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FCC & USA v. ABC, Inc. & Fox Television Stations, Inc., et al.

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Released: April 21, 2011

No.

In the Supreme Court of the United States
FEDERAL COMMUNICATIONS COMMISSION
AND UNITED STATES OF AMERICA, PETITIONERS
v.
FOX TELEVISION STATIONS, INC., ET AL.
FEDERAL COMMUNICATIONS COMMISSION
AND UNITED STATES OF AMERICA, PETITIONERS
v.
ABC, INC., ET AL.
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

NEAL KUMAR KATYAL
Acting Solicitor General
Counsel of Record
TONY WEST
Assistant Attorney General
A
MALCOLM L. STEWART
USTIN C. SCHLICK
General Counsel
Deputy Solicitor General
P
JOSEPH R. PALMORE
ETER KARANJIA
Deputy General Counsel
Assistant to the Solicitor
General
JACOB M. LEWIS
THOMAS M. BONDY
Associate General Counsel
ANNE MURPHY
NANDAN M. JOSHI
Attorneys
Counsel
Department of Justice
Federal Communications
Washington, D.C. 20530-0001
Commission
SupremeCtBriefs@usdoj.gov
Washington, D.C. 20554
(202) 514-2217

QUESTIONS PRESENTED

1. Whether the court of appeals erred in invalidat-
ing a finding by the Federal Communications Commis-
sion (FCC) that a broadcast including expletives was
indecent within the meaning of statutory and regulatory
prohibitions on indecent broadcasts, on the ground that
the FCC's context-based approach to determining inde-
cency is unconstitutionally vague in its entirety.
2. Whether the court of appeals erred in invalidat-
ing a finding by the FCC that a broadcast including nu-
dity was indecent within the meaning of statutory and
regulatory prohibitions on indecent broadcasts, on the
ground that the FCC's context-based approach to deter-
mining indecency is unconstitutionally vague in its en-
tirety.
(I)

PARTIES TO THE PROCEEDING

Petitioners are the Federal Communications Com-
mission and the United States of America.
The following respondents were petitioners in the
court of appeals in Fox Televisions Stations v. FCC
(App., infra, 1a-34a): Fox Television Stations, Inc., CBS
Broadcasting Inc., WLS Television, Inc., KTRK Televi-
sion, Inc., KMBC Hearst-Argyle Television, Inc., and
ABC Inc.
The following respondents were intervenors in the
court of appeals in Fox Televisions Stations v. FCC:
NBC Universal, Inc., NBC Telemundo License Co.,
NBC Television Affiliates, FBC Television Affiliates
Association, CBS Television Network Affiliates, Center
for the Creative Community, Inc., doing business as
Center for Creative Voices in Media, Inc., and ABC
Television Affiliates Association.
The following respondents were petitioners in the
court of appeals in ABC, Inc. v. FCC (App., infra, 118a-
125a): ABC Inc., KTRK Television, Inc., WLS Televi-
sion, Inc., Citadel Communications, LLC, WKRN, G.P.,
Young Broadcasting of Green Bay, Inc., WKOW Televi-
sion Inc., WSIL-TV, Inc., ABC Television Affiliates As-
sociation, Cedar Rapids Television Company, Centex
Television Limited Partnership, Channel 12 of Beau-
mont Incorporated, Duhamel Broadcasting Enterprises,
Gray Television License, Incorporated, KATC Commu-
nications, Incorporated, KATV LLC, KDNL Licensee
LLC, KETV Hearst-Argyle Television Incorporated,
KLTV/KTRE License Subsidiary LLC, KSTP-TV LLC,
KSWO Television Company Incorporated, KTBS Incor-
porated, KTUL LLC, KVUE Television Incorporated,
McGraw-Hill Broadcasting Company Incorporated, Me-
(II)

dia General Communications Holdings LLC, Mission
Broadcasting Incorporated, Mississippi Broadcasting
Partners, New York Times Management Services, Nex-
star Broadcasting Incorporated, NPG of Texas, L.P.,
Ohio/Oklahoma Hearst-Argyle Television Inc., Piedmont
Television of Huntsville License LLC, Piedmont Televi-
sion of Springfield License LLC, Pollack/Belz Communi-
cation Company, Inc., Post-Newsweek Stations San An-
tonio Inc., Scripps Howard Broadcasting Co., Southern
Broadcasting Inc., Tennessee Broadcasting Partners,
Tribune Television New Orleans Inc., WAPT Hearst-
Argyle Television Inc., WDIO-TV LLC, WEAR Li-
censee LLC, WFAA-TV Inc., and WISN Hearst-Argyle
Television Inc.
The following respondents were intervenors in the
court of appeals in ABC, Inc. v. FCC: Fox Television
Stations, Inc., NBC Universal, Inc., NBC Telemundo
License Co., and CBS Broadcasting, Inc.
(III)

TABLE OF CONTENTS

Page
Opinions below . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Statutes and regulations involved . . . . . . . . . . . . . . . . . . . . . . . . 2
Statement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Reasons for granting the petition . . . . . . . . . . . . . . . . . . . . . . . 17
I.
The court of appeals' rulings conflict with decisions
of this Court and the D.C. Circuit . . . . . . . . . . . . . . . . 18
II. The Commission's indecency policy is not unconsti-
tutionally vague . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
III. The adverse consequences of the court of appeals'
decisions are sweeping and unavoidable . . . . . . . . . . 29
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Appendix A Court of appeals opinion (Fox)
(July 13, 2010) . . . . . . . . . . . . . . . . . . . . . . . 1a
Appendix B Order (Fox) (Nov. 6, 2006) . . . . . . . . . . . . . . 35a
Appendix C Court of appeals rehearing denial
(Nov. 22, 2010) . . . . . . . . . . . . . . . . . . . . . 116a
Appendix D Summary order (ABC) . . . . . . . . . . . . . . . . 118a
Appendix E Forfeiture order (ABC) (Feb. 19,
2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 126a
Appendix F Notice of apparent liability for forfeiture
(ABC) (Jan. 25, 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 215a
Appendix G Statutory provisions . . . . . . . . . . . . . . . . . . 263a

TABLE OF AUTHORITIES

Cases:
Action for Children's Television v. FCC:
852 F.2d 1332 (D.C. Cir. 1988) . . . . . . . . . . . 5, 6, 21, 22, 30
932 F.2d 1504 (D.C. Cir. 1991), cert. denied,
503 U.S. 913 (1992) . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 21
(IV)

V
Cases--Continued:
Page
58 F.3d 654 (D.C. Cir. 1995), cert. denied, 516 U.S.
1043 (1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 6, 21
CBS, Inc. v. FCC, 453 U.S. 367 (1981) . . . . . . . . . . . . . . . . . 29
Connally v. General Constr. Co., 269 U.S. 385 (1926) . . . . . 6
FCC v. Fox Television Stations, Inc., 129 S. Ct. 1800
(2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
FCC v. Pacifica Found., 438 U.S. 726 (1978) . . . . . . passim
Fox Television Stations, Inc.
v. FCC, 489 F.3d 444
(2d Cir. 2007), rev'd, 129 S. Ct. 1800 (2009) . . . . . . . 10, 11
Ginsberg v. New York, 390 U.S. 629 (1968) . . . . . . . . . . . . . 4
Grayned v. City of Rockford, 408 U.S. 104 (1972) . . . . . . . 25
Hoffman Estates v. Flipside, Hoffman Estates, Inc.,
455 U.S. 489 (1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . 23, 26
Holder v. Humanitarian Law Project, 130 S. Ct. 2705
(2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 23, 25
Infinity Broad. Corp., In re, 3 F.C.C.R. 930
(1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 24, 30
Pacifica Found. v. FCC, 556 F.2d 9 (D.C. Cir. 1977),
rev'd, 438 U.S. 726 (1978) . . . . . . . . . . . . . . . . . . . . . . . . . 25
Pacifica Found., Inc., In re., 2 F.C.C.R. 2698 (1987) . . . . . 5
Smith v. Goguen, 415 U.S. 566 (1974) . . . . . . . . . . . . . . . . . 25
United States v. National Dairy Prods. Corp.,
372 U.S. 29 (1963) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
United States v. Williams, 553 U.S. 285
(2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20, 25, 27, 28
United States Civil Serv. Comm'n v. National Ass'n
of Letter Carriers, 413 U.S. 548 (1973) . . . . . . . . . . . . . . 26
Ward v. Rock Against Racism, 491 U.S. 781 (1989) . . . . . 25

VI
Cases--Continued:
Page
WPBN/WTOM License Subsidiary, Inc., In re,
15 F.C.C.R. 1838 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . 31
WUHY-FM, Eastern Educ. Radio, In re, 24 F.C.C.
2d 408 (1970) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Young v. American Mini Theatres, Inc., 427 U.S. 50
(1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Constitution, statutes, regulation and rule:
U.S. Const. Amend. I . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 18
Public Telecommunications Act of 1992, Pub. L. No.
102-356, 106 Stat. 949:
Section 16, 106 Stat. 954 . . . . . . . . . . . . . . . . . . . . . . . 26
Section 16(a), 106 Stat. 954 . . . . . . . . . . . . . . . . . . . . . . 2
18 U.S.C. 1464 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 3, 9, 26
47 U.S.C. 307 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
47 U.S.C. 309(k) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
47 U.S.C. 503(b)(1)(B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
47 U.S.C. 503(b)(1)(D) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
47 C.F.R.:
Section 73.3999 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Section 73.3999(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Sup. Ct. R. 12.4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Miscellaneous:
Citizen's Complaint Against Pacifica Found. Station
WBAI(FM), New York, N.Y., In re, 56 F.C.C. 2d
94 (1975) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 19, 26

VII
Miscellaneous--Continued:
Page
Complaints Against Various Broad. Licensees Re-
garding Their Airing of the "Golden Globe
Awards" Program
, In re, 19 F.C.C.R. 4975 (2004) . . 7, 8
Complaints Against Various Television Licensees
Regarding Their Broad. on November 11, 2004, of
the ABC Television Network's Presentation of the
Film "Saving Private Ryan
", In re, 20 F.C.C.R.
4507 (2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Complaints By Parents Television Council Against
Various Broad. Licensees Regarding Their Airing
of Allegedly Indecent Material, In re
, 20 F.C.C.R.
1931 (2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Complaints Regarding Various Television Broad-
casts Between February 2, 2002 and March 8,
2005
, In re, 21 F.C.C.R. 2664 (2006) . . . . . . . . . . . . . . 9, 13
Industry Guidance on the Commission's Case Law
Interpreting 18 U.S.C. 1464 and Enforcement
Policies Regarding Broad. Indecency
, In re, 16
F.C.C.R. 7999 (2001) . . . . . . . . . . . . . . . . . . . . . . 6, 7, 24, 26

In the Supreme Court of the United States
No.
FEDERAL COMMUNICATIONS COMMISSION
AND UNITED STATES OF AMERICA, PETITIONERS
v.
FOX TELEVISION STATIONS, INC., ET AL.
FEDERAL COMMUNICATIONS COMMISSION
AND UNITED STATES OF AMERICA, PETITIONERS
v.
ABC, INC., ET AL.
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

The Acting Solicitor General, on behalf of the Fed-
eral Communications Commission and the United
States, respectfully petitions for a writ of certiorari to
review the judgments of the United States Court of Ap-
peals for the Second Circuit in these cases.

OPINIONS BELOW

The opinion of the court of appeals in Fox Television
Stations, Inc. v. FCC (App., infra, 1a-34a) is reported at
613 F.3d 317. The order of the Federal Communications
(1)

2
Commission under review in Fox (App., infra, 35a-115a)
is reported at 21 F.C.C.R. 13,299. The opinion of the
court of appeals in ABC, Inc. v. FCC (App., infra, 118a-
125a) is not published in the Federal Reporter but is
available at 2011 WL 9307. The order of the Federal
Communications Commission under review in ABC
(App., infra, 126a-214a) is reported at 23 F.C.C.R. 3147.

JURISDICTION

The judgment of the court of appeals in Fox was en-
tered on July 13, 2010. A petition for rehearing was de-
nied on November 22, 2010 (App., infra, 116a). On Feb-
ruary 10, 2011, Justice Ginsburg extended the time
within which to file a petition for a writ of certiorari in
Fox to and including March 22, 2011. On March 10,
2011, Justice Ginsburg further extended the time within
which to file a petition for a writ of certiorari in Fox to
and including April 21, 2011. The judgment of the court
of appeals in ABC was entered on January 4, 2011. On
March 25, 2011, Justice Ginsburg extended the time
within which to file a petition for a writ of certiorari in
ABC to and including May 4, 2011. The jurisdiction of
this Court in both Fox and ABC is invoked under 28
U.S.C. 1254(1).

STATUTES AND REGULATIONS INVOLVED

Relevant statutory and regulatory provisions are set
out in an appendix to this petition. App., infra, 263a-
267a.

STATEMENT

1. Under 18 U.S.C. 1464, it is unlawful to "utter[]
any obscene, indecent, or profane language by means of
radio communication." Section 16(a) of the Public Tele-
communications Act of 1992, Pub. L. No. 102-356, 106

3
Stat. 954, directs that "[t]he Federal Communications
Commission [FCC or Commission] shall promulgate reg-
ulations to prohibit the broadcasting of indecent pro-
gramming" during specified hours of the day. The Com-
mission has implemented those statutory provisions by
adopting regulations that prohibit broadcast licensees
from airing "any material which is obscene" or, "on any
day between 6 a.m. and 10 p.m.[,] any material which is
indecent." 47 C.F.R. 73.3999; see Action for Children's
Television v. FCC, 58 F.3d 654, 669-670 (D.C. Cir. 1995)
(en banc) (ACT III), cert. denied, 516 U.S. 1043 (1996).
The Commission is authorized to enforce Section 1464
and its indecency regulation by, inter alia, imposing
civil forfeitures, 47 U.S.C. 503(b)(1)(B) and (D), or tak-
ing account of violations during license renewal proceed-
ings, see 47 U.S.C. 307, 309(k).
2. In FCC v. Pacifica Foundation, 438 U.S. 726
(1978) (Pacifica), this Court upheld the FCC's applica-
tion of the same "definition of indecent speech that [the
FCC] uses to this day." FCC v. Fox Television Stations,
Inc., 129 S. Ct. 1800, 1806 (2009) (Fox). At issue in
Pacifica was the midday radio broadcast of George
Carlin's "Filthy Words" monologue, which included re-
peated use of expletives. Responding to a listener com-
plaint, the Commission determined that the broadcast of
the Carlin monologue violated Section 1464 under a
"concept of `indecent' [that] is intimately connected with
the exposure of children to language that describes, in
terms patently offensive as measured by contemporary
community standards for the broadcast medium, sexual
or excretory activities and organs at times of the day
when there is a reasonable risk that children may be in
the audience." Pacifica, 438 U.S. at 731-732 (quoting In
re Citizen's Complaint Against Pacifica Found. Station

4
WBAI(FM), New York, N.Y., 56 F.C.C. 2d 94, 98 (1975)
(Citizen's Complaint). This Court concluded that the
FCC's application of its definition of indecency to the
Carlin monologue "as broadcast" did not violate the
First Amendment. Id . at 735, 750-751.
The Court observed in Pacifica that "the broadcast
media have established a uniquely pervasive presence in
the lives of all Americans" because "material presented
over the airwaves confronts the citizen, not only in pub-
lic, but also in the privacy of the home, where the individ-
ual's right to be left alone plainly outweighs the First
Amendment rights of an intruder." 438 U.S. at 748. The
Court further observed that, because "broadcasting is
uniquely accessible to children," indecent language can
"enlarge[] a child's vocabulary in an instant." Id. at 749.
The Court concluded that "the government's interest in
the `well-being of its youth' and in supporting `parents'
claim to authority in their own household' justified the
regulation of otherwise protected expression" when that
expression is disseminated through broadcast media.
Ibid . (quoting Ginsberg v. New York, 390 U.S. 629, 639,
640 (1968)).
The Court in Pacifica emphasized that, under the
nuisance rationale on which the Commission's decision
rested, "context is all-important." 438 U.S. at 750; see
id. at 742 (plurality opinion) ("indecency is largely a
function of context"). The Court explained in particular
that the "concept" of indecency used by the FCC "re-
quires consideration of a host of variables," such as the
"content of the program in which the language is used"
and its effect on "the composition of the audience." Id .
at 750.
3. For several years after Pacifica, the Commission
followed an enforcement policy under which only "delib-

5
erate, repetitive use of the seven words actually con-
tained in the George Carlin monologue" would be
deemed actionably indecent. In re Pacifica Found .,
Inc., 2 F.C.C.R. 2698, 2699 12 (1987). In 1987, the
Commission concluded that its post-Pacifica policy was
"unduly narrow as a matter of law and inconsistent with
[its] enforcement responsibilities under Section 1464."
In re Infinity Broad . Corp., 3 F.C.C.R. 930, 930 5
(1987) (Infinity Order). The Commission therefore an-
nounced that, in determining whether a particular
broadcast was indecent, it would instead use the "ge-
neric definition of indecency" articulated in its 1975
Pacifica order. Ibid . The Commission stated that, in
determining whether particular material met that defi-
nition, it would consider, inter alia, whether the words
or depictions used are "vulgar" or "shocking," whether
the broadcast of such material is isolated or fleeting,
the character of the audience, and the merit of the
complained-of program as it relates to the broadcast's
patent offensiveness. Id. at 932 16 (footnotes omitted).
The Commission declined, however, to develop a "com-
prehensive index or thesaurus of indecent words or pic-
torial depictions" of patently offensive material, explain-
ing that it would be impossible "to construct a definitive
list that would be both comprehensive and not over-
inclusive in the abstract, without reference to the spe-
cific context." Id . at 932 14.
In 1988, the D.C. Circuit upheld the Commission's
decision to move away from a policy focused exclusively
on the list of words from the Carlin monologue and to
instead make indecency determinations based on its ge-
neric definition of indecency. See Action for Children's
Television v. FCC, 852 F.2d 1332 (ACT I) (R.B. Gins-
burg, J.). The petitioners in ACT I argued that the

6
Commission had failed adequately to explain its policy
change. The court of appeals rejected that argument,
stating that unless "only the seven dirty words are prop-
erly designated indecent[,] * * * some more expansive
definition must be attempted" and "[n]o reasonable for-
mulation tighter than the one the Commission has an-
nounced has been suggested." Id. at 1338.
The court in ACT I also rejected the contention that
the Commission's definition of indecency was unconsti-
tutionally vague. Observing that the "generic definition
of indecency now employed by the FCC is virtually the
same definition the Commission articulated" in Pacifica,
and that this Court in Pacifica had held "the Carlin
monologue indecent within the meaning of section 1464,"
the court "infer[red]" that "the term `indecent' [is not]
so vague that persons `of common intelligence must nec-
essarily guess at its meaning and differ as to its applica-
tion.'" 852 F.2d at 1338-1339 (quoting Connally v. Gen-
eral Constr. Co., 269 U.S. 385, 391 (1926)). The court
reaffirmed that holding in addressing two later chal-
lenges to FCC indecency enforcement. See Action for
Children's Television v. FCC, 932 F.2d 1504, 1508 (D.C.
Cir. 1991) (ACT II) ("We have already considered and
rejected a vagueness challenge to the Commission's defi-
nition of indecency."), cert. denied, 503 U.S. 913, 914
(1992); ACT III, 58 F.3d at 659 ("[W]e dismiss petition-
ers' vagueness challenge as meritless.").
4. In 2001, the Commission issued a policy state-
ment "to provide guidance * * * regarding [its] case
law interpreting 18 U.S.C. 1464 and [its] enforcement
policies with respect to broadcast indecency." In re In-
dustry Guidance on the Commission's Case Law Inter-
preting 18 U.S.C. 1464 and Enforcement Policies
Regarding Broad. Indecency, 16 F.C.C.R. 7999, 7999 1

7
(2001) (Industry Guidance). That policy statement
made clear that "[i]ndecency findings involve at
least two fundamental determinations." Id. at 8002 7.
First, the material at issue "must fall within the subject
matter scope of [the] indecency definition--that is, the
material must describe or depict sexual or excretory
organs or activities." Ibid. Second, "the broadcast must
be patently offensive as measured by contemporary
community standards for the broadcast medium." Id. at
8002 8 (emphasis omitted).
The FCC's policy statement explained that the deter-
mination whether a broadcast is "patently offensive"
turns on the "full context" in which the material is
broadcast and is therefore "highly fact-specific." Indus-
try Guidance, 16 F.C.C.R. at 8002-8003 9 (emphasis
omitted). The statement identified three "principal fac-
tors" that guide the analysis of patent offensiveness:
(1) the explicitness or graphic nature of the descrip-
tion or depiction of sexual or excretory organs or
activities; (2) whether the material dwells on or re-
peats at length descriptions of sexual or excretory
organs or activities; [and] (3) whether the material
appears to pander or is used to titillate, [and] wheth-
er the material appears to have been presented for
its shock value.
Id. at 8003 10 (emphasis omitted).
4. In January 2003, the NBC network aired a live
broadcast of the Golden Globe Awards. In accepting an
award, the rock singer Bono exclaimed, "This is really,
really f***ing brilliant. Really, really great." In re
Complaints Against Various Broad. Licensees Regard-
ing Their Airing of the "Golden Globe Awards" Pro-
gram, 19 F.C.C.R. 4975, 4976 n.4 (2004) (Golden Globe

8
Awards Order). The Commission concluded that Bono's
remark was indecent even though his use of the F-Word
was not "sustained or repeated." Id . at 4980 12. In
explaining that conclusion, the Commission acknowl-
edged that it was departing from prior agency decisions
holding that "isolated or fleeting use[s] of the `F-Word'
or a variant thereof in situations such as this [are] not
indecent," and it made clear that such cases "are not
good law to that extent." Ibid. Under its revised policy,
the Commission explained, "the mere fact that specific
words or phrases are not sustained or repeated does not
mandate a finding that material that is otherwise pa-
tently offensive to the broadcast medium is not inde-
cent." Ibid. The Commission did not impose a sanction
in the Golden Globe Awards Order, however, because
the use of isolated expletives had not been proscribed
by agency precedent at the time the broadcast occurred.
Id. at 4981 15.
5. The Fox case arises out of two broadcasts that
aired before the Commission released the Golden Globe
Awards Order. On December 9, 2002, Fox broadcast
the 2002 Billboard Music Awards beginning at 8 p.m.
Eastern Standard Time. During that broadcast, the en-
tertainer Cher received an "Artist Achievement Award."
In her acceptance speech, she stated: "I've had great
people to work with. Oh, yeah, you know what? I've also
had critics for the last 40 years saying that I was on my
way out every year. Right. So f*** 'em. I still have a
job and they don't." App., infra, 89a.
Approximately one year later, on December 10, 2003,
Fox again broadcast the Billboard Music Awards, which
aired between 8 p.m. and 10 p.m. Eastern Standard
Time. Nicole Richie and Paris Hilton, the stars of Fox's
program "The Simple Life," presented one of the awards

9
that night. During their presentation, they engaged in
the following exchange:
Paris Hilton:
Now Nicole, remember, this is a live
show, watch the bad language.
Nicole Richie: Okay, God.
Paris Hilton:
It feels so good to be standing here
tonight.
Nicole Richie: Yeah, instead of standing in mud and
[audio blocked]. Why do they even
call it "The Simple Life?" Have you
ever tried to get cow s*** out of a
Prada purse? It's not so f***ing
simple.
App, infra, 42a-44a.
a. Following the two Billboard Music Awards broad-
casts, the Commission received numerous complaints
from viewers, and the agency issued an order concluding
that both broadcasts contained "indecent" language as
prohibited by 18 U.S.C. 1464 and the Commission's inde-
cency regulation. In re Complaints Regarding Various
Television Broadcasts Between February 2, 2002 and
March 8, 2005, 21 F.C.C.R. 2664, 2665 2 (2006) (Omni-
bus Order). The Commission did not impose any sanc-
tion because it concluded that, as in the Golden Globe
Awards case, broadcast licensees did not have notice at
the time of the broadcasts of the Commission's revised
policy regarding the airing of isolated expletives.
After a voluntary remand from the Second Circuit
(where petitions for review by Fox and other broadcast-
ers had been consolidated), the Commission vacated
the relevant portions of the Omnibus Order and substi-
tuted the order under review in Fox. App., infra, 35a-

10
115a. In that order, the Commission reaffirmed its con-
clusion that Fox's airing of the 2002 and 2003 Billboard
Music Awards violated the prohibitions against the
broadcast of indecent material. Applying the framework
set out in its Industry Guidance, the Commission con-
cluded that the expletives aired during the Billboard
Music Awards were sexual or excretory references that
fell within the subject-matter scope of the Commission's
indecency policy. The Commission noted that Ms.
Richie's use of the S-Word referred to excrement. Id. at
46a-47a. In addition, the Commission explained that the
F-Word (used by both Ms. Richie and Cher) inherently
"has a sexual connotation even if the word is not used
literally" because "the word's power to `intensify' and
offend derives from its implicit sexual meaning." Id. at
47a-48a, 90a-91a (footnote omitted).
The Commission further concluded that both broad-
casts were "patently offensive." The Commission found
that the language used was not only graphic and shock-
ing, particularly in the context of nationally televised
awards programs viewed by substantial numbers of chil-
dren, but also gratuitous. In that regard, the Commis-
sion noted that Fox had not argued that the expletives
at issue "had any artistic merit or [were] necessary to
convey any message." App., infra, 48a-49a & n.44, 91a-
92a & n.191. The Commission adhered to its prior deci-
sion not to impose any sanction on Fox for the broad-
casts. See id. at 85a-86a, 97a.
c. A divided panel of the court of appeals vacated
the Commission's order and remanded the case to the
agency for further proceedings. Fox Television Sta-
tions, Inc. v. FCC, 489 F.3d 444 (2d Cir. 2007), rev'd, 129
S. Ct. 1800 (2009). The court concluded that the Commis-
sion's change of policy with regard to isolated expletives

11
was "arbitrary and capricious under the Administrative
Procedure Act" because the agency had "failed to articu-
late a reasoned basis" for the shift. Id. at 447. In addi-
tion, the court of appeals in dicta made a number of "ob-
servations" questioning the constitutionality of the Com-
mission's " `fleeting expletive' regime." Id. at 462.
d. This Court reversed. Fox, supra. Noting that
"Congress has made the determination that indecent
material is harmful to children, and has left enforcement
of the ban to the Commission," 129 S. Ct. at 1813, the
Court found that "the agency's reasons for expanding
the scope of its enforcement activity were entirely ratio-
nal," id. at 1812.
The Court emphasized that "the Commission's deci-
sion to look at the patent offensiveness of even isolated
uses of sexual and excretory words" conformed to "the
context-based approach" that the Court had "sanctioned
in Pacifica." Fox, 129 S. Ct. at 1812. The Court rejec-
ted the broadcasters' argument that the Commission's
contextual analysis gives the agency "unbridled discre-
tion," noting that its decision in Pacifica "approved
Commission regulation based on a nuisance rationale
under which context is all-important." Id. at 1815 (inter-
nal quotation marks and citation omitted). The Court
explained that "[t]he agency's decision to retain some
discretion does not render arbitrary or capricious its
regulation of the deliberate and shocking uses of offen-
sive language at the award shows under review--shows
that were expected to (and did) draw the attention of
millions of children." Id . at 1814. The Court found that
"[t]he Commission could reasonably conclude that the
pervasiveness of foul language, and the coarsening of
public entertainment in other media such as cable, jus-
tify more stringent regulation of broadcast programs so

12
as to give conscientious parents a relatively safe haven
for their children." Id. at 1819. Because "[t]he Second
Circuit did not definitively rule on the constitutionality
of the Commission's orders," this Court "decline[d] to
address the constitutional questions" and remanded the
case to the court of appeals for further proceedings.
Ibid.
e. On remand, the court of appeals did not limit its
inquiry to the constitutionality of the Commission's
isolated-expletives policy as applied to Fox's broadcasts
of the 2002 and 2003 Billboard Music Awards. Instead,
the court held that the "FCC's indecency policy is uncon-
stitutional" in its entirety "because it is impermissibly
vague." App., infra, 18a. The court therefore "grant-
[ed] the petition for review and vacate[d]," not just "the
FCC's order," but the entire "indecency policy underly-
ing it." Id. at 2a.
In finding the Commission's policy unconstitutionally
vague, the court of appeals did not understand itself to
be constrained by Pacifica. The court observed that the
decision in Pacifica had not expressly addressed vague-
ness, and it viewed this Court's decision as being "predi-
cated on the FCC's [prior] `restrained' enforcement pol-
icy." App., infra, 22a. For the same reason, the court of
appeals declined to follow the decisions in the Action for
Children's Television cases, in which the D.C. Circuit
had repeatedly rejected vagueness challenges to the
FCC's definition of indecent broadcasting. Id. at 22a
n.8. "[T]o the extent the ACT cases held that a vague-
ness challenge was precluded by Pacifica," the court
stated, "we are not bound by the DC Circuit and do not
find it persuasive." Ibid .
The court of appeals did not question the FCC's de-
termination that the words used in the Billboard Music

13
Awards shows--variants of the F-Word and the S-
Word--are indecent in the context in which they were
broadcast. The court understood "the FCC's current
policy" to establish a "presumptive prohibition" on the
use of the two words unless their use is "demonstrably
essential to the nature of an artistic or educational work
or essential to informing viewers on a matter of public
importance," or the words are uttered in the course of a
"bona fide news" program. App., infra, 25a-26a (quot-
ing Omnibus Order, 21 F.C.C.R. at 2686 82). The
court of appeals found, however, that the policy is un-
constitutionally vague because "broadcasters are left to
guess whether an expletive will be deemed `integral' to
a program or whether the FCC will consider a particular
broadcast a `bona fide news interview.' " Id. at 27a. In
reaching that conclusion, the court focused on what it
perceived as disparate results reached in a series of
FCC decisions addressing complaints about the use of
indecent language in broadcast programs. Id. at 26a-
29a. The court of appeals recognized that the FCC had
adopted a contextual approach to indecency, rather than
a rigid rule prohibiting specified words, in part "because
[the Commission] recognized that an outright ban on
certain words would raise grave First Amendment con-
cerns." App., infra, 27a. The court also acknowledged
that because "[t]he English language is rife with cre-
ative ways of depicting sexual or excretory organs or
activities * * * even if the FCC were able to provide a
complete list of all such expressions, new offensive and
indecent words are invented every day." Id. at 24a. In
the court's view, however, the "flexibility" provided by
the Commission's post-1987 policy "results in a standard
that even the FCC cannot articulate or apply consis-

14
tently." Id. at 27a. On that basis, the court of appeals
"str[uck] down the FCC's indecency policy" in its en-
tirety. Id . at 34a.
6. The ABC case arises out of a February 25, 2003,
broadcast, at 9:00 p.m. in the Central and Mountain time
zones, of an episode of the television show NYPD Blue
entitled Nude Awakening. 1 The show opens with "a
woman wearing a robe * * * entering a bathroom,
closing the door, and then briefly looking at herself in a
mirror hanging above a sink." App., infra, 223a. "With
her back to the camera," the woman "removes her robe,
thereby revealing the side of one of her breasts and a
full view of her back." Ibid. "The camera shot includes
a full view of her buttocks and her upper legs as she
leans across the sink to hang up her robe." Ibid. As she
walks from the mirror to the shower, "a small portion of
the side of one of her breasts is visible," and "her but-
tocks are visible from the side." Ibid.
The camera then shifts to show a young boy getting
out of bed and walking toward the bathroom, at which
point "[t]he camera cuts back to the woman, who is now
shown standing naked in front of the shower, her back
to the camera." App., infra, 223a-224a. The camera
first shows the woman "naked from the back, from the
top of her head to her waist." Id. at 224a. "[T]he cam-
era then pans down to a shot of her buttocks, lingers for
a moment, and then pans up her back." Ibid. Next, the
boy is shown opening the bathroom door. Ibid. As he
does so, the woman "quickly turns to face" him. Ibid.
"The camera initially focuses on the woman's face but
then cuts to a shot taken from behind and through her
1 A recording of this episode, which was part of the record before the
court of appeals, has been filed with the Clerk.

15
legs, which serve to frame the boy's face as he looks at
her." Ibid.
The camera immediately shifts to "a front view of the
woman's upper torso," although a "full view of her
breasts is obscured * * * by a silhouette of the boy's
head and ears." App., infra, 224a. "After the boy backs
out of the bathroom and shuts the door," the woman is
shown "facing the door, with one arm and hand covering
her breasts and the other hand covering her pubic area."
Ibid. "The scene ends with the boy's voice, heard
through the closed door, saying `sorry,' " to which "the
woman while looking embarrassed, responds, `It's okay.
No problem.' " Ibid.
a. After issuing a letter of inquiry and a notice of
apparent liability, the FCC in 2008 imposed an inde-
cency forfeiture of $27,500 on each of several ABC-
network-owned or -affiliated television stations. App.,
infra, 126a-214a. Applying the framework set out in its
Industry Guidance, including the longstanding agency
definition of indecency that this Court approved in
Pacifica, the Commission first concluded that the depic-
tion of an adult woman's naked buttocks in the episode
constituted a depiction of sexual or excretory organs and
thus fell within the subject-matter scope of the Commis-
sion's indecency policy. Id. at 132a-137a. The Commis-
sion then determined that "in context and on balance,
the complained-of material is patently offensive as mea-
sured by contemporary community standards for the
broadcast medium." Id. at 138a.
In explaining its determination that the relevant
broadcast material was patently offensive, the Commis-
sion observed that the episode contained a "close range,"
"fully visible" view of the actress's unclothed buttocks
that was "sufficiently graphic and explicit to support an

16
indecency finding." Id. at 140a. The Commission fur-
ther explained that camera shots of the woman's but-
tocks were "repeated" within the scene, which "focuses
on her nudity." Id. at 142a. Finally, the Commission
determined that the scene was "pandering, titillating,
and shocking." Id. at 143a. The FCC explained that the
scene placed the audience in the "voyeuristic position"
of observing a naked woman preparing to shower, and
that the manner in which the scene was shot "highlights
the salacious aspect of the scene." Id. at 144a. The
Commission also found that "subsequent camera shots
of the boy's shocked face from between the woman's
legs, and of her naked, partially-obscured upper torso
from behind his head" contributed to the scene's "titil-
lating and shocking nature." Id. at 144a. The Commis-
sion accordingly concluded that the NYPD Blue episode
was "actionably indecent." Id. at 149a.
b. ABC and its affiliates sought review of the Forfei-
ture Order in the Second Circuit. On January 4, 2011,
after denying the government's rehearing petition in
Fox, the court of appeals issued a summary order in
ABC vacating the Commission's order imposing the for-
feitures. The court concluded that "there is no signifi-
cant distinction between this case and Fox" because
"[a]lthough this case involves scripted nudity, the case
turns on an application of the same context-based inde-
cency test that Fox found `impermissibly vague.'" App.,
infra, 124a (citation omitted). As in Fox, the court of
appeals did not address the question whether, on the
facts of the case, the broadcasters had constitutionally
sufficient notice that the relevant NYPD Blue episode
was indecent. Rather, the court of appeals viewed the
ABC case as controlled by the court's prior conclusion in
Fox that the Commission's indecency policy is facially

17
unconstitutional. See ibid . ("Fox's determination that
the FCC's indecency policy is unconstitutionally vague
binds this panel."). The court accordingly vacated the
Forfeiture Order without addressing any of the other
administrative-law or constitutional challenges raised by
the ABC petitioners. Id. at 124a-125a.

REASONS FOR GRANTING THE PETITION

The court of appeals erred in "strik[ing] down" the
Commission's "indecency policy" in Fox and then in ap-
plying that decision in ABC. App., infra, 34a, 124a-125a.
Review of both decisions is warranted because they con-
flict with decisions of this Court and the D.C. Circuit,
and because they effectively preclude the FCC from
performing its statutory obligation to enforce prohibi-
tions on broadcast indecency.
The court of appeals' decisions conflict with FCC v.
Pacifica Foundation, 438 U.S. 726 (1978), in which this
Court recognized that context is an "all-important" com-
ponent of an effective and constitutional indecency re-
gime. Id . at 750. While this Court held in Pacifica that
the FCC's consideration of context was critical to the
constitutionality of the indecency enforcement regime,
the court of appeals found in these cases that the very
same feature rendered the Commission's policy uncon-
stitutionally vague. The Second Circuit's rulings also
conflict with the D.C. Circuit's decisions in the Action
for Children's Television cases, which held that Pacifica
forecloses a vagueness challenge to the Commission's
context-based indecency policy.
In addition, the court of appeals' approach is incon-
sistent with Holder v. Humanitarian Law Project, 130
S. Ct. 2705, 2719 (2010) (HLP). That decision requires
a court to focus its vagueness inquiry on the facts of the

18
case at hand, rather than on other applications not be-
fore the court. Notwithstanding that directive, the court
of appeals failed entirely to ask whether Fox or ABC
lacked adequate notice that the particular broadcasts at
issue here would be considered indecent, instead exam-
ining other FCC orders involving different broadcasts.
Finally, the court's decisions--which involve both in-
decent expletives in live programming (Fox) and images
of adult nudity in a scripted show (ABC)--preclude the
FCC from carrying out its statutory responsibility to
ensure that broadcasters honor their longstanding pub-
lic interest obligation not to air indecent material. To
comply with the court's vagueness determination, the
Commission apparently would be required to sacrifice
the "flexibility" that the court of appeals found unconsti-
tutional, App., infra, 25a, and instead attempt to imple-
ment hard-and-fast rules prohibiting certain words and
images with no meaningful consideration of context.
Such a policy would be easily circumvented, however,
and it would raise serious First Amendment problems of
its own. If left to stand, the court of appeals' decisions
would leave the FCC with no effective means to imple-
ment its longstanding statutory authority over indecent
broadcasting.

I. THE COURT OF APPEALS' RULINGS CONFLICT WITH

DECISIONS OF THIS COURT AND THE D.C. CIRCUIT

A. In upholding the FCC's determination that the
Carlin monologue was indecent, this Court in Pacifica
recognized that the Commission's order "rested entirely
on a nuisance rationale under which context is all-impor-
tant." 438 U.S. at 750. Indeed, as the plurality portion
of the opinion stressed, "indecency is largely a function
of context" and "cannot be adequately judged in the ab-

19
stract." Id. at 742. Because this understanding of inde-
cency "requires consideration of a host of variables," the
Court explained, "a two-way radio conversation between
a cab driver and a dispatcher, or a telecast of an Eliza-
bethan comedy," or "a prime-time recitation of Geoffrey
Chaucer's Miller's Tale," need not necessarily be treated
like the Carlin monologue even if "an occasional exple-
tive" were broadcast. Id . at 750 & n.29; see id. at 747
(plurality opinion of Stevens, J.) ("the constitutional pro-
tection accorded to a communication containing * * *
patently offensive sexual and excretory language need
not be the same in every context"). In Fox, this Court
affirmed that "the Commission's decision to look at the
patent offensiveness of even isolated uses of sexual and
excretory words" conformed to "the context-based ap-
proach" that the Court had "sanctioned in Pacifica."
FCC v. Fox Television Stations, Inc., 129 S. Ct. 1800,
1812 (2009); see id . at 1815 ("we have previously ap-
proved Commission regulation based `on a nuisance ra-
tionale under which context is all-important'") (quoting
Pacifica, 438 U.S. at 750).
The Court in Pacifica did not suggest that the Com-
mission's context-based approach rendered the FCC's
broadcast indecency policy unconstitutionally vague.
Nor did the Court suggest that the Commission's defini-
tion of indecency--which then, as now, applied to "lan-
guage that describes, in terms patently offensive as
measured by contemporary community standards for
the broadcast medium, sexual or excretory activities and
organs," 438 U.S. at 732 (citing In re Citizen's Com-
plaint Against Pacifica Found. Station WBAI(FM),
New York, N.Y., 56 F.C.C. 2d 94, 98 (1975))--is uncon-
stitutionally imprecise. The Court's statement that it
found "no basis for disagreeing with the Commission's

20
conclusion that indecent language was used in [the]
broadcast," id. at 741, further indicates that the Commis-
sion's standard did not "fail[] to provide" the Court with
meaningful guidance on "what [was] prohibited," United
States v. Williams, 553 U.S. 285, 304 (2008).
The Second Circuit concluded in Fox that Pacifica
was not controlling because it thought Pacifica was
predicated on a "`restrained' enforcement policy," which
the court of appeals understood the FCC to have since
abandoned. App., infra, 22a. But this Court has "never
held that Pacifica represented the outer limits of per-
missible regulation, so that fleeting expletives may not
be forbidden." Fox, 129 S. Ct. at 1815. In any event, the
court of appeals' vagueness analysis is largely unteth-
ered to the relevant change in the Commission's inde-
cency policy. The Commission's determination that "iso-
lated" or "fleeting" expletives may be actionably inde-
cent did not render the regulatory regime less determi-
nate than it had been previously. Rather, the court of
appeals held that the Commission's broadcast indecency
policy is unconstitutionally vague because it gives the
Commission too much "flexibility," and results in "a
standard that * * * the FCC cannot articulate or apply
consistently." App., infra, 27a. What the court below
considered undue flexibility, however, is simply analysis
of context--a longstanding feature of FCC indecency
regulation that the Court in Pacifica viewed as a virtue
of the Commission's approach.
Although the court of appeals faulted the Commis-
sion for not having "discernible standards by which indi-
vidual contexts are judged," App., infra, 30a, the Com-
mission's Industry Guidance in fact provides such stan-
dards. And even before the FCC issued that guidance,
the D.C. Circuit noted that unless "only the seven dirty

21
words are properly designated indecent[,] * * * some
more expansive definition must be attempted," and that
"[n]o reasonable formulation tighter than the one the
Commission has announced has been suggested." Ac-
tion for Children's Television v. FCC, 852 F.2d 1332,
1338 (1991) (R.B. Ginsburg, J.). The court of appeals in
this case did not identify any "tighter" definition of inde-
cency by which the Commission could have provided
clearer guidance to broadcasters while preserving con-
sideration of the overall context in which particular
words and images appear.
B. The court of appeals' decisions also conflict with
the D.C. Circuit's decisions in the Action for Children's
Television cases. As the D.C. Circuit explained in ACT
I, "[t]he generic definition of indecency * * * em-
ployed by the FCC" after 1987 "is virtually the same
definition the Commission articulated in the order re-
viewed by the Supreme Court in the Pacifica case." 852
F.2d at 1338. The D.C. Circuit "infer[red] from [Pacif-
ica's] holding that the Court did not regard the term
indecent as so vague that persons of common intelli-
gence must necessarily guess at its meaning and differ
as to its application." Id. at 1339 (internal quotation
marks and citation omitted); see ibid. ("acceptance of
the FCC's generic definition of `indecent' as capable of
surviving a vagueness challenge" is "implicit in Pacif-
ica"); Action for Children's Television v. FCC, 932 F.2d
1504, 1508 (D.C. Cir. 1991) ("the Supreme Court's deci-
sion in Pacifica dispelled any vagueness concerns at-
tending the [FCC's] definition"); Action for Children's
Television v. FCC, 58 F.3d 654, 659 (D.C. Cir. 1995) (en
banc) (dismissing vagueness challenges as "meritless"),
cert. denied, 516 U.S. 1043 (1996).

