stern
Show''
God, my testicles are like down to the floor . . . you could
really have a party with these . . . Use them like Bocci
balls.
(As part of a discussion of lesbians) I mean to go around
porking other girls with vibrating rubber products . . .
Have you ever had sex with an animal? Well, don't knock it.
I was sodomized by Lambchop.
Indecent - Warning Issued. Infinity Broadcasting
Corporation of Pennsylvania (WYSP(FM)), 2 FCC Rcd 2705
(1987), aff'd 3 FCC Rcd 930 (1987), aff'd in part, vacated
in part on other grounds, remanded sub nom. Act I, 852 F.2d
1332 (D.C. Cir. 1988) (subsequent history omitted).
Excerpted material (only some of which is cited above)
consisted of ``vulgar and lewd references to the male
genitals and to masturbation and sodomy broadcast in the
context of . . . `explicit references to masturbation,
ejaculation, breast size, penis size, sexual intercourse,
nudity, urination, oral-genital contact, erections, sodomy,
bestiality, menstruation and testicles.''' 3 FCC Rcd at
932.
WSUC-FM, Cortland, NY ``I'm Not Your
Puppet'' Rap Song
The only thing that was on my mind, was just shoving my dick
up this bitch's behind. I looked at the girl and said,
babe, your ass ain't nothing but a base hit. I'm going to
have to get rid of your ass, yeah, 'cause you're on my dick,
dick, ding-a-ling. Popped my dick in her mouth, and we
rocked it back and forth. Now that she sucked my dick and
Tony fuck you in the ass. I pulled out my dick, popped it
in her mouth, and she sucked it.
Indecent - NAL Issued. State University of New York (WSUC-
FM), 8 FCC Rcd 456 (1993), forfeiture reduced 13 FCC Rcd
23810 (1998) (forfeiture paid). The Commission concluded
that the language used in this broadcast ``describes sexual
activities in patently offensive terms and is therefore
indecent.'' 8 FCC Rcd at 456.
WQAM(AM), Miami, FL ``Uterus Guy'' Song
I don't want to grow up, I'm a uterus guy. I want to spend
a week or so right here between your thighs. Inhale your
clam, with my head jammed by your quivering, crushing gams.
No, I don't want to get up or get a towel to dry, cause I
wouldn't be a uterus guy. I don't want to get up, I'm a
uterus guy and I know where to lick and chew exactly where
you like. You'll have more fun when I make you come, with
my nose between your thighs.
Indecent - NAL Issued. WQAM License Limited Partnership
(WQAM(AM)), 15 FCC Rcd 1475 (1999), aff'd 15 FCC Rcd 2518
(2000), recon. denied FCC 00-266, released July 26, 2000.
The Commission held that the ``song's sexual import is lewd,
inescapable and understandable.'' 15 FCC Rcd at 2520.
KROQ(FM), Los Angeles, CA ``You Suck''
Song
I know you're really proud cause you think you're well hung
but I think its time you learn how to use your tongue. You
say you want things to be even and you want things to be
fair but you're afraid to get your teeth caught in my pubic
hair. If you're lying there expecting me to suck your dick,
you're going to have to give me more than just a token lick.
. . . Go down baby, you suck, lick it hard and move your
tongue around. If you're worried about babies, you can
lower your risk, by giving me that special cunnilingus kiss.
. . . you can jiggle your tongue on my clit. Don't worry
about making me have an orgasm. . . . You asshole, you shit.
I know it's a real drag, to suck my cunt when I'm on the
rag. . . . You tell me it's gross to suck my yeast
infection. How do you think I feel when I gag on your
erection.
Indecent - NAL Issued. Infinity Broadcasting Corporation of
Los Angeles (KROQ(FM)), 13 FCC Rcd 25349 (MMB 1998), aff'd
15 FCC Rcd 10667 (EB 2000), petition for reconsideration
pending (graphically and explicitly describes sexual and
excretory organs or activities).
WXTB(FM), Clearwater, FL ``Bubba, The Love
Sponge''
Most women don't like swallowing, but I do. The trick is
you need to swallow at the right time. Do it when you're
deep throating. . . . I like pleasure giving, I like a
pleasure giving woman who really, really likes to enjoy
giving oral. . . . She does more than just go up and down,
she's creative by licking, nibbling and using overall
different techniques. . . . The sexy turn on for me is when
I . . . expel into my partner's mouth. . . . I don't mind
giving BJs . . . if a man doesn't get off, that means he
wasn't quite excited by my techniques.
Indecent - NAL Issued. Citicasters Co. (WXTB(FM)), 13 FCC
Rcd 22004 (1998), aff'd FCC 00-230, released June 27, 2000
(forfeiture paid).
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 he's
poking a chick and up from his pants came a bubbling crude.
Winky oil. Honey pot. Jail Bait. . . . So, he loaded up his
winky and he did it with Beverly. Big Breasts. Only 15
years old.
Indecent - NAL Issued. Narragansett Broadcasting Company of
California, Inc. (KSJO(FM)), 5 FCC Rcd 3821 (1990)
(forfeiture paid). ``Even in the cases of double entendre,
not only was the language understandable and clearly capable
of a specific sexual or excretory meaning but, because of
the context, the sexual and excretory import was
inescapable.'' 5 FCC Rcd at 3821.