22
The court below distinguished the D.C. Circuit's de-
cisions on the ground that the court in ACT I "relied
specifically on the FCC's restrained policy in reaching
its decision." App., infra, 22a n.8. But the statement in
ACT I to which the Second Circuit alluded referred only
to the Commission's (still existing) policy of "giv[ing]
weight to reasonable licensee judgments when deciding
whether to impose sanctions." 852 F.2d at 1340 n.14.
That statement was made only to support the D.C. Cir-
cuit's conclusion that the Commission's generic inde-
cency definition "is not vulnerable to the charge that it
is substantially overbroad," id. at 1340; it did not qualify
the D.C. Circuit's vagueness analysis, which rested en-
tirely on its understanding of Pacifica's holding, see id.
at 1338-1339. The FCC decisions following the Action
for Children's Television cases--including the 2001 In-
dustry Guidance--have further clarified the manner in
which the Commission will apply its longstanding defini-
tion of indecency. The intervening FCC decisions on
which the court of appeals relied therefore provide no
basis for rejecting the D.C. Circuit's repeated findings
that the Commission's indecency policy is not unconsti-
tutionally vague.
The court of appeals also stated that "to the extent
the ACT cases held that a vagueness challenge was pre-
cluded by Pacifica, we are not bound by the DC Circuit
and do not find it persuasive." App., infra, 22a n.8. Re-
view is warranted to resolve that conflict in the courts of
appeals.
C. Finally, the court of appeals' opinion in Fox
(which the court applied in ABC) conflicts with this

23
Court's decision in HLP, supra.2 The Court in HLP
made clear that courts must evaluate vagueness claims
based on "the particular facts at issue." 130 S. Ct. at
2719. That ruling rests on the well-settled proposition
that " `[a] plaintiff who engages in some conduct that is
clearly proscribed cannot complain of the vagueness of
the law as applied to the conduct of others.' " Ibid .
(quoting Hoffman Estates v. Flipside, Hoffman Estates,
Inc., 455 U.S. 489, 495 (1982)); see Young v. American
Mini Theatres, Inc., 427 U.S. 50, 58-61 (1976) (declining
to reach facial vagueness challenges to ordinances where
the ordinances "unquestionably" applied to the litigants'
own conduct); see Pacifica, 438 U.S. at 735 (focusing
review on ruling that Carlin monologue was indecent "as
broadcast"). The Court in HLP explained that this "rule
makes no exception for conduct in the form of speech."
130 S. Ct. at 2719.
Under HLP, the court of appeals should have ad-
dressed the constitutionality of the Commission's inde-
cency policy as applied to the facts of the actual broad-
casts before it. If the court had done so, it would have
rejected the vagueness challenges even if it thought the
FCC's policy might be vague as applied to other broad-
casts. Fox could not reasonably have believed (and has
never claimed) that the gratuitous utterance of the F-
Word and the S-Word comport with the community
standards for the relevant broadcast medium, see
Pacifica, 438 U.S. at 751 (noting Carlin's observation
that the words are among those "you couldn't say on the
public * * * airwaves"); see also In re WUHY-FM,
2 The government brought HLP to the court of appeals' attention in
a supplemental filing in the Fox case. In a footnote, the court of appeals
in Fox dismissed the decision as "inapposite" on the ground that it
arose in a "different procedural posture." App., infra, 30a n.9.

24
Eastern Educ. Radio, 24 F.C.C. 2d 408, 415 17 (1970)
(fining radio station for airing gratuitous utterances of
the F-Word and S-Word in interview). Indeed, the net-
work edited out the F- and S-Words when the awards
shows were broadcast on tape delay in later time zones.
App., infra, 61a, 94a.
The court of appeals in Fox, however, did not deter-
mine whether the Commission's indecency policy was
unconstitutionally vague as applied to the facts of that
case (i.e., to the airing of those words during live awards
shows with millions of children in the audience). Rather,
to determine whether the Commission's policy provides
adequate guidance "by which broadcasters can accu-
rately predict" indecency determinations "in the future,"
App., infra, 22a, 24a, the court examined Commission
indecency determinations involving different words and
phrases, id. at 23a-24a ("pissed off," "dick" and "dick-
head"), and starkly different contexts, id. at 26a (broad-
cast of the movie "Saving Private Ryan"), id. at 29a
(documentary on "The Blues"). And by "strik[ing] down
the FCC's indecency policy" in its entirety, id. at 34a,
the court invalidated its application to even the most
graphic broadcasts, see, e.g., In re Industry Guidance
on the Commission's Case Law Interpreting 18 U.S.C.
1464 and Enforcement Policies Regarding Broad. In-
decency, 16 F.C.C.R. 7999, 8004 13 (2001) (graphic
discussion of oral sex); id. at 8009 19 (explicit joke
about rape of a baby); In re Infinity Broad. Corp., 3
F.C.C.R. 930, 934 (1987) (extended narrative regarding
anal sex).
The court of appeals in ABC likewise did not address
whether the Commission's indecency policy was vague
as applied to ABC's broadcast of scripted adult nudity.
Instead, the court vacated the indecency sanction

25
against ABC based solely on its antecedent holding in
Fox that the Commission's policy was facially vague.
App., infra, 120a. Thus, under the Second Circuit's deci-
sions, a broadcaster can evade liability for its indecent
broadcasts even when the material at issue is "plainly
prohibited" by the FCC's indecency policy (HLP,
130 S. Ct. at 2721), based solely on a claim that the pol-
icy may be vague "as applied to the conduct of others,"
id . at 2709 (internal quotation marks and citation omit-
ted). The court of appeals' failure to adhere to the
vagueness principles set forth in HLP warrants this
Court's review.

II. THE COMMISSION'S INDECENCY POLICY IS NOT UN-

CONSTITUTIONALLY VAGUE

A statute or rule is unconstitutionally vague if it
"fails to provide a person of ordinary intelligence fair
notice of what is prohibited, or is so standardless that it
authorizes or encourages seriously discriminatory en-
forcement." Williams, 553 U.S. at 304. Because "we
can never expect mathematical certainty from our lan-
guage," Grayned v. City of Rockford, 408 U.S. 104, 110
(1972), "perfect clarity and precise guidance have never
been required even of regulations that restrict expres-
sive activity," Williams, 553 U.S. at 304 (quoting Ward
v. Rock Against Racism, 491 U.S. 781, 794 (1989)).
Moreover, "[t]here are areas of human conduct where,
by the nature of the problems presented, legislatures
simply cannot establish standards with great precision."
Smith v. Goguen, 415 U.S. 566, 581 (1974); see Pacifica
Found . v. FCC, 556 F.2d 9, 33 (D.C. Cir. 1977) (Leven-
thal, J., dissenting) ("[a] concept like `indecent' is not
verifiable as a concept of hard science"), rev'd, 438 U.S.
726 (1978).

26
By prohibiting the broadcast of "obscene, indecent,
or profane language," 18 U.S.C. 1464, and by directing
the FCC to "promulgate regulations to prohibit the
broadcasting of indecent programming" during specified
hours of the day, Public Telecommunications Act of
1992, Pub. L. No. 102-356, 16, 106 Stat. 954, Congress
recognized that a wide variety of material, not easily
specified in advance, could transgress the reasonable
standards of behavior applicable to broadcasters. The
Commission clarified its understanding of the statutory
terms when, in a definition that this Court approved in
Pacifica, it identified indecency as material that de-
scribes "in terms patently offensive as measured by con-
temporary community standards for the broadcast me-
dium, sexual or excretory activities and organs." See
Citizen's Complaint, 56 F.C.C. 2d 98 11.
In the 33 years since Pacifica was decided, the Com-
mission has further elaborated on its enforcement policy
by issuing numerous decisions applying its indecency
analysis to specific factual situations. See Industry
Guidance, 16 F.C.C.R. at 8004-8015 (collecting and sum-
marizing decisions); see also, e.g., In re Complaints By
Parents Television Council Against Various Broad.
Licensees Regarding Their Airing of Allegedly Indecent
Material, 20 F.C.C.R. 1931 (2005) (denying 15 separate
indecency complaints). The agency's continued explana-
tion and application of its indecency standards serve to
further "narrow potentially vague or arbitrary interpre-
tations" of its rules and of the statute. See Hoffman
Estates, 455 U.S. at 504; see also United States Civil
Serv. Comm'n v. National Ass'n of Letter Carriers, 413
U.S. 548, 575 (1973) (rejecting vagueness challenge in
light of "the longstanding interpretations of the statute
by the agency charged with its interpretation and en-

27
forcement"). The Commission has provided further pro-
tection against unfair surprise by declining to sanction
broadcasters in cases (such as Fox) where it was not
clear at the time of the broadcast that the FCC regarded
the pertinent material as indecent. E.g., App., infra,
95a. And broadcasters that remain unsure whether par-
ticular material is covered can escape any risk of sanc-
tion by airing the material during the safe harbor after
10 p.m. See 47 C.F.R. 73.3999(b). These balanced rules
have operated effectively for years to protect minors
while providing adequate guidance to broadcasters.
Even apart from its error in going beyond the facts
of Fox and ABC, the court of appeals had no sound basis
for concluding that the Commission's indecency policy,
as embodied in its 2001 Industry Guidance, failed to
give "person[s] of ordinary intelligence" in the highly
sophisticated broadcast industry "fair notice of what is
prohibited." Williams, 553 U.S. at 304. Although the
court acknowledged that "[i]t is the language of the rule
* * * that determines whether a law or regulation is
impermissibly vague" (App., infra, 21a), it did not focus
on the guidance provided by the Commission's indecency
definition. Instead, the court relied on what it consid-
ered to be inconsistent outcomes in a handful of inde-
cency orders to conclude that "broadcasters have no way
of knowing what the FCC will find offensive." App., in-
fra, 34a; see id. at 23a-24a (different outcomes with re-
gard to the use of different expletives gives broadcast-
ers insufficient notice of how the Commission will apply
its factors); id. at 26a ("little rhyme or reason" to Com-
mission ruling that isolated expletive in Golden Globe

28
Awards was indecent while repeated use of F-Word and
S-Word in "Saving Private Ryan" was not).3
The court of appeals ignored the settled principle
that "the mere fact that close cases can be envisioned"
does not render a statute (or an agency policy) unconsti-
tutionally vague because "[c]lose cases can be imagined
under virtually any statute." Williams, 553 U.S. at 305-
306. Thus, an agency enforcement policy cannot be "au-
tomatically invalidated as vague simply because diffi-
culty is found in determining whether certain marginal
offenses fall within [its] language." United States v.
National Dairy Prods. Corp., 372 U.S. 29, 32 (1963). At
bottom, the court of appeals' vagueness analysis reflects
a fundamental rejection of the contextual approach to
indecency that the Court upheld in Pacifica, under
which different circumstances can (unsurprisingly) pro-
duce different outcomes. Taking account of context does
not establish "a standardless regime of unbridled discre-
3 In concluding that the FCC's context-driven, case-by-case approach
to indecency "is not arbitrary or capricious," this Court in Fox specif-
ically noted that contextual considerations supported the Commission's
different treatment of expletives in the movie "Saving Private Ryan."
129 S. Ct. at 1814. The Court observed in particular that "[t]he fright-
ening suspense and the graphic violence in the movie could well dis-
suade the most vulnerable from watching and would put parents on
notice of potentially objectionable material." Ibid. (citation omitted).
The Court concluded that "[t]he agency's decision to retain some dis-
cretion does not render arbitrary or capricious its regulation of the
deliberate and shocking uses of offensive language at the award shows
under review--shows that were expected to (and did) draw the at-
tention of millions of children." Ibid. Yet, even after this Court in Fox
unequivocally rejected the broadcasters' invocation of "Saving Private
Ryan" as "supposed evidence of the Commission's inconsistency,"
ibid., the court of appeals on remand adhered to its prior view that the
FCC's treatment of that film could not be reconciled with FCC deci-
sions concerning other broadcasts. See App., infra, 26a-27a.

29
tion." Fox, 129 S. Ct. at 1815. Nor does it otherwise
render the Commission's indecency enforcement policy
unconstitutionally vague.

III. THE ADVERSE CONSEQUENCES OF THE COURT OF

APPEALS' DECISIONS ARE SWEEPING AND UN-
AVOIDABLE

In "strik[ing] down the FCC's indecency policy,"
App., infra, 34a, and in later finding that its holding in
Fox eviscerates all subsequently-reviewed indecency
determinations, id. at 124a, the court of appeals has
overturned the basic framework under which the Com-
mission implements the longstanding statutory and reg-
ulatory prohibitions on indecent broadcasting. Indeed,
as the decision in ABC shows, the Second Circuit's
vagueness holding is not confined to particular uses of
offensive language, but extends to every other context,
including scripted displays of adult nudity. The court of
appeals has effectively suspended the Commission's
ability to fulfill its statutory indecency enforcement re-
sponsibilities unless and until the agency can adopt a
new policy that surmounts the court of appeals' vague-
ness rulings. Accordingly, broadcasters may well be-
lieve that they have been freed of the public-interest ob-
ligation not to air indecent programming that they as-
sumed when they were originally "granted the free and
exclusive use of a limited and valuable part of the public
domain." Fox, 129 S. Ct. at 1806 (quoting CBS, Inc. v.
FCC, 453 U.S. 367, 395 (1981)).
In the concluding paragraph of its opinion in Fox, the
Second Circuit purported to limit the scope of its deci-
sion by stating: "We do not suggest that the FCC could
not create a constitutional policy. We hold only that
the FCC's current policy fails constitutional scrutiny."

30
App., infra, 34a. But while the court of appeals con-
demned the purported absence of "discernible stan-
dards" in the Commission's current policy, id. at 30a, the
court itself identified no alternative definition of action-
able indecency that would provide the requisite clarity
without creating countervailing practical and constitu-
tional difficulties. See ACT I, 852 F.2d at 1338 (uphold-
ing FCC's generic indecency definition and observing
that "[n]o reasonable formulation tighter than the one
the Commission has announced has been suggested").
Addressing the court of appeals' concerns by estab-
lishing a list of prohibited words is not a realistic option.
As the Commission explained in 1987 when it abandoned
that approach and adopted its contextual analysis,
"[t]here is no way to construct a definitive list that
would be both comprehensive and not over-inclusive in
the abstract, without reference to the specific context."
Infinity Order, 3 F.C.C.R. at 932 14. The court of ap-
peals itself recognized that while such an approach
would have "the advantage of providing broadcasters
with a clear list of words that [are] prohibited," App.,
infra, 24a, it would "mean[] that some indecent speech
that did not employ [those] words [would] slip[] through
the cracks," ibid .
As the court of appeals acknowledged, moreover, "an
outright ban on certain words would raise grave First
Amendment concerns." App., infra, 27a. Such an inflex-
ible prohibition, even if limited to the most graphic ex-
pletives or images, would preclude the airing of valuable
broadcast material. See In re Complaints Against Vari-
ous Television Licensees Regarding Their Broad. on
November 11, 2004, of the ABC Television Network's
Presentation of the Film "Saving Private Ryan", 20
F.C.C.R. 4507, 4513 16 (2005) (concluding that broad-

31
cast of film "Saving Private Ryan," while containing nu-
merous expletives, was not patently offensive in light of
its "overall context"); In re WPBN/WTOM License Sub-
sidiary, Inc., 15 F.C.C.R. 1838, 1840, 1842 9, 13
(2000) (concluding that broadcast of film "Schindler's
List" containing "adult frontal nudity" was not patently
offensive "based on the full context of its presentation").
A mechanical prohibition of specified broadcast material
would also be inconsistent with the context-based ap-
proach this Court upheld in Pacifica, see 438 U.S. at
750, and such an approach would be difficult (if not im-
possible) to apply to indecent images.
In sum, the court of appeals' decisions preclude the
Commission from effectively implementing statutory
restrictions on broadcast indecency that the agency has
enforced since its creation in 1934. That extraordinary
hobbling of the Commission's enforcement efforts war-
rants this Court's review.4
4 The government is filing a single petition for a writ of certiorari
because the court of appeals' judgments in Fox and ABC "involve
identical or closely related questions." Sup. Ct. R. 12.4. Indeed, the
court of appeals concluded that its disposition of ABC was controlled by
its decision in Fox on the ground that "there [was] no significant
distinction" between the two cases. App., infra, 124a. While the Court
could appropriately grant certiorari only in Fox (the first question
presented) and hold ABC (the second question presented), we believe
the better course is to grant review of both judgments. The two cases
present distinct contexts: Fox involves expletives in live programming,
and ABC involves images of adult nudity in a scripted show. Simulta-
neous review of both judgments would thus allow the Court to evaluate
how the FCC's indecency rules apply in different settings. This would
be especially warranted given the court of appeals' decision to "strike
down" the Commission's "indecency policy" in its entirety, id. at 34a,
and with respect to all its applications, id. at 124a-125a.

32

CONCLUSION

The petition for a writ of certiorari should be granted.
Respectfully submitted.
NEAL KUMAR KATYAL
AUSTIN C. SCHLICK
Acting Solicitor General
General Counsel
TONY WEST
PETER KARANJIA
Assistant Attorney General
Deputy General Counsel
MALCOLM L. STEWART
JACOB M. LEWIS
Deputy Solicitor General
Associate General Counsel
JOSEPH R. PALMORE
NANDAN M. JOSHI
Assistant to the Solicitor
Counsel
General
Federal Communications
THOMAS M. BONDY
Commission
ANNE MURPHY
Attorneys
APRIL 2011

APPENDIX A

UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
Docket Nos. 06-1760-ag, 06-2750-ag, 06-5358-ag
FOX TELEVISION STATIONS, INC., CBS BROADCASTING
INC., WLS TELEVISION, INC., KTRK TELEVISION,
INC., KMBC HEARST-ARGYLE TELEVISION, INC.,
ABC INC., PETITIONERS
v.
FEDERAL COMMUNICATIONS COMMISSION,
UNITED STATES OF AMERICA, RESPONDENTS,
NBC UNIVERSAL, INC., NBC TELEMUNDO LICENSE
CO., NBC TELEVISION AFFILIATES, FBC TELEVISION
AFFILIATES ASSOCIATION, CBS TELEVISION
NETWORK AFFILIATES, CENTER FOR THE CREATIVE
COMMUNITY, INC., DOING BUSINESS AS CENTER FOR
CREATIVE VOICES IN MEDIA, INC., ABC TELEVISION
AFFILIATES ASSOCIATION, INTERVENORS
Argued: Jan. 13, 2010
Decided: July 13, 2010
LEVAL, POOLER, and HALL, Circuit Judges.
POOLER, Circuit Judge:
This petition for review comes before us on remand
from the Supreme Court. Previously we held, with
Judge Leval dissenting, that the indecency policy of the
(1a)

2a
Federal Communications Commission ("FCC" or "Com-
mission") was arbitrary and capricious under the Ad-
ministrative Procedure Act ("APA"), 5 U.S.C.
706(2)(A). See Fox Television Stations, Inc. v. FCC,
489 F.3d 444, 462 (2d Cir. 2007). The Supreme Court
reversed, upholding the policy under the APA and re-
manding for consideration of petitioners' constitutional
arguments. See Fox Television Stations, Inc. v. FCC,
129 S. Ct. 1800, 1819 (2009) (Scalia, J.). We now hold
that the FCC's policy violates the First Amendment be-
cause it is unconstitutionally vague, creating a chilling
effect that goes far beyond the fleeting expletives at
issue here. Thus, we grant the petition for review and
vacate the FCC's order and the indecency policy under-
lying it.1

BACKGROUND

Section 1464 of Title 18 of United States Code pro-
vides that "[w]hoever utters any obscene, indecent, or
profane language by means of radio communication shall
be fined under this title or imprisoned not more than
two years, or both." In 1960, Congress authorized the
FCC to impose civil forfeitures for violations of Section
1464. See 47 U.S.C. 503(b)(1)(D). It was not until
1975, however, that the FCC first exercised its authority
to regulate speech it deemed indecent but not obscene.
The speech at issue was comedian George Carlin's "Fil-
thy Words" monologue, a 12-minute string of expletives
broadcast on the radio at 2:00 in the afternoon.
1 We address only the petition for review filed in Docket No. 06-5358,
te other two petitions having been previously dismissed as moot by this
Court. Fox, 489 F.3d at 447 n.2.

3a
The FCC brought forfeiture proceedings against the
Pacifica Foundation, the broadcaster that had aired
the Carlin monologue. Citizen's Complaint Against
Pacifica Found. Station WBAI (FM), N.Y, N.Y., 56
F.C.C. 2d 94 (1975). In finding that Pacifica had violated
Section 1464, the Commission defined "indecent" speech
as "language that describes, in terms patently offensive
as measured by contemporary community standards for
the broadcast medium, sexual or excretory activities and
organs, at times of the day when there is a reasonable
risk that children may be in the audience." Id. at 11.
Pacifica petitioned for review to the D.C. Circuit, which
declared the FCC's indecency regime invalid. See
Pacifica Found. v. FCC, 556 F.2d 9 (D.C. Cir. 1977). In
finding the FCC's order both vague and overbroad, the
court pointed out that the Commission's definition of
indecent speech would prohibit "the uncensored broad-
cast of many of the great works of literature including
Shakespearian plays and contemporary plays which
have won critical acclaim, the works of renowned classi-
cal and contemporary poets and writers, and passages
from the Bible." Id. at 14. Such a result, the court con-
cluded, amounted to unconstitutional censorship. Id. at
18.
In a plurality opinion authored by Justice Stevens,
the Supreme Court reversed. See FCC v. Pacifica
Found., 438 U.S. 726 (1978). The Court limited its re-
view to the question of whether the FCC could impose a
civil forfeiture for the Carlin monologue and declined to
address Pacifica's argument that the regulation was
overbroad and would chill protected speech. Id. at 734-
35, 743 ("Invalidating any rule on the basis of its hypo-
thetical application to situations not before the Court is
`strong medicine' to be applied `sparingly and only as a

4a
last resort.'" (quoting Broadrick v. Oklahoma, 413 U.S.
601, 613 (1973))). In limiting its review, the Court
stressed the "specific factual context" of the Carlin mon-
ologue, id. at 742, focusing in particular on Carlin's de-
liberate and repetitive use of expletives to describe sex-
ual and excretory activities.
The Court then went on to hold that the FCC could,
at least in the situation before it, restrict indecent
speech in the broadcast context that did not meet the
legal definition of obscenity. Id. at 744 (concluding that
"if the government has any such power [to restrict inde-
cent speech], this was an appropriate occasion for its
exercise"). Resting on a nuisance rationale, the Court
first noted that "of all forms of communication, it is
broadcasting that has received the most limited First
Amendment protection" because of its "uniquely perva-
sive presence in the lives of all Americans." Id. at 748.
Moreover, the nature of broadcast televisionas op-
posed to printed materials--made it "uniquely accessi-
ble to children, even those too young to read." Id. at
749. The Court, however, "emphasize[d] the narrowness
of [its] holding." Id. at 750. "[N]uisance may be merely
a right thing in the wrong place,--like a pig in the parlor
instead of the barnyard. We simply hold that when the
Commission finds that a pig has entered the parlor, the
exercise of its regulatory power does not depend on
proof that the pig is obscene." Id. at 750-51 (internal
quotation marks omitted).
Justices Powell and Blackmun, who concurred in a
separate opinion, also made clear that the FCC's regula-
tory authority was limited, stating that the Court's hold-
ing did not give the FCC "an unrestricted license to de-
cide what speech, protected in other media, may be

5a
banned from the airwaves in order to protect unwilling
adults from momentary exposure to it in their homes."
Id. at 759-60 (Powell, J., concurring). Nor, they ex-
plained, did the holding "speak to cases involving the
isolated use of a potentially offensive word in the course
of a radio broadcast, as distinguished from the verbal
shock treatment administered by respondent here." Id.
at 760-61. Finally, they took the FCC at its word that it
would "proceed cautiously," which they reasoned would
minimize any chilling effect that might otherwise result.
Id. at 761 n.4.
In the years after Pacifica, the FCC did indeed pur-
sue a restrained enforcement policy, taking the position
that its enforcement powers were limited to the seven
specific words in the Carlin monologue. See In re Appli-
cation of WGBH Educ. Found., 69 F.C.C. 2d 1250, at
10 (1978); Infinity Broadcasting Corp., et al., 3 F.C.C.
Rcd. 930, at 5 (1987) ("Infinity Order"). No enforce-
ment actions were brought between 1978 and 1987. In-
finity Order, 3 F.C.C. Rcd. 930, at 4. Then, in 1987,
the FCC abandoned its focus on specific words, conclud-
ing that "although enforcement was clearly easier under
the standard, it could lead to anomalous results that
could not be justified." Id. at 5. The FCC reasoned
that under the prior standard, patently offensive mate-
rial was permissible as long as it avoided certain words.
This, the Commission concluded, "made neither legal
nor policy sense." Id. The Commission instead decided
to utilize the definition it had used in Pacifica, adopting
a contextual approach to indecent speech.
Despite its move to a more flexible standard, the
FCC continued to exercise restraint. In particular, it
consistently held that a single, non-literal use of an ex-

6a
pletive was not actionably indecent. See, e.g., In re Ap-
plication of WGBH Educ. Found, 69 F.C.C.2d 1250, at
10 n.6. (noting that the single use of an expletive in a
program that aired at 5:30pm "should not call for us to
act under the holding of Pacifica"); In re Regents of the
Univ. of Cal., 2 F.C.C. Rcd. 2703, at 3 (1987) ("Speech
that is indecent must involve more than an isolated use
of an offensive word."); L.M. Communications of S.C.,
Inc., 7 F.C.C. Rcd. 1595, 1595 (1992) (finding the single
utterance of the F-word not indecent because it was a
"fleeting and isolated utterance which, within the con-
text of live and spontaneous programming, does not war-
rant a Commission sanction"); In re Application of Lin-
coln Dweller, Renewal of the License of Stations
KPRL(AM) and KDDB(FM), 8 F.C.C. Rcd. 2582, 2585
(1993) (The "use of a single expletive" did not warrant
further review "in light of the isolated and accidental
nature of the broadcast.").
In 2001, in an attempt to "provide guidance to the
broadcast industry regarding . . . [its] enforcement
policies with respect to broadcast indecency," the FCC
issued a policy statement in which it set forth its inde-
cency standard in more detail. Industry Guidance on
the Commission's Case Law Interpreting 18 U.S.C.
1464, 16 F.C.C. Rcd 7999, at 1 (2001) ("Industry
Guidance"). In Industry Guidance, the FCC explained
that an indecency finding involved the following two de-
terminations: (1) whether the material "describe[s] or
depict[s] sexual or excretory organs or activities"; and
(2) whether the broadcast is "patently offensive as mea-
sured by contemporary community standards for the
broadcast medium." Id. at 7-8 (emphasis omitted).
The FCC further explained that it considered the follow-
ing three factors in determining whether a broadcast is

7a
patently offensive: (1) "the explicitness or graphic na-
ture of the description or depiction"; (2) "whether the
material dwells on or repeats at length" the description
or depiction; and (3) "whether the material appears to
pander or is used to titillate, or whether the materials
appears to have been presented for its shock value." Id.
at 10 (emphasis omitted). The Industry Guidance re-
iterated that under the second prong of the patently of-
fensive test, "fleeting and isolated" expletives were not
actionably indecent. Id. at 18.
In 2004, however, the FCC's policy on indecency
changed. During the 2003 Golden Globe Awards, U2
band member Bono exclaimed, upon receiving an award,
"this is really, really, fucking brilliant. Really, really,
great." In re Complaints Against Various Broadcast
Licensees Regarding Their Airing of the "Golden Globe
Awards" Program, 19 F.C.C. Rcd. 4975, at 3 n.4 (2004)
("Golden Globes Order"). In response to complaints
filed after the incident, the FCC declared, for the first
time, that a single, nonliteral use of an expletive (a so-
called "fleeting expletive") could be actionably indecent.2
2 The FCC's increased enforcement efforts--as well as Congress's
decision to increase the maximum fines--were in large part caused by
the broadcast of the 2004 Super Bowl, during which Justin Timberlake
exposed Janet Jackson's breast for a fraction of a second during their
halftime show, an event that came to be known as "Nipplegate." Frank
Ahrens, The Price for On-Air Indecency Goes Up, Wash. Post (June 8,
2006), available at http://www.washingtonpost.com/wp-dyn/content/
article/2006/06/07/AR2006060700287.html. The FCC imposed a
$550,000 fine, which was overturned by the Third Circuit. See CBS
Corp. v. FCC, 535 F.3d 167, 209 (3d Cir. 2008). After the Supreme
Court issued its decision in Fox, it vacated the decision and remanded
to the Third Circuit for reconsideration in light of Fox. See FCC v. CBS
Corp., 129 S. Ct. 2176 (2009). The Third Circuit has yet to issue a new
decision.

8a
Finding that "the `F-Word' is one of the most vulgar,
graphic, and explicit descriptions of sexual activity in
the English language," id. at 9, and therefore "inher-
ently has a sexual connotation," id. at 8, the FCC con-
cluded that the fleeting and isolated use of the word was
irrelevant and overruled all prior decisions in which
fleeting use of an expletive was held per se not indecent,
id. at 8-12. The FCC also found that the broadcast
was "profane" within the meaning of Section 1464, aban-
doning its previous interpretation of the term to mean
blasphemy. Id. at 13-14.
At the same time that the FCC expanded its enforce-
ment efforts to include even fleeting expletives, the FCC
also began issuing record fines for indecency violations.3
While the Commission had previously interpreted the
maximum fines in the statute as applying on a per pro-
gram basis, it began treating each licensee's broadcast
of the same program as a separate violation, thereby
multiplying the maximum fine the FCC could order for
each instance of indecent speech. In addition, Congress
amended Section 503(b)(2)(c)(ii) to increase the maxi-
mum fine permitted by a factor of 10--from $32,500 to
$325,000meaning that the fine for a single expletive
uttered during a broadcast could easily run into the tens
of millions of dollars. See 47 U.S.C. 503(b)(2)(c)(iii).
NBC Universal, Inc. ("NBC"), along with numerous
other parties, filed petitions for reconsideration of the
Golden Globes Order before the FCC, raising statutory
and constitutional challenges to the new policy. While
the petitions for reconsideration were pending, the FCC
3 In 2003, the FCC imposed $440,000 in fines. In 2004, it imposed a
record $8 million in fines. See Former FCC Commissioners Br. at 10
n.6.

9a
applied the Golden Globes Order policy in In Re Com-
plaints Regarding Various Television Broadcasts Be-
tween February 2, 2002 and March 8, 2005, 21 F.C.C.
Rcd. 2664 (2006) ("Omnibus Order"), which the Commis-
sion stated was intended to "provide substantial guid-
ance to broadcasters and the public" about what was
considered indecent under the new policy. Id. at 2. In
the Omnibus Order (which dealt with many more pro-
grams than are at issue in the present case), the Com-
mission found four programs--the 2002 Billboard Music
Awards, the 2003 Billboard Music Awards, various epi-
sodes of ABC's NYPD Blue, and CBS's The Early
Show--indecent and profane under the Golden Globes
standard.
All four programs involved what could be character-
ized as fleeting expletives. For instance, during the
2002 Billboard Music Awards, Cher, in an unscripted
moment from her acceptance speech, stated: "People
have been telling me I'm on the way out every year,
right? So fuck `em." Id. at 101. Similarly, during the
2003 Billboard Music Awards, Nicole Ritchie--on stage
to present an award with Paris Hilton--made the follow-
ing unscripted remark: "Have you ever tried to get cow
shit out of a Prada purse? It's not so fucking simple."
Id. at 112 n.164. Episodes of NYPD Blue were found
indecent based on several instances of the word "bull-
shit," id. at 125, while the CBS's The Early Show was
found indecent on the basis of a guest's use of the word
"bullshitter" to describe a fellow contestant on the real-
ity TV show, Survivor: Vanuatu, id. at 137.
In finding these programs indecent and profane, the
FCC reaffirmed its decision in the Golden Globes Order
that any use of the word "fuck" was presumptively inde-

10a
cent and profane, id. at 102, 107, further concluding
that any use of the word "shit" was also presumptively
indecent and profane, id. at 138, 143. It also held that
the four broadcasts in question were "patently offen-
sive" because the material was explicit, shocking, and
gratuitous, notwithstanding the fact that the expletives
were fleeting and isolated. Id. 106, 120, 131, 141.
Fox Television Stations, Inc. ("Fox"), CBS Broad-
casting Inc. ("CBS"), and ABC Inc. ("ABC"), as well as
several network affiliates, filed petitions for review of
the Omnibus Order.4 The FCC moved for a voluntary
remand, which we granted, so that it could have the op-
portunity to address petitioners' arguments and could
ensure that all licensees had a full opportunity to be
heard before the FCC issued a final decision. After so-
liciting public comments, the FCC issued a second order
on November 6, 2006. See In re Complaints Regarding
Various Television Broadcasts Between February 2,
2002 and March 8, 2005, 21 F.C.C. Rcd. 13299 (2006)
("Remand Order"). In the Remand Order, the FCC re-
affirmed its finding that the 2002 and 2003 Billboard
Music Awards were indecent and profane. However, the
FCC reversed its finding with respect to The Early
Show and dismissed the complaint against NYPD Blue
on procedural grounds.5
4 ABC originally filed a petition for review in the D.C. Circuit, which
was then transferred to this Court and consolidated with the Fox/CBS
petitions for review.
5 The Commission dismissed the complaints against NYPD Blue be-
cause the only person who complained of the material resided in the
Eastern time zone, where NYPD Blue aired during the "safe harbor"
period after 10pm. Id. at 75.

11a
In the Remand Order, the FCC rejected the petition-
ers' argument that non-literal uses of expletives were
not indecent, reasoning that "any strict dichotomy be-
tween expletives and descriptions or depictions of sexual
or excretory functions is artificial and does not make
sense in light of the fact that an expletive's power to of-
fend derives from its sexual or excretory meaning." Id.
at 23 (internal quotation marks omitted). However,
the Commission did "not take the position that any oc-
currence of an expletive is indecent or profane under its
rules," allowing that expletives that were "integral" to
an artistic work or occurring during a "bona fide news
interview" might not run afoul of the indecency stan-
dard. Id. at 70 (emphasis added). As such, it reversed
its previous decision concerning the CBS's The Early
Show because the utterance of the word "bullshitter"
took place during a bona fide news interview. The Com-
mission made clear, however, that "there is no outright
news exemption from our indecency rules." Id. at 71.
Petitioners and intervenors,6 which collectively rep-
resented all the major broadcast networks as well as
local affiliates affected by the FCC's indecency policy
(hereinafter, the "Networks"), returned to this Court for
review of the Remand Order, making a variety of admin-
istrative, statutory, and constitutional arguments. In a
2-1 decision (with Judge Leval in dissent), we held that
the FCC's indecency policy was arbitrary and capricious
under the APA. Fox, 489 F.3d at 447. We reached this
6 Intervenors included NBC Universal, Inc., NBC Telemundo Li-
cense Co., NBC Television Affiliates, FBC Television Affiliates, CBS
Television Networks Affiliation, and ABC Television Affiliates Asso-
ciation. On remand from the Supreme Court, the Center for Creative
Voices and Future of Music Coalition, which represents the artistic
community, filed a motion to intervene, which we granted.

12a
decision because we believed that the FCC had failed to
adequately explain why it had changed its nearly-30-
year policy on fleeting expletives. Id. at 58. Moreover,
we noted that the FCC's justification for the policy--
that children could be armed by hearing even one fleet-
ing expletive (the so-called "first blow" theory)--bore
"no national connection to the Commission's actual pol-
icy," because the FCC had not instituted a blanket ban
on expletives. Id.
Because we struck down the indecency policy on APA
grounds, we declined to reach the constitutional issues
in the case. We noted, however, that we were "skeptical
that the Commission [could] provide a reasoned explana-
tion for its `fleeting expletive' regime that would pass
constitutional muster." Id. at 462. We expressed sym-
pathy for "the Networks' contention that the FCC's in-
decency test [wa]s undefined, indiscernible, inconsistent,
and consequently, unconstitutionally vague." Id. at 463.
We were also troubled that the FCC's policy appeared
to permit it to "sanction speech based on its subjective
view of the merit of that speech." Id. at 464. However,
because it was unnecessary for us to reach them, we left
those issues for another day. The FCC subsequently
filed a writ of certiorari, which the Supreme Court
granted.
In a 5-4 decision, the Supreme Court reversed our
APA ruling, holding that the FCC's "fleeting expletive"
policy was not arbitrary and capricious because "[t]he
Commission could reasonably conclude that the perva-
siveness of foul language, and the coarsening of public
entertainment in other media such as cable, justify more
stringent regulation of broadcast programs so as to give
conscientious parents a relatively safe haven for their

13a
children." 129 S. Ct. at 1819. However, the Court de-
clined to address the Networks' constitutional argu-
ments, "see[ing] no reason to abandon our usual proce-
dures in a rush to judgment without a lower court opin-
ion," id., and remanded for us to consider them in the
first instance. Thus, after further briefing by the par-
ties, intervenors, and amici, we now turn to the question
that we deferred in our previous decisionwhether the
FCC's indecency policy violates the First Amendment.

DISCUSSION

I.

It is well-established that indecent speech is fully
protected by the First Amendment. Reno v. ACLU, 521
U.S. 844, 874-75 (1997) ("Where obscenity is not in-
volved, . . . the fact that protected speech may be of-
fensive to some does not justify its suppression." (quot-
ing Carey v. Population Servs. Int'l, 431 U.S. 678, 701
(1977))). In most contexts, the Supreme Court has con-
sidered restrictions on indecent speech to be content-
based restrictions subject to strict scrutiny. See United
States v. Playboy Entm't Group, 529 U.S. 803, 813
(2000). For instance, in Reno v. ACLU, the Supreme
Court struck down the Communications Decency Act of
1996, finding that a provision criminalizing the knowing
transmission of indecent speech through the internet
was unconstitutionally vague and not narrowly tailored.
521 U.S. at 882. In Playboy, the Supreme Court con-
fronted a provision of the Telecommunications Act of
1996 that prohibited cable television operators from
broadcasting sexual content during certain hours. While
recognizing that television "presents unique problems"
not present in other mediums, the Court held unequivo-

14a
cally that the restriction was subject to strict scrutiny,
and struck it down because scrambling technology pro-
vided a less restrictive means of protecting minors from
indecent content. 529 U.S. at 813, 827. Similarly, the
Supreme Court in Sable Communications of California,
Inc. v. FCC declared unconstitutional a provision of the
Communications Act that prohibited the transmission
of indecent commercial telephone messages, so-called
"dial-a-porn," finding that a total ban was not the least
restrictive means available. 492 U.S. 115, 131 (1989).
Broadcast radio and television, however, have always
occupied a unique position when it comes to First
Amendment protection. The categorization of broad-
casting as different from all other forms of communica-
tion pre-dates Pacifica. See, e.g., Red Lion Broad. Co.
v. FCC, 395 U.S. 367, 386 (1969) ("Although broadcast-
ing is clearly a medium affected by a First Amendment
interest, differences in the characteristics of new media
justify differences in the First Amendment standards
applied to them."(internal citation omitted)). And the
Supreme Court has continuously reaffirmed the distinc-
tion between broadcasting and other forms of media
since Pacifica. See Reno, 521 U.S. at 866-67; Sable, 492
U.S. at 127. However, it was in Pacifica that the Su-
preme Court gave its fullest explanation for why restric-
tions on broadcast speech were subject to a lower level
of scrutiny, relying on the twin pillars of pervasiveness
and accessibility to children. 438 U.S. at 748-49. While
Pacifica did not specify what level of scrutiny applies to
restrictions on broadcast speech, subsequent cases have
applied something akin to intermediate scrutiny. See
FCC v. League of Women Voters, 468 U.S. 364, 380
(1984).

15a
The Networks argue that the world has changed
since Pacifica and the reasons underlying the decision
are no longer valid. Indeed, we face a media landscape
that would have been almost unrecognizable in 1978.
Cable television was still in its infancy. The Internet
was a project run out of the Department of Defense with
several hundred users. Not only did Youtube, Facebook,
and Twitter not exist, but their founders were either
still in diapers or not yet conceived. In this environ-
ment, broadcast television undoubtedly possessed a
"uniquely pervasive presence in the lives of all Ameri-
cans." Pacifica, 438 U.S. at 748.
The same cannot be said today. The past thirty
years has seen an explosion of media sources, and broad-
cast television has become only one voice in the chorus.
Cable television is almost as pervasive as broadcast--
almost 87 percent of households subscribe to a cable or
satellite service--and most viewers can alternate be-
tween broadcast and non-broadcast channels with a click
of their remote control. See In re Annual Assessment
of the Status of Competition in the Market for the Deliv-
ery of Video Programming, 24 FCC Rcd. 542, at 8
(2009). The internet, too, has become omnipresent, of-
fering access to everything from viral videos to feature
films and, yes, even broadcast television programs. See
In Re Implementation of the Child Safe Viewing Act;
Examination of Parental Control Technologies for
Video or Audio Programming, 24 F.C.C. Rcd. 11413, at
126 (2009) ("CSVA Report") ("The number of suppliers
of online video and audio is almost limitless."). As the
FCC itself acknowledges, "[c]hildren today live in a me-
dia environment that is dramatically different from the
one in which their parents and grandparents grew up
decades ago." In the Matter of Empowering Parents

16a
and Protecting Children in an Evolving Media Land-
scape, 24 F.C.C. Rcd. 13171, at 11 (2009).
Moreover, technological changes have given parents
the ability to decide which programs they will permit
their children to watch. Every television, 13 inches or
larger, sold in the United States since January 2000 con-
tains a V-chip, which allows parents to block programs
based on a standardized rating system. 47 U.S.C.
303(x). Moreover, since June 11, 2009, when the Uni-
ted States made the transition to digital television, any-
one using a digital converter box also has access to a V-
chip. CSVA Report, 24 F.C.C. Rcd. 11413, at 11. In
short, there now exists a way to block programs that
contain indecent speech in a way that was not possible in
1978. In fact, the existence of technology that allowed
for household-by-household blocking of "unwanted" ca-
ble channels was one of the principle distinctions be-
tween cable television and broadcast media drawn by
the Supreme Court in Playboy. The Court explained:
The option to block reduces the likelihood, so con-
cerning to the Court in Pacifica, that traditional
First Amendment scrutiny would deprive the Gov-
ernment of all authority to address this sort of prob-
lem. The corollary, of course, is that targeted block-
ing enables the Government to support parental au-
thority without affecting the First Amendment inter-
ests of speakers and willing listeners--listeners for
whom, if the speech is unpopular or indecent, the pri-
vacy of their own homes may be the optimal place of
receipt.
Playboy, 529 U.S. at 815 (internal citation omitted). We
can think of no reason why this rationale for applying
strict scrutiny in the case of cable television would not

17a
apply with equal force to broadcast television in light of
the V-chip technology that is now available.
Nevertheless, as we stated in our previous decision,
we are bound by Supreme Court precedent, regardless
of whether it reflects today's realities. The Supreme
Court may decide in due course to overrule Pacifica and
subject speech restrictions in the broadcast context to
strict scrutiny. This Court, however, is "not at liberty to
depart from binding Supreme Court precedent `unless
and until [the] Court reinterpret[s]' that precedent."
OneSimpleLoan v. U.S. Sec'y of Educ., 496 F.3d 197, 208
(2d Cir. 2007) (quoting Agostini v. Felton, 521 U.S. 203,
238 (1997)) (alterations in original). The Networks, al-
though they may wish it otherwise, seem to concede that
we must evaluate the FCC's indecency policy under the
framework established by the Supreme Court in Pacif-
ica. See ABC Television Affiliates Association Br. at 12-
13.
There is considerable disagreement among the par-
ties, however, as to what framework Pacifica estab-
lished. The FCC interprets Pacifica as permitting it to
exercise broad regulatory authority to sanction indecent
speech. In its view, the Carlin monologue was only the
most extreme example of a large category of indecent
speech that the FCC can constitutionally prohibit. The
Networks, on the other hand, view Pacifica as establish-
ing the limit of the FCC's authority. In other words,
they believe that only when indecent speech rises to the
level of "verbal shock treatment," exemplified by the
Carlin monologue, can the FCC impose a civil forfeiture.
Because Pacifica was an intentionally narrow opinion,
it does not provide us with a clear answer to this ques-
tion. Fortunately, we do not need to wade into the

18a
brambles in an attempt to answer it ourselves. For we
conclude that, regardless of where the outer limit of the
FCC's authority lies, the FCC's indecency policy is un-
constitutional because it is impermissibly vague. It is to
this issue that we now turn.7

II.

It is a basic principle that a law or regulation " `is
void for vagueness if its prohibitions are not clearly de-
fined.' " Piscottano v. Murphy, 511 F.3d 247, 280 (2d
Cir. 2007) (quoting Grayned v. City of Rockford, 408
U.S. 104, 108 (1972)). A law or regulation is impermis-
sibly vague if it does not "give the person of ordinary in-
telligence a reasonable opportunity to know what is pro-
hibited." Farrell v. Burke, 449 F.3d 470, 485 (2d Cir.
2006) (quoting Grayned, 408 U.S. at 108). The First
Amendment places a special burden on the government
to ensure that restrictions on speech are not impermis-
sibly vague. See Perez v. Hoblock, 368 F.3d 166, 175 n.5
(2d Cir. 2004) ("[A] law or regulation that `threatens to
inhibit the exercise of constitutionally protected rights,'
such as the right of free speech, will generally be subject
to a more stringent vagueness test.") (quoting Vill. of
Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455
U.S. 489, 499 (1982))). However, " `perfect clarity and
precise guidance have never been required even of regu-
lations that restrict expressive activity.'" United States
v. Williams, 128 S. Ct. 1830, 1845 (2008) (quoting Ward
v. Rock Against Racism, 491 U.S. 781, 794 (1989)).
7 Although, the Remand Order also found the broadcasts in question
"profane," the FCC has abandoned that finding for the purposes of this
appeal and has relied solely on its finding of indecency. See FCC Br. at
24 n.2. We therefore do not address its profanity finding further.

19a
The vagueness doctrine serves several important
objectives in the First Amendment context. First, the
doctrine is based on the principle of fair notice. " `[W]e
assume that man is free to steer between lawful and un-
lawful conduct" and we give him notice of what is pro-
hibited "so that he may act accordingly.' " Farrell, 449
F.3d at 485 (quoting Grayned, 408 U.S. at 108). Notice
is particularly important with respect to content-based
speech restrictions "because of [their] obvious chilling
effect on free speech." Reno, 521 U.S. at 872. Vague
regulations " `inevitably lead citizens to steer far wider
of the unlawful zone than if the boundaries of the forbid-
den areas were clearly marked.' " Farrell, 449 F.3d at
485 (quoting Grayned, 408 U.S. at 109)). Second, the
vagueness doctrine is based "on the need to eliminate
the impermissible risk of discriminatory enforcement."
Gentile v. State Bar of Nev., 501 U.S. 1030, 1051 (1991).
"A vague law impermissibly delegates basic policy mat-
ters to [government officials] for resolution on an ad hoc
and subjective basis. . . . " Grayned, 408 U.S. at 108-
09 (emphasis added). Specificity, on the other hand,
guards against subjectivity and discriminatory enforce-
ment.

A.

The Networks argue that the FCC's indecency test
is unconstitutionally vague because it provides no clear
guidelines as to what is covered and thus forces broad-
casters to "steer far wider of the unlawful zone," rather
than risk massive fines. In support of their position, the
Networks rely on the Supreme Court's decision in Reno
v. ACLU, 521 U.S. 844 (1997). Section 223(a) of the
Communications Decency Act ("CDA") prohibited trans-
mitting "indecent" material to minors over the Internet

20a
while section 223(d) prohibited material that "in context,
depicts or describes, in terms patently offensive as mea-
sured by contemporary community standards, sexual or
excretory activities or organs." Id. at 859-60 (quoting
47 U.S.C. 223(d)). In addition to finding that the stat-
ute was not narrowly tailored, the Court found the stat-
ute unconstitutionally vague because "the many ambigu-
ities concerning the scope of its coverage render[ed] it
problematic for purposes of the First Amendment." Id.
at 870. The Court found that the statute's use of the
"general, undefined terms `indecent' and `patently offen-
sive' cover[ed] large amounts of nonpornographic mate-
rial with serious educational or other value. Because of
the "vague contours" of the regulation, the Court held
that "it unquestionably silence[d] some speakers whose
messages would be entitled to constitutional protection."
Id. at 874. The Networks argue that since Reno found
this indecency regulation unconstitutionally vague, the
FCC's identically-worded indecency test for broadcast-
ing must fall as well.
FCC argues the opposite--that Reno forecloses a
vagueness challenge to the FCC's policy. In Reno, the
government argued that the CDA was "plainly constitu-
tional" under the Pacifica decision. Id. at 864. The Su-
preme Court rejected this argument, distinguishing
Pacifica on the grounds that (1) the FCC is an expert
agency that had been regulating the radio for decades;
(2) the CDA was a categorical ban on speech while the
FCC's indecency regulation designated "when--rather
than whether--it would be permissible to air such a pro-
gram"; (3) the order at issue in Pacifica was not puni-
tive; and (4) the broadcast medium had traditionally
received the most limited First Amendment protection.
Id. at 867. According to the FCC, because the Court

21a
refused to find Pacifica controlling of the constitutional
challenges to the CDA, we must find Reno equally inap-
plicable here.
As an initial matter, we reject the FCC's argument
that Reno forecloses the Networks' vagueness chal-
lenge. When the Supreme Court distinguished Pacifica
in Reno, it did so with respect to "the level of First
Amendment scrutiny that should be applied to this me-
dium," not to its analysis of whether the statute was un-
constitutionally vague. Id. at 870. Broadcasters are en-
titled to the same degree of clarity as other speakers,
even if restrictions on their speech are subject to a lower
level of scrutiny. It is the language of the rule, not the
medium in which it is applied, that determines whether
a law or regulation is impermissibly vague.
We also reject the Networks' argument that Reno
requires us to find the FCC's policy vague. To be sure,
the CDA's definition of indecency was almost identical
to the Commission's, and language that is unconstitu-
tionally vague in one context cannot suddenly become
the model of clarity in another. However, unlike in
Reno, the FCC has further elaborated on the definition
of indecency in the broadcast context. For example, the
FCC has outlined three factors that it purportedly uses
to determine whether a broadcast is patently offensive,
Industry Guidance, 16 F.C.C. Rcd. 7999, at 7-8, and
has declared "fuck" and "shit" presumptively indecent,
Omnibus Order, 2001 F.C.C. Rcd. 2664, at 102, 107.
This additional guidance may not be sufficient to survive
a vagueness challenge, but it certainly distinguishes the
FCC policy from the one struck down in Reno.
Finally, we reject the FCC's argument that the Net-
works' vagueness challenge is foreclosed by Pacifica

22a
itself. Pacifica, which did not reach the question of
whether the FCC's policy was unconstitutionally vague,
was an intentionally narrow opinion predicated on the
FCC's "restrained" enforcement policy. Pacifica, 438
U.S. at 761 (Powell J., concurring). The FCC's policy
has now changed and we would be hard pressed to char-
acterize it as "restrained." Thus, the questions left un-
resolved by Pacifica are now squarely before us, as the
Supreme Court itself indicated in its opinion above. See
Fox, 129 S. Ct. at 1819 ("[W]hether [the FCC's policy] is
unconstitutional, will be determined soon enough, per-
haps in this very case.").8

B.

Having concluded that neither Pacifica nor Reno re-
solves the question, we must now decide whether the
FCC's indecency policy provides a discernible standard
by which broadcasters can accurately predict what
speech is prohibited. The FCC set forth its indecency
8 The FCC also argues that the DC Circuit's Action for Children's
Television cases preclude Networks' vagueness challenge, but this ar-
gument fails for the same reason its Pacifica argument fails. The DC
Circuit, like the Supreme Court, relied specifically on the FCC's re-
strained policy in reaching its decision. See Action for Children's
Television v. FCC, 852 F.2d 1332,1340 n.14 (D.C. Cir. 1988), superseded
by 58 F.3d 654 (D.C. Cir. 1995) (en banc) ("[T]he potential chilling effect
of the FCC's generic definition of indecency will be tempered by the
Commission's restrained enforcement policy."). Moreover, to the ex-
tent the ACT cases held that a vagueness challenge was precluded by
Pacifica, we are not bound by the DC Circuit and do not find it persua-
sive. To the extent that our opinion in Dial Information Services Corp.
v. Thornburgh, 938 F.2d 1535, 1541 (2d Cir. 1991), held that the same
definition of indecency was not impermissibly vague in the non-broad-
cast context, that holding was overruled by the Supreme Court's deci-
sion in Reno.

23a
policy in its 2001 Industry Guidance, in which the FCC
explained that an indecency finding involved the follow-
ing two determinations: (1) whether the material "des-
cribe[s] or depict[s] sexual or excretory organs or activi-
ties"; and (2) whether the broadcast is "patently offen-
sive as measured by contemporary community stan-
dards for the broadcast medium." Id. at 7-8. Under
the policy, whether a broadcast is patently offensive de-
pends on the following three factors: (1) "the explicit-
ness or graphic nature of the description or depiction";
(2) "whether the material dwells on or repeats at length"
the description or depiction; and (3) "whether the mate-
rial appears to pander or is used to titillate, or whether
the materials appears to have been presented for its
shock value." Id. at 10 (emphasis added). Since 2001,
the FCC has interpreted its indecency policy in a num-
ber of decisions, including Golden Globes Order and the
orders on review here.
The FCC argues that the indecency policy in its In-
dustry Guidance, together with its subsequent deci-
sions, give the broadcasters sufficient notice as to what
will be considered indecent. The Networks argue that
the policy is impermissibly vague and that the FCC's de-
cisions interpreting the policy only add to the confusion
of what will be considered indecent.
We agree with the Networks that the indecency pol-
icy is impermissibly vague. The first problem arises in
the FCC's determination as to which words or expres-
sions are patently offensive. For instance, while the
FCC concluded that "bullshit" in a "NYPD Blue" epi-
sode was patently offensive, it concluded that "dick" and
"dickhead" were not. Omnibus Order, 21 F.C.C. Rcd
2664, at 127-128. Other expletives such as "pissed

24a
off," up yours," "kiss my ass," and "wiping his ass" were
also not found to be patently offensive. Id. at 197. The
Commission argues that its three-factor "patently offen-
sive" test gives broadcasters fair notice of what it will
find indecent. However, in each of these cases, the Com-
mission's reasoning consisted of repetition of one or
more of the factors without any discussion of how it ap-
plied them. Thus, the word "bullshit" is indecent be-
cause it is "vulgar, graphic and explicit" while the words
"dickhead" was not indecent because it was "not suffi-
ciently vulgar, explicit, or graphic." This hardly gives
broadcasters notice of how the Commission will apply
the factors in the future.
The English language is rife with creative ways of
depicting sexual or excretory organs or activities, and
even if the FCC were able to provide a complete list of
all such expressions, new offensive and indecent words
are invented every day. For many years after Pacifica,
the FCC decided to focus its enforcement efforts solely
on the seven "dirty" words in the Carlin monologue. See
Infinity Order, 3 F.C.C. Rcd. 930, at 5 (1987). This
strategy had its limitations--it meant that some inde-
cent speech that did not employ these seven words
slipped through the cracks. However, it had the advan-
tage of providing broadcasters with a clear list of words
that were prohibited. Not surprisingly, in the nine years
between Pacifica and the FCC's abandonment of this
policy, not a single enforcement action was brought.
This could be because we lived in a simpler time before
such foul language was common. Or, it could be that the
FCC's policy was sufficiently clear that broadcasters
knew what was prohibited.

25a
The FCC argues that a flexible standard is necessary
precisely because the list was not effective--broadcast-
ers simply found offensive ways of depicting sexual or
excretory organs or activities without using any of the
seven words. In other words, because the FCC cannot
anticipate how broadcasters will attempt to circumvent
the prohibition on indecent speech, the FCC needs the
maximum amount of flexibility to be able to decide what
is indecent. The observation that people will always find
a way to subvert censorship laws may expose a certain
futility in the FCC's crusade against indecent speech,
but it does not provide a justification for implementing
a vague, indiscernible standard. If the FCC cannot an-
ticipate what will be considered indecent under its pol-
icy, then it can hardly expect broadcasters to do so. And
while the FCC characterizes all broadcasters as con-
sciously trying to push the envelope on what is permit-
ted, much like a petulant teenager angling for a later
curfew, the Networks have expressed a good faith desire
to comply with the FCC's indecency regime. They sim-
ply want to know with some degree of certainty what the
policy is so that they can comply with it. The First
Amendment requires nothing less.
The same vagueness problems plague the FCC's pre-
sumptive prohibition on the words "fuck" and "shit" and
the exceptions thereto. Under the FCC's current policy,
all variants of these two words are indecent unless one
of two exceptions apply. The first is the "bona fide
news" exception, which the FCC has failed to explain
except to say that it is not absolute. The second is the
artistic necessity exception, in which fleeting expletives
are permissible if they are "demonstrably essential to
the nature of an artistic or educational work or essential
to informing viewers on a matter of public importance."

26a
Omnibus Order, 21 F.C.C. Rcd. 2664, at 82. In decid-
ing whether this exception applies, the FCC "consider[s]
whether the material has any social, scientific or artistic
value." In re Complaints Against Various Television
Licensees Regarding Their Broadcast on November 11,
2004, of the ABC Television Network's Presentation of
the Film "Saving Private Ryan", 20 F.C.C. Rcd. 4507,
at 11 (2005) ("Saving Private Ryan").
As we stated in our previous opinion:
Although the Commission has declared that all vari-
ants of "fuck" and "shit" are presumptively indecent
and profane, repeated use of those words in "Saving
Private Ryan," for example, was neither indecent nor
profane. And while multiple occurrences of exple-
tives in "Saving Private Ryan" was not gratuitous, a
single occurrence of "fucking" in the Golden Globe
Awards was "shocking and gratuitous." Parental rat-
ings and advisories were important in finding "Sav-
ing Private Ryan" not patently offensive under con-
temporary community standards, but irrelevant in
evaluating a rape scene in another fictional movie.
The use of numerous expletives was "integral" to a
fictional movie about war, but occasional expletives
spoken by real musicians were indecent and profane
because the educational purpose of the documentary
"could have been fulfilled and all viewpoints ex-
pressed without the repeated broadcast of exple-
tives." The "S-Word" on The Early Show was not in-
decent because it was in the context of a "bona fide
news interview," but "there is no outright news ex-
emption from our indecency rules."
Fox, 489 F.3d at 463 (internal citations and emphasis
omitted). There is little rhyme or reason to these deci-

27a
sions and broadcasters are left to guess whether an ex-
pletive will be deemed "integral" to a program or wheth-
er the FCC will consider a particular broadcast a "bona
fide news interview."
The FCC created these exceptions because it recog-
nized that an outright ban on certain words would raise
grave First Amendment concerns. In the Omnibus Or-
der, the FCC "recognize[d] the need for caution with re-
spect to complaints implicating the editorial judgment
of broadcast licensees in presenting news and public
affairs programming, as these matters are at the core of
the First Amendment's free press guarantee." 21 F.C.C.
Rcd. 2664, at 15. Likewise, in applying the "artistic
necessity" exception, the FCC noted that it was obligat-
ed to "proceed with due respect for the high value our
Constitution places on freedom and choice in what the
people say and hear," particularly with respect to speech
that has "social, scientific or artistic value." Saving Pri-
vate Ryan, 20 F.C.C. Rcd. 4507, at 11 (internal quota-
tion marks omitted). It is these same concerns that in-
formed the FCC's original "restrained" enforcement
policy, which had the advantage of prohibiting the most
egregious instances of indecent speech while minimizing
the burden on protected speech.
The FCC's current indecency policy undoubtedly
gives the FCC more flexibility, but this flexibility comes
at a price. The "artistic necessity" and "bona fide news"
exceptions allow the FCC to decide, in each case, wheth-
er the First Amendment is implicated. The policy may
maximize the amount of speech that the FCC can pro-
hibit, but it results in a standard that even the FCC can-
not articulate or apply consistently. Thus, it found the
use of the word "bullshitter" on CBS's The Early Show

28a
to be "shocking and gratuitous" because it occurred
"during a morning television interview," Omnibus Or-
der, 21 FCC Rcd 2664, at 141, before reversing itself
because the broadcast was a "bona fide news interview."
Remand Order, 21 FCC Rcd. 13299, at 68. In other
words, the FCC reached diametrically opposite conclu-
sions at different stages of the proceedings for precisely
the same reason--that the word "bullshitter" was ut-
tered during a news program. And when Judge Leval
asked during oral argument if a program about the dan-
gers of pre-marital sex designed for teenagers would be
permitted, the most that the FCC's lawyer could say
was "I suspect it would." With millions of dollars and
core First Amendment values at stake, "I suspect" is
simply not good enough.
With the FCC's indiscernible standards come the
risk that such standards will be enforced in a discrimina-
tory manner. The vagueness doctrine is intended, in
part, to avoid that risk. If government officials are per-
mitted to make decisions on an "ad hoc" basis, there is
a risk that those decisions will reflect the officials' sub-
jective biases. Grayned, 408 U.S. at 108-09. Thus, in
the licensing context, the Supreme Court has consistent-
ly rejected regulations that give government officials too
much discretion because "such discretion has the poten-
tial for becoming a means of suppressing a particular
point of view." Forsyth County, Ga. v. Nationalist
Movement, 505 U.S. 123, 130 (1992) (internal quotation
marks omitted); see also City of Lakewood v. Plain
Dealer Pub. Co., 486 U.S. 750, 758 (1988) (permit scheme
facially unconstitutional because "post hoc rationaliza-
tions by the licensing official and the use of shifting or
illegitimate criteria are far too easy, making it difficult
for courts to determine in any particular case whether

29a
the licensor is permitting favorable, and suppressing un-
favorable, expression").
We have no reason to suspect that the FCC is using
its indecency policy as a means of suppressing particular
points of view. But even the risk of such subjective,
content-based decision-making raises grave concerns
under the First Amendment. Take, for example, the dis-
parate treatment of "Saving Private Ryan" and the doc-
umentary, "The Blues." The FCC decided that the
words "fuck" and "shit" were integral to the "realism
and immediacy of the film experience for viewers" in
"Saving Private Ryan," but not in "The Blues." Fox, 489
F.3d at 463. We query how fleeting expletives could be
more essential to the "realism" of a fictional movie than
to the "realism" of interviews with real people about real
life events, and it is hard not to speculate that the FCC
was simply more comfortable with the themes in "Saving
Private Ryan," a mainstream movie with a familiar cul-
tural milieu, than it was with "The Blues," which largely
profiled an outsider genre of musical experience. But
even if there were a perfectly benign way of explaining
these particular outcomes, nothing would prevent the
FCC from applying its indecency policy in a discrimina-
tory manner in the future. As the Supreme Court ex-
plained in Forsyth:
It is not merely the sporadic abuse of power by the
censor but the pervasive threat inherent in its very
existence that constitutes the danger to freedom of
discussion. Accordingly, the success of a facial chal-
lenge on the grounds that an ordinance delegates
overly broad discretion to the decisionmaker rests
not on whether the administrator has exercised his
discretion in a content-based manner, but whether

30a
there is anything in the ordinance preventing him
from doing so.
505 U.S. at 133 n.10 (internal quotation marks and cita-
tions omitted).
The FCC argues that its context-based approach
is consistent with, indeed even required by, Pacifica.
While Pacifica emphasized the importance of context in
regulating indecent broadcasts, see 438 U.S. at 750, it
did so in order to emphasize the limited scope of its
holding, finding that the particular "context" of the Car-
lin monologue justified an intrusion on broadcasters
rights under the First Amendment. It does not follow
that the FCC can justify any decision to sanction inde-
cent speech by citing "context." Of course, context is al-
ways relevant, and we do not mean to suggest otherwise
in this opinion. But the FCC still must have discernible
standards by which individual contexts are judged.
The FCC assures us that it will "bend over back-
wards" to protect editorial judgment, at least in the
news context, but such assurances are not sufficient
given the record before us. Instead, the FCC should
bend over backwards to create a standard that gives
broadcasters the notice that is required by the First
Amendment.9
9 The FCC recently filed a letter pursuant to Rule 28(j) of the Fed-
eral Rules of Appellate Procedure drawing our attention to certain lan-
guage in the Supreme Court's recent decision in Humanitarian Law
Project v. Holder, No. 08-1498, 2010 WL 2471055 (June 21, 2010). Given
the entirely different procedural posture in Humanitarian Law Pro-
ject, we conclude that it is inapposite to the issues before us here.

31a

III.

Under the current policy, broadcasters must choose
between not airing or censoring controversial programs
and risking massive fines or possibly even loss of their
licenses, and it is not surprising which option they
choose. Indeed, there is ample evidence in the record
that the FCC's indecency policy has chilled protected
speech.
For instance, several CBS affiliates declined to air
the Peabody Award-winning "9/11" documentary, which
contains real audio footage--including occasional ex-
pletives--of firefighters in the World Trade Center on
September 11th. Although the documentary had previ-
ously aired twice without complaint, following the Gold-
en Globes Order affiliates could no longer be sure wheth-
er the expletives contained in the documentary could be
found indecent. See Larry Neumeister, "Some CBS Af-
filiates Worry over 9/11 Show," Associated Press, Sept.
3, 2006. In yet another example, a radio station can-
celled a planned reading of Tom Wolfe's novel I Am
Charlotte Simmons, based on a single complaint it re-
ceived about the "adult" language in the book, because
the station feared FCC action. When the program was
reinstated two weeks later, the station decided that it
could only safely air the program during the "safe har-
bor" period.
The FCC's application of its policy to live broadcasts
creates an even more profound chilling effect. In the
case of the 2003 Billboard Music Awards broadcasts,
Fox had an audio delay system in place to bleep fleeting
expletives. It also pre-cleared the scripts of the present-
ers. Ritchie, however, departed from her script and
used three expletives in rapid sequence. While the per-

32a
son employed to monitor and bleep expletives was bleep-
ing the first, the following two slipped through. Even
elaborate precautions will not protect a broadcaster
against such occurrences. The FCC argues that Fox
should simply implement a more effective screening sys-
tem, but, short of giving up live broadcasting altogether,
no system will ever be one hundred percent effective.10
Instead, Fox may decide not to ask individuals with a
history of using profanity to present at its awards
shows.11 But, of course, this will not prevent someone
who wins an award--such as Cher or Bono--from using
fleeting expletives. In fact, the only way that Fox can be
sure that it won't be sanctioned by the FCC is by refus-
ing to air the broadcast live.
This chilling effect extends to news and public affairs
programming as well. Broadcasters may well decide not
to invite controversial guests on to their programs for
fear that an unexpected fleeting expletive will result in
fines. The FCC points to its "bona fide news" exception
to show that such fears would be unfounded. But the
FCC has made clear that it considers the decision to ap-
ply this exception a matter within its discretion. Other-
wise, why not simply make an outright news exception?
During the previous proceedings before this Court, ami-
10 Nor would such a system be costless 10 for broadcasters. For in-
stance, Fox estimates that installing an audio delay system for all live
programming would cost an estimated $16 million a year.
11 Indeed, there is evidence in the record that broadcasters have
made personnel decisions on the basis of the FCC's indecency policy.
For instance, public radio personality Sandra Loh was fired after a sin-
gle use of an expletive as "a precautionary measure to show the station
had distanced itself . . . in case the FCC investigates." Greg Braxton,
"KCRW Fires Loh Over Obscenity," L.A. Times (Mar. 4, 2004), avail-
able at http://articles.latimes.com/2004/mar/04/local/me-loh4.

33a
cus curiae gave the example of a local station in Vermont
that refused to air a political debate because one of the
local politicians involved had previously used expletives
on air. The record contains other examples of local sta-
tions that have forgone live programming in order to
avoid fines. For instance, Phoenix TV stations dropped
live coverage of a memorial service for Pat Tillman, the
former football star killed in Afghanistan, because of
language used by Tilliman's family members to express
their grief. A station in Moosic, Pennsylvania submitted
an affidavit stating that in the wake of the FCC's new
policy, it had decided to no longer provide live, direct-to-
air coverage of news events "unless they affect matters
of public safety or convenience."12 If the FCC's policy is
allowed to remain in place, there will undoubtedly be
countless other situations where broadcasters will exer-
cise their editorial judgment and decline to pursue con-
tentious people or subjects, or will eschew live program-
ming altogether, in order to avoid the FCC's fines. This
chill reaches speech at the heart of the First Amend-
ment.
The chill of protected speech has even extended to
programs that contain no expletives, but which contain
reference to or discussion of sex, sexual organs, or ex-
cretion. For instance, Fox decided not to re-broadcast
an episode of "That 70s Show" that dealt with masturba-
tion, even though it neither depicted the act or discussed
it in specific terms. The episode subsequently won an
12 Nor are these concerns unfounded. The Commission currently has
several pending investigations concerning expletives uttered during
live news and sports programming. For instance, after a surprise win
against Notre Dame, the University of Pittsburgh quarterback stated
that he was "so fucking proud of our football team" on live television.
The FCC's investigation into this incident is ongoing.

34a
award from the Kaiser Family Foundation for its honest
and accurate depiction of a sexual health issue. Simi-
larly, an episode of "House" was re-written after con-
cerns that one of the character's struggles with psychi-
atric issues related to his sexuality would be considered
indecent by the FCC.
As these examples illustrate, the absence of reliable
guidance in the FCC's standards chills a vast amount of
protected speech dealing with some of the most impor-
tant and universal themes in art and literature. Sex
and the magnetic power of sexual attraction are surely
among the most predominant themes in the study of
humanity since the Trojan War. The digestive system
and excretion are also important areas of human atten-
tion. By prohibiting all "patently offensive" references
to sex, sexual organs, and excretion without giving ade-
quate guidance as to what "patently offensive" means,
the FCC effectively chills speech, because broadcasters
have no way of knowing what the FCC will find offen-
sive. To place any discussion of these vast topics at the
broadcaster's peril has the effect of promoting wide self-
censorship of valuable material which should be com-
pletely protected under the First Amendment.

IV.

For the foregoing reasons, we strike down the FCC's
indecency policy. We do not suggest that the FCC could
not create a constitutional policy. We hold only that the
FCC's current policy fails constitutional scrutiny. The
petition for review is hereby GRANTED.

35a

APPENDIX B

Before the

Federal Communications Commission

Washington, D.C. 20554

IN THE MATTER OF COMPLAINTS REGARDING
VARIOUS TELEVISION BROADCASTS BETWEEN
FEBRUARY 2, 2002 AND MARCH 8, 2005
Released: Nov. 6, 2006
Adopted: Nov. 6, 2006

ORDER

By the Commission: Commissioner Adelstein concur-
ring in part, dissenting in part,
and issuing a statement.

TABLE OF CONTENTS

Heading
Paragraph #
I.
INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . [1]
II. BACKGROUND . . . . . . . . . . . . . . . . . . . . . . . . . . [2]
III. DISCUSSION . . . . . . . . . . . . . . . . . . . . . . . . . . . [11]
A. "The 2003 Billboard Music Awards" . . . [12]
B. "The 2002 Billboard Music Awards" . . . [55]
C. "The Early Show" . . . . . . . . . . . . . . . . . . . . [67]
D. "NYPD Blue" . . . . . . . . . . . . . . . . . . . . . . . . [74]
IV. ORDERING CLAUSES . . . . . . . . . . . . . . . . . . [78]

36a

I. INTRODUCTION


1. In this Order, we address complaints alleging that
four television programs ("The 2002 Billboard Music
Awards," "The 2003 Billboard Music Awards," "NYPD
Blue," and "The Early Show") contained indecent and/or
profane material.1 After considering the comments sub-
mitted by broadcasters as well as other interested par-
ties, we find that comments made by Nicole Richie dur-
ing "The 2003 Billboard Music Awards" and by Cher
during the "The 2002 Billboard Music Awards" are inde-
cent and profane as broadcast but that the complained-
of material aired on "The Early Show" is neither inde-
cent nor profane. In addition, we dismiss on procedural
grounds the complaints involving "NYPD Blue" as inad-
equate to trigger enforcement action.

II. BACKGROUND


2. On March 15, 2006, the Commission released No-
tices of Apparent Liability and a Memorandum Opinion
and Order ("Omnibus Order") resolving numerous com-
plaints that television broadcasts aired between Febru-
ary 2, 2002, and March 8, 2005, contained indecent, pro-
fane, and/or obscene material.2 Section III.A of the Om-
nibus Order proposed monetary forfeitures against six
different television broadcasts for apparent violations of
1 For purposes of this Order, we refer to all of the complained-about
episodes of "NYPD Blue" as a single "program."
2 Complaints Regarding Various Television Broadcasts Between
February 2, 2002 and March 8, 2005, Notices of Apparent Liability and
Memorandum Opinion and Order, 21 FCC Rcd 2664 (2006) ("Omnibus
Order"), pets. for review pending, Fox Television Stations, Inc. v. FCC,
No. 06-1760-AG (2d Cir. filed Apr. 13, 2006), remanded and partially
stayed, Sept. 7, 2006 ("Remand Order").

37a
our prohibitions against indecency and/or profanity.3
Section III.C addressed twenty-eight broadcasts that
we concluded did not violate indecency, profanity, and/or
obscenity restrictions for various reasons.4 In the por-
tion of the Omnibus Order at issue here, Section III.B,
the Commission considered complaints filed against four
programs.
3. "The 2002 Billboard Music Awards." The Com-
mission received a complaint concerning "The 2002 Bill-
board Music Awards" program that aired on Station
WTTG(TV), Washington, DC, beginning at 8:00 p.m.
Eastern Standard Time on December 9, 2002.5 The com-
plaint specifically alleged that during the broadcast
Cher, an award winner, stated, "`People have been tell-
ing me I'm on the way out every year, right? So fuck
`em.' "6
4. "The 2003 Billboard Music Awards." The Com-
mission received a number of complaints about the "The
2003 Billboard Music Awards" program that aired on
Fox Television Network stations beginning at 8:00 p.m.
Eastern Standard Time on December 10, 2003.7 The
complaints concerned a segment in which Nicole Richie,
an award presenter, stated, "Have you ever tried to get
3 Id. at 2670-90 22-99.
4 Id. at 2700-20 146-232.
5 Id. at 2690 101. See Letter from Lara Mahaney, Director of
Corporate and Entertainment Affairs, PTC to David Solomon, Chief,
Enforcement Bureau, Federal Communications Commission (August
22, 2003).
6 Id. The Enforcement Bureau obtained a videotape of the broadcast
that confirmed the allegation in the complaint. Omnibus Order, 21
FCC Rcd at 2690 101.
7 Id. at 2692 112.

38a
cow shit out of a Prada purse? It's not so fucking sim-
ple."8
5. "NYPD Blue." The Commission received com-
plaints concerning the use of the term "bullshit" in sev-
eral "NYPD Blue" episodes that aired on KMBC-TV,
Kansas City, Missouri, beginning at 9:00 p.m. Central
Standard Time on various dates between January 14 and
May 6, 2003.9
6. "The Early Show." The Commission received a
viewer complaint that Station KDKA-TV, Pittsburgh,
Pennsylvania, licensed to CBS Broadcasting, Inc.
("CBS"), aired the word "bullshit" during "The Early
Show" at approximately 8:10 a.m. Eastern Standard
8 Id. at 112 and n. 164.
9 Id. at 2696 125. The Commission provided the following descrip-
tions of the complained-of portions of the broadcasts:
1/14/03 episode (Det. Sipowitz in response to his partner's arrest by
Internal Affairs): "Alright, this is Bullshit!"
2/4/03 episode (Det. Sipowitz to street officer regarding that
officer's partner framing Sipowitz's partner): "Over time--over
what--bullshit, a beef!"
2/18/03 episode (stated by a suspect who bragged about, but now
denies, killing his daughter): "I told people I killed Samia to try
and get respect back. She had ashamed me and my community
look at me as a fool." Det. 1: "You took credit for killing your
daughter?! Bullshit!"
4/15/03 episode (Det. harassing suspect who had harassed prosecu-
tor): "I'm hoping this bullshit about you trying to get under ADA
Haywood's skin is a misunderstanding."
5/6/03 episode (Captain to Det. who harassed suspect in 4/15
episode): "He said you nearly assaulted his client last night.' Det.:
`Well, that's a bunch of bullshit."
Id. at n. 187.

39a
Time on December 13, 2004.10 A videotape obtained
from CBS showed that during a live interview with
Twila Tanner, a contestant on the CBS program "Survi-
vor: Vanuatu," Ms. Tanner referred to another contes-
tant as a "bullshitter."11
7. In Section III.B of the Omnibus Order, the Com-
mission found that the broadcasts at issue apparently
violated the statutory and regulatory prohibitions
against airing indecent and profane material.12 In light
of the circumstances, however, the Commission did not
initiate forfeiture proceedings against the relevant li-
censees.13 All of the broadcasts discussed in Section
III.B, except for the "The Early Show," preceded the
Golden Globe Awards Order,14 in which the Commission
made clear that the isolated use of an offensive expletive
10 Id. at 2698-99 137.
11 Id. See id. at 2699 n.199 ("In commenting on the strategy employed
by the fellow contestant, Ms. Tanner stated: `I knew he was a bull-
shitter from Day One.' The interviewer, Julie Chen, recognized the in-
appropriateness of the language, stating: `I hope we had the cue ready
on that one . . . We can't say that word . . . There is a delay.'").
12 Id. at 2690-2700 100-45. See 18 U.S.C. 1464; 47 C.F.R.
73.3999. However, with respect to complaints regarding the use of the
words "dick" and "dickhead" in episodes of "NYPD Blue," the Commis-
sion found that in context the broadcasts of these terms were not
patently offensive under its contextual analysis and based on FCC
precedent. Omnibus Order, 21 FCC Rcd at 2696-97 127.
13 Omnibus Order, 21 FCC Rcd at 2690 100.
14 Complaints Against Various Broadcast Licensees Regarding
Their Airing of the "Golden Globe Awards" Program, Memorandum
Opinion and Order, 18 FCC Rcd 19859 (Enf. Bur. 2003), review granted,
19 FCC Rcd 4975, 4981 13-14 (2004) ("Golden Globe Awards Order"),
petitions for stay and recon. pending.

40a
could be actionably indecent.15 The FCC also stated that
its precedent at the time of "The Early Show" broadcast
"did not clearly indicate that the Commission would take
enforcement action against an isolated use" of "shit"
(the "S-Word") or its variants.16 Accordingly, consistent
with its commitment to proceed with caution and re-
straint in this area, the Commission decided that it
would not take any adverse action against any licensee
as a result of these apparent violations.17
8. Following release of the Omnibus Order, several
parties petitioned for judicial review of Section III.B,
asserting a variety of constitutional and statutory chal-
lenges. Fox Television Stations, Inc. ("Fox") and CBS
filed a joint petition for review in the United States
Court of Appeals for the Second Circuit.18 ABC Televi-
sion Network ("ABC") and Hearst-Argyle Television,
Inc. ("Hearst") filed a joint petition for review in the
United States Court of Appeals for the D.C. Circuit,
which later transferred the petition to the Second Cir-
cuit. The Second Circuit consolidated the petitions on
June 14, 2006.19
15 See Omnibus Order, 21 FCC Rcd at 2692 111, 2695 124, 2698
136.
16 Id. at 2700 145.
17 Id. at 2690 100.
18 See supra n. 2 (noting pending petitions for review).
19 The Second Circuit also granted motions to intervene in the Fox-
CBS case by NBC Universal, Inc., NBC Telemundo License Co., NBC
Television Affiliates, FBC Television Affiliates Association, CBS Tele-
vision Network Affiliates Association, and the Center for Creative Com-
munity, Inc. Before transferring the ABC-Hearst case, the D.C. Cir-
cuit granted ABC Television Affiliates Association's motion to inter-
vene.

41a
9. At the same time, several parties complained to
the Commission about the process the Commission fol-
lowed in formulating Section III.B of the Omnibus Or-
der. The Commission ordinarily provides broadcasters
with an opportunity to file responses and raise argu-
ments before imposing forfeiture liability.20 With one
exception, however, the FCC did not seek the views of
the licensees affected by Section III.B of the Omnibus
Order because the Commission did not impose any sanc-
tions on them.21 Following the release of the Omni-
bus Order, broadcasters complained that they should
have had an opportunity to present their views before
the Commission reached its decisions in Section III.B.
Upon reflection, the Commission agreed and stated that
it wanted to ensure that all of the affected licensees
were afforded a full opportunity to be heard before the
Commission issued a final decision with respect to the
broadcasts at issue. Accordingly, on July 5, 2006, the
Commission asked the Second Circuit for a voluntary
remand of the case and stay of the briefing schedule.
The Commission asked the court to remand the case for
60 days in order to afford interested parties an opportu-
20 See 47 U.S.C. 503(b)(4)(A); Industry Guidance on the Commis-
sion's Case Law Interpreting 18 U.S.C. 1464 and Enforcement
Policies Regarding Broadcast Indecency, Policy Statement, 16 FCC
Rcd 7999, 8015-16 26-27 (2001) ("Indecency Policy Statement").
21 The Commission did send a narrow Letter of Inquiry ("LOI") re-
garding "The 2003 Billboard Music Awards" broadcast, receiving a lim-
ited response from Fox on January 30, 2004. Fox also responded to a
supplemental LOI without presenting new legal arguments. The Com-
mission did not send LOIs regarding the complained-of broadcasts of
"The 2002 Billboard Music Awards," "NYPD Blue," and "The Early
Show" prior to the court's remand.

42a
nity to file responses and the Commission an opportu-
nity to give the issues further consideration.
10. The Second Circuit granted the Commission's
motion on September 7, 2006, remanding for a period of
60 days "for the entry of a further final or appealable
order of the FCC following such further consideration as
the FCC may deem appropriate in the circumstances."22
On the same day, the Commission announced a two-
week filing period for interested parties wishing to sub-
mit comments concerning the four cases.23 The Enforce-
ment Bureau separately issued Letters of Inquiry
("LOIs") to Fox, CBS, and KMBC Hearst-Argyle Tele-
vision, Inc. on September 7, 2006, and to those broad-
casters as well as other parties to the Second Circuit
proceeding on September 18, 2006.

III. DISCUSSION


11. Consistent with our commitment to consider the
comments and LOI responses filed following the Second
Circuit's Remand Order and to take a fresh look at the
issues raised by the four programs at issue on remand,
we vacate Section III.B of the Omnibus Order in its en-
tirety and replace it with the decisions below.

A. "The 2003 Billboard Music Awards"

12. The Programming. The Commission, Fox, sta-
tions licensed to Fox or its affiliated companies, and af-
filiates of the Fox Television Network all received a
number of complaints from individual viewers and orga-
22 Remand Order at 2.
23 See Public Notice, FCC Announces Filing Procedures In Connec-
tion With Court Remand of Section III.B of the Commission's March
15, 2006 Omnibus Order Resolving Numerous Broadcast Television
Indecency Complaints, DA 06-1739 (rel. Sept. 7, 2006).

43a
nizations alleging that Fox stations aired indecent mate-
rial during "The 2003 Billboard Music Awards" program
on December 10, 2003 between 8 p.m. and 10 p.m. East-
ern Standard Time.24 The complainants alleged that
Nicole Richie, who with Paris Hilton presented an award
on the program, uttered language that was indecent and
profane in violation of 18 U.S.C. 1464 and the Commis-
sion's rule restricting the broadcast of indecent mate-
rial. The complainants requested that the Commission
impose sanctions against each station that aired the re-
marks.
13. The Bureau sent Fox a letter of inquiry on Janu-
ary 7, 2004.25 Fox responded on January 30, 2004, at-
taching a transcript of the material at issue.26 According
to Fox, the program announcer introduced Paris Hilton
and Nicole Richie, stars of the Fox Television Network
show "The Simple Life,"27 as follows: "To pre-sent the
24 FCC File Nos. EB-03-IH-0617, EB-04-IH-0295, EB-04-IH-0091.
25 See Letter from William D. Freedman, Deputy Chief, Investiga-
tions and Hearings Division, Enforcement Bureau, to Fox Television
Stations, Inc. (January 7, 2004).
26 See Letter from John C. Quale, Counsel, Fox Television Stations,
Inc., to Investigations and Hearings Division, Enforcement Bureau,
FCC, File No. EB-03-IH-0617 (January 30, 2004) ("Response").
27 "The Simple Life," which debuted on December 2, 2003, followed
Ms. Hilton's and Ms. Richie's fish-out-of-water adventures upon being
transplanted from Beverly Hills, California to an Arkansas farm for 30
days. A New York Times review described the show as "[a]n updated
`Green Acres'" featuring "Ms. Hilton, 22, of the hotel fortune, and Ms.
Richie, also 22, daughter of the pop singer Lionel Richie." Alessandra
Stanley, With a Rich Girl Here and a Rich Girl There, N.Y. Times,
Dec. 2, 2003, at E1. The cover of the Simple Life DVD describes Ms.
Hilton and Ms. Richie in the following manner: "They're Rich. They're
Sexy. They're TOTALLY-OUT-OF-CONTROL!" Discussing Fox exe-
cutives' original idea for the show in an interview, one executive touched

44a
award for Top 40 Mainstream Track, here are two babes
whose lives are anything but mainstream. From their
hit TV series, `The Simple Life,' please welcome Nicole
Richie and Paris Hilton." Following that introduction,
Paris Hilton and Nicole Richie walked onstage to pres-
ent the award. Fox-owned stations and Fox affiliates in
the Eastern and Central Time Zones then broadcast the
following exchange between them:
Paris Hilton:
Now Nicole, remember, this is a live
show, watch the bad language.
Nicole Richie: Okay, God.
Paris Hilton:
It feels so good to be standing here
tonight.
Nicole Richie: Yeah, instead of standing in mud
and [audio blocked]. Why do they
even call it "The Simple Life?"
Have you ever tried to get cow shit
out of a Prada purse? It's not so
fucking simple.28
14. Fox contends that this broadcast was not action-
ably indecent. Although Fox concedes that it broadcast
the F-Word, it argues that the word, in context, did not
depict or describe sexual activities but rather, "at most,"
was a "vulgar expletive used to express emphasis," and
on the same excretory theme as "The 2003 Billboard Awards" script,
stating that "`[t]hey wanted to see stilettos in cow shit.' " http://web.
archive.org/web/20040215040316/http://www.tvweek.com/topstorys/11
2403simplelife.html. Daily Variety's review of the premiere episode
also described Ms. Richie's penchant for "bad language," labeling her
as "potty-mouthed." Brian Lowry, The Simple Life, Daily Variety,
Nov. 25, 2003 at 4.
28 See Response at 3-4.

45a
thus is outside the scope of the Commission's indecency
definition.29 As for the use of the S-Word, Fox does not
deny that it was used in the excretory sense. It argues,
however, that the dialogue "contained at most a passing
reference to an excretory by-product (i.e., `cow shit') and
an expletive used for emphasis," that the dialogue lasted
only 22 seconds, and that it was not pandering, titillating
or shocking.30 Therefore, Fox contends that the dia-
logue is not actionably indecent.
15. Indecency Analysis. The Commission defines
indecent speech as material 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.31 Thus,
indecency findings require two primary determinations.
First, the material alleged to be indecent must fall
within the subject matter scope of our indecency defi-
nition--that is, the material must describe or depict sex-
ual or excretory organs or activities. Second, the mate-
rial must be patently offensive as measured by contem-
porary community standards for the broadcast me-
dium.32 In our assessment of whether broadcast mate-
rial is patently offensive, "the full context in which the
29 Id. at 12-13.
30 Id.
31 Infinity Broadcasting Corporation of Pennsylvania, Memoran-
dum Opinion and Order, 2 FCC Rcd 2705 (1987) (subsequent history
omitted) (citing Pacifica Foundation, Memorandum Opinion and
Order, 56 FCC 2d 94, 98 (1975), aff'd sub nom. FCC v. Pacifica Foun-
dation, 438 U.S. 726 (1978)).
32 Indecency Policy Statement, 16 FCC Rcd at 8002 8 (emphasis in
original); see Omnibus Order, 21 FCC Rcd at 2667 12.

46a
material appeared is critically important."33 Three prin-
cipal factors are significant to this contextual analysis:
(1) the explicitness or graphic nature of the description;
(2) whether the material dwells on or repeats at length
the descriptions; and (3) whether the material panders
to, titillates or shocks the audience.34 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, fac-
tors."35 In particular cases, one or two of the factors
may outweigh the others, either rendering the broadcast
material patently offensive and consequently indecent,36
or, alternatively, removing the broadcast material from
the realm of indecency.37
16. With respect to the first determination, Fox does
not dispute that Ms. Richie's comment--"Have you ever
tried to get cow shit out of a Prada purse?"--refers to
excrement, and we conclude that it is clearly within the
33 Indecency Policy Statement, 16 FCC Rcd at 8002 9 (emphasis in
original).
34 Id. at 8002-15 8-23.
35 Id. at 8003 10.
36 Id. at 8009 19 (citing Tempe Radio, Inc. (KUPD-FM), Notice of
Apparent Liability for Forfeiture, 12 FCC Rcd 21828 (Mass Media Bur.
1997) (forfeiture paid) (extremely graphic or explicit nature of refer-
ences to sex with children outweighed the fleeting nature of the
references); EZ New Orleans, Inc. (WEZB(FM)), Notice of Apparent
Liability for Forfeiture, 12 FCC Rcd 4147 (Mass Media Bur. 1997)
(forfeiture paid) (same)).
37 Indecency Policy Statement, 16 FCC Rcd at 8010 20 ("the man-
ner 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").