KMEL(FM), San Francisco, CA ``Rick Chase Show'';
``Blow Me'' Song
Blow me, you hardly even know me, just set yourself below me
and blow me, tonight. Hey, a handy would certainly be
dandy, but it's not enough to slow (unintelligible) me, hey,
you gotta blow me all night. Hey, when you pat your lips
that way, I want you night and day, when you squeeze my
balls so tight. I want to blow my love, hey, with all my
might.
Indecent - NAL Issued. San Francisco Century Broadcasting,
L.P. (KMEL(FM)), 7 FCC Rcd 4857 (1992), aff'd 8 FCC Rcd 498
(1993) (forfeiture paid). Commission found that the
language dwelled on descriptions of sexual organs and
activities, ``was understandable and clearly capable of a
specific sexual meaning and, because of the context, the
sexual import was inescapable.'' 8 FCC Rcd at 498.
Compare the following case in which the material aired was deemed
not to be actionably indecent.
WFBQ(FM)/WNDE(AM), Indianapolis, IN ``Elvis'' and
``Power, Power, Power''
As you know, you gotta stop the King, but you can't kill him
. . . So you talk to Dick Nixon, man you get him on the
phone and Dick suggests maybe getting like a mega-Dick to
help out, but you know, you remember the time the King ate
mega-Dick under the table at a 095 picnic . . . you think
about getting mega-Hodgie, but that's no good because you
know, the King was a karate dude . . .
Power! Power! Power! Thrust! Thrust! Thrust! First it was
Big Foot, the monster car crunching 4x4 pickup truck. Well,
move over, Big Foot! Here comes the most massive power-
packed monster ever! It's Big Peter! (Laughter) Big Peter
with 40,000 Peterbilt horsepower under the hood. It's
massive! Big Peter! Formerly the Big Dick's Dog Wiener
Mobile. Big Peter features a 75-foot jacked up monster
body. See Big Peter crush and enter a Volvo. (Laughter) .
. . strapped himself in the cockpit and put Big Peter
through its paces. So look out Big Foot! Big Peter is
coming! Oh my God! It's coming! Big Peter! (Laughter)
Not Indecent. 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.
In assessing explicitness, the Commission also looks to the
audibility of the material as aired. If the material is
difficult or impossible to understand, it may not be actionably
indecent. However, difficulty in understanding part of the
material or an attempt to obscure objectionable material will not
preclude a finding of indecency where at least some of the
material is recognizable or understandable.
KGB-FM, San Diego, CA ``Sit on My Face''
Song
Sit on my face and tell me that you love me. I'll sit on
your face and tell you I love you, too. I love to hear you
moralize when I'm between your thighs. You blow me away.
Sit on my face and let me embrace you. I'll sit on your
face and then I'll love you (?) truly. Life can be fine, if
we both sixty-nine. If we sit on faces (?) the ultimate
place to play (?). We'll be blown away.
Indecent - NAL Issued. KGB, Inc. (KGB-FM), 7 FCC Rcd 3207
(MMB 1992), forfeiture reduced 13 FCC Rcd 16396 (1998)
(forfeiture paid). The song was found to be actionably
indecent despite English accent and ``ambient noise''
because the lyrics were sufficiently understandable. 7 FCC
Rcd at 3207.
WWKX(FM), Woonsocket, RI ``Real Deal Mike Neil
Show''
Douche bag, hey what's up, fu(Bleep)ck head? . . . You his
fuck (Bleep) ho or what? You his fuck (Bleep) bitch man,
where you suck his dick every night? . . . Suck some
di(Bleep)ck make some money for Howard and pay your pimp
okay?
Indecent - NAL Issued. 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.
III.A.2. Dwelling/Repetition versus Fleeting Reference
Repetition of and persistent focus on sexual or excretory
material have been cited consistently as factors that exacerbate
the potential offensiveness of broadcasts. In contrast, where
sexual or excretory references have been made once or have been
passing or fleeting in nature, this characteristic has tended to
weigh against a finding of indecency.
WXTB(FM), Clearwater, FL ``Bubba, The Love
Sponge''
Could you take the phone and rub it on you Chia Pet? Oh,
let me make sure nobody is around. Okay, hang on a second
(Rubbing noise). Okay I did it. . . . Now that really your
little beaver? That was mine. Your what? That was my
little beaver? Oh I love when a girl says beaver. Will you
say it again for me honey please? It was my little beaver.
. . . Will you say, Bubba come get my beaver? Bubba, would
come get my little beaver? . . . tell me that doesn't do
something for you. That is pretty sexy. . . . bring the
beaver. It will be with me. We got beaver chow. I can't
wait, will you say it for me one more time? Say what? My
little beaver or Bubba come get my little beaver? Okay,
Bubba come get my beaver. Will you say, Bubba come hit my
beaver? Will you say it? Bubba, come hit my beaver. That
is pretty sexy, absolutely. Oh, my God, beaver.
Indecent - NAL Issued. Citicasters Co. (WXTB(FM)), 13 FCC
Rcd 15381 (MMB 1998) (forfeiture paid).
WXTB(FM), Clearwater, FL ``Bubba, The Love
Sponge''
Well, it was nice big fart. I'm feeling very gaseous at
this point but there, so far has been no enema reaction, as
far as. There's been no, there's been no expelling? No
expelling. But I feel mucus rising. . . . Can't go like.