47a
scope of our indecency definition. Fox does contend that
Ms. Richie's use of the "F-Word"--in the statement
"[i]t's not so fucking simple"--does not describe sexual
activities and thus falls outside the scope of our inde-
cency definition, but we disagree. A long line of prece-
dent indicates that the use of the "F-Word" for emphasis
or as an intensifier comes within the subject matter
scope of our indecency definition.38 Given the core
meaning of the "F-Word," any use of that word has a
sexual connotation even if the word is not used literally.
38 See, e.g., Grant Broadcasting System II, Inc. Licensee WJPR-TV,
12 FCC Rcd 8277, 8279 (Mass Media Bur. 1997) (NAL issued for non-
literal uses of the "F-Word" and the "S-Word," such as "this fucking
place is going to blow up"); Pacifica Foundation, Inc., Memorandum
Opinion and Order, 2 FCC Rcd 2698, 2699 12-13 (1987) (subsequent
history omitted) (distinguishing between the use of "expletives" and
"speech involving the description or depiction of sexual . . . functions"
but indicating that both fall within the subject matter scope of our
indecency definition). The Enforcement Bureau's departure from this
precedent in its Golden Globe Awards decision, Complaints Against
Various Broadcast Licensees Regarding Their Airing of the "Golden
Globe Awards," Memorandum Opinion and Order, 18 FCC Rcd 19859
(Enf. Bur. 2003), was contrary to this precedent and thus appropriately
overturned by the Commission. While the Bureau cited two cases for
the proposition that the use of the "F-Word" did not necessarily fall
within the subject matter scope of our indecency definition, both cases
were inapposite. First, the "F-Word" was not even an issue in Enter-
com, which addressed the words "prick" and "piss," and, in any event,
was a Bureau rather than a Commission decision. See Entercom
Buffalo License, LLC (WGR(AM)), Order, 17 FCC Rcd 11997 (Enf.
Bur. 2002). Second, in Peter Branton, the Commission did not rule that
the some uses of the "F-Word" fell outside the subject matter scope of
our indecency definition. Rather, we decided that the uses of the "F-
Word" there were not "patently offensive" in the context of the news
programming at issue in that case. See Peter Branton, 6 FCC Rcd 610
(1991), appeal dismissed, 993 F.2d 906 (D.C. Cir. 1993), cert. den. 511
U.S. 1052 (1994).

48a
Indeed, the first dictionary definition of the "F-Word"
is sexual in nature.39 Moreover, it hardly seems debat-
able that the word's power to "intensify" and offend de-
rives from its implicit sexual meaning.40 Accordingly, we
conclude that, as we stated in Golden Globe,41 its use
inherently has a sexual connotation and thus falls within
the scope of our indecency definition. The material thus
warrants further scrutiny to determine whether it is
patently offensive as measured by contemporary com-
munity standards for the broadcast medium. Looking at
the three principal factors in our contextual analysis, we
conclude that it is.
17. We will first address the first and third principal
factors in our contextual analysis--the explicitness or
graphic nature of the material and whether the material
panders to, titillates, or shocks the audience. The com-
plained-of material is quite graphic and explicit. Ms.
Richie's comment referring to excrement conveys a
graphic image of Ms. Richie trying to scrape cow excre-
ment out of her designer hand bag. Because of her use
of the "S-Word," Ms. Richie's description also contained
quite vulgar language. Furthermore, the vulgar de-
scription of excrement was coupled with the use of the
"F-Word." As we have previously concluded, the "F-
Word" is one of the most vulgar, graphic, and explicit
words for sexual activity in the English language.42
39 See, e.g., American Heritage College Dictionary 559 (4th ed. 2002)
(defining the F-Word as "1: to have sexual intercourse with").
40 See Robert F. Bloomquist, The F-Word: A Jurisprudential Taxon-
omy of American Morals (In a Nutshell), 40 Santa Clara L. Rev. 65, 98
(1999) ("all F-word usage has at least an implicit sexual meaning").
41 See Golden Globe Awards Order, 19 FCC Rcd at 4979 8.
42 See id.

49a
Here, Ms. Richie's use of the "F-Word" coupled with her
graphic and explicit description of the handling of excre-
ment during a live broadcast of a popular music awards
ceremony when children were expected to be in the au-
dience was vulgar and shocking.43 Her comments were
also presented in a pandering manner. As part of their
dialogue, Ms. Hilton reminded Ms. Richie to "watch the
bad language," a comment that served to preview and
highlight for the viewing audience Ms. Richie's remarks.
Moreover, Fox does not argue that there was any justifi-
cation for Ms. Richie's comments.44
18. We note that when the Supreme Court stressed
the importance of context in Pacifica, it mentioned as
relevant contextual factors the time of day of the broad-
cast, program content as it affects "the composition of
the audience," and the nature of the medium.45 All of
these factors support the conclusion that the dialogue
here was patently offensive in context. The complained-
of material was broadcast early in prime time. The pro-
gram's content was, as discussed above, graphic, explicit
43 To the extent that Fox argues that it did not present Ms. Richie's
comment for "shock value," see, e.g., Response at 13, it fundamentally
misunderstands the contextual analysis employed by the Commission.
"In evaluating whether material is indecent, we examine the material
itself and the manner in which it is presented, not the subjective state
of mind of the broadcaster." Complaints Against Various Television
Licensees Concerning Their February 1, 2004 Broadcast of the Super
Bowl XXXVIII Halftime Show, Order on Reconsideration, 21 FCC Rcd
6653, 6657-58 12 (2006) ("Super Bowl Order on Reconsideration"),
pet. for review pending, CBS Corp. v. FCC, No. 06-3575 (3d Cir. filed
July 28, 2006).
44 For example, Fox does not argue that Ms. Richie's remarks had
any artistic merit or were necessary to convey any message.
45 See Pacifica, 438 U.S. at 749-51.

50a
and vulgar, both in its excretory description and its use
of the "F-Word." The program was designed to draw a
large nationwide audience that could be expected to in-
clude many children interested in seeing their favorite
music stars. Although there is no requirement that we
document the presence of children in the audience for a
program that is subject to an indecency complaint and
is aired between 6 a.m. and 10 p.m.,46 we note that in this
case a significant portion of the viewing audience for this
program was under 18. According to Nielsen ratings
data, during an average minute of "The 2003 Billboard
Music Awards" broadcast, 2,312,000 (23.4%) of the
9,871,000 people watching the program were under 18,
and 1,089,000 (11%) were between the ages of 2 and 11.
In addition, we note that this program was rated TV-
PG(DL). Such a rating would not have put parents or
others on notice of such vulgar language, and the broad-
cast contained no other warnings to viewers that it
might contain material highly unsuitable for children.47
46 See Action for Children's Television v. FCC, 58 F.3d 654, 665 (D.C.
Cir. 1995) (en banc) ("ACT III") (holding that the Commission could
rely on bright-line time channeling rule and rejecting contention that
it was required to use "station-specific and program-specific data in
assessing whether children are at risk of being exposed to broadcast
indecency"), cert. denied, 516 U.S. 1072 (1996).
47 Fox notes that its policy is to rate any programming containing the
"F-Word" TV-MA. See Letter from John C. Quale to Marlene H.
Dortch, Secretary, FCC, in FCC File Nos. EB-03-IH-0460, EB-03-IH-
0617, EB-04-IH-0295, EB-04-IH-0091 at 4 (filed Sept. 29, 2006) ("Fox
Response to 9/18/2006 LOI"). The TV-MA rating (mature audience
only) signifies that the program is specifically designed to be viewed by
adults and therefore may be unsuitable for children under 17. In the
context of a TV-MA rated program, an "L" would signify "crude inde-
cent language." The TV-PG rating (parental guidance suggested), by
contrast, merely signifies that the program contains material that

51a
This no doubt helps explain the strong feelings that
many of the complainants, particularly those who were
watching the program with their children, expressed
regarding the unexpectedly vulgar content.48 In light of
parents may find unsuitable for younger children, and that parents may
want to watch the program with their younger children. TV-PG is the
most common rating, covering a majority of the programs that are
rated. See Nancy Signorielli, Age-Based Ratings, Content Designa-
tions, and Television Content: Is There a Problem?, 8 Mass Comm. &
Soc'y 277, 293 (2005) (six in ten rated programs are rated TV-PG). The
"D" signifies that the program may contain some suggestive dialogue,
and the "L" signifies that the program may contain some infrequent
coarse language. Moreover, we note that the TV-PG(DL) rating ap-
peared only at the beginning and once in the middle of the program;
thus, a viewer tuning into this 2-hour broadcast at another time may not
even have been aware that it was rated TV-PG(DL). See Pacifica, 438
U.S. at 748 ("Because the broadcast audience is constantly tuning in
and out, prior warnings cannot completely protect the listener or viewer
from unexpected program content.").
48 See, e.g., e-mail complaint from individual to Fox station
KMSP(TV), Minneapolis, dated December 10, 2003 ("I would appreci-
ate it if you would pass on my intense opinion of the Billboard Awards
and Nicole Ritchie (sic). We teach our kids that people like her have a
potty mouth. My children were watching part of this program and hap-
pened to catch her vulgarity. We will not finish watching the awards
nor will we continue to watch fox network in this household."); e-mail
complaint from individual to Fox station WTVT(TV), Tampa, dated
January 21, 2004 ("Fox insults my ears and those of my wife and chil-
dren with the "f' word, etc. and we leave you for good . . . "); e-mail
complaint from individual to Fox station KMSP(TV), Minneapolis,
dated December 10, 2003 ("Why are you allowing that kind of language
at 8:00 p.m. for all ages of people to hear? . . . It was disgusting and
very disturbing . . . "); e-mail complaint from individual to Fox station
KMSP(TV), Minneapolis, dated December 13, 2003 ("I was watching
the event with my 12 and 13 y/o daughters . . . the amount of swearing
that was done and the severity of some of the words was horrible . . .
Watching TV has become very unpredictable these days . . . I do not
feel it is a safe source of entertainment for our children. . . .");

52a
all of these factors, we conclude that the first and third
factors in our contextual analysis both weigh heavily in
favor of a finding that the material is patently offensive.
19. With respect to the second factor in our contex-
tual analysis--whether the complained-of material was
sustained or repeated--Fox argues that the dialogue
here was a "fleeting and isolated utterance" and that
such material is not actionably indecent.49 We disagree.
20. Fox's argument that a "fleeting and isolated ut-
terance" is not actionably indecent is based largely on
staff letters and dicta in decisions predating the Commis-
sion's Golden Globe Awards Order. For example, in a
1987 decision clarifying that our indecency definition
was not restricted only to the seven words contained in
the George Carlin monologue determined to be indecent
in Pacifica, the Commission distinguished in dicta be-
tween "expletives"--words such as the "F-Word" or the
"S-Word" used outside of their core sexual or excretory
meanings--and descriptions of sexual or excretory func-
tions. And, in so doing, the Commission suggested: "If
a complaint focuses solely on the use of expletives, we
believe that . . . deliberate and repetitive use in a pa-
tently offensive manner is a requisite to a finding of in-
complaint from individual to David Solomon, Chief of Enforcement
Bureau, dated December 12, 2003 ("I was horrified to learn that some
of the young children in the school that I teach in viewed the program.
Several of these children are among those children who have social
problems and are often in trouble. Is this what our children have to
look toward for example on how to live? Would you want your children
or grandchildren to mimic these entertainers ?????") All of these com-
plaints except for the last one to the FCC's Enforcement Bureau are
attached to Fox's January 30, 2004 Response.
49 Response at 12, 13.

53a
decency."50 The Commission made clear, however, that
repetition was not required when speech "involv[es] a
description or depiction of sexual or excretory func-
tions" and that "[t]he mere fact that specific words or
phrases are not repeated does not mandate a finding
that material that is otherwise patently offensive to the
broadcast medium is not indecent."51 In this case, Ms.
Richie's use of the "S-Word" clearly involved "a descrip-
tion of excretory functions."52
21. Subsequent to this 1987 guidance, there were
several Bureau-level decisions finding the isolated use
of an expletive not to be actionably indecent.53 In no
case, however, did the Commission itself, when evaluat-
ing an actual program, find that the isolated use of an
expletive, such as the "F-Word," as broadcast was not
indecent or could not be indecent. In our 2001 Inde-
cency Policy Statement,54 we explained that "where sex-
ual or excretory references have been made once or
have been passing or fleeting in nature, this characteris-
tic has tended to weigh against a finding of indecency,"55
but also noted "even relatively fleeting references may
be found indecent where other factors contribute to a
50 Pacifica Foundation, Inc., 2 FCC Rcd at 2699. See also New In-
decency Enforcement Standards To Be Applied to All Broadcast and
Amateur Radio Licensees, Public Notice, 2 FCC Rcd 2726 (1987).
51 See Pacifica Foundation, Inc., 2 FCC Rcd at 2699 (emphasis
added).
52 Id.
53 See, e.g., Golden Globe Awards Order, 19 FCC Rcd at 4981 12 n.32
(listing Bureau-level decisions).
54 Indecency Policy Statement, 16 FCC Rcd at 8008-09 17-19.
55 Id. at 8008 17.

54a
finding of patent offensiveness."56 Then, in 2004, the
Commission itself considered for the first time in an en-
forcement action whether a single use of an expletive
could be indecent. And in evaluating the broadcast of
the F-Word during "The Golden Globe Awards," we
overturned the Bureau-level decisions holding that an
isolated expletive could not be indecent and disavowed
our 1987 dicta on which those decisions were based.
22. While it is important to understand the history
of the Commission's decisions in this area, we reject
Fox's suggestion that Nicole Richie's comments would
not have been actionably indecent prior to our Golden
Globe decision.57 Rather, Ms. Richie's remarks would
have been actionably indecent prior to our Golden Globe
decision for three separate reasons. First, even under
our pre-Golden Globe dicta, the offensive material here
does not consist solely of the use of expletives; as dis-
cussed above, the "S-Word" was used here in its excre-
tory sense and was integral to a graphic and vulgar de-
scription that clearly falls within the scope of our inde-
cency rule. As we stated in our 1987 guidance, "repeti-
tive use" was not required under such circumstances.58
Second, the offensive language was "repeated" in that it
included not one but two extremely graphic and offen-
sive words. Third, there seems to be little doubt that
56 Id. at 8009 19.
57 In this respect, our decision differs from our suggestion in Section
III.B of the Omnibus Order, now vacated, that prior to the Commis-
sion's decision in Golden Globe this broadcast would not have warranted
enforcement action because it involved an "isolated use of expletives."
See Omnibus Order, 21 FCC Rcd at 2695 124. For the reasons dis-
cussed above, we do not believe that our prior suggestion accurately
reflected the context of this broadcast or Commission precedent.
58 Pacifica Foundation, Inc., 2 FCC Rcd at 2699.

55a
Ms. Richie's comments were deliberately uttered and
that she planned her comments in advance.59 Ms.
Hilton's opening remark to Ms. Richie that this was a
live show and she should "watch the bad language"
strongly suggests that the offensive language that fol-
lowed was not spontaneous. Further, there is nothing in
Ms. Richie's confident and fluid delivery of the lines, and
her use of multiple offensive words, that suggests that
any of the language was a spontaneous slip of the
tongue. Thus, given the presence of a graphic descrip-
tion of excretory functions, the presence of multiple of-
fensive words, and the deliberate nature of Ms. Richie's
comments, we conclude that this broadcast would have
been actionably indecent consistent with prior Commis-
sion guidance even in the absence of our Golden Globe
decision.60
23. In addition, this broadcast is actionably indecent
under the Golden Globe Awards Order.61 In that Order,
we stated that the "mere fact that specific words or
phrases are not sustained or repeated does not mandate
a finding that material that is otherwise patently offen-
59 See id. (discussing "deliberate" use of expletives).
60 For these reasons, Ms. Richie's comments differ significantly from
the language involved in the two Bureau-level decisions finding fleeting
expletives not to be indecent that were cited in the Indecency Policy
Statement. See Indecency Policy Statement, 16 FCC Rcd at 8008-09
18. Rather, they are more similar to the material in the LBJS Broad-
casting Company Notice of Apparent Liability cited in the Indecency
Policy Statement because they combine a graphic and vulgar descrip-
tion of sexual or excretory material with an expletive. Id. at 8009 19,
citing LBJS Broadcasting Company, 13 FCC Rcd 20956 (Mass Media
Bur. 1998) (forfeiture paid) (finding broadcast apparently indecent for
use of phrase "[s]uck my dick you fucking cunt").
61 See Golden Globe Awards Order, 19 FCC Rcd at 4980 12.

56a
sive to the broadcast medium is not indecent."62 While,
as explained above, Commission dicta and Bureau-level
decisions issued before Golden Globe had suggested that
expletives had to be repeated to be indecent but "de-
scriptions or depictions of sexual or excretory functions"
did not need to be repeated to be indecent, we believe
that this guidance was seriously flawed. We thus reaf-
firm that it was appropriate to disavow it. To begin
with, any strict dichotomy between "expletives" and
"descriptions or depictions of sexual or excretory func-
tions" is artificial and does not make sense in light of the
fact that an "expletive's" power to offend derives from
its sexual or excretory meaning.63 Indeed, this is why it
has long been clear that such words fall within the sub-
ject matter scope of our indecency definition, which
since Pacifica has involved the description of sexual or
excretory organs or activities.64 Moreover, in certain
cases, it is difficult (if not impossible) to distinguish
whether a word is being used as an expletive or as a lit-
eral description of sexual or excretory functions. Fi-
nally, and perhaps most importantly, categorically re-
quiring repeated use of expletives in order to find mate-
rial indecent is inconsistent with our general approach
to indecency enforcement, which stresses the critical
nature of context.65 In evaluating whether material is
patently offensive, the Commission's approach has gen-
erally been to examine all factors relevant to that deter-
mination.66 To the extent that Commission dicta had
62 Id.
63 See supra para. 16.
64 Pacifica, 438 U.S. at 742.
65 Indecency Policy Statement, 16 FCC Rcd at 8002-03 9.
66 Id. at 9-10.

57a
previously suggested that one of these factors--whether
material had been repeated--would always be decisive
in a certain category of cases, we believe that such dicta
was at odds with the Commission's overall enforcement
policy and was appropriately disavowed.
24. Turning back to "The 2003 Billboard Music Aw-
ards" broadcast, we believe that we need not ignore "the
first blow" to the television audience in the circumstan-
ces presented here.67 Nor do we think that Pacifica re-
quires that approach. The major broadcast networks
("Networks") argue that the Pacifica Court "would have
never approved" an indecency enforcement regime that
applied to isolated and fleeting expletives.68 But this
claim finds no support in Pacifica, in which the Court
specifically reserved the question of "an occasional ex-
pletive" and noted that it addressed only the "particular
broadcast" at issue in that case.69 Indeed, we think it
significant that the "occasional expletive" contemplated
by the Court was one that occurred in "a two-way radio
conversation between a cab driver and a dispatcher,"--a
conversation not broadcast to a wide audience--"or a
telecast of an Elizabethan comedy," settings far re-
moved from the broadcast at issue here.70
25. In explaining the special nature of the broadcast
medium, the Supreme Court emphasized the "pervasive
presence [of the broadcast medium] in the lives of all
Americans" and that indecent broadcasts invade the
67 Pacifica, 438 U.S. at 748-49.
68 Joint Comments of Fox, CBS, NBC Universal, Inc. and NBC
Telemundo License Co. in DA 06-1739 at 3 (filed Sept. 21, 2006) ("Joint
Comments").
69 Pacifica, 438 U.S. at 742, 750.
70 Id. at 750.

58a
privacy of the home. It rejected the argument that one
could protect oneself by turning off the broadcast upon
hearing indecent language: "To say that one may avoid
further offense by turning off the radio when he hears
indecent language is like saying that the remedy for an
assault is to run away after the first blow."71 We believe
that granting an automatic exemption for "isolated or
fleeting" expletives unfairly forces viewers (including
children) to take "the first blow." Indeed, it would as a
matter of logic permit broadcasters to air expletives at
all hours of a day so long as they did so one at a time.
For example, broadcasters would be able to air any one
of a number of offensive sexual or excretory words, re-
gardless of context, with impunity during the middle of
the afternoon provided that they did not air more than
one expletive in any program segment.72 Such a result
would be inconsistent with our obligation to enforce the
law responsibly. We do not believe that viewers of free
television broadcasts utilizing the public airwaves should
feel, as so many of the complaining viewers of "The 2003
Billboard Music Awards" clearly do, that they cannot
safely allow their families to watch prime-time broad-
casts.73
26. Nor, as discussed above, are the Networks cor-
rect in their suggestion that fleeting utterances have
never before been regulated. On the contrary, our
Golden Globe Awards decision was not the first time
71 Id. at 748-49.
72 Such words could include grossly offensive sexual terms such as
"cunt."
73 See complaints listed in note 48 supra. Like the broadcast in
Pacifica, Ms. Richie's statements "could have enlarged a child's vocab-
ulary in an instant." Pacifica, 438 U.S. at 749.

59a
that a fleeting utterance had been found to be indecent.74
We have long recognized that "even relatively fleeting
references may be found indecent" if the context makes
them patently offensive.75
27. We thus conclude that the fact that the offensive
dialogue here was relatively brief is not dispositive un-
der these particular circumstances. This is not a case
involving a single, spontaneously uttered expletive.
Rather, it was two sentences, one of which contained a
graphic excretory description and the other a vulgar
expletive used to heighten the effect of the excretory
description. And, as noted above, these statements were
not spontaneous slips of the tongue, but rather were
planned by the speaker and presaged by the introduc-
tory remark to "watch the bad language."
28. With respect to our analysis of the complained-
of material, we emphatically reject the argument made
by Fox and other broadcasters that the "contemporary
community standards" employed by the Commission
merely reflect the "subjective opinions" or "the tastes of
the individuals with seats on the Commission."76 Rather,
as we have previously stated, in evaluating material, we
rely on the Commission's "collective experience and
knowledge, developed through constant interaction with
lawmakers, courts, broadcasters, public interest groups,
and ordinary citizens."77
74 Indecency Policy Statement, 16 FCC Rcd at 8009 19.
75 See id. (listing examples of isolated utterances found to be action-
ably indecent).
76 Joint Comments at 10-11.
77 Infinity Radio License, Inc., Memorandum Opinion and Order, 19
FCC Rcd 5022, 5026 12 (2004).

60a
29. In this case, moreover, our assessment of con-
temporary community standards for the broadcast me-
dium is strongly bolstered by broadcasters' own prac-
tices. As mentioned above, during the 10:00 p.m.-6:00
a.m. "safe harbor," broadcasters are permitted to air
indecent and profane material. Nevertheless, with rare
exceptions, they do not allow the "F-Word" or the "S-
Word" to be broadcast during that time period. Fox, for
example, "generally prohibit[s] use of any form of the F-
word or S-word during any day part, including late-
night programming."78 NBC also "does not broadcast
the `F-Word' and the `S-Word'" during the "safe harbor"
"except in unusual circumstances" and generally does
not allow such language to be broadcast on its flagship
late-night program "The Tonight Show with Jay Leno."79
Similarly, ABC, even during safe harbor hours, "gener-
ally has not approved the broadcast of the `f-word' and
the `s-word.'"80 For instance, during a recent broadcast
of "Nightline," ABC deleted uses of the "F-Word" in a
piece on actor Mark Wahlberg.81 CBS, likewise, indi-
cates that "[g]enerally speaking, broadcast[s] of the `F-
word' and `S-word' are not permitted under CBS's Tele-
vision Network Standards at any time of [the] day."82
78 Fox Response to 9/18/2006 LOI at 4 (emphasis added).
79 Letter from F. William LeBeau to Marlene H. Dortch, Secretary,
FCC, File Nos. EB-03-IH-0355, EB-03-IH-0460, EB-03-IH-0617, EB-
04-IH-0295, EB-04-IH-0091, EB-05-IH-0007 at 4-5 (Sept. 29, 2006)
("NBC Response to 9/18/2006 LOI").
80 Letter from John W. Zucker, Senior Vice President, ABC, Inc. to
Marlene H. Dortch, Secretary, FCC, File No. EB-03-IH-0355 at 2
(Sept. 29, 2006) ("ABC Response to 9/18/2006 LOI").
81 "Nightline," Sept. 29, 2006.
82 Letter from Anne Lucey, Senior Vice President, CBS Corp. to
Marlene H. Dortch, Secretary, FCC, File No. EB-05-IH-0007 at 2

61a
Hearst also reports that its general policy, "which ap-
plies at all times, is that vulgar language such as the F-
Word and the S-Word [is] not to be knowingly broad-
cast."83 To be sure, each of the broadcasters avers that
in certain contexts, such as the motion picture Saving
Private Ryan, they do permit the broadcast of the "F-
Word" and the "S-Word." However, none of these ex-
amples bears even the slightest resemblance to Nicole
Richie's comments during "The 2003 Billboard Music
Awards."84 Indeed, in Congressional testimony, Fox's
President of Entertainment recognized that the very
comments at issue here--Ms. Richie's remarks--con-
tained "inappropriate language."85 Moreover, Fox ed-
ited out her comments in its broadcasts to the Mountain
and Pacific Time Zones.
30. Taken as a whole, broadcasters' practices with
respect to programming aired during the safe harbor
reflect their recognition that airing the "F-Word" and
the "S-Word" on broadcast television is generally offen-
sive to the viewing audience and, in the usual case, not
consistent with contemporary community standards for
the broadcast medium. They also reinforce our conclu-
sion that Nicole Richie's comments during "The 2003
(Sept. 29, 2006) ("CBS Response to 9/18/2006 LOI") (emphasis added).
83 Response of Hearst-Argyle Television, Inc., File No. EB-03-IH-
0355 at 3 (Sept. 29, 2006) ("Hearst Response to 9/18/2006 LOI") (em-
phasis added).
84 See ABC Response to 9/18/2006 LOI at 2; CBS Response to
9/18/2006 LOI at 2-3; Hearst Response to 9/18/2006 LOI at 4-5; NBC
Response to 9/18/2006 LOI at 3-4; Fox Response to 9/18/2006 LOI at 4.
85 H.R. 3717, the `Broadcast Decency Enforcement Act of 2004':
Hearing Before the Subcommittee on Telecommunications and the
Internet of the House Comm. on Energy & Commerce, 107th Congress,
(Feb. 26, 2004) (statement of Gail Berman).

62a
Billboard Music Awards" were patently offensive under
contemporary community standards. For all of these
reasons, we conclude that, given the explicit, graphic,
vulgar, and shocking nature of Ms. Richie's comments,
they were patently offensive under contemporary com-
munity standards for the broadcast medium and thus
indecent as broadcast.86
31. We also disagree that it would be inequitable to
hold Fox responsible for airing offensive language dur-
ing "The 2003 Billboard Music Awards" due to the live,
unscripted nature of the material.87 In disclaiming re-
sponsibility, Fox states that Nicole Richie's and Paris
Hilton's scripted dialogue did not contain the "F-Word"
or "S-Word." Rather, Ms. Richie's first scripted line
read: "Yeah--instead of standing in mud and pig crap."
When she spoke, she substituted "cow shit" (which was
blocked out in the audio feed) for "pig crap" in that line.
In the sentences at issue here, Ms. Richie was scripted
to say "Have you ever tried to get cow manure out of a
Prada purse? It's not so freaking simple."88
32. Fox also describes the measures it employed to
delete objectionable material from the broadcast. It
says that as in previous years--including during "The
2002 Billboard Music Awards" broadcast when it aired
Cher's use of the phrase "fuck `em"--it utilized a five-
86 The Networks also complain about the Commission's analysis of
contemporary community standards in other pending proceedings, such
as The Blues: Godfathers and Sons. See Joint Comments at 10. In the
case of The Blues, the Commission has issued only a Notice of Apparent
Liability for Forfeiture, see Omnibus Order at 2683-87 7285, and we
will address such issues in further proceedings in that case.
87 See Response at 13.
88 Id. at 6.

63a
second delay that it normally used during the production
of live entertainment programming. A Broadcast Stan-
dards employee monitored the broadcast and operated
a "delay button" that enables an employee to edit out
objectionable content before it airs. Fox also assigned
a Broadcast Standards representative to the event to
review the script, attend dress rehearsals and be pres-
ent at the event, as it normally did for the production of
live entertainment events. During "The 2003 Billboard
Music Awards" program, the employee operating the
delay button edited out the vulgar phrase "cow shit" the
first time Ms. Richie said it, but failed to edit out the
remaining offensive language discussed above. The pro-
gram aired several hours later on stations in the Moun-
tain and Pacific time zones, and Fox did remove the of-
fensive language before it aired on those stations.89
33. As Fox points out, the FCC has long recognized
that it may be inequitable to hold a licensee responsible
for airing offensive speech during live coverage of a pub-
lic event under some circumstances.90 But the Commis-
sion has not hesitated to enforce its indecency standard
89 Id. at 8-9. Following this broadcast, Fox implemented a longer
delay mechanism and a second delay button for all live broadcasts to
serve as a back-up. Id. at 9. In its recent response to a LOI relating to
the broadcast of "The 2002 Billboard Music Awards," Fox states that
it now uses a total of four delay buttons for all live broadcasts of
entertainment programming. In addition, it "recognizes that certain
performers may present more risk of spontaneous objectionable con-
tent during live performances than others" and thus "has begun to tape
in advance certain performances to air during otherwise `live' broad-
casts." See Letter from John C. Quale to Marlene H. Dortch, Secre-
tary, FCC, File No. EB-03-IH-0460 at 6 (Sept. 21, 2006) ("Fox
Response to 9/7/06 LOI").
90 Pacifica, 438 U.S. at 733 n.7, quoting Pacifica Foundation, 59 FCC
2d at 893 n.1. See Response at 12.

64a
where, as here, a licensee fails to exercise "reasonable
judgment, responsibility and sensitivity to the public's
needs and tastes to avoid patently offensive broad-
casts."91 Here, the original script for "The 2003 Bill-
board Music Awards" increased the likelihood that Ms.
Richie would ad-lib offensive remarks; as noted above,
it called for her to make excretory references to "pig
crap" and "cow manure," and to substitute the euphe-
mism "freaking" for the "F-Word."92 Such a script
91 Pacifica Foundation, Inc., 2 FCC Rcd at 2700 18. See Liability
of San Francisco Century Broadcasting, L.P., Memorandum Opinion
and Order, 8 FCC Rcd 498, 499 7 (1993) ("the mere fact that a show
is live does not excuse a station from exercising its editorial responsibil-
ities, especially where commonly available screening techniques can
eliminate the element of surprise."), citing Sound Broadcasting Corp.,
Notice of Apparent Liability, 6 FCC Rcd 2174 (Mass Media Bur. 1991);
Radio Station KFMH-FM, Muscatine, Iowa, Notice of Apparent
Liability, 9 FCC Rcd 1681, 1681-82 (Mass Media Bur. 1994) (rejecting
contention that licensee should not be held responsible for broadcasting
live and unscripted offensive material from an outside source where the
broadcaster suspected "that the caller involved was the same person
who had told the objectionable joke only eight minutes earlier" but
"chose to place the call on the air rather than to discontinue the broad-
cast or to use precautions such as a delay device."); L.M. Communica-
tions, Notice of Apparent Liability, 7 FCC Rcd 1595 (Mass Media Bur.
1992) (rejecting argument that broadcaster should not be sanctioned for
airing indecent material within live and unscripted programming where
"the scatological material as broadcast involved a deliberate and repe-
titive use of the word `crap' to heighten the audience's awareness of and
attention to the subsequent use of the term `shit' by the announcer.").
92 See Response at 6; see also Complaints Against Various Television
Licensees Concerning Their February 1, 2004 Broadcast of the Super
Bowl XXXVIII Halftime Show, Forfeiture Order, 21 FCC Rcd 2760,
2769 19 (2006) (citing evidence that "there is always a risk that
performers will ad-lib remarks or take unscripted actions, and that the
risk level varies according to the nature of the performance.") (subse-
quent history omitted).

65a
might have posed minimal risk in the hands of some per-
formers. Relying on Ms. Hilton and Ms. Richie to avoid
vulgar language, however, involved a substantially
greater risk.93 As Fox well knew, Ms. Richie frequently
used indecent language in inappropriate contexts. For
example, during the three episodes of "The Simple Life"
that it broadcast in the days leading up to the "The 2003
Billboard Music Awards," Fox felt it necessary to bleep
expletives (the "F-Word" or "S-Word") uttered by Ms.
Richie no fewer than nine times.94 Yet Ms. Richie was
still selected as a presenter for the live, prime-time
awards show, and Fox has not claimed it made any effort
to caution Ms. Richie about its broadcast standards for
the program or that it took any special precautions (be-
yond its standard five-second delay) to guard against
her use of expletives on the air. Indeed, Fox does not
even contend that it took any action against Ms. Richie
after this episode.
93 See supra note 27. As discussed above, Fox advertised Ms. Hilton
and Ms. Richie as being "totally-out-ofcontrol" on the cover of the
Simple Life DVD. Additionally, The Los Angeles Times review of the
first episode of "The Simple Life" describes Ms. Hilton and Ms. Richie
as "out-of-control." Carina Chocano, Work for a Living? What a Con-
cept, L.A. Times, Dec. 2, 2003, at 1 (Calendar Section).
94 "The Simple Life," Season 1, Episodes 1-3. In addition, Ms.
Richie's penchant for cursing is highlighted in a scene during the first
episode in which their host, reviewing the house rules with them, states
"no cussing or bad language," at which point the camera focuses on Ms.
Richie giggling helplessly at Ms. Hilton. Their penchant for vulgarity
is also illustrated during the third episode in two scenes at a local fast
food franchise where Ms. Richie and Ms. Hilton are working for the
day. Directed to change the letters of a sign out front to read "Half
Price Burgers All Day," they instead arrange the letters to read "1/2
Price Anal Salty Weiner Bugers." Later, standing on the curb in cos-
tumes of the restaurant's mascot, an animated milkshake, they stick up
their respective middle fingers (which are pixilated) to passersby.

66a
34. Even more significant, the particular five-second
delay and editing system that Fox used in this case had
already proved inadequate to delete Cher's offensive
language during Fox's broadcast of "The 2002 Billboard
Music Awards" the previous year. During that broad-
cast, Cher, when accepting an award, had stated, "`Peo-
ple have been telling me I'm on the way out every year,
right? So fuck `em.'"95 According to Fox, the employee
in charge of deleting objectionable material did not act
quickly enough and ended up editing out dialogue that
aired after Cher's comment.96 Despite this failure, Fox
took no additional precautions to avoid airing such mate-
rial the next year.97 The record also demonstrates that
steps may be taken, such as adding "delay buttons" or
lengthening the delay, that allow for far more effective
editing of potentially objectionable content.98 Here, Fox
itself contends that the time delay and editing system
that it used for "The 2003 Billboard Music Awards" was
inadequate, maintaining that it imposed on the operator
a "Herculean task" because he was "essentially trying to
watch two programs at once--the live version occurring
in real-time and the delayed version that was broadcast
seconds later."99 Then, if he heard or saw objectionable
content, he was required to "press the appropriate audio
and/or video delay buttons at the precise instant neces-
sary to eliminate the objectionable content from the de-
layed feed" while at the same time "staying abreast of
95 See infra para. 56.
96 See Fox Response to 9/7/06 LOI at 5.
97 See Response at 5.
98 See, e.g., id. at 8-9.
99 Fox Response to 9/18/2006 LOI at 10 n. 21.

67a
the continuing live feed."100 In short, under these cir-
cumstances, Fox should have recognized the high risk
that "The 2003 Billboard Music Awards" broadcast
raised of airing indecent material. Nevertheless, Fox
chose to rely on the same delay and editing system that
had proved inadequate the previous year to delete an
expletive during the same show. We are not persuaded,
therefore, that Fox's efforts to edit out the offensive
language were diligent or reasonable.
35. We recognize that no delay and editing system is
foolproof and that there is always a possibility of human
error in using delay equipment to edit live program-
ming. The Commission can and will consider these facts
in deciding what, if any, remedy is appropriate. In this
case, however, as discussed above, we conclude that
Fox's efforts to prevent and edit out Ms. Richie's com-
ments were not diligent or reasonable.
36. Holding Fox responsible for airing indecent ma-
terial in this case does not place live broadcasts at risk
or impose undue burdens on broadcasters.101 This case
does not involve breaking news coverage that Fox and
other broadcasters have traditionally presented in so-
called "real time."102 Nevertheless, Fox argues that
100
Id. By contrast, Fox states that its current time delay and editing
system "relies upon technology to ensure that once an edit button is
pressed, the potentially objectionable content is edited at the right time
during the delayed feed." Id. As stated above, Fox's current system
also utilizes more than one employee "to provide redundancy." Id. at
10.
101
See Joint Comments at 12-16.
102
Since this case does not involve breaking news or sports program-
ming, we do not address issues involving such programming here. But
as we recognize elsewhere in this Order, "in light of the important First
Amendment interests at stake as well as the crucial role that context

68a
"[t]he live presentation of awards shows . . . is what
makes this content so compelling."103 Fox, however, did
not even decide to air the program live in much of the
country. Rather, viewers in the Mountain Time Zone
saw the program with a one-hour delay, and those in the
Pacific Time Zone experienced a three-hour delay. We
find it difficult to understand why viewers on the East
Coast would no longer find "live programming" to be
"compelling" with a ten-second delay while it is evi-
dently acceptable to provide this programming to view-
ers in the western half of the country with a one-hour or
three-hour delay. Moreover, with respect to awards
shows as a whole, the record reflects that the vast ma-
jority of awards shows are not aired by major networks
live in the Pacific Time Zone.104 Rather, they are gener-
ally broadcast with a three-hour delay, thus undermin-
ing any assertion that it is important that viewers see
the presentation of the awards without the compara-
tively minimal delay required to remove indecent lan-
guage.
37. Under the circumstances, we fail to see how a
delay of five, ten, or even fifteen seconds meaningfully
affects the value of this programming or significantly
implicates First Amendment values. In this vein, we
plays in our indecency determinations, it is imperative that we proceed
with the utmost restraint when it comes to news programming." See
infra, III.C.
103
See Joint Comments, Appendix X (Declaration of Peter Ligouri)
at 2.
104
Of the 32 awards shows that were broadcast by the major net-
works and are discussed in the record, only the Academy Awards aired
live in all time zones. See ABC Response to 9/18/2006 LOI at 2; NBC
Response to 9/18/2006 LOI at 4 and Exh. C.; Fox Response to 9/18/2006
LOI at 3-4; CBS Response to 9/18/2006 LOI at 7.

69a
note that so-called "live" programming is not literally
live--viewers at home do not see an event at the very
time that it is actually occurring. Rather, there is a nat-
ural delay caused by the time that it takes a signal to
reach viewers. The record shows that digital signals, for
example, may take up to 1.3 to 3.3 seconds to reach view-
ers over-the-air.105 And, if viewers are receiving such
signals through a cable operator or satellite provider,
there may be an additional delay of up to 3 seconds.106
Finally, if a viewer has a digital video recorder, there is
another additional delay of approximately another half-
second.107 Thus, using a conservative estimate, a viewer
may be watching an event more than three seconds after
it occurs, even in the absence of any delay technology.
In light of this, we fail to see how there is a meaningful
adverse impact on a viewer's experience because he or
she learns the winner of the Billboard Award for Top 40
Mainstream Track some eight to eighteen seconds after
the winner is announced on stage in Las Vegas (with a
delay) as opposed to after the normal three to six sec-
onds (without one).
38. Finally, we note that our decision here will not
deprive Fox of the ability to present such programm-
ing in substantially the same way that it has in the past.
Fox has utilized a time delay and other procedures to
105
Fox Response to 9/18/2006 LOI at 11.
106
Id.
107
Id. See ABC Response to 9/18/2006 LOI at 7-8 (reporting that
transmitting signals from ABC's New York Broadcast Center to affil-
iates results in less than a two second delay, that feeding live material
from remote locations to ABC's New York Broadcast Center may cause
an additional delay of up to a second, and that distribution of the signals
to the consumers through cable and satellite systems may cause an ad-
ditional delay).

70a
avoid airing patently offensive material during live en-
tertainment broadcasts such as "The 2003 Billboard Mu-
sic Awards" for years before the Commission's decision
in the Golden Globe Awards Order.108 We also disagree
that "delaying live broadcasts to edit potentially offen-
sive language inevitably results in overbroad censorship
of appropriate material."109 As the D.C. Circuit ob-
served, "some degree of self-censorship is inevitable and
not necessarily undesirable so long as proper standards
are available."110 The possibility that an over-zealous
broadcast standards employee may "dump" material
that is not actionably indecent during the live presenta-
tion of an awards show does not outweigh the compelling
interest in preventing patently offensive broadcasts
such as the one that occurred in this case.
39. For all of these reasons, we conclude that Fox's
broadcast of "The 2003 Billboard Music Awards" vio-
lated the prohibitions in 18 U.S.C. 1464 and the Com-
mission's rules against broadcast indecency and that it
is not inequitable to hold Fox responsible for these viola-
tions.
108
See Response at 8; see also Fox Response to 9/7/06 LOI at 5. In
addition, Fox uses delays for live entertainment broadcasts even after
10 p.m. See id. at 5-7. The Commission's indecency regulation does not
apply at that time, see 47 C.F.R. 73.3999(b), so Fox obviously has
reasons apart from regulatory compulsion for using a delay.
109
Joint Comments at 15.
110
Action for Children's Television v. FCC, 59 F.3d 1249, 1261 (D.C.
Cir. 1995), cert. denied, 516 U.S. 1072 (1996) (ACT IV), citing Pacifica,
438 U.S. at 743. See ACT III, 58 F.3d at 666 ("Whatever chilling effects
may be said to inhere in the regulation of indecent speech, these have
existed ever since the Supreme Court first upheld the FCC's enforce-
ment of section 1464 of the Radio Act.").

71a
40. Profanity Analysis. Consistent with our deci-
sions in the Golden Globe Awards Order and the Omni-
bus Order, we also find that the complained-of language
in the program at issue violated Section 1464's prohibi-
tion on the broadcast of "profane" utterances.111 In the
Golden Globe Awards Order, the Commission concluded
that the "F-Word" was profane within the meaning of
Section 1464 because, in context, it constituted vulgar
and coarse language "`so grossly offensive to members
of the public who actually hear it as to amount to a nui-
sance.'"112 Similarly, we concluded in the Omnibus Or-
der that the "S-Word" is a vulgar excretory term so
grossly offensive to members of the public that it
amounts to a nuisance and is presumptively profane.113
In certain cases, language that is presumptively profane
will not be found to be profane where it is demonstrably
essential to the nature of an artistic or educational work
or essential to informing viewers on a matter of public
importance.114 However, such circumstances are not
present here: Fox does not contend that Ms. Richie's
profane language was essential to informing viewers on
a matter of public importance or that modifying the lan-
111
18 U.S.C. 1464.
112
Golden Globe Awards Order, 19 FCC Rcd at 4981 13, quoting
Tallman v. United States, 465 F.2d 282, 286 (7th Cir. 1972).
113
Omnibus Order, 21 FCC Rcd at 2686 81 ("Like the `F-Word,'
[the `S-Word'] is one of the most offensive words in the English langu-
age, the broadcast of which is likely to shock the viewer and disturb the
peace and quiet of the home.").
114
Id. at 2669 19, citing Complaints Against Various Television
Licensees Regarding Their Broadcast on November 11, 2004 of the
ABC Television Network's Presentation of the Film "Saving Private
Ryan," Memorandum Opinion and Order, 20 FCC Rcd 4507, 4512-14
13-18 (2005).

72a
guage would have had a material impact on its function
as a source of news and information. On the contrary,
Fox sought (albeit unsuccessfully) to delete the profane
language, and did remove it before the program aired on
time delay in the Mountain and Pacific Time Zones.115 It
is undisputed that the complained-of material, including
the "F-Word" and the "S-Word," was broadcast within
the 6 a.m. to 10 p.m. time frame relevant to a profanity
determination.116 Because there was a reasonable risk
that children may have been in the audience at the time
of the broadcast on December 10, 2003,117 the broadcast
is legally actionable.
41. Contrary to the Networks' Joint Comments, we
believe that our interpretation of "profane" as used in
Section 1464 is appropriate.118 The word has long car-
ried a variety of meanings, including non-religious
meanings.119 Several courts have interpreted the word
115
Response at 8.
116
See Omnibus Order, 21 FCC Rcd at 2666 8.
117
See supra para. 18 (noting that, according to Nielsen ratings data,
23.4% of the people watching an average minute of "The 2003 Billboard
Music Awards" broadcast were under 18, and 11% were between the
ages of 2 and 11).
118
See Joint Comments at 28-32; Thomas Jefferson Center For the
Protection of Free Expression Comments at 11-15 (Sept. 21, 2006).
119
The 1891 edition of the Century Dictionary includes this defini-
tion of profane: "2. To put to a wrong use; employ basely or unwor-
thily." Century Dictionary 4754 (1891 ed.). In an appendix to his con-
curring opinion in Burstyn v. Wilson, 343 U.S. 495, 533-40 (1952),
Justice Frankfurter collected definitions of "sacrilege," "blasphemy,"
and "profane" dating to 1651. The earliest of these definitions of pro-
fane is "to apply any thing sacred to common use. To be irreverent to
sacred persons or things. To put to a wrong use." Id. at 536, quoting
Rider, A New Universal English Dictionary (London, 1759). The next
is "To violate; to pollute.--To put to wrong use." Id. at 537, quoting

73a
in a non-religious sense, consistent with the established
rule that a court should construe a statute, if reasonably
possible, to avoid constitutional problems.120 Further,
Kenrick, A New Dictionary of the English Language (London, 1773).
Frankfurter's concurring opinion also notes that Funk & Wagnalls'
New Standard Dictionary of the English Language, first copyrighted
in 1913, includes a definition of "to profane" as "3. To vulgarize; give
over to the crowd." Id. at 527 n. 48. Thus, we disagree that Congress
clearly would have understood the term in 1927 to mean only blasphe-
mous or sacrilegious. Joint Comments at 28.
120
See Tallman v. United States, 465 F.2d at 286; State v. Richards,
896 P.2d 357, 364 (Id. App. 1995) (in rejecting a vagueness challenge
to state statute proscribing telephone harassment through, inter
alia, "obscene, lewd or profane language," construing "profane" to
mean "characterized by abusive language . . . cursing or vituperation
. . . "); see also United States v. Hicks, 980 F.2d 963, 970 n.9 (5th Cir.
1992) (angry reference to flight attendant as a "bitch" and angry
admonition that she should get her "ass" to the plane's kitchen qualified
as "profane"). We disagree with the Networks that Tallman addressed
the word's meaning in dicta, and that the case actually refutes the Com-
mission's interpretation because the Court cited with approval Duncan
v. United States, 48 F.2d 128 (9th Cir.), cert. denied, 383 U.S. 863
(1931), and Gagliardo v. United States, 366 F.2d 720 (9th Cir. 1966). See
Joint Comments at 31. Tallman held that the word "profane" in
Section 1464 must be interpreted narrowly as, inter alia, "denoting
language which under contemporary community standards is so grossly
offensive to members of the public who actually hear it as to amount to
a nuisance" to preserve its validity in response to a facial constitutional
challenge. Tallman, 465 F.2d at 286. The Court cited Duncan and
Gagliardo solely as examples of prior judicial interpretations available
to the trial judge had jury instructions on the word's meaning been
necessary, without approving or even identifying such interpretations.
Id. We also reject the Networks' argument that the rule of lenity
counsels against the Commission's interpretation of "profane." See
Joint Comments at 30, n.34. Among other things, the Networks make
no showing that their preferred construction of the term is any nar-
rower than the Commission's. Indeed, we think it likely that more
broadcast speech would be considered "profane" under the Networks'

74a
when viewed in its statutory context with the words "ob-
scene" and "indecent," both of which have vulgar over-
tones, we believe that the word "profane" is reasonably
interpreted in the related sense of "grossly offensive."121
We do not read the cases cited by the Networks as pre-
cluding a non-religious interpretation. Duncan upheld
a conviction for broadcasting profanity where the defen-
dant "referred to an individual as `damned,' " "used the
expression `By God' irreverently," and "announced his
intention to call down the curse of God upon certain indi-
viduals."122 But the court held only that this language
was "within the meaning of that term" as used in the Ra-
interpretation of the term than under ours. See also infra para. 54 (ex-
plaining that the Pacifica Court squarely rejected the argument that
the FCC's civil authority to enforce Section 1464 must be interpreted
in accordance with rules that apply to criminal statutes, such as the rule
of lenity).
121
See State v. Richards, 896 P.2d at 364 ("when words appear in a
list or are otherwise associated, they should be given related mean-
ings."), citing Schreiber v. Burlington Northern, Inc., 472 U.S. 1 (1985),
Jarecki v. G.D. Searle & Co., 367 U.S. 303 (1961), 2A Norman J. Singer,
Southerland's Statutes and Statutory Construction 47.16 at 183 (5th
ed. 1992); United States v. Hicks, 980 F.2d at 970 n.9 ("By `profanity' or
`vulgarity,' we refer to words that, while not obscene, nevertheless are
considered generally offensive by contemporary community stan-
dards."). The fact that the words "indecent" and "profane" in Section
1464 have "separate" meanings does not render our interpretation of
profane "implausible." See Joint Comments at 31, quoting Pacifica, 438
U.S. at 739-40. We recognize that the two words have separate mean-
ings, and the Commission interprets the two words differently. Our
enforcement policy limiting the regulation of profane language to words
that are sexual or excretory in nature or are derived from such terms
stems from First Amendment considerations rather than the meaning
of the word. See Omnibus Order, 21 FCC Rcd at 2669 18.
122
Duncan, 48 F.2d at 133-34 (the phrase "God damn it" uttered in
anger was not profane under Section 1464).

75a
dio Act of 1927, not that the provision only covered such
language.123 Gagliardo addressed the meaning of "pro-
fane" in Section 1464 only in dicta, because the govern-
ment in that case did not contend that the words at issue
were profane.124 Finally, the fact that the Commission
has a specific rule addressing "obscene" and "indecent"
programming125 plainly does not foreclose the agency
from exercising in an adjudication its express statutory
authority to take enforcement action against broadcasts
that are "profane."126
42. Constitutional Issues. The Networks offer a
variety of arguments attacking the constitutionality of
the Commission's indecency framework as it relates to
"The 2003 Billboard Music Awards" broadcast. We do
not find any of these arguments to be persuasive.
123
Id. at 134. Duncan was decided before constitutional law evolved
to the point that such language could not be proscribed. See Burstyn
v. Wilson, 343 U.S. 495 (1952) (holding unconstitutional a New York
statute authorizing state officials to license films for public exhibition
unless the films are "sacrilegious").
124
Gagliardo, 366 F.2d at 725 ("God damn it" uttered in anger not
legally profane). The FCC did not address whether "profane" could be
interpreted in a non-religious sense in Raycom America, Inc., Memo-
randum Opinion and Order, 18 FCC Rcd 4186 (2003) (portions of "The
West Wing" in which a character "`scream[ed] at God,' and made ir-
reverent references toward the deity--`[y]ou're a sonofabitch, you know
that?,' and `have I displeased you, you feckless thug?' " not actionably
profane), and Warren B. Appleton, 28 FCC 2d 36 (Broadcast Bur. 1971)
("damn" not actionably profane), because those cases involved language
with religious connotations.
125
47 C.F.R. 73.3999.
126
47 U.S.C. 1464; 47 U.S.C. 503(b)(1)(D). See Joint Comments
at 32.

76a
43. First, the Networks argue that our definition of
indecency is unconstitutionally vague.127 However, that
definition is essentially the same as the one that we ar-
ticulated in the order under review in FCC v. Pacifica
Foundation.128 The Supreme Court had no difficulty in
applying that definition and using it to conclude that the
broadcast at issue in that case was indecent.129 We
agree with the D.C. Circuit that "implicit in Pacifica" is
an "acceptance of the FCC's generic definition of `inde-
cent' as capable of surviving a vagueness challenge."130
44. The Networks suggest that the Supreme Court's
more recent decision in Reno v. ACLU131 has "under-
mine[d] any constitutional defense of the Commission's
current approach" to indecency.132 In Reno, the Court
considered the constitutionality of the Communications
Decency Act of 1996 (CDA), a statute that regulated
indecency on the Internet and that contained a defini-
tion similar to ours.133 Though the Court did not hold
that the statute was "so vague that it violates the Fifth
Amendment," it concluded that "the many ambiguities
concerning the scope of its coverage render it problem-
atic for purposes of the First Amendment."134
127
See, e.g., Joint Comments at 7-8.
128
Pacifica, 438 U.S. at 732.
129
See id. at 739, 741.
130
Action for Children's Television v. FCC, 852 F.2d 1332, 1339
(D.C. Cir. 1988) ("ACT I"); accord ACT III, 58 F.3d at 659.
131
521 U.S. 844 (1997).
132
Joint Comments at 7.
133
See 47 U.S.C. 223(d) (1994 Supp. II).
134
Reno, 521 U.S. at 870.

77a
45. Reno in no way undermines Pacifica. On the
contrary, the Court in Reno expressly distinguished
Pacifica, and it gave three different reasons for doing
so. First, the Court noted that the Commission is "an
agency that [has] been regulating radio stations for de-
cades," and that the Commission's regulations simply
"designate when--rather than whether--it would be
permissible" to air indecent material.135 The CDA, in
contrast, was not administered by an expert agency, and
it contained "broad categorical prohibitions" that were
"not limited to particular times."136 Second, the CDA
was a criminal statute, whereas the Commission has no
power to impose criminal sanctions for indecent broad-
casts.137 Third, unlike the Internet, the broadcast me-
dium has traditionally "received the most limited First
Amendment protection."138 Thus, far from casting doubt
on Pacifica's vagueness holding, Reno recognizes its
continuing vitality.
46. The Networks also argue that the more relaxed
level of First Amendment scrutiny discussed in Pacifica
should no longer apply to broadcasting in light of
changes in the media marketplace. Specifically, they
contend that because of the prevalence of other media,
such as the Internet and cable and satellite television,
"it is fanciful to believe that aggressive enforcement of
1464 against broadcasters will be effective in prevent-
135
Id. at 867.
136
Id.
137
See id. at 867, 872; see also Pacifica, 438 U.S. at 750 (declining to
decide whether an indecent broadcast "would justify a criminal prose-
cution").
138
Reno, 521 U.S. at 867 (quoting Pacifica, 438 U.S. at 748).

78a
ing children from being exposed to potentially offensive
words."139
47. We disagree that technological changes have un-
dermined the validity of the reasoning in Pacifica.140 In
Pacifica, the Court identified two reasons why broad-
casting has received "the most limited First Amendment
protection."141 First, "the broadcast media have estab-
lished a uniquely pervasive presence in the lives of all
Americans. Patently offensive, indecent material pre-
sented over the airwaves confronts the citizen, not only
in public, but also in the privacy of the home."142 Second,
"broadcasting is uniquely accessible to children, even
those too young to read."143
48. Notwithstanding the growth of other communica-
tions media, courts have recognized the continuing valid-
ity of these rationales. In 1994, the Supreme Court reaf-
firmed that "our cases have permitted more intrusive
regulation of broadcast speakers than of speakers in
other media."144 And the D.C. Circuit has rejected pre-
cisely the argument advanced by the Networks here:
"Despite the increasing availability of other means of
receiving television, such as cable, . . . there can be no
doubt that the traditional broadcast media are properly
139
Joint Comments at 22.
140
In any event, the Commission has no authority to overrule
Pacifica. Cf. Rodriguez de Quijas v. Shearson/American Express,
Inc., 490 U.S. 477, 484 (1989).
141
Pacifica, 438 U.S. at 748.
142
Id.
143
Id. at 749.
144
Turner Broadcasting Sys., Inc. v. FCC, 512 U.S. 622, 637 (1994);
see also Reno, 521 U.S. at 868 (recognizing "special justifications for
regulation of the broadcast media").

79a
subject to more regulation than is generally permissible
under the First Amendment."145
49. The broadcast media continue to have "a unique-
ly pervasive presence" in American life. The Supreme
Court has recognized that "[d]espite the growing impor-
tance of cable television and alternative technologies,
`broadcasting is demonstrably a principal source of in-
formation and entertainment for a great part of the Na-
tion's population.'"146 Though broadcast television is
"but one of many means for communication, by tradition
and use for decades now it has been an essential part of
the national discourse on subjects across the whole
broad spectrum of speech, thought, and expression."147
In 2003, 98.2% of households had at least one television,
and 99% had at least one radio.148 The Networks cor-
rectly point out that almost 86% of households with tele-
vision subscribe to a cable or satellite service.149 That
still leaves 15.4 million households that rely exclusively
on broadcast television, hardly an inconsequential num-
145
ACT III, 58 F.3d at 660. See also Prometheus Radio Project v.
FCC, 373 F.3d 372, 401-02 (3d Cir. 2004) (rejecting argument that
broadcast ownership regulations should be subjected to higher level of
scrutiny in light of the rise of "non-broadcast media").
146
Turner Broadcasting Sys., Inc. v. FCC, 520 U.S. 180, 190 (1997)
(quoting U.S. v. Southwestern Cable Co., 392 U.S. 157, 177 (1968)).
147
Id. at 194.
148
U.S. Census Bureau, Statistical Abstract of the United States 737
(2006).
149
Joint Comments at 21 (citing Annual Assessment of the Status
of Competition in the Market for the Delivery of Video Programming,
Twelfth Annual Report, 21 FCC Rcd 2503, 8 (2006) ("Annual As-
sessment")).

80a
ber.150 In addition, it has been estimated that almost
half of direct broadcast satellite subscribers receive
their broadcast channels over the air,151 and many sub-
scribers to cable and satellite still rely on broadcast for
some of the televisions in their households.152 All told,
the National Association of Broadcasters ("NAB") esti-
mates that there are an estimated 73 million broadcast-
only television sets in American households.153 More-
over, many of those broadcast-only televisions are in chil-
dren's bedrooms. According to a 2005 Kaiser Family
Foundation report, 68 percent of children aged eight to
18 have a television set in their bedrooms, and nearly
half of those sets do not have cable or satellite connec-
tions.154
50. In addition, the bare number of cable and satel-
lite service subscribers does not reflect the large dispar-
ity in viewership that still exists between broadcast and
cable television programs. For example, during the
week of September 18, 2006, each of the top ten pro-
150
Annual Assessment, 21 FCC Rcd at 2508 15; see also Com-
ments of the Walt Disney Co. in MB Docket No. 04-210 at 2 (filed Aug.
11, 2004) ("Disney/ABC stresses that these customers [relying on
broadcast only] represent a significant portion of our potential viewing
audience.").
151
Media Bureau Staff Report Concerning Over-the-Air Broadcast
Television Viewers, No. 04-210, 9 (MB Feb. 28, 2005), available at
2005 WL 473322, at *2.
152
Annual Assessment, 21 FCC Rcd at 2508 15.
153
Id. at 2552 97. The NAB has properly characterized this num-
ber as "enormous." Reply Comments of the National Association of
Broadcasters and the Association for Maximum Service Television, Inc.
in MB Docket No. 04-210 at i (filed Sept. 7, 2004).
154
See Kaiser Family Foundation, Generation M: Media in the
Lives of 8-18 Year-olds 77 (2005).

81a
grams on broadcast television had more than 15 million
viewers, while only one program on cable television that
week managed to attract more than 5 million viewers.155
Similarly, of the 495 most-watched television programs
during the 2004-2005 season, 485 appeared on broadcast
television, and the highest-rated program on cable tele-
vision was only the 257th most-viewed program of the
season.156
51. The broadcast media are also "uniquely accessi-
ble to children." In this respect, broadcast television
differs from cable and satellite television. Parents who
subscribe to cable exercise some choice in their selection
of a package of channels, and they may avoid subscrib-
ing to some channels that present programming that, in
their judgment, is inappropriate for children. Indeed,
upon the request of a subscriber, cable providers are
required by statute to "fully block the audio and video
programming of each channel carrying such program-
ming so that one not a subscriber does not receive it."157
In contrast, as the D.C. Circuit has observed, "broadcast
audiences have no choice but to `subscribe' to the entire
output of traditional broadcasters."158 The V-chip pro-
vides parents with some ability to control their chil-
dren's access to broadcast programming. But most tele-
155
See Nielsen Media Research, "Top 10 Broadcast TV Programs for
the Week of September 18, 2006;" Nielsen Media Research, "Top 10
Cable TV Programs for the Week of September 18, 2006."
156
See Television Bureau of Advertising, "Season-to-Date Broadcast
vs. Subscription TV Primetime Ratings: 2004-2005," available at http://
www.tvb.org/rcentral/ViewerTrack/FullSeason/fs-b-c.asp?ms=2004-
2005.asp.
157
47 U.S.C. 560 (2000); see also United States v. Playboy Enter-
tainment Group, Inc., 529 U.S. 803 (2000).
158
ACT III, 58 F.3d at 660.

82a
visions do not contain a V-chip, and most parents who
have a television set with a V-chip are unaware of its
existence or do not know how to use it.159 In addition,
the effectiveness of a V-chip depends on the accuracy of
program ratings; a V-chip is of little use when, as here,
the rating does not reflect the material that is broad-
cast.160 In light of the TV-PG rating given to "The 2003
Billboard Music Awards," even an informed use of a V-
chip would not necessarily have protected children from
Ms. Richie's vulgar comments,161 and studies demon-
strate that inaccurate ratings are far from an isolated
problem. In a Kaiser Family Foundation survey, for
example, nearly 4 in 10 parents of children aged 2-17
stated that most television programs are not rated accu-
rately.162
159
See Super Bowl Order on Reconsideration, 21 FCC Rcd at 6667
37. In Congressional testimony shortly after the 2003 Billboard Music
Awards, Fox's President of Entertainment acknowledged that the V-
chip and television ratings were "underutilized." H.R. 3717, the `Broad-
cast Decency Enforcement Act of 2004': Hearing Before the Subcom-
mittee on Telecommunications and the Internet of the House Comm.
On Energy & Commerce, 107th Congress, (Feb. 26, 2004) (statement of
Gail Berman). According to a 2003 study, parents' low level of V-chip
use is explained in part by parents' unawareness of the device and the
"multi-step and often confusing process" necessary to use it. Annen-
berg Public Policy Center, Parents' Use of the V-Chip to Supervise
Children's Television Use 3 (2003). Only 27 percent of mothers in the
study group could figure out how to program the V-Chip, and "many
mothers who might otherwise have used the V-Chip were frustrated by
an inability to get it to work properly." Id. at 4.
160
See supra para. 18, n. 46; Super Bowl Order on Reconsideration,
21 FCC Rcd at 6667-68 37.
161
See supra para. 18, n.46.
162
Henry J. Kaiser Family Foundation, Parents, Media and Public
Policy: A Kaiser Family Foundation Survey 5 (2004) ("Kaiser Sur-
vey"). Likewise in a study published in the journal Pediatrics, parents

83a
concluded that half of television shows the industry had rated as appro-
priate for teenagers were in fact inappropriate, a finding the study
authors called "a signal that the ratings are misleading." David A.
Walsh & Douglas A. Gentile, A Validity Test of Movie, Television, and
Video-Game Ratings, 107 Pediatrics 1302, 1306 (2001).
Academics who have studied the television rating system share par-
ents' assessment that the ratings are often inaccurate. A 2002 study
found that many shows that should carry content descriptors do not,
therefore leaving parents unaware of potentially objectionable material.
See Dale Kunkel, et al., Deciphering the V-Chip: An Examination of
the Television Industry's Program Rating Judgments, 52 Journal of
Communications 112 (2002). For example, the study found that 68 per-
cent of prime-time network shows without an "L" descriptor contained
"adult language," averaging nearly three scenes with such language per
show. See id. at 132; see also id. at 131 (finding that 20 percent of shows
rated TV-G--supposedly appropriate for all ages-- included objection-
able language, including "bastard," "bitch," "shit," and "whore"). In
fact, "in all four areas of sensitive material--violence, sexual behavior,
sexual dialogue, and adult language--the large majority of programs
that contain such depictions are not identified by a content descriptor."
Id. at 136. The study's authors concluded that "[p]arents who might
rely solely on the content-based categories to block their children's
exposure to objectionable portrayals would be making a serious miscal-
culation, as the content descriptors actually identify only a small minor-
ity of the full range of violence, sex, and adult language found on tele-
vision." Id.
A 2004 study also raised serious questions about the accuracy of tele-
vision ratings. It found that there was more coarse language broadcast
during TV-PG programs than those rated TV-14, just the opposite of
what these age-based ratings would lead a viewer to believe. Barbara
K. Kaye & Barry S. Sapolsky, Offensive Language in Prime-Time
Television: Four Years After Television Age and Content Ratings, 48
Journal of Broadcasting & Electronic Media 554, 563-64 (2004); see also
Parents Television Council, The Ratings Sham: TV Executives Hiding
Behind A System That Doesn't Work (April 2005) (study of 528 hours
of television programming concluding that numerous shows were
inaccurately and inconsistently rated); Effectiveness of Media Rating
Systems: Subcommittee of Science, Technology, and Space of the

84a
52. Broadcast television is also significantly different
from the Internet. The Internet, unlike television, is not
accessible to children "too young to read."163 And par-
ents who wish to control older children's access to inap-
propriate material can use widely available filtering
software--an option that, whatever its flaws, lacks an
Senate Comm. On Commerce, Science & Transp., 107th Congress (2004)
(statement of Ms. Patti Miller, director, Children and the Media Pro-
gram for Children Now) ("Can parents depend on the accuracy of the
ratings systems? Sadly, the answer is no.").
An economist studying the question of why broadcasters consistently
"underlabel" their programs concluded that they are likely responding
to economic incentives. See James T. Hamilton, Who Will Rate the
Ratings?, in The V-Chip Debate: Content Filtering from Television to
the Internet 133, 143, 149 (Monroe E. Price, ed. 1998). He found that
programs with more restrictive ratings command lower advertising
revenues. See id. at 143. The desire to charge more for commercials
and fear of "advertiser backlash" over shows with more restrictive
ratings "means that networks have incentives to resist the provision of
content-based information." Id. at 149; see also Kunkel, 52 Journal of
Communications at 114 ("[T]he prospect that applying `higher' ratings
to a program could reduce audience size raises a self-interest concern
regarding the accuracy with which judgments about program ratings
are determined.").
Finally, even assuming arguendo that the content descriptors were
accurately applied, they would not assist the majority of parents
because they are not sufficiently understood. The Kaiser Survey found
that only 51% of parents understand that "V" stands for violence; only
40% understand "L" stands for language; only 37% understand "S"
stands for sex; and only 4% understand that "D" stands for suggestive
or sexual dialogue. Kaiser Survey at 6.
163
Pacifica, 438 U.S. at 749. See, e.g., Youth, Pornography, and the
Internet, ed. by Dick Thornburgh and Herbert S. Lin, p. 115 (National
Academy Press 2002) ("As a general rule, young children do not have
the cognitive skills needed to navigate the Internet independently.
Knowledge of search strategies is limited if not nonexistent, and typing
skills are undeveloped.").

85a
effective analog in the context of broadcast television164
in light of the numerous problems with the V-chip and
program ratings discussed above.165
53. No Sanction Proposed. For the reasons stated
above, we conclude that "The 2003 Billboard Music
Awards" contained indecent and profane material in
violation of Section 1464 and our rules. Fox stations
broadcast indecent and profane language in an awards
show that aired between 6 a.m. and 10 p.m. and was
watched by people of all ages. Under the circumstances,
however, we propose no forfeiture here. We originally
declined to propose a sanction in this case because the
broadcast occurred prior to the Golden Globe Awards
Order. As discussed above, we believe on further con-
sideration that the complained-of language was action-
able under Commission decisions preceding the Golden
Globe Awards Order. Nevertheless, we still decline to
propose a forfeiture here. To begin with, proposing a
sanction would require issuance of a notice of apparent
164
See Reno, 521 U.S. at 877. Filtering software, for example, can
block access to a website based on the software's evaluation of the site's
content. The V-chip, in contrast, does not evaluate television programs
itself and therefore is only effective if the programs have been given
accurate ratings. However, to the extent that filtering software is
ineffective and children are still able to access indecent material on the
Internet, we note that Congress has sought to address this problem
through the Child Online Protection Act, a statute whose validity is still
being litigated. See Ashcroft v. ACLU, 542 U.S. 656 (2004) (affirming
preliminary injunction). We note that the Networks also refer to the
availability of video game consoles as another medium that, in their
view, is as pervasive as television. See Joint Comments at 21-22. Video
games differ from broadcast television in that games must be pur-
chased individually, so a parent who purchases a video game console for
a child retains the ability to determine which games the child will play.
165
See supra para. 51 and nn. 159-162.

86a
liability, which would not be "a further final or appeal-
able order of the FCC," as required by the Remand Or-
der.166 In addition, even absent the requirement that we
issue a "final or appealable order," we would not exer-
cise our enforcement discretion to propose a forfeiture
here given the limited remand under which we are pro-
ceeding. Accordingly, we find that no forfeiture is war-
ranted in this case.167 In light of our decision not to im-
pose a forfeiture, we will not require the licensees of any
of the stations that broadcast the material to report our
finding here to us as part of their renewal applications,
and we will not consider the broadcast to have an ad-
verse impact upon such licensees as part of the renewal
process or in any other context.
54. In light of our decision not to impose a forfeiture,
we need not address whether the violations of Section
1464 and our rule were willful within the meaning of
Section 503(b).168 We disagree with the Networks, how
166
Remand Order at 2. See 47 U.S.C. 503(b)(4)(C); ACT IV, 59
F.3d at 1254, citing Pleasant Broadcasting Co. v. FCC, 564 F.2d 496
(D.C. Cir. 1977).
167
In light of recent legislation, the Networks raise the prospect of
future fines in excess of $65 million for "a single, fleeting instance of
indecent speech." Joint Comments at 16. We do not believe, however,
that a case similar to "The 2003 Billboard Music Awards" arising in the
future would merit the maximum fine permitted under the Broadcast
Decency Enforcement Act. See Pub. L. 109-235, 102 Stat. 491 (June 15,
2006), to be codified at 47 U.S.C. 503(b)(2)(C)(ii). While that Act, once
we adopt implementing regulations, will provide the Commission with
the flexibility to impose appropriate fines in egregious cases, the Com-
mission will continue to follow a restrained enforcement policy in impos-
ing forfeitures in this area.
168
See 47 U.S.C. 503(b)(1)(B) & (D). We also need not address
whether responsibility would lie with independent Fox affiliates in
addition to the licensees owned by Fox. Cf. Complaints Against Va-

87a
ever, that Section 1464 is not violated unless a broad-
caster acts with the state of mind required for a criminal
conviction.169 The Supreme Court has squarely rejected
the argument that the FCC's civil authority to enforce
Section 1464 must be interpreted in accordance with
rules that apply to criminal statutes, explaining: "The
legislative history of the provisions establishes their
independence. As enacted in 1927 and 1934, the prohibi-
tion on indecent speech was separate from the provi-
sions imposing civil and criminal penalties for violating
the prohibition . . . Although the 1948 codification of
the criminal laws and the addition of new civil penalties
changed the statutory structure, no substantive change
was apparently intended . . . Accordingly, we need not
consider any question relating to the possible applica-
tion of 1464 as a criminal statute."170 Thus, the mens
rea necessary for a criminal conviction is not a prerequi-
site to the Commission's finding a Section 1464 viola-
tion.171
rious Television Licensees Concerning Their February 1, 2004 Broad-
cast of the Super Bowl XXXVIII Halftime Show, Notice of Apparent
Liability for Forfeiture, 19 FCC Rcd 19230, 19240-41 25 (2004).
169
Joint Comments at 24-26. We also reject, as contrary to the
plain meaning of the Act, the Networks' contention that we may
not impose forfeitures for violations of our indecency rule under section
503(b)(1)(B). While the Networks suggest that the Commission's inde-
cency rule, 47 C.F.R. 73.3999, merely represents a decision by the
Commission to restate 18 U.S.C. 1464, the indecency rule was adopted
by the Commission pursuant to the direction of Congress. See Public
Telecommunications Act of 1992, Pub. L. No. 102-356, 106 Stat. 949,
Section 16 (1992).
170
Pacifica, 438 U.S. at 739 n.13.
171
The Networks' reliance on FCC v. ABC, 347 U.S. 284, 296 (1954),
for the proposition that "`[t]here cannot be one construction for the

88a

B. "The 2002 Billboard Music Awards"

55. The Programming. The Commission received a
complaint alleging that WTTG(TV), Washington, DC,
broadcast indecent material during "The 2002 Billboard
Music Awards" program which aired at 8 p.m. Eastern
Standard Time on December 9, 2002.172 Specifically, the
complainant alleged that while accepting an award, Cher
stated: "People have been telling me I'm on the way out
every year, right? So fuck `em."173 The "2002 Billboard
Federal Communications Commission and another for the Department
of Justice'" is misplaced. Joint Comments at 24. In that case, the
Court rejected the broad construction urged by the Commission of a
statutory prohibition against a "lottery, gift enterprise, or similar
scheme" in part because "the same construction would likewise apply
in criminal cases." FCC v. ABC, 347 U.S. at 296. In contrast, the intent
required to impose civil penalties for Section 1464 violations has no
impact on its possible application as a criminal statute. See Pacifica,
438 U.S. at 739 n. 13.
172
FCC File No. EB-03-IH-0460. See Letter from Lara Mahaney,
Director of Corporate and Entertainment Affairs, PTC to David Solo-
mon, Chief, Enforcement Bureau, Federal Communications Commis-
sion (August 22, 2003). As noted in the Golden Globe Awards Order,
the Commission's Enforcement Bureau had dismissed an earlier com-
plaint concerning the same broadcast on the same station eight months
earlier. See Letter from Charles Kelley, Chief, Investigations and
Hearings Division, Enforcement Bureau, FCC to RadioEsq@aol.com,
EB-02-IH-0861-MT (December 18, 2002), cited in Golden Globe
Awards Order, 19 FCC Rcd at 4980 12 n.32 (noting Bureau dismissal
of complaint). However, Fox has raised no claim of administrative res
judicata, and thus, because that defense has been waived, we need not
consider it. Cf. Kern Oil & Ref. Co. v. Tenneco Oil Co., 840 F.2d 730,
735 (9th Cir. 1988).
173
See Letter from Lara Mahaney, Director of Corporate and En-
tertainment Affairs, PTC to David Solomon, Chief, Enforcement
Bureau, Federal Communications Commission (August 22, 2003).

89a
Music Awards" was broadcast nationwide on the Fox
Television Network.
56. Examination of a videotape of the broadcast re-
veals that Cher, a singer and actress, was presented
with an "Artist Achievement Award" during "The 2002
Billboard Music Awards" program. Cher had been se-
lected to receive this award at least three weeks before
the broadcast.174 In the course of her remarks accepting
the award, she stated as follows: "I've had unbelievable
support in my life and I've worked really hard. I've had
great people to work with. Oh, yeah, you know what?
I've also had critics for the last 40 years saying that I
was on my way out every year. Right. So fuck `em. I
still have a job and they don't."
57. Following the Second Circuit's remand, the Bu-
reau sent Fox a letter of inquiry on September 7, 2006
concerning "The 2002 Billboard Music Awards" broad-
cast.175 Fox responded on September 21, 2006.176 Fox's
response confirms that it broadcast the material de-
scribed in the complaint.177 Nevertheless, Fox argues
that its broadcast of the "F-Word," in context, did not
depict or describe sexual activities but rather, "at most,"
174
See Press Release, "Cher to Receive the Artist Achievement
Award on the 2002 Billboard Music Awards Monday, Dec. 9 on Fox"
(Nov. 14, 2002), attached to Letter from John C. Quale, Counsel of Fox,
to Benigno E. Bartolome, Deputy Chief, Investigations and Hearings
Division, Enforcement Bureau, File No. EB-03-IH-0460 (September
21, 2006) ("Fox Response to 9/7/2006 LOI").
175
See Letter from Benigno E. Bartolome, Deputy Chief, Investiga-
tions and Hearings Division, Enforcement Bureau, to Fox Television
Stations, Inc., File No. EB-03-IH-0460 (September 7, 2006).
176
See Fox Response to 9/7/2006 LOI.
177
Id. at 2.

90a
was a "vulgar expletive directed as an insult toward an
individual or group against whom the speaker held deep-
seated feelings of ill-will," and thus is outside the scope
of the Commission's indecency definition.178 Further,
Fox argues that the complained-of material was not ac-
tionably indecent because it "contained at most the pass-
ing use of an expletive used to convey an insult," it
"lasted only a couple of seconds out of a two-hour pro-
gram," and Fox did not present it to pander to or titil-
late the audience, or for shock value.179 Therefore, Fox
contends that the dialogue is not actionably indecent.180
58. Indecency Analysis. With respect to the first
prong of the indecency test, Fox contends that Cher's
statement "fuck `em" does not describe sexual activities
and thus falls outside the scope of our indecency defini-
tion. We disagree. As discussed above, a long line of
precedent indicates that both literal and non-literal uses
of the "F-Word" come within the subject matter scope of
our indecency definition.181 Given the core meaning of
the "F-Word," any use of that word has a sexual conno-
tation.182 Moreover, it hardly seems debatable that the
word's power to insult and offend derives from its sexual
178
Id. at 10.
179
Id.
180
Fox also suggests that the complaint should be dismissed because
it fails to specifically allege that the complainant viewed "The 2002
Billboard Music Awards." See id. at 2. We disagree. Our practice has
never been to require such an allegation in order for a complaint to be
considered. It is sufficient that the complaint originated from within
the market of the station against which the complaint is filed. See
Indecency Policy Statement, 16 FCC Rcd at 8015 24; see also Super
Bowl Order on Reconsideration, 21 FCC Rcd at 6665 30.
181
See supra note 38.
182
See supra para. 16.

91a
meaning.183 Here, for example, Cher's use of the "F-
Word" to reference a sexual act as a metaphor to ex-
press hostility to her critics is inextricably linked to the
sexual meaning of the term.184 Accordingly, we conclude
that, as we stated in Golden Globe,185 its use falls within
the scope of our indecency definition. The material thus
warrants further scrutiny to determine whether it is
patently offensive as measured by contemporary com-
munity standards for the broadcast medium. Looking at
the three principal factors in our contextual analysis, we
conclude that it is.
59. We will first address the first and third principal
factors in our contextual analysis--the explicit or
graphic nature of the material and whether the material
panders to, titillates, or shocks the audience. As we
have previously concluded, the "F-Word" is one of the
most vulgar, graphic, and explicit words for sexual activ-
ity in the English language.186 Moreover, the gratuitous
use of this language during a live broadcast of a popular
music awards ceremony when children were expected to
be in the audience was vulgar and shocking. The
complained-of material was broadcast in prime time,
and the program was designed to draw a large nation-
wide audience that could be expected to include many
children interested in seeing their favorite music
183
See supra note 40.
184
See Andrew Koppelman, Why Discrimination Against Lesbians
and Gay Men Is Sex Discrimination, 69 N.Y.U. L. Rev. 197, 224 (1994)
(explaining the sexual meaning of the metaphorical use of the "F-Word"
as a verb).
185
See Golden Globe Awards Order, 19 FCC Rcd at 4979 8.
186
See id.

92a
stars.187 As in the case of "The 2003 Billboard Music
Awards,"188 a significant portion of the viewing audience
for this program was under 18. According to Nielsen
ratings data, during an average minute of "The 2002
Billboard Music Awards" broadcast, 2,608,000 (27.9%) of
the 9,361,000 people watching the program were under
18, and 1,186,000 (12.7%) were between the ages of 2 and
11. In addition, the program's TV-PG rating189 would
not have put parents or others on notice of such vulgar
language, and the broadcast contained no other warn-
ings to viewers that it might contain material highly un-
suitable for children.190 Furthermore, Fox does not ar-
gue that there was any justification for Cher's com-
ment.191 In light of all of these factors, we conclude that
the first and third factors in our contextual analysis
weigh in favor of a finding that the material is patently
offensive.192
187
See Pacifica, 438 U.S. at 749-51 (identifying as relevant contex-
tual factors the time of day of the broadcast, program content as it
affects "the composition of the audience," and the nature of the medi-
um). See also supra para. 18.
188
See supra para. 18.
189
Fox Response to 9/7/2006 LOI at 6.
190
See supra n. 47. In the context of a broadcast rated "TV-PG," an
"L" content description warning would not have alerted parents to the
use of the "F-word." See id. Nonetheless, the "2002 Billboard Music
Award," unlike the 2003 version of the same show, did not include even
that inadequate "L" content descriptor. So parents relying on the
ratings would not have expected even mild "coarse" language, much
less the "F-Word."
191
For instance, Fox does not contend that Cher's comment had any
artistic merit or was necessary to convey any message.
192
Fox's argument that it did not present Cher's comment for "shock
value" misunderstands the contextual analysis employed by the Com-
mission, under which "we examine the material itself and the manner

93a
60. We next turn to the second factor in our contex-
tual analysis--whether the complained-of material was
sustained or repeated. Fox argues that this factor pre-
cludes a finding of indecency. As reviewed above, Com-
mission dicta and Bureau-level decisions issued before
our Golden Globe decision had suggested that expletives
had to be repeated to be indecent but that such a repeti-
tion requirement would not apply to "descriptions or
depictions of sexual or excretory functions." In this
case, Cher did more than use the "F-Word" as a mere
interjection or intensifier. Rather, she used the word to
describe or reference a sexual act as a metaphor to ex-
press hostility to her critics. The fact that she was not
literally suggesting that people engage in sexual activi-
ties does not necessarily remove the use of the term
from the realm of descriptions or depictions. This case
thus illustrates the difficulty in making the distinction
between expletives on the one hand and descriptions or
depictions on the other. Particularly in light of this lack
of clarity, we acknowledge that it was not apparent that
Fox could be penalized for Cher's comment at the time
it was broadcast. This case also shows that the inquiry
into whether a word is used an expletive rather than a
description or depiction is wholly artificial. Whether
used as an expletive, or as a description or depiction, the
offensive nature of the "F-Word" is inherently tied to
the term's sexual meaning.
61. In any event, under our Golden Globe precedent,
the fact that Cher used the "F-Word" once does not re-
move her comment from the realm of actionable inde-
in which it is presented, not the subjective state of mind of the broad-
caster." Super Bowl Order on Reconsideration, 21 FCC Rcd at 6657-58
12.

94a
cency.193 We stated in Golden Globe that the "mere fact
that specific words or phrases are not sustained or re-
peated does not mandate a finding that material that is
otherwise patently offensive to the broadcast medium is
not indecent."194 To be sure, the fact that material is not
repeated does weigh against a finding of indecency, and
in certain cases, when all of the relevant factors are con-
sidered together, this factor may tip the balance in a
decisive manner. This, however, is not one of those
cases.
62. We believe that Cher's use of the "F-Word" here
during a program aired in prime time was patently of-
fensive under contemporary community standards for
the broadcast medium. The patent offensiveness is com-
pounded by the fact that the warnings accompanying the
broadcast were inadequate and misleading.195 We do not
believe that the Commission should ignore "the first
blow" to the television audience in the particular circum-
stances presented here.196 Our determination, more-
over, is consistent with the networks' own broadcast
standards during the "safe harbor," which would not
allow the broadcast of a single use of the "F-Word" un-
der these circumstances.197 Such standards reflect the
networks' recognition that even a single use of the "F-
Word" under most circumstances is not consistent with
contemporary community standards for the broadcast
medium. Indeed, Fox edited out Cher's comment in its
broadcasts to the Mountain and Pacific Time Zones.
193
See Golden Globe Awards Order, 19 FCC Rcd at 4980 12.
194
Id.
195
See supra para. 59.
196
Pacifica, 438 U.S. at 748-49.
197
See supra para. 29.

95a
63. In sum, we conclude that, given the explicit, gra-
phic, vulgar, and shocking nature of Cher's use of the
"F-Word," Fox's broadcast was patently offensive under
contemporary community standards for the broadcast
medium.
64. Fox also argues that it should not be held re-
sponsible for airing Cher's comment. In particular, Fox
argues that Cher's remarks were unscripted and that
the five-second delay and editing system that it used for
"The 2002 Billboard Music Awards" previously had been
effective in preventing the airing of objectionable mate-
rial.198 We need not address these arguments, however,
because we decide that it would not be equitable to sanc-
tion Fox for a different reason. Specifically, as dis-
cussed above, it was not clear at the time that broadcast-
ers could be punished for the kind of comment at issue
here.199
65. Profanity Analysis. Consistent with our deci-
sions in the Golden Globe Awards Order and the Omni-
bus Order, we also find that Cher's use of the "F-Word"
in the program at issue violated Section 1464's prohibi-
tion on the broadcast of "profane" utterances.200 In the
Golden Globe Awards Order, the Commission concluded
that the "F-Word" was profane within the meaning of
Section 1464 because, in context, it constituted vulgar
and coarse language "`so grossly offensive to members
of the public who actually hear it as to amount to a nui-
198
See Fox Response to 9/7/06 LOI at 4-6, 10.
199
See supra para. 60; see also Golden Globe Awards Order, 19 FCC
Rcd at 4982 15.
200
18 U.S.C. 1464.

96a
sance.'"201 In certain cases, language that is presump-
tively profane will not be found to be profane where it is
demonstrably essential to the nature of an artistic or
educational work or essential to informing viewers on a
matter of public importance.202 However, such circum-
stances are not present here: Fox does not contend that
Cher's profane language was essential to informing
viewers on a matter of public importance or that modify-
ing the language would have had a material impact on its
function as a source of news and information. On the
contrary, Fox maintains that it attempted to delete the
profane language, and did remove it before the program
aired on time delay in the Mountain and Pacific Time
Zones.203 It is undisputed that the "F-Word" was broad-
cast within the 6 a.m. to 10 p.m. time frame relevant to
a profanity determination.204 Because it was broadcast
at a time of day when there was a reasonable risk of chil-
dren's presence in the audience (indeed, as detailed
above, over two-and-a-half million viewers of the broad-
201
Golden Globe Awards Order, 19 FCC Rcd at 4981 13, quoting
Tallman, 465 F.2d at 286.
202
Omnibus Order at 2669 19, citing Complaints Against Various
Television Licensees Regarding Their Broadcast on November 11, 2004
of the ABC Television Network's Presentation of the Film "Saving
Private Ryan," Memorandum Opinion and Order, 20 FCC Rcd 4507,
4512-14 13-18 (2005).
203
Fox Response to 9/7/2006 LOI at 10.
204
See Omnibus Order, 21 FCC Rcd at 2666 8.

97a
cast were under the age of 18),205 the broadcast is legally
actionable.
66. No Sanction Proposed. For the reasons stated
above, we conclude that "The 2002 Billboard Music
Awards" contained indecent and profane material in
violation of Section 1464 and our rules. Fox stations
broadcast indecent and profane language in an awards
show that aired between 6 a.m. and 10 p.m. and was
watched by people of all ages. Under the circumstances,
however, we find that no forfeiture is warranted in this
case for the reason set forth above.206 In light of our
decision not to impose a forfeiture, we will not require
the licensees of any of the stations that broadcast the
material to report our finding here to us as part of their
renewal applications, and we will not consider the broad-
cast to have an adverse impact upon such licensees as
part of the renewal process or in any other context.207
205
See supra para. 59 (noting that, according to Nielsen ratings data,
27.9% of the people watching an average minute of "The 2002 Billboard
Music Awards" broadcast were under 18, and 12.7% were between the
ages of 2 and 11); see also Pacifica, 438 U.S. at 749-50 (discussing
government's interest in protecting children from "offensive expres-
sion")
206
See supra para. 64. In light of our decision not to impose a for-
feiture, we need not address whether the violations of Section 1464 and
our rule were willful within the meaning of Section 503(b).
207
The constitutional arguments raised by the Networks relating to
the application of our indecency framework to "The 2002 Billboard
Music Awards" are the same as the constitutional arguments that we
have already addressed with respect to the "2003 Billboard Music
Awards" broadcast. We reject those arguments for the same reasons
given above. See supra para. 42-52.

98a

C. "The Early Show"

67. "The Early Show" is a two-hour morning pro-
gram that airs weekdays on the CBS Television Net-
work. On December 13, 2004, the program devoted sig-
nificant coverage to discussion of the CBS program
"Survivor: Vanuatu," which had crowned its winner the
prior evening. As part of that coverage, "The Early
Show" co-host Julie Chen conducted a live interview
with the final four contestants from "Survivor: Van-
uatu." During that interview, Ms. Chen asked runner-
up Twila Tanner whether she agreed with fourth-place
finisher Eliza Orlins that Chris Daugherty, the winner
of the program, would have prevailed had he been
matched up in the finals against Ms. Orlins. Ms. Tanner
then responded, "Not necessarily. I knew he was a bull-
shitter from Day One."
68. A viewer subsequently filed a complaint with the
Commission that Station KDKA-TV, Pittsburgh, Penn-
sylvania, which is licensed to CBS Broadcasting Inc.,
aired Ms. Tanner's comment at approximately 8:10 a.m.
Eastern Standard Time, on December 13, 2004, and al-
leged that the comment was indecent and profane.208 In
response to the Commission's letter of inquiry, CBS
does not deny that the comment in question was broad-
cast on KDKA-TV.209 However, CBS argues, among
other things, that the material is not actionable because
it was spoken during a bona fide news interview.210
208
FCC File No. EB-05-IH-0007.
209
See Letter From Robert Corn-Revere, Counsel to CBS, to
Marlene H. Dortch, Secretary, FCC, File No. EB-05-IH-0007 (Sept. 21,
2006), at 1 ("CBS Response to 9/7/2006 LOI").
210
See id. at 4.