(Grunting sound) Pushing, all I keep doing is putting out
little baby farts. . . . on the toilet ready to go. . . .
Push it, strain it. It looks normal. Just average,
average. Little rabbit one. Little rabbit pellets. I
imagine maybe, we'll break loose. Push hard Cowhead. I'm
pushing, I got veins popping out of my forehead. Go ahead,
those moles might pop right off. You can tell he's pushing.
I'm out of breath. One more, last one. One big push.
Indecent - NAL Issued. Citicasters Co. (WXTB(FM)), 13 FCC
Rcd 22004 (1998), aff'd FCC 00-230, released June 27, 2000
(forfeiture paid). The cited material dwells on excretory
activities and the Commission found it to be patently
offensive.
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 announcer's use of single expletive''
does not ``warrant further Commission consideration in light
of the isolated and accidental nature of the broadcast.''
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
What's the worst part of having sex with your brother? . . .
You got to fix the crib after it breaks and then you got to
clean the blood off the diaper.
Indecent - NAL Issued. 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.
III.A.3. Presented in a Pandering or Titillating
Manner or for Shock Value
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
ho's and basically that we could come over and watch them.
We got over to the house. . . . They start making out a
little bit. They go to bed. They get, they start, they're
starting like a mutual 69 on the bed. Guido all of a sudden
whips it out. . . . Rather than take care of each other . .
. Guido is like knee deep with the butch bitch and all of a
sudden here is the fem bitch looking at me. Hot. I get
crazy. I hook up a little bit. Then Guido says, hey, I
done got mine, how about we switching? So I went into the
private bedroom with the butch bitch and then got another
one.
Indecent - NAL Issued. Jacor Broadcasting Corporation
(WEBN(FM)), 13 FCC Rcd 4152 (MMB 1997), aff'd 13 FCC Rcd
5825 (MMB 1997) (forfeiture paid).
WXTB(FM), Clearwater, FL ``Bubba, The Love
Sponge''
Take the phone and I want you to rub it on it hard. I want
to hear the telephone, okay? Okay honey. (Rubbing noises)
You hear that? A little bit longer though please. I'm on
the edge right now. A little bit faster. (Rubbing noises)
You get that? That's nice. Could you do it again and then
scream my name out, please? Like you're having an orgasm?
Yeah. Go ahead. Okay. (Rubbing noises) Mm mm. That's it?
It's got to be longer than that Ginny, come on work with me.
Be a naughty girl. Be a little slutty bitch that you are.
One more time. Okay. (Rubbing Noises).
Indecent - NAL Issued. Citicasters Co. (WXTB(FM)), 13 FCC
Rcd 15381 (MMB 1998) (forfeiture paid).
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 ``Schindler's
List'' Film
WTOM-TV, Cheboygan, MI
``Schindler's List'' is a film that depicted a historical
view of World War II and wartime atrocities. The movie
contained depictions of adult frontal nudity.
Not Indecent. WPBN/WTOM License Subsidiary, Inc. (WPBN-TV
and WTOM-TV), 15 FCC Rcd 1838 (2000). The Commission ruled
that full frontal nudity is not per se indecent. Rather,
the ``full context'' of the nudity is controlling. Looking
at ``the subject matter of the film, the manner of its
presentation, and the warnings that accompanied the
broadcast,'' the Commission held that the nudity in
``Schindler's List'' was not actionably indecent.
WFLA(AM), Tampa, FL Announcer Comments
Announcers allegedly referred to complainant, Chuck Harder,
as ``Suck Harder,'' ``Suck,'' and ``Suckie'' throughout the
broadcast and called the complainant a ``useless piece of
crap.'' Also referred to complainant's network, the Sun
Radio Network as ``Suck Harder Radio Network.''
Not Indecent. 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.
Compare the following cases where licensees unsuccessfully
claimed that, because of the context of the broadcasts (i.e.,
alleged news stories), the broadcasts were not pandering.
KSD-FM, St. Louis, MO ``The Breakfast
Club''
I've got this Jessica Hahn interview here in Playboy. I
just want to read one little segment . . . the good part.
"[Jim Bakker] has managed to completely undress me and he's
sitting on my chest. He's really pushing himself, I mean
the guy was forcing himself. He put his penis in my mouth .
. . I'm crying, tears are coming, and he is letting go. The
guy came in my mouth. My neck hurts, my throat hurts, my
head feels like it's going to explode, but he's frustrated
and determined, determined enough that within minutes he's
inside me and he's on top and he's holding my arms. He's
just into this, he's inside me now. Saying, when you help
the shepherd, you're helping the sheep."
(followed by air personality making sheep sounds) This was
rape. Yeah, don't you ever come around here Jim Bakker or
we're going to cut that thing off.
Indecent - NAL Issued. Pacific and Southern Company, Inc.
(KSD-FM), 6 FCC Rcd 3689 (MMB 1990) (forfeiture paid). The
broadcast contained excerpts from a Playboy magazine account
of the alleged rape of Jessica Hahn by the Rev. Jim Bakker.
The licensee explained the broadcast was newsworthy ``banter
by two on-air personalities reflecting public concern,
criticism, and curiosity about a public figure whose
reputedly notorious behavior was a widespread media issue at
the time.'' Responding to the licensee's argument, the Mass
Media Bureau stated that "although the program . . .
arguably concerned an incident that was at the time `in the
news,' the particular material broadcast was not only
exceptionally explicit and vulgar, it was . . . presented in
a pandering manner. In short, the rendition of the details
of the alleged rape was, in context, patently offensive."
6 FCC Rcd at 3689.
KNON(FM), Dallas, TX ``I Want to Be a
Homosexual'' Song
But if you really want to give me a blowjob, I guess I'll
let you as long as you respect me in the morning. Suck it
baby. Oh yeah, suck it real good. . . . Are you sure this
is your first rim job?. . . Stick it up your punk rock ass.
You rub your little thing, when you see phony dikes in
Penthouse magazine. . . . Call me a faggot, call me a butt-
loving fudge-packing queer. . . You rub your puny thing,
when you see something (?) pass you on the street.
Indecent - NAL Issued. Agape Broadcasting Foundation, Inc.
(KNON(FM)), 9 FCC Rcd 1679 (MMB 1994), forfeiture reduced 13
FCC Rcd 9262 (MMB 1998) (forfeiture paid). Licensee claimed
that ```the words and the song constitute political speech'
aired in a good faith attempt to present meaningful public
affairs programming . . . to challenge those who would use
such language to stigmatize . . . members of the gay
community.'' 13 FCC Rcd at 9263. The Mass Media Bureau
responded that the licensee has ``considerable discretion as
to the times of the day . . . when it may broadcast indecent
material. ... Consequently, we find unavailing Agape's
argument that, in essence, its duty to air public affairs
programming required a mid-afternoon presentation of lyrics
containing repeated, explicit, and vulgar descriptions of
sexual activities and organs.'' Id.
KSJO(FM), San Jose, California Lamont &
Tonelli Show
``...she should go up and down the shaft about five times,
licking and sucking and on the fifth swirl her tongue around
the head before going back down....''
``Show us how its done'' (evidently the guest had some sort
of a prop).
``Well, if this was a real penis, it would have a ****ridge,
I would like (sic) around the ridge like this...''
[laughter, comments such as `oh yeah, baby'].
Indecent - NAL Issued. 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.''
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
The Commission does not independently monitor broadcasts for
indecent material. Its enforcement actions are based on
documented complaints of indecent broadcasting received from the
public. Given the sensitive nature of these cases and the
critical role of context in an indecency determination, it is
important that the Commission be afforded as full a record as
possible to evaluate allegations of indecent programming. In
order for a complaint to be considered, our practice is that it
must generally include: (1) a full or partial tape or transcript
or significant excerpts of the program;20 (2) the date and time
of the broadcast; and (3) the call sign of the station involved.
Any tapes or other documentation of the programming supplied by
the complainant, of necessity, become part of the Commission's
records and cannot be returned. Documented complaints should be
directed to the FCC, Investigations and Hearings Division,
Enforcement Bureau, 445 Twelfth Street, S.W., Washington, D.C.
20554.
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.
If, however, the staff determines that a documented complaint
meets the subject matter requirements of the indecency definition
and the material complained of was aired outside "safe harbor"
hours, then the broadcast at issue is evaluated for patent
offensiveness. Where the staff determines that the broadcast is
not patently offensive, the complaint will be denied. If,
however, the staff determines that further enforcement action
might be warranted,21 the Enforcement Bureau, in conjunction with
other Commission offices, examines the material and decides upon
an appropriate disposition, which might include any of the
following: (1) denial of the complaint by staff letter based upon
a finding that the material, in context, is not patently
offensive and therefore not indecent; (2) issuance of a Letter of
Inquiry (LOI) to the licensee seeking further information
concerning or an explanation of the circumstances surrounding the
broadcast; (3) issuance of a Notice of Apparent Liability (NAL)
for monetary forfeiture; and (4) formal referral of the case to
the full Commission for its consideration and action.22
Generally, the last of these alternatives is taken in cases where
issues beyond straightforward indecency violations may be
involved or where the potential sanction for the indecent
programming exceeds the Bureau's delegated forfeiture authority
of $25,000 (47 C.F.R. § 0.311).
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'').
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.
V. CONCLUSION
The Commission issues this Policy Statement to provide guidance
to broadcast licensees regarding compliance with the Commission's
indecency regulations.23 By summarizing the regulations and
explaining the Commission's analytical approach to reviewing
allegedly indecent material, the Commission provides a framework
by which broadcast licensees can assess the legality of airing
potentially indecent material. Numerous examples are provided in
this document in an effort to assist broadcast licensees.
However, this document is not intended to be an all-inclusive
summary of every indecency finding issued by the Commission and
it should not be relied upon as such. There are many additional
cases that could have been cited. Further, as discussed above,
the excerpts from broadcasts quoted in this document are intended
only as a research tool. A complete understanding of the
material, and the Commission's analysis thereof, requires review
of the tapes or transcripts and the Commission's rulings thereon.
VI. ORDERING CLAUSE
Accordingly, it is ORDERED that this Policy Statement is ADOPTED.