99a
69. In the Omnibus Order, we "recognize[d] the
need for caution with respect to complaints implicating
the editorial judgment of broadcast licensees in present-
ing news and public affairs programming, as these mat-
ters are at the core of the First Amendment's free press
guarantee."211 Indeed, when we denied an indecency
complaint regarding material that was aired during
"The Today Show," which is a competitor of "The Early
Show," we reiterated the need for the Commission to
exercise caution with respect to news programming.212
70. This restrained approach is consistent with a
long line of Commission precedent. For example, in Pe-
ter Branton, the Commission held that an NPR news
story on John Gotti, which included a wiretap of a con-
versation in which Gotti repeatedly used variations of
the "F-Word," was not indecent because "it was an inte-
gral part of a bona fide news story."213 The Commission
explained that "we traditionally have been reluctant to
intervene in the editorial judgments of broadcast licens-
ees on how best to present serious public affairs pro-
gramming to their listeners."214
211
Omnibus Order, 21 FCC Rcd at 2668 15.
212
Id. at 2717 218.
213
Peter Branton, 6 FCC Rcd at 610. See Infinity Broadcasting
Corp. of Pennsylvania, Memorandum Opinion and Order, 3 FCC Rcd
930, 937 n. 31 (1987), vacated on other grounds sub nom. ACT I, (noting
that "context will always be critical to an indecency determination and
. . . the context of a bona fide news program will obviously be different
from the contexts of the three broadcasts now before us, and, therefore,
would probably be of less concern."); Indecency Policy Statement, 16
FCC Rcd at 8002-03 (stating that "[e]xplicit language in the context of
a bona fide newscast might not be patently offensive." ).
214
Peter Branton, 6 FCC Rcd at 610.

100a
71. In today's Order, we reaffirm our commitment to
proceeding with caution in our evaluation of complaints
involving news programming. To be sure, there is no
outright news exemption from our indecency rules.215
Nevertheless, in light of the important First Amend-
ment interests at stake as well as the crucial role that
context plays in our indecency determinations, it is im-
perative that we proceed with the utmost restraint when
it comes to news programming.
72. Some critics have questioned whether the seg-
ments of "The Early Show" devoted to "Survivor:
Vanuatu" are legitimate news programming or instead
are merely promotions for CBS's own entertainment
programming.216 CBS nevertheless maintains in its LOI
response that its interview of the "Survivor: Vanuatu"
215
See, e.g., Evergreen Media Corporation of Chicago AM, Memo-
randum Opinion and Order, 6 FCC Rcd 5950, 5951 (Mass Media Bur.
1991) (finding talk show segment discussing pornographic photographs
of Vanessa Williams to be indecent and concluding that "[e]ven if it had
been argued that the [show] in question was comparable to a news
program, the Vanessa Williams segment contained vulgar material
presented in a pandering and titillating manner unlike anything found
in the Branton case."); Pacific and Southern Company Inc. (KSD-
FM), Notice of Apparent Liability, 6 FCC Rcd 3689 (Mass Media Bur.
1990) (forfeiture paid) (finding that "exceptionally explicit and vulgar"
material that was "presented in a pandering manner" was indecent
even though it "arguably concerned an incident that was at the time `in
the news.'").
216
See, e.g., Howard Rosenberg, The Fact Is, the Joke is the News,
Broadcasting & Cable, Nov. 1, 2004, at 32 ("Even more common is the
venerable, widespread practice of cross-promotion, as on The Early
Show, a production of CBS News, which each Friday devotes a lengthy
segment to `covering' the previous night's Survivor episode on the
network, as if who got bumped off was an actual news story. As a
bonus, The Early Show folds itself into this fantasy from a special set
outfitted to resemble Survivor.").

101a
contestants was a "bona fide news interview." "The
Early Show" is produced by CBS News and addressed
a variety of other topics that morning, including a sui-
cide bombing in Iraq, the withdrawal of Bernard Kerik
as a candidate to serve as Secretary of Homeland Secu-
rity, and the apparent poisoning of then-Ukrainian oppo-
sition leader Viktor Yushchenko, which clearly fall un-
der the rubric of news programming. In light of these
factors and our commitment to exercising caution in this
area, we believe it is appropriate in these circumstances
to defer to CBS's plausible characterization of its own
programming. Accordingly, we find that, in the Omni-
bus Order, we did not give appropriate weight to the
nature of the programming at issue (i.e., news program-
ming).
73. Turning to the specific material that is the sub-
ject of the complaint, we can certainly understand that
viewers may have been offended by Ms. Tanner's coarse
language. Nevertheless, given the nature of her com-
ment and our decision to defer to CBS's characterization
of the program segment as a news interview, we con-
clude, regardless of whether such language would be
actionable in the context of an entertainment program,
that the complained-of material is neither actionably
indecent nor profane in this context. Accordingly, we
deny the complaint.

D. "NYPD Blue"

74. As discussed above, the Commission received
complaints regarding several "NYPD Blue" episodes
that aired on KMBC-TV, Kansas City, Missouri, and
other unidentified ABC Television Network affiliates
beginning at 9:00 p.m. Central Standard Time, in which

102a
the "S-Word" was used.217 In the Omnibus Order, the
Commission found those broadcasts containing the "S-
Word" to be apparently indecent and profane.218 In its
response to the Commission's letter of inquiry, KMBC
Hearst-Argyle Television, Inc. ("Hearst"), licensee
of KMBC-TV, does not dispute that it aired the
complained-of material. Hearst argues, however, that
the complaints should either be dismissed on procedural
grounds or denied on the merits.
75. Raising an argument that we did not previously
consider, Hearst contends that the Commission should
dismiss the complaints as insufficient under the enforce-
ment policy set forth in the Omnibus Order.219 One com-
plaint was filed against each of the "NYPD Blue" broad-
casts at issue, and each of these complaints was filed by
the same person. All of these complaints stated that the
complained-of broadcast "originally aired at 9:00 p.m.
CST on Kansas City affiliate KMBC" and was "also seen
in homes across the country on ABC affiliates."220 How-
ever, as Hearst accurately maintains, none of the com-
plaints was filed by anyone residing in the market
served by KMBC-TV. Nor were any of the complaints
filed by anyone residing in a market where the com-
plained-of material aired outside of the 10:00 p.m.-6:00
a.m. safe harbor. Instead, each complaint was filed by
217
FCC File No. EB-03-IH-0355.
218
Omnibus Order, 21 FCC Rcd at 2696-98 125-36.
219
KMBC Hearst-Argyle Television, Inc. Response to Letter of
Inquiry and Memorandum of Law, File No. EB-03-IH-0355 at 8 (Sept.
21, 2006) ("Hearst Response to 9/7/2006 LOI").
220
See Letters from Lara Mahaney, Director of Corporate and En-
tertainment Affairs, PTC, to David Solomon, Chief, Enforcement Bur-
eau, dated July 1 and July 3, 2003.

103a
the same individual from Alexandria, Virginia, where, as
Hearst points out,221 the material was aired during the
safe harbor.222 In addition, none of the complaints con-
tains any claim that the out-of-market complainant actu-
ally viewed the complained-of broadcasts on KMBC-TV
or any other ABC affiliate where the material was aired
outside of the safe harbor.223 Thus, there is nothing in
the record either to tie the complaints to Station KMBC-
TV's local viewing area (or the local viewing area of any
station where the material was aired outside of the safe
harbor), or to suggest that the broadcast programming
at issue was the subject of complaints from anyone who
viewed the programming on any station that aired the
material outside of the safe harbor.
76. We therefore agree with Hearst that we should
dismiss the complaints regarding "NYPD Blue" pursu-
ant to the enforcement policy that we announced in the
Omnibus Order. There, the Commission stated that it
would propose forfeitures only against licensees and
stations whose broadcasts of actionable material were
the subject of a viewer complaint filed with the Commis-
sion,224 explaining that "[i]n the absence of complaints
concerning the program filed by viewers of other sta-
tions, it is appropriate that we sanction only the licensee
of the station whose viewers complained about that pro-
221
Hearst Response to 9/7/2006 LOI at 11, n.9.
222
See supra note 217 and accompanying text. The letterhead of
each complaint identified contact information for PTC's office in
Alexandria, Virginia, as well as a PTC office in Los Angeles, California.
223
See id.
224
Omnibus Order, 21 FCC Rcd at 2673 32, 2676 42, 2687 86.

104a
gram."225 In addition to demonstrating appropriate re-
straint in light of First Amendment values, this enforce-
ment policy preserves limited Commission resources,
while still vindicating the interests of local residents who
are directly affected by a station's airing of indecent and
profane material.
77. Based on consideration of Hearst's arguments,
we agree that consistent application of our restrained
enforcement policy requires us to apply the same ap-
proach to this case that we applied to the notices of ap-
parent liability in the Omnibus Order. While this case
does not involve the imposition of forfeitures against
KMBC-TV or any other licensee, the sufficiency of a
complaint is the first step rather than the last step in the
Commission's analysis. Thus, as Hearst puts it, "[o]nly
the dismissal of the NYPD Blue complaints will bring
[this case] into harmony with the Commission's an-
nounced enforcement policy."226 Accordingly, we dismiss
these complaints.

IV. ORDERING

CLAUSES


78. Accordingly, IT IS ORDERED that Section
III.B of the Omnibus Order is VACATED in its en-
tirety.
79. IT IS FURTHER ORDERED that the com-
plaints referenced in this Order involving "The 2003
Billboard Music Awards" and "The 2002 Billboard Music
225
Id. at 2687 86. See Super Bowl Order on Reconsideration, 21
FCC Rcd at 6665 30 (under the enforcement policy announced in the
Omnibus Order, "it is sufficient that viewers in markets served by each
of the CBS Stations filed complaints with the Commission identifying
the allegedly indecent program broadcast by the CBS Stations.").
226
Hearst Response to 9/7/2006 LOI at 11.

105a
Awards" are GRANTED to the extent set forth herein
and OTHERWISE DENIED.
80. IT IS FURTHER ORDERED that the com-
plaints referenced in this Order involving "The Early
Show" are DENIED.
81. IT IS FURTHER ORDERED that the com-
plaints referenced in this Order involving "NYPD Blue"
are DISMISSED.
82. IT IS FURTHER ORDERED that a copy of this
Order shall be sent Certified Mail, Return Receipt Re-
quested, to Susan L. Fox, Esq., Vice President, Govern-
ment Relations, The Walt Disney Company, 1150 17th
Street, N.W., Suite 400, Washington, D.C. 20036.
83. IT IS FURTHER ORDERED that a copy of this
Order shall be sent Certified Mail, Return Receipt Re-
quested, to John W. Zucker, Esq., Senior Vice Presi-
dent, Law-Regulation, ABC, Inc., 77 West 66th Street,
New York, N.Y. 10024.
84. IT IS FURTHER ORDERED that a copy of this
Order shall be sent Certified Mail, Return Receipt Re-
quested, to Seth Waxman, Esq., Counsel to The Walt
Disney Company, Wilmer, Cutler, Pickering, Hale &
Dorr, LLP, 2445 M Street, N.W., Washington, D.C.
20037.
85. IT IS FURTHER ORDERED that a copy of this
Order shall be sent Certified Mail, Return Receipt Re-
quested, to Anne Lucey, Esq., Senior Vice President,
Regulatory Policy, CBS Corporation, 601 Pennsylvania
Ave., N.W., Suite 540, Washington, DC 20004.
86. IT IS FURTHER ORDERED that a copy of this
Order shall be sent Certified Mail, Return Receipt Re-

106a
quested, to Robert Corn-Revere, Counsel to CBS Corp.,
Davis Wright Tremaine, LLP, 1500 K Street, N.W.,
Suite 450, Washington, D.C. 20005-1272.
87. IT IS FURTHER ORDERED that a copy of this
Order shall be sent Certified Mail, Return Receipt Re-
quested, to Mark J. Prak, Esq., Counsel to Hearst-
Argyle Television, Inc., Brooks, Pierce, McLendon,
Humphrey & Leonard, LLP, 150 Fayetteville Street,
Suite 1600 Wachovia Capitol Center, Raleigh, North
Carolina 27601.
88. IT IS FURTHER ORDERED that a copy of this
Order shall be sent Certified Mail, Return Receipt Re-
quested, to Maureen A. O'Connell, Esq., News Corpora-
tion, 444 North Capitol Street, N.W., Suite 740, Wash-
ington, D.C. 20001.
89. IT IS FURTHER ORDERED that a copy of this
Order shall be sent Certified Mail, Return Receipt Re-
quested, to John Quale, Esq., Counsel to Fox Television
Stations, Inc., Skadden, Arps, Slate, Meagher & Flom,
LLP, 1440 New York Ave., N.W., Washington, D.C.
20005.
FEDERAL COMMUNICATIONS
COMMISSION
Marlene H. Dortch
Secretary

107a

STATEMENT OF

COMMISSIONER JONATHAN S. ADELSTEIN

CONCURRING IN PART, DISSENTING IN PART

Re: Complaints Regarding Various Television
Broadcasts Between February 2, 2002 and
March 8, 2005, Order
Today's Order is pursuant to a grant from the United
States Court of Appeals for the Second Circuit of the
Commission's voluntary remand request to reconsider
portions of the March 15, 2006, Omnibus Order.1 In that
decision, I concurred in part and dissented in part be-
cause I believed the Commission had failed to develop a
consistent and coherent indecency enforcement policy.
It was my hope that the Commission would use this re-
mand to clarify and rationalize our indecency regime,2
but regulatory convenience and avoidance have pre-
vailed instead. I am, therefore, compelled again to con-
cur in part and dissent in part.
1 Complaints Regarding Various Television Broadcasts Between
February 2, 2002 and March 8, 2005, Notices of Apparent Liability and
Memorandum Opinion and Order, 21 FCC Rcd 2664 (2006) ("Omnibus
Order").
2 Today's decision presumes that the general statement that the
Commission's "collective experience and knowledge, developed through
constant interaction with lawmakers, courts, broadcasters, public inter-
est groups, and ordinary citizens," and nothing more, is sufficient to
inform the public and broadcasters what we believe are the national,
contemporary community standards of the broadcast medium. In re
Infinity Radio License, Inc., Memorandum Opinion and Order, 19 FCC
Rcd 5022, 5026 (2004); compare, Reno v. ACLU, 521 U.S. 844 (1997)
(finding the terms "indecent", "patently offensive" and "in context"
were so vague that criminal enforcement would violate the fundamental
constitutional principles, but while recognizing "the history of extensive
government regulation of broadcasting").

108a
The proverbial "elephant in the room" looming over
today's decision is the Golden Globe Awards Order,3
which inexplicably has been pending reconsideration for
more than two and one-half years. While the Commis-
sion has simply refused to review the Golden Globe case,
we have relied upon, expanded and applied it more than
any other indecency case in the past two years. As the
foundational basis for the Commission's decision in the
cases involved in this remand, we should review and fi-
nalize this watershed decision.4
As I stated in the Omnibus Order, "by failing to ad-
dress the many serious concerns raised in the Golden
Globe Awards case, before prohibiting the use of addi-
tional words, we fall short of meeting the [appropriate]
constitutional standard and walking the tightrope of a
restrained enforcement policy."5 Today, we fail again.
Litigation strategy should not be the dominant factor
guiding policy when First Amendment protections are
at stake.
In its remand request, the Commission asked the
Second Circuit for an opportunity to consider the con-
cerns of broadcasters before issuing a final decision. Yet
3 Complaints Against Various Broadcast Licensees Regarding
Their Airing of the "Golden Globe Awards" Program, Memorandum
Opinion and Order, 18 FCC Rcd 19859 (Enf. Bur. 2003), reversed, 19
FCC Rcd 4975 (2004) ("Golden Globe Awards Order"), petitions for
stay and recon. pending (since April 2004).
4 Golden Globe Awards Order at 9, 12 and 14 (eviscerating our
longstanding standard for "isolated or fleeting" expletives, establishing
that any use of the "F-word" or a variation, in any context, "invariably
invokes a coarse sexual image," and changing our 30-year standard of
what constitutes profanity).
5 Omnibus Order, Statement of Commissioner Jonathan S. Adel-
stein, concurring in part, dissenting in part, 21 FCC Rcd at 2726.

109a
squandering this opportunity, the Commission fails to
consider fully all concerns relating to an August 22,
2003, complaint against the December 9, 2002, broadcast
of "The Billboard Music Awards" by WTTG(TV) in
Washington, D.C. This Order does not adequately ad-
dress the Enforcement Bureau's December 18, 2002,
decision letter, which denied the same complaint on the
merits.6 No one filed either a petition for reconsidera-
tion or an application for review and, consequentially,
the decision letter became a final order. It seems pa-
tently unfair for the Commission to re-adjudicate the
same complaint, involving the same parties on the same
cause of action, first in the initial decision letter, then in
the Omnibus Order, and then again in today's Order.
The Supreme Court has held that the principle of res
judicata applies to an adjudicative administrative pro-
ceeding where the agency has properly resolved dis-
putes of fact and the parties have had an adequate op-
portunity to litigate.7 The Commission should not have
re-adjudicated this complaint a second time in the Om-
nibus Order. Certainly today, the third time around,
this complaint should be dismissed, or the Commission
should reverse the Enforcement Bureau's decision letter
and the resultant final order.
More broadly, today's Order notes that the Supreme
Court in Pacifica stressed context and we have repeat-
edly said "the full context in which the material ap-
peared is critically important." Yet the Commission's
6 The decision letter dismissing a complaint against the December 9,
2002, broadcast of "The Billboard Music Awards" by WTTG (TV),
Washington, D.C., was referenced in footnote 32 of the Golden Globe
Awards Order, and in footnote 9 of my Statement in that Order.
7 United States v. Utah Constr. & Min. Co., 384 U.S. 394, 422 (1966).

110a
analyses of the 2002 and 2003 broadcasts of "The Bill-
board Music Awards" are limited exclusively to a few
seconds of a two-hour program. No consideration what-
soever is given to the entirety of the program. While it
is perfectly reasonable to conclude that, after consider-
ing the entire program, the vulgarity and shock value of
a particular scene permeated and dominated the pro-
gram, the Commission should consider the totality of the
program, rather than limit our consideration to an iso-
lated programming segment.
Similarly, the Commission's justification for denying
the complaint against the December 12, 2004, broadcast
of "The Early Show," and reversing its indecency and
profanity findings reflect the arbitrary, subjective and
inconsistent nature of the Commission's decision-mak-
ing.8 In the Omnibus Order, the Commission concluded
that the use of the s-word was shocking "particularly
during a morning news interview,"9 and that this "vul-
garity in a morning television interview is of particular
concern and weighs heavily in our analysis."10 Today,
without any legal support found in American jurispru-
dence, the Commission, sua sponte, creates a new "plau-
sible"11 standard to determine the threshold question of
8 In the Omnibus Order, with respect to "The Early Show," the
Commission said: "In rare contexts, language that is presumptively
profane will not be found to be profane where it is demonstrably essen-
tial to the nature of an artistic or educational work or essential to in-
forming viewers on a matter of public importance. We caution, how-
ever, that we will find this to be the case only in unusual circumstances,
and such circumstances are clearly not present here." Omnibus Order,
144.
9 See Omnibus Order, 21 FCC Rcd at 2699 141 [emphasis added].
10 Id. [emphasis added].
11 72, supra.

111a
whether a particular program segment qualifies as a
"bona fide news interview."12 While the Commission
admits that "there is no outright news exemption from
our indecency rules," it will nevertheless defer to a
broadcaster's "plausible characterization of its own pro-
gramming." I not only fail to find a legal basis for the
Commission's latest invention,13 I also fail to understand
the justification for such a shift in reasoning. While the
creation of this "infotainment" exception that can be
invoked by a broadcaster's plausible characterization"
may be convenient in this order today, it will surely cre-
ate unintended consequences in future cases.
Even as applied, this new "plausible" standard is
problematic. In this case, the CBS "Early Show" inter-
view of contestants from the CBS program "Survivor:
Vanuatu" was a cross promotion of a network's prime-
time entertainment programming on the same network's
morning show. It stretches the bounds to argue this is
legitimate news or public affairs programming. It is
unreasonable to say that the latest contestant to be
voted off the island or the latest contestant to hear
"you're fired" or even "come on down" is "serious public
affairs programming."14 The network creates its own
"reality" on a reality show, and we are somehow to be-
lieve that developments within its own artificial world
12 Id. [emphasis in original].
13 Looking at this contorted reasoning one must wonder whether the
Commission is attempting to avoid reconsideration of its policy enun-
ciated in the Omnibus Order that, consistent with Golden Globe, any
variant, of the S-word is inherently excretory. Omnibus Order at 2699
139.
14 Peter Branton, 6 FCC Rcd 610 (1991).

112a
are news? The only news here is how far this Commis-
sion is willing to stretch the definition of "news."
I also dissent in part from the Commission's decision
to dismiss numerous complaints against several nation-
ally televised episodes of the ABC network program
"NYPD Blue" because the complaints did not come from
viewers who resided in the station's media market.
While the Commission has not changed its decision on
the merits of the complaints, it has relied on an arbi-
trary procedural change in our enforcement policy that
creates an unnecessary disconnect between the basis of
our indecency authority and our enforcement policy, and
encourages letter-writing campaigns, which will further
burden Commission resources.
The Commission has long maintained, and does not
now dispute, that we enforce a national, contemporary
community standard, not a local one. For instance, in an
effort to justify its authority in today's Order, the Com-
mission observes that the broadcast medium has a "spe-
cial nature" and "a uniquely pervasive presence in
American life."15 The Commission points out the "the
Supreme Court emphasized the `pervasive presence [of
the broadcast medium] in the lives of all Americans' and
that indecent broadcasts invade the privacy of the
home."16 Yet, the Commission's new enforcement policy
is inconsistent with the national standard we impose and
the pervasiveness of the medium we regulate.
This new enforcement policy is also inconsistent with
the Commission's reasoning in other sections of today's
Order. For example, as an important factor weighing in
15 FCC v. Pacifica Foundation, 438 U.S. 726, 748 (1978).
16 See id., citing Rowan v. Post Office Dept., 397 U.S. 728 (1970).

113a
support of its finding that the 2002 and 2003 broadcasts
of "The Billboard Music Awards" are indecent, the Com-
mission cites Nielsen rating data on the total number of
children under 18 and children between ages 2 and 11
who watched the programs, nationally. Yet based on our
enforcement policy, the Commission will actually only
protect children in the particular local media market
where there is a complaint.17
The consequences of this new policy reveal its lack of
logic. When the Commission determines a national net-
work broadcast violates our national community stan-
dards, we will only fine the local station that has a com-
plaint filed against it by a viewer in its media market.
Although our obligation is to enforce the law to protect
all children, we will only fine a local station that has the
misfortune of being in a market where a parent or an
adult made the effort to complain. This policy is mis-
guided because a sufficient and valid complaint is truly
the first, and an important, step in our indecency en-
forcement regime. The complaint and the complainant
serve an important role, but the real party in interest is
the Commission, acting on behalf the public, rather than
the specific individual or organization that brings alleg-
edly indecent material to our attention.
According to the new enforcement policy, even after
we have determined the complained-of material is inde-
cent, we will willfully blind ourselves to the potentially
millions of children and households that watched the
indecent program. The new policy would fine only the
local station and only if the complainant is in its cover-
age area. Other stations will essentially be "sitting
17 Order, 18, 59 and 65.

114a
ducks," waiting for an in-market viewer to file a com-
plaint about the same program, in order for the Commis-
sion to act. I do not understand how we can say we are
faithfully enforcing the law when we are aware of viola-
tions of the law that we simply choose to ignore.
This is not the restrained enforcement policy encour-
aged by the Supreme Court in Pacifica.18 Restraint ap-
plies to the standard we use in our decision-making and
the manner in which we decide what constitutes action-
able, indecent material.19 Restraint applies to the devel-
opment of a coherent framework that is based on ratio-
nal and principled distinctions.
The power to limit speech should be exercised re-
sponsibly, and with the utmost caution. While I agree
18 Pacifica, 438 U.S. at 763, POWELL J, concurring in part and
concurring in judgment.
19 The Commission claims that "the sufficiency of a complaint is the
first step rather that the last step in the Commission's analysis." Order,
77. However, in the single complaint filed against the "The 2002 Bill-
board Music Awards," for example, the complainant does not even aver
that she watched the program. Quite the contrary, the complaint was
filed "on behalf of the Parents Television Council and its over 800,000
members." The complainant alleges, the broadcast "was seen in homes
across the country on the Fox network, and in Washington DC." Based
on the Commission's reasoning in today's Order and the Golden Globe
Awards Order, this complaint does not state a prima facie case to
justify Commission action. See Order, 40 and 65 (stating that "[i]n
the Golden Globe Awards Order, the Commission concluded that the F-
Word was profane within the meaning of Section 1464 because, in con-
text, it contained vulgar and coarse language `so grossly offensive
to members of the public who actually hear it as to amount to a nui-
sance' ") (emphasis added). See also Order, 75 (stating that com-
plaints against "NYPD Blue" are justifiably dismissed because "none
of the complaints contains any claim that the out-of market complainant
actually viewed the complained-of broadcasts") (emphasis added).

115a
with some aspects of today's Order, I respectfully cannot
support our reasoning. For that reason, I concur in part
and dissent in part.

116a

APPENDIX C

UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
No. 06-5358-ag
FOX TELEVISION STATIONS, INC., ET AL.,
PETITIONERS
v.
FEDERAL COMMUNICATIONS COMMISSION, ET AL.,
RESPONDENTS
[Filed: Nov. 22, 2010]
At a stated term of the United States Court of Ap-
peals for the Second Circuit, held at the Daniel Patrick
Moynihan United States Courthouse, 500 Pearl Street,
in the City of New York, on the 22nd day of November,
two thousand and ten.
Respondents Federal Communications Commission
and United States of America having filed a petition for
panel rehearing, or, in the alternative, for rehearing en
bane, and the panel that determined the appeal having
considered the request for panel rehearing, and the ac-
tive members of the Court having considered the re-
quest for rehearing en banc,

117a
IT IS HEREBY ORDERED that the petition is de-
nied.
FOR THE COURT:
/s/ CATHERINE O'HAGAN WOLFE
CATHERINE O'HAGAN WOLFE, Clerk

118a

APPENDIX D

UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
Nos. 08-0841-ag (Lead), 08-1424-ag (Con),
08-1781-ag (Con) and 08-1966-ag (Con)
ABC, INC., KTRK TELEVISION, INC., WLS
TELEVISION, INC., CITADEL COMMUNICATIONS, LLC,
WKRN, G.P., YOUNG BROADCASTING OF GREEN BAY,
INC., WKOW TELEVISION, INC., WSIL-TV,
INC., ABC TELEVISION AFFILIATES ASSOCIATION,
CEDAR RAPIDS TELEVISION COMPANY,
CENTEX TELEVISION LIMITED PARTNERSHIP,
CHANNEL 12 OF BEAUMONT INCORPORATED,
DUHAMEL BROADCASTING ENTERPRISES, GRAY
TELEVISION LICENSE , INCORPORATED , KATC
COMMUNICATIONS , INCORPORATED , KATV LLC ,
KDN LICENSEE LLC , KETV HEARST-ARGYLE
TELEVISION INCORPORATED, KLTV/KTRE LICENSE
SUBSIDIARY LLC, KSTP-TV LLC,
KSWO TELEVISION COMPANY INCORPORATED, KTBS
INCORPORATED, KTUL LLC, KVUE
TELEVISION INCORPORATED, MCGRAW-HILL
BROADCASTING COMPANY INCORPORATED, MEDIA
GENERAL COMMUNICATIONS HOLDINGS
LLC, MISSION BROADCASTING INCORPORATED,
MISSISSIPPI BROADCASTING PARTNERS, NEW YORK
TIMES MANAGEMENT SERVICES, NEXSTAR
BROADCASTING INCORPORATED, NPG OF TEXAS, L.P.,
OHIO/OKLAHOMA HEARST-ARGYLE TELEVISION INC.,
PIEDMONT TELEVISION OF HUNTSVILLE LICENSE
LLC, PIEDMONT TELEVISION OF SPRINGFIELD

119a
LICENSE LLC, POLLACK/BELZ COMMUNICATION
COMPANY , INC. , POST-NEWSWEEK STATIONS
SAN ANTONIO INC ., SCRIPPS HOWARD BROADCASTING
CO., SOUTHERN BROADCASTING INC., TENNESSEE
BROADCASTING PARTNERS, TRIBUNE TELEVISION
NEW ORLEANS, INC., WAPT HEARST-ARGYEL
TELEVISION, INC., WDIO- TV LLC, WEAR LICENSEE
LLC, WFAA- TV INC., WISN HEARST-ARGYLE
TELEVISION INC., PETITIONERS
v.
FEDERAL COMMUNICATIONS COMMISSION,
UNITED STATES OF AMERICA, RESPONDENTS,
FOX TELEVISION STATIONS, INC., NBC UNIVERSAL,
INC., NBC TELEMUNDO LICENSE CO., CBS
BROADCASTING INC., INTERVENORS.

SUMMARY ORDER

PRESENT: RICHARD C. WESLEY, DEBRA A. LIVING-
STON, Circuit Judges, JANE A. RESTANI,* Judge.
Petition for review of a forfeiture order of the Fed-
eral Communications Commission.

UPON DUE CONSI-
DERATION IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED

that the petition for review be

GRANT-
ED

and the forfeiture order of the Federal Communica-
tions Commission ("FCC") be

VACATED

.
* The Honorable Jane A. Restani, Judge of the United States Court
of International Trade, sitting by designation.

120a
ABC, Inc. ("ABC") and the ABC Television Affiliates
Association and ABC-affiliated television stations (col-
lectively, "ABC Affiliates") petition for review of an or-
der of the FCC determining that an episode of the ABC
Television Network show NYPD Blue violated broadcast
indecency standards because it depicted a woman's nude
buttocks and imposing a forfeiture penalty against forty-
four ABC-affiliated television stations. See Complaints
Against Various Television Licensees Concerning Their
Feb. 25, 2003 Broad. of the Program "NYPD Blue",
23 FCC Rcd. 3147, 314748, 3171-75 (2008) ("Forfeiture
Order"). Petitioners, supported by Intervenors Fox Tel-
evision Stations, Inc. ("Fox"), NBC Universal, Inc.
("NBC"), NBC Telemundo License Co. ("Telemundo"),
and CBS Broadcasting Inc., raise administrative and
constitutional challenges to the Forfeiture Order.1 Be-
cause Fox Television Stations, Inc. v. FCC, 613 F.3d
317, 335 (2d Cir. 2010) (rehearing en banc denied), held
that the indecency policy under which the Forfeiture Or-
der was issued is unconstitutionally vague, we grant the
petition for review and vacate the Forfeiture Order.

BACKGROUND

On February 25, 2003 at 9:00 p.m. in the Central and
Mountain time zones, the ABC Television Network aired
an episode of NYPD Blue that depicted an adult woma-
n's nude buttocks for slightly less than seven seconds.2
1 Amici curiae Center for Creative Voices in Media and Future of
Music Coalition support Petitioners. Amici curiae Decency Enforce-
ment Center for Television, Morality in Media, Inc., and Parents Tele-
vision Council support Respondents, the FCC and the United States.
2 The episode began with a warning that "THIS POLICE DRAMA
CONTAINS ADULT LANGUAGE AND PARTIAL NUDITY.

121a
Forfeiture Order, 23 FCC Rcd. at 3147-48 2-3; NYPD
Blue: Nude Awakening. In the episode, Connie Mc-
Dowell (played by Charlotte Ross), who has recently
moved in with Andy Sipowicz, disrobes as she prepares
to shower, and her nude buttocks are visible. Com-
plaints Against Various Television Licensees Concern-
ing Their Feb. 25, 2003 Broad. of the Program "NYPD
Blue", 23 FCC Rcd. 1596, 1598-99 910 (2008)
("NAL"); NYPD Blue: Nude Awakening. As McDowell
turns toward the shower, the side of her buttocks and
the side of one of her breasts are visible. NAL, 23 FCC
Rcd. at 1599 9. While she faces the shower, the cam-
era pans down, again revealing her nude buttocks. Id.
at 1599 10. Sipowicz's young son, Theo, enters the
bathroom and sees McDowell naked from the front. See
NAL, 23 FCC Rcd. at 1599 10; NYPD Blue: Nude
Awakening. Theo blocks the audience's view of Mc-
Dowell's nudity. Id. Each character reacts with embar-
rassment, and Theo leaves the room and apologizes. Id.
McDowell, covering her breasts and pubic area, re-
sponds, "It's okay. No problem." Id. According to ABC
and the ABC Affiliates, the scene was included to por-
tray the awkwardness between a child and his parent's
new romantic partner and their difficulties in adjusting
to life together.
The FCC received indecency complaints regarding
the episode, and in January 2008 the FCC issued a no-
tice of apparent liability for forfeiture ("NAL") to ABC
and the ABC Affiliates proposing the maximum forfei-
ture penalty of $27,500 against each station. NAL, 23
FCC Rcd. at 1596, 1601 18, 1602 23. In February
VIEWER DISCRETION IS ADVISED." NYPD Blue: Nude Awak-
ening (ABC television broadcast Feb. 25, 2003).

122a
2008, the FCC issued the Forfeiture Order, determining
that the depiction of the buttocks was indecent and im-
posing a penalty of $27,500 on each of forty-four ABC-
affiliated stations. See 23 FCC Rcd. at 3147
1-2, 317175. ABC and the ABC Affiliates petition
this Court for review of the Forfeiture Order.

JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction pursuant to 28 U.S.C. 2342(1)
and 47 U.S.C. 402(a). Under the APA, we may "hold
unlawful and set aside agency action, findings, and con-
clusions found to be . . . arbitrary, capricious, an abuse
of discretion, or otherwise not in accordance with law
[or] contrary to constitutional right. . . . " 5 U.S.C.
706(2)(A)(B). "We review an agency's disposition of
constitutional issues de novo." Cablevision Sys. Corp. v.
FCC, 570 F.3d 83, 91 (2d Cir. 2009).

DISCUSSION

Under 18 U.S.C. 1464, "[w]hoever utters any ob-
scene, indecent, or profane language by means of ra-
dio communication" is subject to a criminal penalty.
18 U.S.C. 1464. A regulation pursuant to that statute
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 C.F.R. 73.3999(b). The FCC may impose a forfei-
ture penalty when it determines that a licensee has vio-
lated 18 U.S.C. 1464. 47 U.S.C. 503(b)(1)(D). The
FCC defines indecent material as "describ[ing] or de-
pict[ing] sexual or excretory organs or activities" and
"patently offensive as measured by contemporary com-
munity standards for the broadcast medium." Industry

123a
Guidance on the Comm'ns Case Law Interpreting
18 U.S.C. 1464 and Enforcement Policies Regarding
Broad. Indecency, 16 FCC Rcd. 7999, 8002 7-8 (2001).
In determining whether material is patently offensive,
the FCC looks to three principal factors:
(1) the explicitness or graphic nature of the descrip-
tion or depiction of sexual or excretory organs or
activities; (2) whether the material dwells on or re-
peats 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 mate-
rial appears to have been presented for its shock
value.
Id. at 8002 10. The context in which the material ap-
pears "is critical." Id.
Speech "which is indecent but not obscene," however,
"is protected by the First Amendment." Sable
Commc'ns of Cal., Inc. v. FCC, 492 U.S. 115, 126 (1989).
The First and Fifth Amendments protect speakers
"from arbitrary and discriminatory enforcement of
vague standards" in laws and regulations. Nat'l Endow-
ment for the Arts v. Finley, 524 U.S. 569, 588 (1998).
Standards are unconstitutionally vague if they do not
"give the person of ordinary intelligence a reasonable
opportunity to know what is prohibited . . . " Grayned
v. City of Rockford, 408 U.S. 104, 108 (1972). "The First
Amendment places a special burden on the government
to ensure that restrictions on speech are not impermis-
sibly vague." Fox, 613 F.3d at 327.
In Fox, a panel of this Court struck down the FCC's
indecency policy, holding that it violates the First
Amendment because it is unconstitutionally vague. Id.

124a
at 319, 330. The FCC and the United States concede
that Fox "invalidated the [FCC]'s indecency policy in its
entirety." Supplemental Br. for FCC and United States
3. Although they contend that the facts of this case are
different from those of Fox, the FCC and the United
States correctly recognize that "Fox does not turn on
[factual] distinctions."3 Id.
Indeed, there is no significant distinction between
this case and Fox. In Fox, the FCC levied fines for
fleeting, unscripted utterances of "fuck" and "shit" dur-
ing live broadcasts. Id. at 322. Although this case in-
volves scripted nudity, the case turns on an application
of the same context-based indecency test that Fox found
"impermissibly vague." Id. at 327. According to the
FCC, "nudity itself is not per se indecent." WPBN/
WTOM License Subsidiary, Inc., Memorandum Opinion
& Order, 15 FCC Rcd. 1838, 1841 11 (2000). The FCC,
therefore, decides in which contexts nudity is permissi-
ble and in which contexts it is not pursuant to an inde-
cency policy that a panel of this Court has determined is
unconstitutionally vague. Fox, 613 F.3d at 332.
Fox's determination that the FCC's indecency policy
is unconstitutionally vague binds this panel. See United
States v. Jass, 569 F.3d 47, 58 (2d Cir. 2009). Accord-
3 Only amicus curiae Parents Television 3 Council argues that this
case is distinguishable from Fox. The Parents Television Council alleg-
es that Fox's holding "is restricted to FCC's fleeting expletive policy as
it relates to live, unscripted broadcasts." Supplemental Br. for Parents
Television Council at 4. Although certainly the facts of Fox relate to
live, unscripted broadcasts, Fox clearly sweeps more broadly, holding
that the "current policy fails constitutional scrutiny." Fox, 613 F.3d at
335.

125a
ingly, we need not reach the administrative law or other
constitutional challenges Petitioners raised.4

CONCLUSION

For the foregoing reasons, the petition for review is

GRANTED

and the forfeiture order of the FCC is here-
by

VACATED

.
FOR THE COURT:
Catherine O'Hagan Wolfe,
Clerk of the Court
4 Because the constitutional issue is decided, the "fundamental and
longstanding principle of judicial restraint" that "requires that courts
avoid reaching constitutional questions in advance of the necessity of
deciding them," Lyng v. Nw. Indian Cemetery Protective Ass'n, 485
U.S. 439, 445-46 (1988), is not implicated.

126a

APPENDIX E

FEDERAL COMMUNICATIONS COMMISSION
WASHINGTON, D.C. 20554
File Nos. EB-03-IH-0122 and EB-03-IH-03531
IN THE MATTER OF
COMPLAINTS AGAINST VARIOUS TELEVISION
LICENSEES CONCERNING THEIR FEBRUARY 25, 2003
BROADCAST OF THE PROGRAM "NYPD BLUE"
Adopted: Feb. 19, 2008
Released: Feb. 19, 2008

FORFEITURE ORDER

By the Commission: Commissioner McDowell issuing a
statement.

I. INTRODUCTION

1. In this Forfeiture Order, issued pursuant to sec-
tion 503 of the Communications Act of 1934, as amended
(the "Act"), and section 1.80 of the Commission's rules,2
we find that ABC Television Network ("ABC") affiliated
stations and ABC owned-and-operated stations listed in
Attachment A, infra, broadcast indecent material during
1 The NAL Acct. No. and FRN number for each licensee subject to
this Forfeiture Order are listed in Attachment A, infra.
2 See 47 U.S.C. 503(b); 47 C.F.R. 1.80.

127a
an episode of the program NYPD Blue on February 25,
2003, in willful violation of 18 U.S.C. 1464 and section
73.3999 of the Commission's rules.3 Based on our review
of the facts and circumstances in this case, we conclude
that each station is liable for a forfeiture in the amount
of $27,500.

II. BACKGROUND

2. NYPD Blue was a weekly, hour-long program
that ran on the ABC Television Network from 1993
through 2005. The Commission received numerous com-
plaints alleging that certain affiliates of ABC and ABC
owned-and-operated stations broadcast indecent mate-
rial during the February 25, 2003 episode of NYPD Blue
that aired at 9:00 p.m. in the Central and Mountain
Standard Time Zones. After reviewing the complaints,
the Enforcement Bureau (the "Bureau") sent a letter of
inquiry to ABC on February 3, 2004.4 As a result of its
investigation, the Bureau received a response from ABC
and a tape of the episode.5
3 See 18 U.S.C. 1464; 47 C.F.R. 73.3999.
4 See Letter from William D. Freedman, Deputy Chief, Investiga-
tions and Hearings Division, Enforcement Bureau, Federal Communi-
cations Commission, to Susan L. Fox, ABC, Inc., dated February 3,
2004 ("LOI").
5 See Letter from Susan L. Fox, ABC, Inc., to William D. Freedman,
Deputy Chief, Investigations and Hearings Division, Enforcement Bur-
eau, Federal Communications Commission, dated February 9, 2004;
Letter from John W. Zucker, Senior Vice President, Law and Regula-
tion, ABC, Inc., and Susan L. Fox, Vice President, Government Re-
lations, The Walt Disney Company, to William D. Freedman, Deputy
Chief, Investigations and Hearings Division, Enforcement Bureau,
Federal Communications Commission, dated February 17, 2004
("February 17 Response").

128a
3. ABC's response to the Bureau's letter of inquiry
confirmed the inclusion in the program of a scene, refer-
enced in the complaints, in which a woman and a boy,
who plays the eight-year old son of another character on
the show, are involved in an incident that includes adult
female nudity.6 Specifically, the woman's naked but-
tocks and a portion of her breasts were depicted in a
scene in which she is shown disrobing and preparing to
take a shower, and the boy unexpectedly enters the
bathroom.7 ABC also confirmed that 52 of the stations
about which we had received complaints aired the mate-
rial outside the "safe harbor."8 In its responses to the
letters of inquiry, ABC argued, without citing any au-
thority, that the buttocks are not a sexual or excretory
organ.9 ABC conceded that the scene included back and
side nudity, but contended that it was "not presented in
6 See Complaints Against Various Television Licensees Concerning
Their February 25, 2003 Broadcast of the Program "NYPD Blue,"
Notice of Apparent Liability for Forfeiture, FCC 08-25, at 9-10 (rel.
January 25, 2008) ("NAL").
7 See id.
8 The "safe harbor" is that part of each day between 10:00 p.m. and
6:00 a.m. in which indecent programming may be broadcast. See 47
C.F.R. 73.3999(b) (stating that "[n]o licensee of a radio or television
broadcast station shall broadcast on any day between 6:00 a.m. and
10:00 p.m. any material which is indecent.")
9 See February 17 Response at 7.

129a
a lewd, prurient, pandering, or titillating way."10 ABC
further asserted that the purpose of the scene was to
"illustrate[ ] the complexity and awkwardness involved
when a single parent brings a new romantic partner into
his or her life," and that the nudity was not included to
depict an attempted seduction or a sexual response from
the young boy.11 ABC also asserted that, because of the
"modest number of complaints" the network received,
and the program's generally high ratings, the contempo-
rary community standards of the viewing community
embrace, rather than reject, this particular material.12
4. On January 25, 2008, the Commission released
the Notice of Apparent Liability for Forfeiture ("NAL"),
finding that the material at issue apparently violated the
broadcast indecency standard. Applying its two-prong
indecency analysis, the Commission first found that the
material depicted sexual or excretory organs or activi-
ties.13 The Commission then concluded that the mate-
rial, in context, was patently offensive as measured by
contemporary community standards for the broadcast
medium and thus satisfied the second prong of our inde-
cency standard. In reaching this conclusion, we re-
10 See id. at 9.
11 See id. at 3-4, 9-11.
12 See id. at 9.
13 See NAL at 11.

130a
viewed each of the three principal factors relevant to a
finding of patent offensiveness under our contextual
analysis of indecency cases. We first determined that
the material presented in the episode "contains explicit
and graphic depictions of sexual organs."14 Turning to
the second principal factor in our patent offensiveness
inquiry, the Commission found "that the broadcast
dwells on and repeats the sexual material."15 Finally,
the Commission concluded that the material was shock-
ing and titillating, explaining, among other things, that
"the scene's depiction of adult female nudity, particu-
larly the repeated shots of a woman's naked buttocks, is
titillating and shocking."16
5. Accordingly, the NAL found the licensees of 52
stations that broadcast the episode apparently liable for
forfeitures in the amount of $27,500 per station for
broadcasting indecent material, in apparent willful viola-
tion of 18 U.S.C. 1464 and section 73.3999 of the Com-
mission's rules. In response to the NAL, numerous let-
ters and pleadings were filed with the Commission.17
14 Id. at 12.
15 Id. at 13.
16 Id. at 14.
17 See Attachment B, infra, for a list of these submissions. To the ex-
tent that any of the submissions sought an extension of time within
which to file a substantive response to the NAL, those requests are

131a

III. DISCUSSION

6. The proposed forfeiture amount in this case was
assessed in accordance with section 503(b) of the Com-
munications Act,18 section 1.80 of the Commission's
Rules,19 and the Commission's forfeiture guidelines set
forth in its Forfeiture Policy Statement.20 In assessing
forfeitures, section 503(b) of the Act requires that we
take into account the nature, circumstances, extent, and
gravity of the violation, and with respect to the violator,
the degree of culpability, any history of prior offenses,
ability to pay, and other matters as justice may re-
quire.21 As discussed further below, we have examined
the licensees' responses to the NAL pursuant to the
aforementioned statutory factors, our rules, and the
Forfeiture Policy Statement, and, with the exception of
the seven stations listed in paragraph 56 hereof, we find
no basis for cancellation or reduction of the forfeiture.
hereby denied for the reasons discussed below in Section III.B.2 of this
Order.
18 See 47 U.S.C. 503(b).
19 See 47 C.F.R. 1.80.
20 See The Commission's Forfeiture Policy Statement and Amend-
ment of Section 1.80 of the Rules to Incorporate the Forfeiture Guide-
lines, Report and Order, 12 FCC Rcd 17087 (1997), recons. denied, 15
FCC Rcd 303 (1999) ("Forfeiture Policy Statement").
21 See 47 U.S.C. 503(b)(2)(D).

132a

A. Application of Indecency Test to NYPD Blue


7. Indecency findings involve two fundamental de-
terminations. First, the material alleged to be indecent
must fall within the subject matter scope of our inde-
cency definition, i.e., "the material must describe or de-
pict sexual or excretory organs or activities."22 In the
NAL, the Commission concluded that the programming
at issue here is within the scope of our indecency defini-
tion because it depicts sexual and excretory organs, spe-
cifically, an adult woman's buttocks.23 ABC and the
ABC Affiliates contest this finding, arguing that the but-
tocks are not sexual or excretory organs and thus are
outside the scope of indecency regulation. Relying pri-
marily on medical texts, the ABC Affiliates argue that
sexual organs are "biologically defined" as the genitalia
or reproductive organs that are involved in reproduc-
tion.24 Similarly, they argue that excretory organs in-
clude only the organs of the excretory system that elimi-
nate urine and other waste products of metabolism, and
that the "[t]he only external organs or structures of the
22 See Industry Guidance on the Commission's Case Law Interpret-
ing 18 U.S.C. 1464 and Enforcement Policies Regarding Broadcast
Indecency, Policy Statement, 16 FCC Rcd 7999, 8002 7 (2001)
("Indecency Policy Statement").
23 See NAL at 11.
24 See ABC Affiliates Response at 36-37.

133a
excretory system are the penis in males, and the ure-
thral opening in females, which appears between the
walls of the labia."25 ABC argues that the buttocks are
not an excretory or sexual organ because they do not
have a sexual or excretory physiological function.26 In
addition, both argue that the precedents cited in the
NAL are inapposite and that the Commission has never
treated mere depictions of naked buttocks as within the
scope of its indecency definition.27 All of these argu-
ments lack merit.
8. The Commission has consistently interpreted the
term "sexual or excretory organs" in its own definition
of indecency as including the buttocks, which, though
not physiologically necessary to procreation or excre-
tion, are widely associated with sexual arousal and close-
ly associated by most people with excretory activities.28
25 Id. at 37-38.
26 See ABC Response at 15-16.
27 See ABC Response at 16-21; ABC Affiliates Response at 39-44.
28 See, e.g., Complaints Regarding Various Television Broadcasts
Between February 2, 2002 and March 8, 2005, 21 FCC Rcd 2664, 2681
62, 2718 225 (2006) (Omnibus Order) ( finding buttocks are sexual
and excretory organs within the subject matter scope of indecency def-
inition); Entercom Kansas City License, LLC, Notice of Apparent Lia-
bility for Forfeiture, 19 FCC FCC Rcd 25011 7 (2004) (comments con-
cerning contestants' genitals, buttocks and breasts describe or depict
sexual or excretory organs); Rubber City Radio Group, Notice of Ap-

134a
Thus, the Commission has in many cases treated naked
buttocks as coming within the scope of its indecency def-
inition, even though it has not always concluded that
particular depictions or descriptions were patently of-
fensive and thus actionably indecent.29
9. The indecency standard that we are applying
here was formulated by the Commission to enforce
18 U.S.C. 1464 through administrative action.30 The
Commission has broad discretion to interpret and apply
the standards and terminology it has developed, as long
as it does so in a manner that is consistent with the stat-
parent Liability for Forfeiture, 17 FCC Rcd 14745, 14747 6 (Enf. Bur.
2002) (dialogue in complaint referring to a "baby's ass" referred to a
child's excretory organ and thus came within the first prong of the inde-
cency definition).
29 See id. Similarly, the Commission also has consistently treated
female breasts as sexual organs though, like the buttocks, they are not
physiologically necessary to procreation. See, e.g., Complaints Against
Various Television Licensees Concerning Their February 1, 2004
Broadcast of the Super Bowl XXXVIII Halftime Show, Notice of
Apparent Liability for Forfeiture, 19 FCC Rcd 19230 (2004) ("Super
Bowl NAL"), affirmed, Forfeiture Order, 21 FCC Rcd 2760 (2006)
("Super Bowl Forfeiture Order"), affirmed, Order on Reconsideration,
21 FCC Rcd 6653 (2006), ("Super Bowl Order on Reconsideration"), on
appeal sub nom. CBS Corp. v. FCC, No. 06-3575 (3d Cir. 2006).
30 See 47 U.S.C. 503(b)(1)(D).

135a
ute and the Constitution.31 In the context of interpret-
ing and applying the statutory and regulatory proscrip-
tion against indecent programming, it is appropriate to
interpret these terms not in a medical sense but rather
in the sense of organs that are closely associated with
sexuality or excretion and that are typically kept cov-
ered because their public exposure is considered socially
inappropriate and shocking.32 We believe that it is ap
31 See, e.g., Udall v. Tallman, 380 U.S. 1, 16 (1965) (Court "shows
great deference to the interpretation given the statute by the agency
charged with its administration. . . . When the construction of an ad-
ministrative regulation rather than a statute is in issue, deference is
even more clearly in order."); Dana Corp. v. ICC, 703 F. 2d 1297, 1300
(D.C. Cir. 1983) ("The [ICC] has not violated its own rules, given the
broad discretion it is accorded in interpreting them"); Solite Corp. v.
EPA, 952 F. 2d 473, 497 (D.C. Cir. 1991) ("EPA's determination . . .
was thus the result of the Agency's interpretation and application of its
own rules, and the interpretation was far from `plainly wrong'");
Chemical Waste Management, Inc. v. EPA, 869 F.2d 1526, 1538-39
(D.C. Cir. 1989) ("[a]n agency's interpretation of its own regulations will
be accepted unless it is plainly wrong"); General Carbon Co. v. OSHRC,
860 F.2d 479, 483 (D.C. Cir. 1988) ("petitioner, in asserting that the
agency has misconstrued its own standards, has assumed a heavy
burden. . . . This court has previously noted `the high level of def-
erence to be afforded an agency on review when the issue turns on the
interpretation of the agency's own prior proclamations.").
32 Under the "nuisance" rationale upheld by the Supreme Court in
Pacifica, it is appropriate to treat as coming within the scope of the in-
decency definition those body parts that are considered socially inap-

136a
propriate to use the terms sexual or excretory or-
gans--as we have in the past--in a manner consonant
with the purpose of the regulatory regime to protect
children from indecent depictions of organs associated
with sex and excretion and sexual and excretory activi-
ties. The purpose of indecency regulation, obviously, is
not to regulate procreation or excretion, so we do not
think a technical physiological definition is appropri-
ate.33
propriate to reveal in public for "[a]s Mr. Justic Sutherland wrote a
`nuisance may be merely a right thing in the wrong place,--like a pig in
the parlor instead of the barnyard." FCC v. Pacifica Foundation, 438
U.S. 726, 750 (1978) ("Pacifica"). Under its nuisance approach, the
Commission has determined that daytime and primetime broadcast
programming is the "wrong place" to display naked buttocks in a
patently offensive manner.
33 Indeed, the arguments presented by the ABC Affiliates demon-
strate the absurdity of employing a technical physiological definition in
the context of indecency regulation. First, the ABC Affiliates maintain,
from a medical standpoint, that the skin is an excretory organ because
it excretes perspiration. See ABC Affiliates Response at 37 & n.42. But
it is preposterous to suggest that any display of skin falls within the
subject matter scope of our indecency regulation, and the ABC Affil-
iates even disclaim the logical consequence of their own argument,
stating that the "ABC Affiliates do not believe that the Commission
intends . . . to proscribe depictions of skin as an excretory organ." Id.
Such a concession indicates that the ABC Affiliates do not seriously
believe their own argument--that the subject matter scope of our inde-
cency regulation is to be determined through technical physiological

137a
10. Moreover, if we interpreted these terms in the
narrow physiological sense advocated by ABC and the
ABC Affiliates, the airwaves could be filled with naked
buttocks and breasts during daytime and prime time
hours because they would be outside the scope of inde-
cency regulation (at least if no sexual or excretory activ-
ities were shown or discussed). We find it impossible to
believe that ABC or the ABC Affiliates ever thought this
to be the Commission's policy. In short, while their Re-
sponses to the NAL are brimming with medical defini-
tions and arguments, the respondents offer no legal or
public policy reason for their argument, and we find it
lacking in merit.
definitions. Second, the ABC Affiliates draw a distinction between ex-
cretion, which they claim refers to the elimination of the waste products
of metabolism from the body, and defecation, which refers to the elim-
ination of feces, "undigested food and bacteria [that] have never been
a part of the functioning of the body." Id. at 38. Thus, pursuant to the
technical physiological definitions presented by the ABC Affiliates,
sweating would be considered an "excretory activity" while defecating
would not. Again, such an approach makes no sense in the context of
indecency regulation, and no reasonable person would believe that the
Commission would use such technical definitions in the context of
indecency regulation. We note, for instance, that according to the logic
of the ABC Affilates, two of the seven "Filthy Words" in the Carlin
monologue at issue in Pacifica--"shit" and "tits"--would appear not to
fall within the subject matter scope of our indecency definition.

138a
11. Contrary to the ABC Affiliates' contention, the
"rule of lenity" does not require that the Commission
construe the indecency proscription in section 1464 nar-
rowly even when it is imposing administrative sanctions
for violations.34 The Supreme Court made clear in FCC
v. Pacifica that the removal of the indecency provision
from the Communications Act and its codification in sec-
tion 1464 of the criminal code in 1948 was not intended
to effect any "substantive change."35 The Court thus
found it unnecessary to "consider any question relating
to the possible application of 1464 as a criminal stat-
ute."36 It is similarly unnecessary here--all the more so
because the term we are construing is one that appears
in the standard formulated by this Commission for pur-
poses of imposing administrative forfeitures.
12. Turning to the second aspect of our indecency
test, we also find that, in context and on balance, the
complained-of material is patently offensive as mea-
sured by contemporary community standards for the
broadcast medium. In our analysis of the three principal
factors involved in determining whether material is pa-
tently offensive, "the overall context of the broadcast in
which the disputed material appeared is critical. Each
34 See ABC Affiliates Response at 44-45.
35 Pacifica, 438 U.S. at 739 n.13.
36 Id.

139a
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."37 Each of the three
principal factors contributes to a finding of patent offen-
siveness here. ABC points to factors that, it argues,
mitigate the patent offensiveness of the disputed mate-
rial, in particular the NYPD Blue series' "outstanding
artistic and social merit," the relationship of the scene in
question to a theme stretching across multiple episodes,
and the parental advisory and rating at the beginning of
the episode.38 On balance, however, for the reasons dis-
cussed below, we find that the material is patently offen-
sive as measured by contemporary community stan-
dards for the broadcast medium.
13. First, we find that the depiction of an adult wom-
an's naked buttocks was sufficiently graphic and explicit
to support an indecency finding. Indeed, we do not be-
lieve that the explicit and graphic nature of the material
is reasonably debatable. Although the language-based
37 Indecency Policy Statement, 16 FCC Rcd at 8003 10. See id. at
8002-8003 9 ("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.").
38 See ABC Response at 26; ABC Affiliates Response at 51-52, 54-55,
61-62.

140a
examples that it provides are not entirely apposite, ex-
amination of the Indecency Policy Statement reveals
that, in a case such as this one, the issue under the first
principal factor is whether the visual depiction of the
sexual or excretory organ is clear and unmistakable.39
Here, the scene in question shows a female actor naked
from behind, with her buttocks fully visible at close
range. She is not wearing a g-string or other clothing,
nor are the shots of her buttocks pixillated or ob-
scured.40 Thus, the material is sufficiently graphic and
explicit to support an indecency finding.41 Although the
partial views of her naked breast from behind and from
the side are not sufficiently graphic and explicit, in and
39 See Indecency Policy Statement, 16 FCC Rcd at 8004-8008 13-
16.
40 Cf. Complaints by Parents Television Council Against Various
Broadcast Licensees Regarding Their Airing of Allegedly Indecent
Material, Memorandum Opinion and Order, 20 FCC Rcd 1920, 1927 9
(2005) ("PTC I") (material that involved "characters whose sexual and/
or excretory organs were covered by bedclothes, household objects, or
pixilation" but did not "actually depict[ ] sexual or excretory organs"
held not sufficiently graphic or explicit to support a patent offensive-
ness finding).
41 See Super Bowl Forfeiture Order, 21 FCC Rcd at 2765-66 (broad-
cast of a female performer's breast was graphic and explicit); Young
Broadcasting of San Francisco, Notice of Apparent Liability, 19 FCC
Rcd 1751 (2004) (broadcast of performer's exposed penis was graphic
and explicit).

141a
of themselves, to support an indecency finding, they also
add somewhat to the first factor's weight here.
14. The cases cited by the ABC Affiliates for the
proposition that nudity is not necessarily graphic or ex-
plicit are easily distinguishable from this case.42 ABC
cites cases in which the Commission did not find depic-
tions of naked buttocks to be patently offensive, but
none held that the clear and unmistakable depiction of
nudity was not sufficiently explicit to support a finding
of patent offensiveness.43 Rather, each held that the
material at issue, in light of all of the relevant factors,
was not patently offensive.44 We emphasize that our
finding with respect to explicitness does not represent
a conclusion that the scene in question is pandering or
titillating; that issue relates to our analysis of the third
42 See ABC Affiliates Response at 47. See Omnibus Order at 2716
215 (scene from The Today Show was not graphic or explicit where
"[t]he shot of the man's penis is not at close range, and the overall focus
of the scene is on the rescue attempt, not on the man's sexual organ");
Complaints by Parents Television Council Against Various Broadcast
Licensees Regarding Their Airing of Allegedly Indecent Material,
Memorandum Opinion and Order, 20 FCC Rcd 1931, 1938 9 (2005)
("PTC II") ("rudimentary depiction of a cartoon boy's buttocks" was not
sufficiently graphic or explicit to support a patent offensiveness find-
ing).
43 See ABC Response at 18-19.
44 See id.

142a
principal factor below. We simply conclude here that
the disputed material's clear, unobscured, close-range
visual depiction of a woman's buttocks was graphic and
thus supports a finding of patent offensiveness.
15. Second, we find that the disputed material's re-
peated depictions of a woman's naked buttocks provide
some support for a patent offensiveness finding. As set
forth in the Indecency Policy Statement, the issue under
the second principal factor is focus and repetition versus
"passing or fleeting" reference to sexual or excretory
material.45 Here, the disputed scene includes repeated
shots of a woman's naked buttocks and focuses on her
nudity. At one point, when her buttocks already have
been displayed once and she is about to step into the
shower, the camera deliberately pans down her back to
reveal another full view of her buttocks before panning
up again. While we concede that a longer scene or addi-
tional depictions of nudity throughout the episode would
weigh more heavily in favor of an indecency finding, we
conclude here that the focus on and repeated shots of
the woman's naked buttocks provides some support for
a finding of indecency under the second factor.46 In this
regard, it is worth noting that our analysis under this
factor is best viewed on a continuum rather than as a
45 See Indecency Policy Statement, 16 FCC Rcd at 8008 17.
46 See id.

143a
binary "all or nothing" determination. To be sure, the
depiction here is not as lengthy or repeated as some of
the cases cited by ABC and ABC Affiliates in which the
Commission has indicated that this factor supported a
finding of patent offensiveness (and thus does not pro-
vide as much support for a finding of patent offensive-
ness as was present in those cases).47 However, this ma-
terial does contain more shots or lengthier depictions of
nudity, or more focus on nudity, than other cases involv-
ing nudity where the Commission has found that this
factor did not weigh in favor of a finding of patent offen-
siveness.48
16. Third, we find that the scene's pandering, titillat-
ing, and shocking nature supports a patent offensiveness
finding. The female actor's nudity is presented in a
manner that clearly panders to and titillates the audi-
ence. The viewer is placed in the voyeuristic position of
viewing an attractive woman disrobing as she prepares
to step into the shower. Moreover, not only does the
47 See ABC Response at 21-24; ABC Affiliates Response at 48-50.
48 In any event, even were we to conclude that the second principal
factor in our contextual analysis does not support a finding a patent of-
fensiveness, we would still reach the same conclusion based on the
strength of the first and third principal factors. See, e.g., Super Bowl
Forfeiture Order, 21 FCC Rcd at 2766 12; Young Broadcasting of San
Francisco, 19 FCC Rcd at 1755 10, 12 (broadcast of performer's ex-
posed penis was graphic and explicit).

144a
scene include a shot of her naked buttocks as she re-
moves her robe in front of the bathroom mirror, the
scene goes farther, providing the audience with another
full view of her naked buttocks as she stands in front
of the shower. This second shot, in which the camera
pans down her naked back to her buttocks, pauses for a
moment and then pans up her back, highlights the sala-
cious aspect of the scene, clearly suggesting that its in-
terest lies at least partly in seeing the actress's naked
buttocks. The subsequent camera shots of the boy's
shocked face from between the woman's legs, and of her
naked, partially-obscured upper torso from behind his
head, also serve to heighten the titillating and shocking
nature of the scene. We disagree with ABC's position
that these shots convey "nothing sexual or lewd."49 Al-
though the scene does not depict any sexual response in
the child, his presence serves to heighten the shocking
nature of the scene's depiction of her nudity.50
49 ABC Response at 31.
50 While the scene does not depict any sexual response in the child,
the effect of the nudity on the child is joked about later in the episode.
The woman, who is on the police force, is discussing with another police-
woman whether seeing her naked might have a long-term impact on the
boy when the older detective who is the boy's father walks into the
squad room. The woman asks him: "How was he when you dropped
him off at school?" He responds: "Dropped him off at a Hooters."
When she looks perplexed, he adds: "He insisted," at which point she
smiles and walks away.

145a
17. Contrary to ABC's arguments, comparison of the
instant scene to Commission precedents does not under-
mine our finding regarding the third principal factor.
The disputed material is easily distinguishable from the
nudity addressed by the Commission in Schindler's
List.51 In Schindler's List, the complainant conceded
that the material he alleged to be actionably indecent
was not presented to pander or titillate.52 Indeed, the
"full frontal nudity" that aired outside of safe harbor
and was the subject of the complaint was, as the ABC
Affiliates explain, a scene depicting concentration group
prisoners "made to run around the camp fully nude as
the sick are sorted from the healthy."53 While the scene
is certainly disturbing, it is neither pandering nor titil-
lating and bears no contextual resemblance to the mate-
rial in NYPD Blue.54 Accordingly, we disagree with the
51 See WPBN/WTOM License Subsidiary, Inc., Memorandum Opin-
ion and Order, 15 FCC Rcd 1838, 1840 (nudity in broadcast of Schind-
ler's List not patently offensive when considered in context of World
War II concentration camp).
52 See id. at 1840 6.
53 ABC Affiliates Response at 57.
54 Neither do we credit ABC's argument that the nudity here is pre-
sented in a similar manner to the expletives in Saving Private Ryan.
See ABC Response at 27, (citing 20 FCC Rcd 4507) (In Complaints
Against Various Television Licensees Regarding Their Broadcast on
November 11, 2004, of the ABC Television Network's Presentation of
the Film "Saving Private Ryan", Memorandum Opinion and Order, 20

146a
claim of the ABC Affiliates that it is "difficult to distin-
guish" the nudity here from the nudity in the Schind-
ler's List scene.55 Likewise, the Will and Grace episode
FCC Rcd 4507 (2005), the Commission found that use of coarse, vulgar
expletives in broadcast of Saving Private Ryan not patently offensive
when considered in wartime context). The conclusion that the material
here (a woman disrobing to reveal her naked buttocks) is presented in
a pandering and titillating manner whereas the material in Saving
Private Ryan (expletives uttered by soldiers in the midst of World War
II) was not presented in a pandering and titillating manner is entirely
unremarkable.
55 See ABC Affiliates Response at 58. For the same reason, we reject
the ABC Affiliates' assertion that the Commission has created a per se
prohibition of nudity. We need not address Respondents' reliance on
unpublished staff letters denying indecency complaints against broad-
casts of the film Catch-22 and other programs that contained nudity.
See ABC Response at 18-19, 25-27; ABC Affiliates Response at 58-60.
See 47 C.F.R. 0.445(e) (unpublished opinions and orders of the Com-
mission or its staff "may not be relied upon, used or cited as precedent,
except against persons who have actual notice of the document in ques-
tion or by such persons against the Commission"); Pathfinder Commu-
nications Corp., Memorandum Opinion and Order, 18 FCC Rcd 9272,
9279 13 & n.47 (2003); see also Indep. Ins. Agents of America, Inc. v.
Ludwig, 997 F.2d 958, 962 (D.C. Cir. 1993) ("In the real world of agency
practice, informal unpublished letters should not engender reliance.")
(internal quotes and citations omitted).

147a
cited by ABC is easily distinguishable because it pres-
ents no nudity.56
18. We also disagree with ABC's contention that we
are refusing to defer to its artistic judgment, in contrast
to cases such as Schindler's List and Saving Private
Ryan.57 We are not "second-guessing" an artistic deci-
sion by concluding that the nudity contained in NYPD
Blue was graphic and presented in a pandering and titil-
lating manner.58 Art may very well be graphic, and we
recognize that NYPD Blue was a longstanding television
drama that garnered writing, directing, and acting
awards, and that the scene in question related to a broad
storyline of the show.59 Our finding does not represent
a conclusion that the disputed material lacked artistic or
social merit. As the D.C. Circuit has recognized, how-
ever, "merit is properly treated as a factor in determin-
ing whether material is patently offensive, but it does
not render such material per se not indecent."60 Fur-
56 See Omnibus Order, 21 FCC Rcd at 2702 158 ("the touching of
the breasts is not portrayed in a sexualized manner, and does not ap-
pear to elicit any sexual response from Grace.").
57 See ABC Response at 27; ABC Affiliates Response at 51-52.
58 See ABC Affiliates Response at 52.
59 See ABC Response at 26-27.
60 Action for Children's Television v. FCC, 852 F.2d 1332, 1340 (D.C.
Cir. 1988) ("ACT I")

148a
ther, we agree with ABC that the parental advisory and
rating at the beginning of the program is relevant and
weighs against a finding of indecency.61 As discussed
above, however, we must weigh these factors along with
the three principal factors above to ultimately determine
whether the disputed material is patently offensive and
therefore indecent. In context and on balance, we con-
clude that the graphic, repeated, pandering, titillating,
and shocking nature of the scene's visual depiction of a
woman's naked buttocks warrant a finding that it is pa-
tently offensive under contemporary community stan-
dards for the broadcast medium, notwithstanding any
artistic or social merit and the presence of a parental
advisory and rating. Therefore, it is actionably inde-
cent.
61 As ABC points out, the Commission made clear in dismissing inde-
cency complaints against broadcasts of Schindler's List and Saving
Private Ryan that a prominent broadcast parental advisory, while not
necessarily precluding an indecency finding, should be considered in
assessing the degree to which the broadcaster is acting in a responsible
manner and the degree to which the public may be surprised and of-
fended by unexpected material. See ABC Response at 34-35 (citing 20
FCC Rcd at 4513 15-16, 15 FCC Rcd at 1840 6, 1842 13); ABC Af-
filiates Response at 61-62.

149a

B. Procedural Arguments

19. ABC and the ABC Affiliates raise several proce-
dural objections to the NAL, including attacks on the
sufficiency of the complaints underlying the Commis-
sion's action and arguments that the parties have been
denied their due process rights by the Commission be-
cause of an alleged delay in providing the complaints to
them and the alleged truncated period afforded them to
respond to the NAL. We address these arguments in
turn.
1. Sufficiency of Complaints
20. ABC and the ABC Affiliates contend that the
complaints underlying the NAL did not meet the re-
quirements of the Commission's indecency enforcement
policy and should have been summarily dismissed.62
62 See ABC Response at 10-14 (citing Complaints Regarding Various
Television Broadcasts Between February 2, 2002 and March 8, 2005,
Order, 21 FCC Rcd 13299 (2006) ("Omnibus Remand Order")); ABC
Affiliates Response at 21-34 (citing Omnibus Order, 21 FCC Rcd at
2673 32, 2676 42, 2687 86; Complaints Regarding Various Tele-
vision Broadcasts Between February 2, 2002 and March 8, 2005, Order,
21 FCC Rcd 13299, 13328-329 74-77 (2006) ("Omnibus Remand Or-
der")). In addition, Channel 12 of Beaumont, Inc. (Beaumont), which
joined in the ABC Affiliates Response, filed a supplement directed to
matters pertinent to Station KBMT(TV). See Beaumont Response.

150a
Specifically, both ABC and the ABC Affiliates argue
that the Commission failed to make an initial determina-
tion as to the sufficiency of each complaint in this case,
as required by the Omnibus Remand Order. According
to ABC and the ABC Affiliates, with one exception, the
subject complaints in this case were identical "form"
complaints generated by a single advocacy group. Fur-
thermore, they claim there is no evidence that any of the
complainants actually viewed the subject episode of
NYPD Blue on the stations cited in the NAL or on any
station.63 For these reasons, ABC and the ABC affili-
ates argue that the complaints are not bona fide, action-
able complaints and should have been dismissed for lack
of sufficiency. Accordingly, they contend that the Com-
mission should rescind the NAL.64
21. The arguments advanced by ABC and ABC Affil-
iates regarding the sufficiency of the complaints are
without merit because they are based upon a flawed un-
derstanding of our indecency enforcement policy.65 As
the Commission clarified in the Omnibus Remand Or-
63 See ABC Response at 10-14; ABC Affiliates Response at 23-29;
Beaumont Response at 4.
64 See ABC Response at 10-14; ABC Affiliates Response at 21-34;
Beaumont Response at 6.
65 See Super Bowl Order on Reconsideration, 21 FCC Rcd at 6665
30.

151a
der, it is sufficient that viewers in markets served by
each of the ABC Stations filed complaints identifying
the allegedly indecent episode of NYPD Blue at issue.66
Moreover, and contrary to the arguments of ABC and
the ABC Affiliates, there is no requirement that a com-
plaint include a statement that the complainant viewed
the material alleged to be indecent. The Commission
has considered and rejected similar arguments.67
22. Each of the initial e-mail complaints received by
the Commission specifically identified the February 25,
2003 episode of NYPD Blue, each stated that the mate-
rial was aired on stations affiliated with the ABC Net-
work, and each provided a significant excerpt of the al-
legedly indecent material.68 Although the complainants
66 See Omnibus Remand Order, 21 FCC Rcd at 13323 57, n.180,
13328-329 75.
67 See Omnibus Remand Order, 21 FCC Rcd at 13323 57, n.180
68 We reject the ABC Affiliates' argument that the complaints singu-
larly concern the exposure of a child actor to adult female nudity on the
set of NYPD Blue during production of the episode and cannot be read
to raise a broadcast indecency issue. See ABC Affiliates Response at
24. There is no reasonable basis for this extremely narrow construction
of the complaints. Indeed, many of the complaints specifically stated,
"it is shameless that this kind of broadcast is going unchallenged by the
FCC." We note, in this regard, that the Commission does not require
that indecency complaints be "letter perfect," or provide an exact des-
cription of the allegedly indecent material. See, e.g., Indecency Policy
Statement, 16 FCC Rcd at 8015 24 & n.20 citing Citicasters Co.,

152a
initially did not provide call letters of a specific ABC
affiliate or other information identifying the market in
which the complainant resided, Commission staff re-
quested further information on these points in follow-up
e-mails to the complainants. Specifically, the staff re-
quested information about the television station over
which the complainant saw the subject program,69 in-
cluding, if available, the station's call letters or "the city
and town in which the station you watched is located."70
The staff received numerous responses to the follow-up
e-mails identifying the ABC Stations referenced in the
NAL.71 The follow-up emails permitted the staff to en-
sure that there was a complainant in the market of each
of the ABC Stations against which a forfeiture is im-
Licensee of Station KSJO(FM), San Jose, California, Notice of Ap-
parent Liability, 15 FCC Rcd 19095 (Enf. Bur. 2000) (forfeiture paid).
Once the Commission receives a valid complaint, it reviews the program
material to determine whether it is indecent.
69 See e-mail from William H. Davenport, Chief, Investigations and
Hearings Division, Enforcement Bureau, Federal Communications
Commission dated December 29, 2005.
70 Id.
71 Contrary to the ABC Affiliates' suggestion, there is no requirement
that the complainant include a physical address matching the affiliate's
television market. See ABC Affiliates Response at 23.

153a
posed herein, consistent with the Commission's enforce-
ment policy.72
23. Consequently, this complaint proceeding does
not present the same issues as did the complaints
against KMBC-TV discussed in the Omnibus Order Re-
mand and which both ABC and the ABC Affiliates cite
in their responses.73 In that case, there were no com-
plaints filed by anyone residing in the market served by
KMBC-TV. Instead, the complaints were filed by a com-
plainant residing outside the KMBC-TV market and
there was nothing in the record to tie the complaints to
KMBC-TV's local viewing area.74 With respect to sta-
tions at issue in this Order, we have affirmative state-
72 See Indecency Policy Statement, 16 FCC Rcd at 8015, 24 (requi-
rements generally for consideration of an indecency complaint). There
is no merit in the contention that it was improper for the staff to seek
additional clarifying information from the complainants. The staff ex-
ercises its reasonable discretion in determining whether a particular
complaint warrants further inquiry or should be dismissed as insuffi-
cient. The decision here to seek further identifying information was
well within that discretion. In any event, even if the initial complaints
had been dismissed, our ordinary practice would have afforded the com-
plainants the option to refile their complaints with additional infor-
mation.
73 See ABC Response at 10-11; ABC Affiliates Response at 28-29;
Beaumont Response at 4.
74 See Omnibus Remand Order, 21 FCC Rcd at 13328-329 75.

154a
ments from the complainants tying the complaints to a
particular ABC station or affiliated station.75
24. Moreover, we find no merit in the argument by
ABC and the ABC Affiliates that complaints which were
not filed contemporaneously with the airing of the Feb-
ruary 25, 2003, episode of NYPD Blue should be dis-
missed.76 The Commission does not require complain-
ants to file indecency complaints within a specified time
frame.77 Under these circumstances, we find that the
NAL was consistent with our commitment to an appro-
priately restrained enforcement policy and recent Com-
mission practice to limit the imposition of forfeiture pen-
alties to licensees whose stations serve markets from
which specific complaints are received.78
75 We do note, however, that we must exclude as insufficient under
the enforcement policy set forth in the Omnibus Order the complaints
against 5 stations from the NAL--specifically, WBRZ-TV, Baton
Rouge, LA; WXOW-TV, LaCrosse, WI; KMBC-TV, Kansas City, MO,
KHOG-TV, Fayetteville, AR, and WDAY-TV, Fargo, ND.
76 See ABC Response at 12-13; ABC Affiliates Response at 23-24;
Beaumont Response at 4-6.
77 See Indecency Policy Statement, 16 FCC Rcd at 8015, 24.
78 The ABC Affiliates argue that the Commission's production of the
complaints, pursuant to numerous FOIA and informal requests, com-
pounded the alleged injury to their due process rights and more specif-
ically, that the Commission never provided copies of complaints re-
specting eight of the stations cited in the NAL. See ABC Affiliates

155a
Response at 14-17, 22-23. Two of these stations, KTKA-TV and KFBB-
TV, are no longer subject to forfeitures for reasons discussed elsewhere
in this Order, and thus the argument as to them is moot. As to the re-
maining six stations, the Commission responded on an expedited basis
to all requests for complaints concerning stations named in the NAL
where the requesting party represented the station(s) whose com-
plaints it sought. Our records reflect that the only party requesting the
complaints for these six stations did not indicate that it represented
these stations and the complaints were not, therefore, provided on an
expedited basis. The complaints have now been provided, but any pre-
judice alleged to have resulted from the timing of their production must
be attributed to the stations' failure to timely request them.
In addition, the ABC Affiliates point out that certain discrepancies
among the responses to their FOIA requests for the underlying com-
plaints--mainly, the format of the information provided--raised ques-
tions as to whether they had received copies of the genuine complaints.
See ABC Affiliates Response at 22-23. We have since corrected any
such deficiencies, to the extent they existed. We note, in this regard,
that the parties have not established that they suffered any actual harm
as a result of these discrepancies and that they were able to and did rely
on the complaints in responding to the NAL. Moreover, in responding
to the parties' requests for the underlying complaints, we explained
that the copies we first produced were Access database versions of the
complaints rather than the original Outlook e-mail versions. See E-mail
from Ben Bartolome to Mark Prak, Wade Hargrove, and David Kush-
ner, sent Monday, February 4, 2008, at 8:02 p.m. (attaching copies of
complaints in Access Version) (copy of E-mail available in FCC record).
The next day, we located and produced the original Outlook versions.
See E-mail from Ben Bartolome to Mark Prak, Wade Hargrove, and
David Kushner, sent Tuesday, February 5, 2008, at 4:54 p.m. (attaching
copies of same complaints, but in Outlook version) (copy of E-mail avail-

156a
2. Notice and Length of Time to Respond to NAL
25. The ABC Affiliates contend that the length of
time between when the episode aired and the NAL was
issued, combined with the "unusually shortened" period
of time they had for responding to the NAL, effectively
deprived them of their administrative due process
rights.79 Beaumont, in a separate response, makes simi-
lar arguments.80 More specifically, the ABC Affiliates
claim that they did not know until the NAL was issued
that there were pending complaints against the ABC
affiliate stations concerning its broadcast of the subject
NYPD Blue episode.81 The ABC Affiliates note that al-
though the Commission issued a letter of inquiry to
ABC, Inc., concerning the indecency complaints the
Commission had received,82 the affiliates did not directly
receive similar notice from the Commission and, there-
fore, did not have as much time as the ABC owned-and-
operated stations to conduct a contemporaneous investi-
able in FCC record). There is no question that the complaints we pro-
vided were "genuine."
79 See ABC Affiliates Response at 9-21.
80 See Beaumont Response at 5-6.
81 See ABC Affiliates Response at 11-13.
82 See Letter from William D. Freedman, Deputy Chief, Investiga-
tions & Hearings Division, Enforcement Bureau, FCC to Susan L. Fox,
Esq., ABC Inc., dated February 3, 2004 ("Letter of Inquiry").

157a
gation of the facts. As such, they assert that pertinent
records may be non-existent or hard to locate, and
knowledgeable witnesses may no longer readily be avail-
able.83 Moreover, they argue that once the NAL was is-
sued, they were afforded only 17 days, rather than the
usual 30 days, in which to respond and that this short-
ened period further prejudiced their rights.84
26. We find no merit in ABC Affiliates' and Beau-
mont's due process arguments. Both parties fail to dem-
onstrate that the Commission's process somehow im-
peded their ability to fully exercise their due process
rights. The arguments advanced by the parties with
respect to insufficient notice suggest a misunderstand-
ing of the nature of the Commission's forfeiture process.
Pursuant to section 1.80 of the Commission's rules, be-
fore imposing a forfeiture penalty, the Commission must
provide each licensee with a written notice of apparent
liability which includes an explanation of the nature of
the misconduct, the rule section that the Commission
believes was violated, and the proposed forfeiture
amount. The NAL in this instance provided such re-
quired notice. There is no requirement that the Com-
83 See ABC Affiliates Response at 12.
84 We note that potential statute of limitations concerns under
28 U.S.C. 2462 warranted the Commission's action in providing
Respondents a shorter time period than usual to respond to the NAL.

158a
mission direct a letter of inquiry to a licensee as part of
an investigation of alleged indecent programming aired
by a broadcast station before issuing an NAL. More-
over, section 1.80 of the Commission's rules specifies
that each licensee to which such notice is provided may
file a written response demonstrating why a forfeiture
penalty should not be imposed or should be reduced. By
their responses to the NAL and various FOIA filings to
obtain copies of complaints, the ABC Affiliates and other
parties availed themselves of the opportunity to respond
the Commission's concerns, belying their claims to the
contrary.
27. Furthermore, as a practical matter we are not
persuaded that the ABC Affiliates suffered any harm
from the shortened NAL response period or the time
period between the broadcast and the NAL under the
circumstances involved here. The principal record in-
volved here is the tape of the episode, which the ABC
Affiliates do not maintain was difficult to obtain. In ad-
dition, while they argue that individual stations may
have had difficulty determining whether they aired the
episode within the "safe harbor," ABC provided that
information to the Commission in 2004.85 The parties'
timely filings also contradict any potential claim that
they have suffered actual harm and/or that the NAL
85 See supra, 2.

159a
response time was so inadequate as to jeopardize their
due process rights. The ABC Affiliates claim that "per-
tinent records of the broadcast may be non-existent or
difficult to locate, and knowledgeable witnesses may no
longer be readily available." They do not argue that
such records or witnesses were, in fact, impossible to
locate or that any particular material relevant to their
case could not be found. At best, the parties argue in-
convenience, which, even if true, they clearly surmount-
ed, considering the number, coordinated nature, and
overall comprehensiveness of their filings.
28. Section 1.80 provides that the "[r]espondent will
be afforded a reasonable period of time (usually 30 days
from the date of the notice) to show, in writing, why a
forfeiture penalty should not be imposed or should be
reduced, or to pay the forfeiture."86 The Commission's
rules do not state that the reasonable period of time will
always be 30 days. A 30-day response period is not
mandated. The rule only requires that the response
period be reasonable, and the parties have not submitted
evidence of actual harm or presented any persuasive
arguments to convince the Commission that the 17 days
afforded for a response in this case was not reasonable.
Indeed, the evidence before us demonstrates that the
ABC Affiliates were able to substantively respond to the
86 See 47 C.F.R. 1.80(f)(3) (emphasis added).

160a
NAL and to fully incorporate in that response relevant
materials, including the underlying complaints in this
proceeding. Legal counsel from 20 law firms and/or
companies coordinated and responded to the NAL in
one, consolidated, 70-page brief, with exhibits, on behalf
of the majority of ABC affiliated stations. Accordingly,
we conclude that the period provided for the licensees'
response was reasonable and that they were neither
deprived of the required notice nor an opportunity to be
heard.
29. The ABC Affiliates also complain that the quality
of the notice received through the NAL does not meet
the standards set forth in Section 1.80(f)(1)(ii) because
it allegedly fails to "[s]et forth the nature of the act or
omission charged against the respondent and the facts
upon which such charge is based."87 We find this argu-
ment wholly unpersuasive. The NAL set forth the epi-
sode, air date and time, and a sufficient description of
the content and how it violated the Commission's inde-
cency rules.88 There is no requirement, as the ABC Af-
filiates suggest, that the Commission provide the under-
lying complaint itself as part of the notice. Accordingly,
we reject this argument.
87 See ABC Affiliates Response at 21; 47 C.F.R. 1.80(f)(1)(ii).
88 See NAL at 9-19.

161a
30. Finally, the ABC Affiliates' argument that their
due process rights have been denied because they did
not have the benefit of producing evidence in the context
of an administrative hearing proceeding is misplaced.89
As the Commission has previously stated:
It is, of course, true that the complainant's statement
is "untested," in that no evidentiary hearing has been
held. However, the Communications Act of 1934, as
amended ("Act") permits the imposition of a forfei-
ture without an evidentiary hearing. The Act also
protects the rights of parties subject to a forfeiture
assessed without a hearing by providing that such a
forfeiture cannot be used to the prejudice of the
party unless it is paid or a court of competent juris-
diction has issued a final order after a trial de novo
requiring that the forfeiture be paid.90
Accordingly, given the foregoing, we deny the ABC Affil-
iates' and Beaumont's argument that the NAL should be
rescinded based on any due process or insufficient notice
grounds.
89 See ABC Affiliates Response at 10.
90 See Infinity Broadcasting Corporation of Los Angeles, Memoran-
dum Opinion and Order, 16 FCC Rcd 6867, 6869 8 nn.2-3 (Enf. Bur.
2001), affirmed, Memorandum Opinion and Order, 17 FCC Rcd 9892
(2002).

162a

C. Other Arguments

1. Broadcast Satellite Station
31. Gray Television Licensee, Inc. ("Gray"), argues
that the Commission should dismiss the case as to its
satellite station, KLBY(TV), Colby, KS, and remove it
from liability for the forfeiture assessed in the NAL.91
Gray explains that KLBY is a satellite station of Gray's
full-power station, KAKE-TV, Wichita, KS, which is al-
ready subject to the NAL.92 As such, Gray asserts that
KLBY(TV) "offers little more than an extension of the
signal of its parent station, and makes virtually no inde-
pendent programming judgments about the program-
ming it broadcasts."93 Further, it states that it broad-
casts less than one half hour a week of programming
that differs from the full power station.94 Gray contends
that the Commission's treatment of KLBY here is incon-
sistent with its differential treatment of satellite sta-
tions in other arenas, such as their exemption from tele-
91 See Motion to Dismiss, filed by Gray Television Licensee, Inc.,
Licensee of Stations KAKE-TV, Wichita, Kansas and KLBY(TV), Col-
by, Kansas, on February 11, 2008 ("Gray Response").
92 See id. at 2.
93 See id.
94 See id.

163a
vision broadcast ownership restrictions.95 Gray claims
that subjecting it to forfeitures for both KAKE-TV and
KLBY airing the same content would effectively make
it more expensive to own satellite stations, which con-
trasts with the Commission's treatment in other con-
texts making it less burdensome to own satellite sta-
tions.96 In making these arguments, Gray relies on pre-
cedent concerning ownership restrictions, the burdens
an applicant must satisfy to own a satellite station, and
limits on independent programming a satellite station
may offer.97
32. Notably, however, Gray does not cite indecency
enforcement rules or policy to support its theory. While
the Commission might have eased certain burdens on
those seeking to own satellite stations, it has not made
the pronouncement that Gray suggests, in effect, that
the Commission should not apply the same indecency
95 See id. at 1-2 (citing Television Satellite Stations Review of Policy
& Rules, Second Further Notice of Proposed Rulemaking, 6 FCC Rcd
5010 3 (1991); Review of the Commission's Regulations Governing
Television Broadcasting, Report and Order, 14 FCC Rcd 12903, 12943
90 (1999); 2002 Biennial Regulatory Review, Report and Order and
Notice of Proposed Rulemaking, 18 FCC Rcd 13620, 13710 233 (2003);
Television Satellite Stations: Review of Policy & Rules, Report and
Order, 6 FCC Rcd 4212, 4215-16 23-25 (1991)).
96 See id. at 2.
97 See supra, note 94.

164a
rules to satellite stations as it does to full-service sta-
tions. Nor has the Commission concurred in Gray's im-
plicit contention that when a satellite station's parent
station is subject to forfeiture for the airing indecent
programming, the satellite station should not be fined
for carrying the same material.98
33. The Commission first authorized TV satellite
operations in small or sparsely populated areas with
insufficient economic bases to support full-service opera-
tions. As such, Gray is correct that KLBY offers "a
98 We note, in fact, that the Commission has previously imposed a for-
feiture on a satellite station for violation of the indecency rules and has
done so while concurrently imposing a forfeiture on the satellite sta-
tion's parent station for airing the same programming. See, e.g., Super
Bowl NAL, 19 FCC Rcd at 19235 13 (finding satellite stations KCCO-
TV and KCCW-TV and their parent station, WCCO-TV, apparently
liable for forfeiture for their broadcast of the Super Bowl XXXVIII
Halftime Show), affirmed, Forfeiture Order, 21 FCC Rcd 2760 (2006),
affirmed, Order on Reconsideration, 21 FCC Rcd 6653 (2006), pet. for
review pending on different grounds, CBS Corp. v. FCC, No. 06-3575
(3d Cir. Filed July 28, 2006).
On a related topic, we note that the Commission has specifically stat-
ed that it will apply indecency rules to the low power broadcast service.
See An Inquiry into the Future Role of Low Power Television Broad-
casting and Television Translators in the National Telecommunica-
tions System, 51 Rad. Reg. 2nd 476 105 (1982) (noting that the statu-
tory prohibitions against broadcast of obscene material apply to the low
power service).