FEDERAL COMMUNICATIONS COMMISSION
Magalie Roman Salas
1. Secretary
Separate Statement of Commissioner Susan Ness
In Re: Industry Guidance on the Commission's Case Law
Interpreting
18 U.S.C. 1464 and Enforcement Policies Regarding Broadcast
Indecency
Our enforcement of the broadcast indecency statute compels
the FCC to reconcile two competing fundamental obligations:
(1) to ensure that the airwaves are free of indecent
programming material during prescribed hours when children
are most likely to be in the audience; and (2) to respect
the First Amendment rights of broadcasters regarding program
content.
Understandably, the public is outraged by the increasingly
coarse content aired on radio and television at all hours of
the day, including times when children are likely to be
listening or watching. The flood of letters and e-mails we
receive reflect a high degree of anger. As a parent, I
share the public's frustration. Many parents feel that they
cannot enjoy watching daytime or primetime television with
their children for fear that their youngsters will be
exposed to indecent material - content that just a few years
ago would have been unimaginable on broadcast television.
Despite an onslaught of on-air smut, the Commission
necessarily walks a delicate line when addressing content
issues, and must be careful not to tread on the First
Amendment -- the constitutional bulwark of our free society.
Even words that might be construed as indecent are subject
to some constitutional protection against government
regulation.24
That said, the Supreme Court has seen fit, despite declining
broadcast audience shares, to reaffirm the FCC's broadcast
indecency enforcement role, given the ``pervasive'' and
``invasive'' characteristics of the free over the air
broadcast medium.25 Our Policy Statement on indecency
reconciles our statutory mandate and constitutional
obligation by providing helpful guidance to broadcasters and
the public alike. The guidance we offer - a restatement of
existing statutory, regulatory, and judicial law -
establishes a measure of clarity in an inherently subjective
area.
Recommended Procedural Improvements
We should strive to make our complaint procedures as user-
friendly as possible.26 I believe that our complaint
process could be improved if, prior to acting on an
indecency complaint, the Commission routinely forwarded the
complaint to the licensee in question. The Policy Statement
concedes that in ``many [indecency] cases, the station may
not be aware that a complaint has been filed.''27 Moreover,
many consumers feel that the Commission mechanically
dismisses their complaints. I do not believe that
broadcasters' First Amendment rights would be threatened if
we were to send broadcasters a courtesy copy of complaints
filed with the FCC. Indeed, most broadcasters want to be
made aware of audience complaints. And consumers would be
reassured that their views were being treated seriously.
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.
2.
3. Separate Statement of Commissioner Harold W.
Furchtgott-Roth
4.
5. In the Matter of Guidance on the Commission's Case
Law Interpreting
6. 18 U.S.C. Section 1464 and Enforcement Policies
Regarding Broadcast Indecency
The Commission is obliged, under a settlement agreement, to
issue guidance on its broadcast indecency policies. As the
courts have noted, there is a certain ``vagueness inherent
in [this] subject matter.''28 I find that the policy
statement establishes necessary boundaries for this elusive
and highly subjective area of the law.
I must note, however, that Commission action to enforce the
indecency guidelines would set the stage for a new
constitutional challenge regarding our authority to regulate
content. To be sure, Red Lion v. FCC29 and its progeny, FCC
v. Pacifica,30 have not yet been overruled. Nevertheless,
their continuing validity is highly doubtful from both an
empirical and jurisprudential point of view.31
If rules regulating broadcast content were ever a
justifiable infringement of speech, it was because of the
relative dominance of that medium in the communications
marketplace of the past.32 As the Commission has long
recognized, the facts underlying this justification are no
longer true.33 Today, the video marketplace is rife with an
abundance of programming,34 distributed by several types of
content providers.35 A competitive radio marketplace is
evolving as well, with dynamic new outlets for speech on the
horizon.36 Because of these market transformations, the
ability of the broadcast industry to corral content and
control information flow has greatly diminished.37 In my
judgment, as alternative sources of programming and
distribution increase, broadcast content restrictions must
be eliminated.
For these reasons, I believe that the lenient constitutional
standard for reviewing broadcast speech, formally announced
in Red Lion, rests on a shaky empirical foundation.38
Technology, especially digital communications, has advanced
to the point where broadcast deregulation is not only
warranted, but long overdue. In my view, the bases for
challenging broadcast indecency has been well laid, and the
issue is ripe for court review.39
I must note my amazement that it has taken over seven years
for the Commission to fulfill its obligation to issue this
item. While broadcast indecency is a delicate issue to
discuss, it has not benefited the industry or the Commission
to ignore the matter. I commend the Chairman for taking the
initiative to move this item. Norm Goldstein and others
staff members deserve special credit for crafting a document
that makes the best of a difficult situation for the
Commission.
With these observations in mind, I vote to adopt this policy
statement.
7.
8.
9.
Dissenting Statement of Commissioner Gloria Tristani
10. IN THE MATTER OF INDUSTRY GUIDANCE ON THE
COMMISSION'S CASE LAW INTERPRETING
11. 18 U.S.C. §1464 AND ENFORCEMENT POLICIES REGARDING
BROADCAST INDECENCY, EB
12. 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 Agency's
attention and resources away from the ongoing problem
of lax enforcement, which is a pressing concern of
America's citizens.
The Statement notes that on February 22, 1994 the
Commission entered into a Settlement Agreement with
Evergreen Media Corporation (hereinafter
``Agreement'').40 At fn 23 the Statement cites the
terms of the Agreement as the source of our obligation
to produce this Statement:
Specifically, in paragraph 2(b) of the
settlement agreement, the Commission
agreed to "publish industry guidance
relating to its caselaw interpreting 18
U.S.C. § 1464 and the FCCs enforcement
policies with respect to broadcast
indecency.''41
The Agreement actually imposed a significantly more
restricted obligation.
Within nine months of the date of this
Agreement, the FCC shall publish
industry guidance relating to its
caselaw interpreting 18 U.S.C. § 1464
and the FCCs enforcement policies with
respect to broadcast indecency.42
Six and one half years later, it is clear the FCC
did not observe the terms of the Agreement. While I
cannot support the FCC's failure to comply with the
timeline set forth in the original Agreement, the
record does not disclose a single effort by Evergreen
to seek specific performance under the Agreement. It
is well settled that ``equity aids the vigilant, not
those who slumber on their rights,'' and doctrines such
as laches are designed to promote diligence and prevent
enforcement of stale claims.43 The public interest is
not served by permitting Evergreen to sit silently on
the sidelines while Commission after Commission failed
to act. Even if the FCC shirked its duty under the
Agreement, as long as Evergreen retained the benefit of
dismissal of indecency cases against it as set out in
the Agreement, a strong case exists that Evergreen
ratified this agency's inaction for almost 7 years.44
If Evergreen Media Corporation had an enforceable
interest in the Agreement, it has long since been
waived.
Moreover, the obligation to issue the Statement
was subject to several conditions precedent that bound
Evergreen Media.45 The Statement itself does not
disclose whether Evergreen complied with its
obligations, and with the exception of noting payment
of $10,000 forfeiture, the record on file at the
Commission is silent on the same point. FCC Mass Media
Bureau records disclose that Evergreen Media no longer
owns the license to which the Agreement's terms
attached. Finally, the Agreement does not bind the
Commission to provide to Evergreen's assigns the relief
set forth in the Agreement.46 In the absence of the
party executing the Agreement, and no successor to
accede to those interests, it appears there is no
extant legal duty or enforceable right upon which the
issuance of the Statement can be based.
I turn next to the underpinnings of the need for
this statement. The Statement provides:
The Commission issues this Policy
Statement to provide guidance to the
broadcast industry regarding our case
law interpreting 18 U.S.C. § 1464 and
our enforcement policies with respect to
broadcast indecency.47
First, settlement of a case involving a single licensee
should not compel the FCC to adopt our most significant
industry-wide Policy Statement on this subject,
particularly when doing so does not serve the public
interest. Second, there is nothing in the record
demonstrating that Evergreen Media failed to understand
the FCC's, or the U.S. Supreme Court's, cases on
broadcast indecency. In fact Evergreen agreed to issue
to its employees a ``policy statement'' that was to be
based upon ``the FCC's definition of broadcast
indecency.''48 It his difficult to understand how
Evergreen could both issue a policy statement
containing the FCC's definition of indecency to its
employees and simultaneously be unable to understand
the FCC's definition. But leaving that quirk aside,
there is simply no proof that broadcast licensees are
in need of this Policy Statement. No factual basis
exists for concluding that confusion about the
standards or overreaching enforcement by the FCC
requires this Statement.
Moreover, I am aware of no rush of inquiries by
broadcast licensees seeking to learn whether their
programs comply with our indecency caselaw. In the
absence of such requests, this Policy Statement will
likely become instead a ``how-to'' manual for those
licensees who wish to tread the line drawn by our
cases. It likely may lead to responses to future
enforcement actions that cite the Statement as
establishing false safe harbors. In the absence of
proof that the Statement addresses concerns supported
by the FCC's history of enforcement, or the record of
the Evergreen case, the Statement is nothing more than
a remedy in search of a problem. It would better serve
the public if the FCC got serious about enforcing the
broadcast indecency standards. For these reasons, I
dissent.
_________________________
1 Obscene and profane language and depictions are not within the
scope of this Policy Statement.
2 Although Section 1464 is a criminal statutue, the Commission
has authority to impose civil penalties for the broadcast of
indecent material without regard to the criminal nature of the
statute. FCC v. Pacifica Foundation, 438 U.S. 726, 739, n. 13
(1978); see also Action for Children's Television v. FCC, 852
F.2d 1332, 1335 (D.C.Cir. 1988) (see n. 8 for full case history)
(Commission has authority to sanction licensees for broadcast of
indecent material). The Department of Justice is responsible for
prosecution of criminal violations of the statute.
3 See Miller v. California, 413 U.S. 15 (1973), reh'g. denied,
414 U.S. 881 (1973); Sable Communications of California, Inc. v.
FCC, 492 U.S. 115 (1989); 47 C.F.R. § 73. 3999(a). Obscene
speech is defined by a three-part test: (1) an average person,
applying contemporary community standards, must find that the
material, as a whole, appeals to the prurient interest; (2) the
material must depict or describe, in a patently offensive way,
sexual conduct specifically defined by applicable law; and (3)
the material, taken as a whole, must lack serious literary,
artistic, political, or scientific value. Miller v. California,
413 U.S. at 24.
4 Sable v. FCC, 492 U.S. at 126.
5 Id. at 748-50 (upholding Commission declaratory order that
afternoon broadcast of a recording of a 12 minute monologue
entitled ``Filthy Words'' was indecent as broadcast); see also
742-47 (Stevens, J.) and 757-61 (Powell, J.).
6 Id. at 732.
7 Enforcement of Prohibitions Against Broadcast Indecency in 18
U.S.C. § 1464, 8 FCC Rcd 704, n. 10 (1993). See also Action for
Children's Television v. FCC, 852 F.2d 1332, 1338 (D.C.Cir. 1988)
and Action for Children's Television v. FCC , 58 F.3d 654, 657
(D.C. Cir. 1995) (see n. 8 for full case history).
8 Action for Children's Television v. FCC, 852 F.2d 1332, 1339
(D.C.Cir. 1988) (``ACT I''); Action for Children's Television v.
FCC, 932 F.2d 1504, 1508 (D.C. Cir. 1991), cert. denied, 112 S.
Ct. 1282 (1992) (``ACT II''); Action for Children's Television v.
FCC , 58 F.3d 654, 657 (D.C. Cir. 1995), cert. denied, 116 S. Ct.
701 (1996) (``ACT III'').
9 These special justifications included the history of extensive
government regulation of the broadcast medium, the scarcity of
available frequencies at its inception, and broadcast's
``invasive'' nature. Id. See also Commission's Forfeiture
Policy Statement and Amendment of Section 1.80 of the Rules to
Incorporate the Forfeiture Guidelines, 15 FCC Rcd 303, 305-06
(1999) (``courts have repeatedly upheld the Commission's
indecency standard'').
10 Making Appropriations for the Departments of Commerce,
Justice, and State, the Judiciary and Related Agencies for the
Fiscal Year Ending September 30, 1989, and for Other Purposes,
Pub. L. No. 100-459, Section 608, 102 Stat. 2186, 2228 (1988).
11 Public Telecommunications Act of 1992, Pub. L. No. 102-356, §
16(a), 106 Stat. 949, 954 (1992); Enforcement of Prohibitions
Against Broadcast Indecency in 18 U.S.C. § 1464, Report and
Order, 8 FCC Rcd 704 (1993).
12 Enforcement of Prohibitions Against Broadcast Indecency in 18
U.S.C. § 1464, Memorandum Opinion and Order, 10 FCC Rcd 10558
(1995).
13 60 FR 44439 (August 28, 1995).
14 The Commission has also identified ``protection of the home
against intrusion by offensive broadcasts'' as a compelling
government interest. The court did not address the validity of
that interest. ACT III, 58 F.3d at 660-61. The Supreme Court has
noted, however, that the ``uniquely pervasive presence'' of the
broadcast media, with the audience continually tuning in and out,
so as to make content warnings less effectual, is a reason for
affording broadcast media more limited First Amendment
protections as compared to other forms of communications. FCC v.
Pacifica Foundation, 438 U.S. at 748-49.
15 The Commission's interpretation of the term ``contemporary
community standards'' flows from its analysis of the definition
of that term set forth in the Supreme Court's decision in Hamling
v. United States, 418 U.S. 87 (1974), reh'g denied, 419 U.S. 885
(1974). In Infinity Broadcasting Corporation of Pennsylvania
(WYSP(FM)), 3 FCC Rcd 930 (1987) (subsequent history omitted),
the commission observed that in Hamling, which involved
obscenity, ``the Court explained that the purpose of
`contemporary community standards' was to ensure that material is
judged neither on the basis of a decisionmaker's personal
opinion, nor by its effect on a particularly sensitive or
insensitive person or group.'' 3 FCC Rcd at 933, citing 418 U.S.
at 107. The Commission also relied on the fact that the Court in
Hamling indicated that decisionmakers need not use any precise
geographic area in evaluating material. 3 FCC Rcd at 933, citing
418 U.S. at 104-05. Consistent with Hamling, the Commission
concluded that its evaluation of allegedly indecent material is
``not one based on a local standard, but one based on a broader
standard for broadcasting generally.'' 3 FCC Rcd at 933.
16 WPBN/WTOM License Subsidiary, Inc., 15 FCC Rcd at 1841;
Infinity Broadcasting Corp., 3 FCC Rcd 930, 931-32 (1987), aff'd
in part, vacated in part, remanded sub nom. Act I, 852 F.2d 1332
(D.C. Cir. 1988) (subsequent history omitted).
17 Peter Branton, 6 FCC Rcd 610 (1991), aff'd sub nom. Branton v.
FCC, 993 F.2d 906 (D.C. Cir. 1993), cert. denied 511 U.S. 1052
(1994).
18 See Great American Television and Radio Company, Inc.
(WFBQ(FM)), 6 FCC Rcd 3692 (MMB 1990) ("Candy Wrapper").
19 See e.g., Infinity Broadcasting Corp., 3 FCC Rcd 930, 931-32
(1987), aff'd in part, vacated in part on other grounds, remanded
sub nom. Act I, 852 F.2d 1332 (D.C. Cir. 1988) (subsequent
history omitted).
20 See Citicasters Co., licensee of Station KSJO(FM), San Jose,
California, 15 FCC Rcd 19095 (EB 2000) (forfeiture paid) (``While
the complainant did not provide us with an exact transcript of
the broadcast, we find that she has provided us with sufficient
context to make the determination that the broadcast was
indecent.'').
21 In Act IV, the court rejected a facial challenge to the
Commission's procedures for imposing forfeitures for the
broadcast of indecent materials. Action for Children's
Television v. FCC, 59 F.3d 1249 (D.C. Cir. 1995), cert. denied,
116 S. Ct. 773 (1996) (``Act IV'').
22 This section discusses the typical process. The Commission
also has authority to send forfeiture cases to a hearing, in
which case the procedures discussed here differ. See 47 U.S.C. §
503(b)(3). See also 47 U.S.C. § 312(b) (revocation hearing for
violation of 18 U.S.C. § 1464).
23 This Policy Statement addresses the February 22, 1994,
Agreement for Settlement and Dismissal with Prejudice between the
United States of America, by and through the Department of
Justice and Federal Communications Commission, and Evergreen
Media Corporation of Chicago, AM, Licensee of Radio Station
WLUP(AM). Specifically, in paragraph 2(b) of the settlement
agreement, the Commission agreed to ``publish industry guidance
relating to its caselaw interpreting 18 U.S.C. § 1464 and the
FCC's enforcement policies with respect to broadcast indecency.''
United States v. Evergreen Media Corp., Civ. No. 92 C 5600 (N.D.
Ill., E. Div. 1994). The settlement agreement also provides that
the forfeiture order imposed in Evergreen Media Corporation of
Chicago AM WLUP(AM)), 6 FCC Rcd 502 (MMB 1991), is null and void
and expunged from the record. It further specifies that the
Notice of Apparent Liability issued to WLUP on February 25, 1993,
Evergreen Media Corporation of Chicago AM (WLUP(AM)), 8 FCC Rcd
1266 (1993), became null and void and expunged from the record
six months from the date of the agreement. Accordingly, those
decisions are officially vacated.
24 FCC v. Pacifica Foundation, 438 U.S. 726, 746 (1978)
(while offensive words might ``ordinarily lack literary,
political, or scientific value, they are not entirely
outside the protection of the First Amendment), cf. id. at
745 (``obscenity may be wholly prohibited'').
25 See, Reno v. ACLU, 521 U.S. 844, 868 (1997).
26 The Policy Statement is careful to point out that
complaints need not be letter perfect, see, e.g., n. 20
(citing Bureau decision that an inexact transcript may be
sufficient to meet procedural requirements).
27 Policy Statement at para. 24.
28Action for Children's Television v. FCC, 852 F.2d 1332,
1338 (1998) (internal quotation and citation omitted).
29395 U.S. 367 (1969).
30438 U.S. 726 (1978).
31Since Pacifica, the Courts have repeatedly struck down
indecency regulations and other content-based restrictions.
See, e.g., United States v. Playboy Entertainment Group,
Inc., 120 S.Ct. 1878 (2000) (striking down statutory adult
cable channel scrambling requirements); Greater New Orleans
Broadcasting Ass'n v. U.S., 527 U.S. 173 (1999) (striking
down the statutory and regulatory bans on casino advertising
for broadcast stations); Reno v. ACLU, 117 S.Ct. 2329 (1997)
(striking down statutory internet indecency requirements);
Denver Area Educ. Telecomms. Consortium, Inc. v. FCC, 518
U.S. 727 (1996) (striking down certain statutory indecency
requirements for commercial leased access and public access
channels on cable television systems); and Sable
Communications v. FCC, 492 U.S. 115 (1989) (striking down a
ban on indecent telephone messages). See also, Time Warner
Entertainment Co. v. FCC, __ F.3d. __ (D.C. Cir. 2001)
(striking down FCC cable ownership cap and channel occupancy
limits); and Charter Communications v. County of Santa Cruz,
__ F.Supp. __ (N.D. Cal. 2001) (striking down local cable
franchise transfer requirements).
32See, 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").
33See 1985 Fairness Report, 102 FCC 2d 145, 198-221 (1985);
Syracuse Peace Council, 2 FCC Rcd 5043, 5053 (1985).
34There 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.
35Cable 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.
36Satellite 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.
37See 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).
38It 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.
39Dissenting Statement of Commissioner Harold W. Furchtgott-
Roth, In the Matter of 1998 Biennial Regulatory Review:
Review of the Commission's Broadcast Ownership Rules and
Other Rules Adopted Pursuant to Section 202 of the
Communications Act (rel. June 20, 2000).
40 See United States v. Evergreen Media Corp., Civ. No. 92 C
5600 (N.D. Ill., E. Div. 1994).
41 See Policy Statement at p. 17-18, n.23.
42 See Settlement Agreement at p. 3.
43 See e.g. Powell v. Zuckert, 366 F.2d 634, 636
(D.C.Cir.1966).
44 See e.g., Buffum v. Peter Barceloux Co., 289 U.S. 227,
234 (1933).
45 The Agreement provides the parties exchanged
``consideration and mutual promises hereinafter stated.''
See Settlement Agreement at p. 2 The Agreement describes,
at Para. 3, several actions to be undertaken by Evergreen.
The Agreement is a form of an executory contract the terms
of which require timely satisfaction to constitute
compliance. Failure by either party to perform would make
the Agreement voidable or unenforceable.
46 See Settlement Agreement at p. 4.
47 See Statement at p.1.
48 See Settlement Agreement, at p. 3.