165a
unique and irreplaceable service."99 That does not mean,
however, that KLBY is effectively exempt from the Com-
mission's indecency regulation. In fact, the Commission
abolished the limit on the amount of original local pro-
gramming that a satellite station may originate.100 This
elimination cuts against Gray's argument because it
chooses for its satellite station to carry most of the same
programming aired by its full-service parent station
rather than originate different programming. In any
event, there is no reason why the viewers of a satellite
station should not expect it to abide by the same content
restrictions as a full-service station. Accordingly, Gray
is no less responsible for the programming of its satel-
lite station than for its full-service station. Therefore,
we reject Gray's arguments on these points.
2. Statute of Limitations
34. Northeast Kansas Broadcast Service and KFBB
Corporation correctly argue that the statute of limita-
tions for the Commission to assess a forfeiture precludes
it from assessing liability for KTKA-TV and KFBB-TV
due to an intervening renewal grant for each station
99 See Gray Response at 2.
100
See Television Satellite Stations: Review of Policy & Rules, Re-
port and Order, 6 FCC Rcd 4212, 4215 23 (1991) (eliminating 5% re-
striction on local programming by satellite television stations).

166a
between the episode in question and the issuance of the
NAL.101 The Commission accordingly cancels the NAL
insofar as it relates to these stations.

D. Constitutional Issues

35. Respondents argue that imposition of a forfei-
ture in this case would violate the First Amendment.
ABC contends that Commission's indecency standard is
unconstitutional on its face. In support, it asserts that
the justifications that existed for adopting the current
indecency standard are no longer valid; the current in-
decency standard is impermissibly vague; the availabil-
ity of new blocking technologies has rendered the cur-
rent indecency standard overbroad; and the indecency
standard is subjective in a way that violates the First
Amendment. The ABC Affiliates assert that the Su-
preme Court's decision in Pacifica bars the Commission
from regulating brief material; the Commission failed to
follow the context-driven approach required by the First
Amendment; a prohibition on all broadcast nudity is
101
See Response of Former Licensee, filed by Northeast Kansas
Broadcast Service, Inc., Former Licensee of Station KTKA-TV, Tope-
ka, Kansas, on February 6, 2008; Letter to Benigno E. Bartolome, Act-
ing Chief, Investigations and Hearings Division, Enforcement Bureau,
filed by The Wooster Printing Company, Parent of the Former Licen-
see of Station KFBB-TV, Great Falls, Montana, filed on February 5,
2008.

167a
overbroad; and the Commission must apply local, not
national, community standards of patent offensiveness.
For the reasons discussed below, we reject Respon-
dents' arguments.
36. Validity of Indecency Test. ABC argues that the
underpinnings of the Commission's current indecency
standard date back to the Supreme Court's decision in
Federal Communications Commission v. Pacifica
Foundation,102 and that the justifications upon which the
Court relied in its decision--the uniquely pervasive
presence of the broadcast medium and the unique acces-
sibility of broadcasting to children--are no longer via-
ble. In this regard, ABC argues that cable and satellite
transmissions now reach the majority of the nation's
television households and offer hundreds of channels as
well as the signals of broadcast stations.103
37. We disagree with ABC's claim that the justifica-
tions upon which the Supreme Court relied in Pacifica
are no longer valid and note that the D.C. Circuit has
rejected this precise argument: "Despite the increasing
availability of receiving television, such as cable . . .
there can be no doubt that the traditional broadcast me-
dia are properly subject to more regulation than is gen-
102
See 438 U.S. 726 (1978).
103
See ABC Response at 43 (citing Fox Television Stations, 489 F.3d
at 464-66).

168a
erally permissible under the First Amendment."104 Not-
withstanding ABC's arguments to the contrary, the
broadcast media continue to have a "uniquely pervasive
presence" in American life. The Supreme Court has
recognized that "[d]espite the growing importance of
cable television and alternative technologies, `broadcast-
ing is demonstrably a principal source of information
and entertainment for a great part of the Nation's popu-
lation."105 In 2003, 98.2% of households had at least one
television, and 99% had at least one radio.106 Although
the majority of households with television subscribe to
a cable or satellite service, millions of households con-
104
Action for Children's Television v. FCC, 58 F.3d 654, 660 (D.C.
Cir. 1995) (en banc) cert. denied, 516 U.S. 1043 (1996) ("ACT III "). See
also Prometheus Radio Project v. FCC, 373 F.3d 372, 401-02 (3d Cir.
2004) (rejecting argument that broadcast ownership regulations should
be subjected to higher level of scrutiny in light of rise of "non-broadcast
media").
105
Turner Broadcasting Sys., Inc. v. FCC, 520 U.S. 180, 190 (1997)
(quoting U.S. v. Southwestern Cable Co., 392 U.S. 157, 177 (1968)). See
id. at 194 (though broadcast television is "but one of many means for
communication, by tradition and use for decades now it has been an es-
sential part of the national discourse on subjects across the whole broad
spectrum of speech, thought, and expression.").
106
See U.S. Census Bureau, Statistical Abstract of the United States
737 (2006).

169a
tinue to rely exclusively on broadcast television,107 and
the National Association of Broadcasters estimates that
there are some 73 million broadcast-only television sets
in American households.108 Moreover, many of those
broadcast-only televisions are in children's bedrooms.109
Although the broadcast networks have experienced de-
clines in the number of viewers over the last several
years, the programming they offer remains by far the
most popular and is available to almost all households.110
107
Annual Assessment of the Status of Competition in the Market
for the Delivery of Video Programming, Twelfth Annual Report, 21
FCC Rcd 2503, 2506-07 8, 2508 15 (2006).
108
See id. at 2552 97. It also has been estimated that almost half
of direct broadcast satellite subscribers receive their broadcast chan-
nels over the air, Media Bureau Staff Report Concerning Over-the-Air
Broadcast Television Viewers, 2005 WL 473322, No. 04-210, 9 (MB
Feb. 28, 2005), and many subscribers to cable and satellite still rely on
broadcast for some of the televisions in their households. Annual As-
sessment, 21 FCC Rcd at 2508 15.
109
See Kaiser Family Foundation, Generation M: Media in the
Lives of 8-18 Year-olds 77 (2005). According to the Kaiser Family
Foundation report, 68 percent of children aged eight to 18 have a tele-
vision set in their bedrooms, and nearly half of those sets do not have
cable or satellite connections.
110
A large disparity in viewership still exists between broadcast and
cable television programs. For example, during the week of February
4, 2008, each of the top ten programs on broadcast television had more
than 12.5 million viewers, while only two programs on cable television
that week--both professional wrestling programs--managed to attract

170a
Indeed, elsewhere in its response, ABC trumpets the
fact that "NYPD Blue . . . enjoyed great popular suc-
cess on the ABC Television Network, averaging more
than 15 million viewers during its 12 years on the net-
work."111
38. The broadcast media are also "uniquely accessi-
ble to children." In this respect, broadcast television
differs from cable and satellite television. Parents who
subscribe to cable exercise some choice in their selection
of a package of channels, and they may avoid subscrib-
ing to some channels that present programming that, in
their judgment, is inappropriate for children. Indeed,
upon the request of a subscriber, cable providers are
required by statute to "fully block the audio and video
programming of each channel carrying such program-
ming so that one not a subscriber does not receive it."112
more than 5 million viewers. See Nielsen Media Research, "Trend
Index," available at http://www.nielsen.com/media/toptens_television.
html (visited Feb. 14, 2008). Indeed, that same week, 90 of the top 100-
rated programs appeared on broadcast channels, and the highest rated
cable program was number 71. See Television Bureau of Advertising,
"Top 100 Programs on Broadcast and Subscription TV: Households,"
available at http://www.tvb.org/nav/build_frameset.aspx (visited Feb.
14, 2008).
111
ABC Response at 4.
112
47 U.S.C. 560 (2000). See also United States v. Playboy Enter-
tainment Group, Inc., 529 U.S. 803 (2000).

171a
In contrast, as the D.C. Circuit has observed, "broadcast
audiences have no choice but to `subscribe' to the entire
output of traditional broadcasters."113 The V-chip pro-
vides parents with some ability to control their chil-
dren's access to broadcast programming, but it does not
eliminate the need for the Commission to vigorously
enforce its indecency rules. In particular, as explained
in further detail below, we note that numerous televi-
sions do not contain a V-chip, and most parents who
have a television set with a V-chip are unaware of its
existence or do not know how to use it.114 Accordingly,
there is no merit to ABC's claim that Pacifica--and
more importantly, our indecency rules--are invalid, ob-
solete or outdated.
39. Vagueness and Overbreadth. ABC argues that
the Commission's indecency standard is unconstitution-
ally vague, citing Reno v. ACLU.115 Reno addressed the
constitutionality of provisions of the Communications
Decency Act ("CDA") that sought to protect minors
from harmful material on the Internet. The Court de-
termined that the CDA's indecency standard was imper-
missibly vague because it failed to define key terms,
thereby provoking uncertainty among speakers and pre-
113
ACT III, 58 F.3d at 660.
114
See infra, 47.
115
See ABC Response at 40-41 (citing 521 U.S. 844 (1997)).

172a
venting them from discerning what speech would violate
the statute.116 ABC asserts that, because the CDA defi-
nition of indecency was determined by the Court to be
fatally imprecise, and the Commission's definition of
indecency is similar to the CDA definition, it follows that
the Commission's definition is similarly flawed.117
40. We reject ABC's arguments that the Commis-
sion's indecency standard is vague. That standard is
essentially the same as the one used in the order that
was reviewed in Pacifica,118 and the Supreme Court had
no difficulty applying that definition and using it to con-
clude that the broadcast at issue in that case was inde-
cent. We therefore agree with the D.C. Circuit that "im-
plicit in Pacifica" is an acceptance of the FCC's generic
definition of `indecent' as capable of surviving a vague-
ness challenge."119
116
Id. at 871.
117
ABC Response at 40.
118
See 438 U.S. at 732.
119
See ACT I, 852 F.2d at 1339; accord ACT III, 58 F.3d at 659.
ABC also contends that "imposition of forfeitures in this case would be
. . . inconsistent with the Commission's past treatment of similar
broadcasts and similar material," thus rendering the Commission's in-
decency enforcement unconstitutionally vague. ABC Response at 39-
40. As we explain above, see supra 13 - 18, there is no inconsistency,
so this argument necessarily fails.

173a
41. We also believe that ABC's reliance on Reno is
without merit. The Court in Reno expressly distin-
guished Pacifica, giving three different reasons for do-
ing so.120 Thus, far from casting doubt on Pacifica's
vagueness holding, Reno recognizes its continuing vital-
ity.
42. We also reject ABC's claim that the "contempo-
rary community standards for the broadcast medium"
criterion is impermissibly subjective.121 The "contempo-
rary community standards for the broadcast medium"
criterion--which was upheld by the Supreme Court in
Pacifica--is that of an average broadcast listener or
viewer.122 Our approach to discerning community stan-
dards parallels that used in obscenity cases, where the
120
See Reno v. ACLU, 521 U.S. 844, 867 (1997). First, the Court not-
ed that the Commission is "an agency that [has] been regulating radio
stations for decades," and that the Commission's regulations simply
"designate when--rather than whether--it would be permissible" to air
indecent material." Id. The CDA, in contrast, was not administered
by an expert agency, and it contained "broad categorical prohibitions"
that were "not limited to particular times." Id. Second, the CDA was
a criminal statute, whereas the Commission has no power to impose
criminal sanctions for indecent broadcasts. See id. at 867, 872. Third,
unlike the Internet, the broadcast medium has traditionally "received
the most limited First Amendment protection." Id. at 867.
121
See ABC Response at 41-42.
122
See Indecency Policy Statement, 16 FCC Rcd at 8002, 8 and
n.15.

174a
jury is instructed to rely on its own knowledge of com-
munity standards in determining whether material is
patently offensive.123 Here, however, the Commission
has the added advantage of being an expert agency, and
as we have explained before, "[w]e rely on our collective
experience and knowledge, developed through constant
interaction with lawmakers, courts, broadcasters, public
interest groups and ordinary citizens, to keep abreast of
contemporary community standards for the broadcast
medium."124 In applying this standard, the Commission
does not apply its own "personal sensibilities,"125 but at
the same time it is settled that "merit is properly treat-
ed as a factor in determining whether material is pa-
tently offensive."126
43. The ABC Affiliates contend that the Commis-
sion's application of community standards "is unconsti-
tutionally overbroad because it constitutes a national
standard to determine whether broadcast material is
patently offensive, rather than local community stan-
123
See Smith v. United States, 431 U.S. 291, 305 (1977).
124
See Infinity Radio License, Inc., Memorandum Opinion and
Order, 19 FCC Rcd 5022, 5026 12, recon. denied, 19 FCC Rcd 16959
(2004).
125
See ABC Response at 42.
126
See ACT I, 852 F.2d at 1340.

175a
dards."127 Instead, the ABC Affiliates contend that the
Commission must "examine[ ] the mores of the more
than four dozen various geographic communities in
which the NYPD Blue episode was viewed and for which
the ABC Affiliates are being cited."128
44. This argument is unavailing. Our longstanding
indecency test focuses on whether material is patently
offensive as measured by contemporary community
standards for the "broadcast medium" generally, rather
than those of any particular community. That is the
standard the Supreme Court affirmed in Pacifica, with-
out any suggestion that the Commission erred by not
determining whether broadcast of the Carlin monologue
was patently offensive according to the community stan-
dards of New York, the only community in which there
was a complaint about its broadcast.129 If application of
a national standard was appropriate in Pacifica, it clear-
ly was in this case, which involves a national broadcast
and complaints arising from many parts of the country.
45. For their contrary position, the ABC Affiliates
rely principally on criminal obscenity prosecutions,
which present distinct concerns not applicable to this
non-criminal proceeding involving indecency, not ob-
127
See ABC Affiliates' Response at 69.
128
See ABC Affiliates' Response at 69.
129
See Pacifica, 438 U.S. at 729, 732.

176a
scenity.130 Even in the context of obscenity, however,
the Supreme Court has said only that the First Amend-
ment does not require juries to apply nationwide com-
munity standards. States therefore have the option of
defining obscenity based on more localized community
standards, but nothing in the Supreme Court's obscenity
case law requires them to do so.131 Indeed, a national
standard actually facilitates national broadcasting, since
it provides more certainty and avoids the necessity of
tailoring national programming station-by-station based
on the potentially disparate community standards of a
nationwide television audience.132
46. ABC also asserts that television viewers today
are able to effectively prevent reception of any program-
130
See Pacifica, 438 U.S. at 739 n.13 ("the validity of the civil sanc-
tions [for violation of 18 U.S.C. 1464] is not linked to the validity of the
criminal penalty.").
131
See Jenkins v. Georgia, 418 U.S. 153, 157 (1974) ("Miller ap-
proved the use of such instructions [requiring application of state-spe-
cific community standards]; it did not mandate their use."); see also
Ashcroft v. ACLU, 535 U.S. 564, 587-89 (2002) (O'Connor, J., concurring
in part and concurring in the judgment) (a national community standard
for evaluating possible indecency on the Internet would be "not only
constitutionally permissible, but also reasonable").
132
See Ashcroft, 535 U.S. at 591 (Breyer, J., concurring in part and
concurring in the judgment) (First Amendment militates in favor of
national, as opposed to local, community standards in evaluating pos-
sible indecency on the Internet).

177a
ming that they consider unsuitable for children through
the use of voluntary ratings of programs by the enter-
tainment industry and so-called "V-Chip" technology.133
The existence of a less intrusive solution, according to
ABC, thus renders the Commission's regulatory scheme
unconstitutionally overbroad.134 Likewise, the ABC Af-
filiates state that the "V-chip is not itself dispositive of
the legal issue in this case" but nonetheless claim that
its availability creates "constitutional ramifications" mil-
itating against a finding of indecency here.135
47. We reject these arguments. While we agree that
the V-chip provides some assistance in protecting chil-
dren from indecent material, it does not eliminate the
need for the Commission to enforce its indecency rules.
Numerous televisions do not contain a V-chip, and most
parents who have a television set with a V-chip are un-
aware of its existence or do not know how to use it.136 In
133
See ABC Response at 43-45.
134
See id. at 44.
135
ABC Affiliates Response at 65-66.
136
See Super Bowl Order on Reconsideration, 21 FCC Rcd at 6667
37. According to a 2003 study, parents' low level of V-chip use is ex-
plained in part by parents' ignorance of the device and the "multi-step
and often confusing process" necessary to use it. Annenberg Public
Policy Center, Parents' Use of the V-Chip to Supervise Children's Tele-
vision Use 3 (2003). Only 27 percent of mothers in the study group
could figure out how to program the V-Chip, and "many mothers who

178a
addition, we note that some categories of programming,
including news and sports, are not rated and, therefore,
are not subject to blocking by V-chip technology.137 Fi-
nally, numerous studies have raised serious questions
about the accuracy of the television ratings on which the
effectiveness of a V-chip depends.138 In this case, for
example, the V-chip would have failed a parent attempt-
ing to shield her children from exposure to nudity by
filtering out all programs with an "S" content descriptor
might otherwise have used the V-Chip were frustrated by an inability
to get it to work properly." Id. at 4.
137
See Implementation of Section 551 of the Telecommunications
Act of 1996, Report and Order, 13 FCC Rcd 8232, 8242-43, 21 (1998).
138
See, e.g., Barbara K. Kaye & Barry S. Sapolsky, Offensive Lan-
guage in Prime-Time Television: Four Years After Television Age and
Content Ratings, 48 Journal of Broadcasting & Electronic Media 554,
563-64 (2004) (finding that there was more coarse language broadcast
during TV-PG programs than those rated TV-14, just the opposite of
what these age-based ratings would lead a viewer to believe); Henry J.
Kaiser Family Foundation, Parents, Media and Public Policy: A Kai-
ser Family Foundation Survey 5 (2004) (nearly 4 in 10 parents of chil-
dren aged 2-17 stated that most television programs are not rated ac-
curately); David A. Walsh & Douglas A. Gentile, A Validity Test of
Movie, Television, and Video-Game Ratings, 107 Pediatrics 1302, 1306
(2001) (study finding that parents concluded that half of television
shows the industry had rated as appropriate for teenagers were in fact
inappropriate, "a signal that the ratings are misleading.").

179a
(for "sexual situations") since ABC did not include such
a descriptor for this program.139
48. The ABC Affiliates also argue that a finding of
indecency in this case is unconstitutionally overbroad
because it amounts to proscription of "all non-sexual
nudity on television."140 This argument is based on a
false premise. As discussed above, our finding that the
broadcast included a depiction of sexual or excretory or-
gans--namely a woman's buttocks--was necessary, but
not sufficient, to find the broadcast indecent.141 We find
the nudity here indecent because it was patently offen-
sive when considered in light of contemporary commu-
nity standards for the broadcast medium. In particular,
we find that, in context, the material was shocking, pan-
dering, and titillating.142 This case therefore does not
present the question whether a prohibition on broadcast
of all "non-sexual nudity" would be constitutionally over-
broad.
49. Conflict with Pacifica. The ABC Affiliates also
argue that the "Pacifica decision makes it clear that the
fleeting nature of the nudity depicted here . . . may
139
See ABC Response at 6.
140
ABC Affiliates Response at 67.
141
See supra 7 .
142
See supra 16.

180a
not be proscribed."143 We reject this contention. As an
initial matter, the ABC Affiliates are wrong factually:
the nudity included in this broadcast was not fleeting.144
Even if it were, however, Pacifica would pose no barrier
to a finding of indecency. First, Pacifica involved spo-
ken expletives, not images of nudity. Even if it were
true that the Court in Pacifica had drawn the First
Amendment line at the twelve minutes it took Carlin to
complete his monologue, there is no reason to believe it
would require the same amount of repetition in a case of
nudity.145 In any event, contrary to the ABC Affiliates'
contention, Pacifica did not decide that regulation of
brief expletives would be unconstitutional but instead
expressly reserved the question.146
50. The ABC Affiliates also contend that a forfeiture
here would conflict with Pacifica's recognition that
"`context is all-important'"147 because of "the fact that
the depiction of bare buttocks occurred in a gritty, real-
143
ABC Affiliates Response at 63.
144
See supra 15.
145
Cf. United States v. Martin, 746 F.2d 964, 971-72 (3d Cir. 1984)
("The hackneyed expression, `one picture is worth a thousand words'
fails to convey adequately the comparison between the impact of the
televised portrayal of actual events upon the viewer of the videotape
and that of the spoken or written word upon the listener or reader.")
146
See 438 U.S. at 750.
147
ABC Affiliates Response at 64 (quoting Pacifica, 438 U.S. at 750).

181a
istic police drama unlikely to attract an audience of chil-
dren, even at 9:00 p.m."148 Contrary to the ABC Affili-
ates' contention, our finding of indecency takes full ac-
count of context and reflects careful application of three
contextual factors we apply in all our indecency cases.149
Moreover, it is settled that the Commission is permitted
to regulate indecency between the hours of 6 a.m. and 10
p.m.--the time of day when children are most likely to
be in the audience--and is not required to determine on
a broadcast-by-broadcast basis whether children were
watching.150 The licensees could have, but did not,
broadcast this episode of NYPD Blue after 10 p.m.--as
their counterparts in the Eastern and Pacific time zones
did--and not run afoul of the Commission's indecency
regulations.
148
ABC Affiliates Response at 64-65.
149
See supra 12 - 18.
150
See ACT III, 58 F.3d at 665-66. As the D.C. Circuit explained,
ratings data likely under-estimate the number of children in the audi-
ence for indecent programming because "[c]hildren will not likely re-
cord, in a Nielsen diary or other survey, that they listen to or view pro-
grams of which their parents disapprove." Id. at 665. In addition, the
court noted that "changes in the program menu make yesterday's find-
ings irrelevant today" and "such station-and program-specific data do
not take `children's grazing' into account." Id. at 665-66.

182a

IV. CONCLUSION

51. Section 503(b) of the Act, 47 U.S.C. 503(b), and
section 1.80(a) of the Commission's rules, 47 C.F.R
1.80, both state that any person who willfully or re-
peatedly fails to comply with the provisions of the Act or
the rules shall be liable for a forfeiture penalty. For
purposes of section 503(b) of the Act, the term "willful"
means that the violator knew it was taking the action in
question, irrespective of any intent to violate the Com-
mission's rules.151 Based on our determination that the
stations in question willfully broadcast this episode of
NYPD Blue and the material before us, we find that the
ABC stations willfully violated 18 U.S.C. 1464 and sec-
tion 73.3999 of the Commission's rules, by airing inde-
cent programming during the NYPD Blue program on
February 25, 2003.
52. The Commission's Forfeiture Policy Statement
sets a base forfeiture amount of $7,000 for the transmis-
sion of indecent or obscene materials.152 The Forfeiture
151
See Southern California Broadcasting Co., 6 FCC Rcd 4387, 4388
(1991).
152
See The Commission's Forfeiture Policy Statement and Amend-
ment of Section 1.80 of the Rules to Incorporate the Forfeiture Guide-
lines, Memorandum Opinion and Order, 12 FCC Rcd 17087, 17113
(1997), recons. denied 15 FCC Rcd 303 (1999) ("Forfeiture Policy
Statement"); 47 C.F.R. 1.80(b).

183a
Policy Statement also specifies that the Commission
shall adjust a forfeiture based upon consideration of the
factors enumerated in section 503(b)(2)(D) of the Act,
47 U.S.C. 503(b)(2)(D), such as "the nature, circum-
stances, extent and gravity of the violation, and, with
respect to the violator, the degree of culpability, any
history of prior offenses, ability to pay, and such other
matters as justice may require." For the following rea-
sons, we find that $27,500, the maximum applicable for-
feiture during the time the material was broadcast, is an
appropriate proposed forfeiture for the material found
to be apparently indecent in this case. The scene depicts
a woman's naked buttocks in a graphic and shocking
manner. The material was prerecorded, and ABC or its
affiliates could have edited or declined the content prior
to broadcast.153 Although ABC included a warning, we
find that a lower forfeiture is not warranted here in light
of all the circumstances surrounding the apparent viola-
tion, including the shocking and titillating nature of the
scene. On balance and in light of all of the circumstanc-
es, we find that a $27,500 forfeiture amount for each
station would appropriately punish and deter the appar-
ent violation in this case. Therefore, we find that each
153
See Complaints Against Various Licensees Regarding Their
Broadcast of the Fox Television Network Program "Married By Amer-
ica" on April 7, 2003, Notice of Apparent Liability, 19 FCC Rcd 20191,
20196 16 (2004).

184a
licensee listed in the Attachment is apparently liable for
a proposed forfeiture of $27,500 for each station that
broadcast the February 25, 2003, episode of NYPD Blue
prior to 10 p.m.154
53. Although we are informed that other stations
not mentioned in any complaint also broadcast the
complained-of episode of NYPD Blue, we propose forfei-
tures against only those licensees whose broadcasts of
the material between 6 a.m. and 10 p.m. were actually
the subject of viewer complaints to the Commission.
This result is consistent with the approach set forth by
the Commission in its most recent indecency orders.155
As indicated in those orders, our commitment to an ap-
propriately restrained enforcement policy justifies this
more limited approach toward the imposition of forfei-
154
The fact that the stations in question may not have originated the
programming is irrelevant to whether there is an indecency violation.
See Review of the Commission's Regulations Governing Programming
Practices of Broadcast Television Networks and Affiliates, Notice of
Proposed Rulemaking, 10 FCC Rcd 11951,11961, 20 (1995) (internal
quotation omitted) ("We conclude that a licensee is not fulfilling his obli-
gations to operate in the public interest, and is not operating in accor-
dance with the express requirements of the Communications Act, if he
agrees to accept programs on any basis other than his own reasonable
decision that the programs are satisfactory.").
155
See Omnibus Order, 21 FCC Rcd at 2673 32; Omnibus Remand
Order, 21 FCC Rcd at 13328-329 74-77.

185a
ture penalties. Accordingly, we propose forfeitures as
set forth in the Attachment.
54. We have thoroughly considered all of the licens-
ees' arguments as well as the factors listed in section
503(b)(2)(D) of the Act. On balance, we believe that a
forfeiture penalty in the base amount of $27,500 against
the stations listed in Attachment A is appropriate.

V. ORDERING CLAUSES

55.

ACCORDINGLY, IT IS ORDERED

, pursuant to
section 503(b) of the Communications Act of 1934, as
amended, and section 1.80 of the Commission's rules,156
that each of the ABC stations listed in Attachment A of
this Forfeiture Order are liable for a forfeiture in the
amount of $27,500 each for broadcasting indecent mate-
rial, in willful violation of 18 U.S.C. 1464 and section
73.3999 of the Commission's rules.
56.

IT IS FURTHER ORDERED

that the NAL is
cancelled as to Northeast Kansas Broadcast Service,
Inc., for KTKA-TV; KFBB Corporation, for KFBB-TV;
Louisiana Television Broadcasting, LLC, for WBRZ-TV;
WXOW-WQOW Television, Inc., for WXOW-TV; KMBC
Hearst-Argyle Television, Inc., for KMBC-TV; KHBS
Hearst-Argyle Television, Inc., for KHOG-TV; and Fo-
156
47 C.F.R. 1.80.

186a
rum Communications Company, for WDAY-TV, for the
reasons discussed elsewhere in this Order.
57.

IT IS FURTHER ORDERED

, pursuant to section
1.80 of the Commission's rules, that each of the stations
listed in Attachment A of this Forfeiture Order

SHALL
PAY

the full amount of its respective forfeiture by the
close of business on Thursday, February 21, 2008. Pay-
ment of the forfeiture must be made by check or similar
instrument, payable to the order of the Federal Commu-
nications Commission. The payment must include the
NAL/Account number and FRN Number referenced in
the Attachment. Payment by check or money order may
be mailed to Federal Communications Commission, P.O.
Box 979088, St. Louis, MO 63197-9000. Payment by
overnight mail may be sent to U.S. Bank--Government
Lockbox #979088, SL-MO-C2-GL, 1005 Convention
Plaza, St. Louis, MO 63101. Payments by wire transfer
may be made to ABA Number 021030004, receiving bank
TREAS/NYC, and account number 27000001. For pay-
ment by credit card, an FCC Form 159 (Remittance Ad-
vice) must be submitted. When completing the FCC
Form 159, enter the NAL/Account number in block
number 23A (call sign/other ID), and enter the letters
"FORF" in box 24A (payment type code). Requests for
full payment under an installment plan should be sent
to: Chief Financial Officer - Financial Operations, 445
12th Street, S.W., Room 1-A625, Washington,

187a
D.C. 20554. Please contact the Financial Operations
Group Help Desk at 1-877-480-3201 or Email:
ARINQUIRIES@fcc.gov with any questions regarding
payment procedures. Any station that pays its forfei-
ture by close of business on February 21 shall so notify
Ben Bartolome, Acting Chief of the Enforcement Bu-
reau's Investigations and Hearings Division, by email
(Ben.Bartolome@fcc.gov) by close of business that day.
The Commission will ensure that each of the stations
listed in Attachment A of the Forfeiture Order is noti-
fied immediately upon release by the Commission.
58.

IT IS FURTHER ORDERED

that the Commis-
sion will not consider reducing or canceling a forfeiture
in response to a claim of inability to pay unless the re-
spondent submits: (1) federal tax returns for the most
recent three-year period; (2) financial statements pre-
pared according to generally accepted accounting prac-
tices ("GAAP"); or (3) some other reliable and objective
documentation that accurately reflects the respondent's
current financial status. Any claim of inability to pay
must specifically identify the basis for the claim by ref-
erence to the financial documentation submitted.

188a
59.

IT IS FURTHER ORDERED

that a copy of this
Forfeiture Order shall be sent, by Certified Mail/Return
Receipt Requested, to each of the licensees identified in
Attachment A hereto and to their respective counsel and
representatives identified in Attachment B hereto.
FEDERAL COMMUNICATIONS
COMMISSION
Marlene H. Dortch
Secretary

189a

ATTACHMENT A

Forfeitures For February 25, 2003

Broadcasts Of NYPD Blue


Licensee

FRN

NAL

Station

Facility

Forfei-

Name and

No. Acct. No. Call Sign

ID Nos.

ture

Mailing

and Com-

Amount

Address

munity of

License

Cedar Rapids
KCRG-TV 9719
$27,500
T e l e v i s i o n0 0 0 2 52008320Cedar Rap-
Company, 2nd89489 80013
ids, IA
Avenue at 5th
Street, NE,
Cedar Rapids,
IA 52401
Centex Tele-
KXXV(TV) 9781
$27,500
vision Limited0 0 0 1 62008320Waco, TX
Partnership,75719 80014
P . O . B o x
2522, Waco,
TX 76702

190a

Licensee

FRN

NAL

Station

Facility

Forfei-

Name and

No. Acct. No. Call Sign

ID Nos.

ture

Mailing

and Com-

Amount

Address

munity of

License

Channel 12 of
KBMT(TV)10150
$27,500
B e a u m o n t ,0 0 0 6 52008320Beaumont,
Inc., 525 In-87307 80015
TX
terstate High-
way, 10 South,
Beaumont, TX
77701
Citadel Com-
KLKN(TV)11264
$27,500
munications,0 0 0 3 72008320L i n c o l n ,
L L C , 4 457481 80016
NE
P o n d f i e l d
Road, Suite
12, Bronxville,
NY 10708

191a

Licensee

FRN

NAL

Station

Facility

Forfei-

Name and

No. Acct. No. Call Sign

ID Nos.

ture

Mailing

and Com-

Amount

Address

munity of

License

KLTV/KTRE
KLTV(TV) 68540
$27,500
License Sub-0 0 1 5 72008320Tyler, TX
sidiary, LLC,98341 80017
201 Monroe
Street, RSA
Tower 20th
Floor, Mont-
gomery, AL
36104
D u h a m e l
KOTA-TV 17688
$27,500
Broadcasting0 0 0 2 42008320Rapid City,
Enterprises,33340 80018
SD
518 St. Joseph
Street,, Rapid
C i t y , S D
57701
Gray Televi-
KAKE-TV 65522
$27,500
sion Licensee0 0 0 2 72008320W i c h i t a ,
Corp., 150046022 80020
KS
North West
Street, Wich-
ita, KS 67203

192a

Licensee

FRN

NAL

Station

Facility

Forfei-

Name and

No. Acct. No. Call Sign

ID Nos.

ture

Mailing

and Com-

Amount

Address

munity of

License

Gray Televi-
KLBY(TV) 65523
$27,500
sion Licensee,0 0 0 2 72008320Colby, KS
Inc., P. O. Box46022 80021
10, Wichita,
KS 67201
K S T P - T V ,
KSTP-TV 28010
$27,500
L L C , 3 4 1 50 0 0 9 72008320S t . P a u l ,
U n i v e r s i t y69621 80022
MN
Avenue, West,
St. Paul, MN
55114-2099
KATC Com-
KATC(TV) 33471
$27,500
munications,0 0 0 3 82008320Lafayette,
I n c . , 1 1 0 322285 80023
LA
Eraste Lan-
dry Road, La-
fayette, LA
70506
KATV, LLC,
KATV(TV) 33543
$27,500
P. O. Box 77,0 0 0 1 62008320L i t t l e
Little Rock,94462 80024
Rock, AR
AR 72203

193a

Licensee

FRN

NAL

Station

Facility

Forfei-

Name and

No. Acct. No. Call Sign

ID Nos.

ture

Mailing

and Com-

Amount

Address

munity of

License

K D N L L i -
KDNL-TV 56524
$27,500
censee, LLC,0 0 0 2 12008320St. Louis,
c/o Pillsbury44459 80025
MO
W i n t h r o p
S h a w P i t t -
m a n , L L P ,
2300 N Street,
NW, Wash-
ington, DC
20037-1128
K E T V
KETV(TV) 53903
$27,500
H e a r s t -0 0 0 3 72008320Omaha, NE
Argyle Televi-99855 80026
sion, Inc., c/o
B r o o k s ,
Pierce, et al,
P . O . B o x
1800, Raleigh,
NC 27602

194a

Licensee

FRN

NAL

Station

Facility

Forfei-

Name and

No. Acct. No. Call Sign

ID Nos.

ture

Mailing

and Com-

Amount

Address

munity of

License

KSWO Televi-
KSWO-TV 35645
$27,500
s i o n C o m -0 0 0 1 62008320L a w t o n ,
pany, Inc.,
99248 80030
OK
P. O. Box 708,
Lawton, OK
73502
KTBS, Inc.,
KTBS-TV 35652
$27,500
P . O . B o x0 0 0 3 72008320Shreveport,
4 4 2 2 7 ,27419 80031
LA
Sh r e veport,
LA 71104
KTRK Televi-
KTRK-TV 35675
$27,500
sion, Inc., 770 0 1 2 42008320H o u s t o n ,
W . 6 6 t h80109 80032
TX
Street, Floor
16, New York,
NY 10023-
6201

195a

Licensee

FRN

NAL

Station

Facility

Forfei-

Name and

No. Acct. No. Call Sign

ID Nos.

ture

Mailing

and Com-

Amount

Address

munity of

License

KTUL, LLC,
KTUL(TV) 35685
$27,500
3333 S. 29th0 0 0 1 62008320Tulsa, OK
West Avenue,94413 80033
Tulsa, OK
74107
KVUE Televi-
KVUE(TV)35867
$27,500
sion, Inc., 4000 0 0 1 52008320Austin, TX
South Record45581 80034
Street, Dallas,
TX 75202
McGraw-Hill
KMGH-TV 40875
$27,500
Broadcasting0 0 0 3 42008320Denver, CO
Company, 12376827 80036
Speer Boule-
vard, Denver,
CO 80203

196a

Licensee

FRN

NAL

Station

Facility

Forfei-

Name and

No. Acct. No. Call Sign

ID Nos.

ture

Mailing

and Com-

Amount

Address

munity of

License

Media Gen-
WMBB
66398
$27,500
eral Commu-0 0 1 5 72008320(TV)
nication Hold-51217 80037
P a n a m a
ings, LLC,,
City, FL
333 E. Frank-
l i n S t r e e t ,
Richmond, VA
23219-2213
M i s s i o n
KODE-TV 18283
$27,500
Broadcasting,0 0 0 4 22008320Joplin, MO
Inc., 544 Red84899 80038
Rock Drive,
W a d s w o r t h ,
OH 44281

197a

Licensee

FRN

NAL

Station

Facility

Forfei-

Name and

No. Acct. No. Call Sign

ID Nos.

ture

Mailing

and Com-

Amount

Address

munity of

License

M i s s i s s i p p i
WABG-TV 43203
$27,500
Broadcasting0 0 0 3 82008320Greenwood,
Partners, c/o28753 80039
MS
Anne Swan-
s o n , D o w
L o h n e s
PLLC, 1200
New Hamp-
shire Avenue,
N W , S u i t e
800, Washing-
ton DC 20036-
6802
N e x s t a r0 0 0 9 92008320WDHN
43846
$27,500
Broadcasting,61889 80040
(TV)
Inc., 909 Lake
Dothan, AL
Carolyn Park-
w a y , S u i t e
1450, Irving,
TX 75039

198a

Licensee

FRN

NAL

Station

Facility

Forfei-

Name and

No. Acct. No. Call Sign

ID Nos.

ture

Mailing

and Com-

Amount

Address

munity of

License

N e w Y o r k
WQAD-TV 73319
$27,500
Times Man-0 0 0 3 42008320Moline, IL
agement Ser-81587 80041
vices Co. c/o
N e w Y o r k
T i m e s C o . ,
229 W.43rd
Street, New
Y o r k , N Y
10036-3913
N e x s t a r
KQTV(TV) 20427
$27,500
Broadcasting,0 0 0 9 92008320St. Joseph,
Inc., 909 Lake61889 80042
MO
Carolyn Park-
w a y , S u i t e
1450, Irving,
TX 75039
NPG of Tex-
KVIA-TV 49832
$27,500
as, L.P., 41400 0 0 6 52008320E l P a s o ,
Rio Bravo, El48028 80044
TX
P a s o , T X
79902

199a

Licensee

FRN

NAL

Station

Facility

Forfei-

Name and

No. Acct. No. Call Sign

ID Nos.

ture

Mailing

and Com-

Amount

Address

munity of

License

Ohio/Oklaho
KOCO-TV 12508
$27,500
ma Hearst-0 0 0 1 52008320Oklahoma
Argyle Televi-87609 80045
City, OK
s i o n , c / o
Brooks Pierce
et al, P. O.
Box 1800, Ra-
leigh, NC
27602
P i e d m o n t
WAAY-TV 57292
$55,000
Television of0 0 0 4 02008320Huntsville,
H u n t s v i l l e63483 80046
AL
License, LLC,
c/o Piedmont
KSPR(TV) 35630
T e l e v i s i o n
Springfield,
H o l d i n g s
MO
L L C , 7 6 2 1
Little Avenue,
S u i t e 5 0 6 ,
Charlotte, NC
28226

200a

Licensee

FRN

NAL

Station

Facility

Forfei-

Name and

No. Acct. No. Call Sign

ID Nos.

ture

Mailing

and Com-

Amount

Address

munity of

License

Pollack/Belz
KLAX-TV 52907
$27,500
Communica-0 0 0 6 02008320Alexandria,
tions Co., Inc.,96200 80047
LA
5500 Poplar
Lane, Mem-
p h i s , T N
38119-3716
P o s t - N e w s -
KSAT-TV 53118
$27,500
w e e k S t a -0 0 0 2 12008320San Anto-
tions, San An-49953 80048
nio, TX
tonio, Inc., c/o
P o s t - N e w s -
w e e k S t a -
t i o n s , 5 5 0
West Lafay-
ette Boule-
vard, Detroit,
MI 48226-
3140

201a

Licensee

FRN

NAL

Station

Facility

Forfei-

Name and

No. Acct. No. Call Sign

ID Nos.

ture

Mailing

and Com-

Amount

Address

munity of

License

S c r i p p s
KNXV-TV 59440
$27,500
H o w a r d0 0 1 2 42008320P h o e n i x ,
Broadcasting87609 80049
AZ
Co., 312 Wal-
n u t S t r e e t ,
C i n c i n n a t i ,
OH 45202
S o u t h e r n
W K D H83310
$27,500
Broadcasting,0 0 0 5 42008320(TV)
Inc., P. O. Box11632 80050
H o u s t o n ,
1645, Tupelo,
MS
MS 38802
T e n n e s s e e
WBBJ-TV 65204
$27,500
Broadcasting0 0 0 3 82008320J a c k s o n ,
Partners, c/o28696 80051
TN
R u s s e l l
Schwartz, One
T e l e v i s i o n
Place, Char-
l o t t e , N C
28205

202a

Licensee

FRN

NAL

Station

Facility

Forfei-

Name and

No. Acct. No. Call Sign

ID Nos.

ture

Mailing

and Com-

Amount

Address

munity of

License

Tribune Tele-
WGNO(TV)72119
$27,500
v i s i o n N e w0 0 0 2 82008320N e w O r -
Orleans, Inc.,47564 80052
leans, LA
1 G a l l e r i a
B o u l e v a r d ,
S u i t e 8 5 0 ,
Metairie, LA
70001
W A P T
WAPT(TV)49712
$27,500
H e a r s t -0 0 0 5 02008320J a c k s o n ,
Argyle TV,08867 80053
MS
I n c . , ( C A
Corp.) ,
P . O . B o x
1800, Raleigh,
NC 27602
W D I O - T V ,
WDIO-TV 71338
$27,500
L L C , 3 4 1 50 0 0 4 12008320D u l u t h ,
U n i v e r s i t y99139 80054
MN
Avenue West,
St. Paul, MN
55114-2099

203a

Licensee

FRN

NAL

Station

Facility

Forfei-

Name and

No. Acct. No. Call Sign

ID Nos.

ture

Mailing

and Com-

Amount

Address

munity of

License

W E A R L i -
WEAR-TV 71363
$27,500
censee, LLC,0 0 0 4 92008320Pensacola,
P i l l s b u r y ,70935 80055
FL
W i n t h r o p ,
Shaw, Pitt-
m a n , L L P ,
2300 N Street,
NW, Wash-
ington, DC
20037-1128
W F A A - T V ,
WFAA-TV 72054
$27,500
I n c . , 4 0 00 0 0 1 62008320Dallas, TX
South Record51496 80056
Street, Dallas,
TX 75202

204a

Licensee

FRN

NAL

Station

Facility

Forfei-

Name and

No. Acct. No. Call Sign

ID Nos.

ture

Mailing

and Com-

Amount

Address

munity of

License

W I S N
WISN-TV 65680
$27,500
H e a r s t -0 0 0 3 72008320Milwaukee,
Argyle TV,92603 80057
WI
I n c . ( C A
Corp.), P. O.
Box 1800, Ra-
leigh, NC
27602
WKOW Tele-
WKOW-TV64545
$27,500
vision, Inc., 0 0 0 4 32008320M a d i s o n ,
P. O. Box 909,83683 80058
WI
Quincy, IL
62306
WKRN, G.P.,
WKRN-TV 73188
$27,500
c / o B r o o k s0 0 0 5 02008320Nashville,
Pierce et al,15037 80059
TN
P . O . B o x
1800, Raleigh,
NC 27602

205a

Licensee

FRN

NAL

Station

Facility

Forfei-

Name and

No. Acct. No. Call Sign

ID Nos.

ture

Mailing

and Com-

Amount

Address

munity of

License

WLS Televi-
WLS-TV 73226
$27,500
sion, Inc., 770 0 0 3 42008320Chicago, IL
W . 6 6 t h71315 80060
Street, Floor
16, New York,
NY 10023-
6201
W S I L - T V ,
WSIL-TV 73999
$27,500
I n c . , 5 0 0 90 0 0 2 82008320H a r r i s -
South Hulen,08137 80061
burg, IL
S u i t e 1 0 1 ,
Fort Worth,
TX 76132-
1989
Young Broad-
WBAY-TV 74417
$27,500
c a s t i n g o f0 0 0 4 92008320Green Bay,
Green Bay,94984 80063
WI
I n c . , c / o
Brooks Pierce
et al, P. O.
Box 1800, Ra-
leigh, NC
27602

206a

ATTACHMENT B

Pleadings Filed Responding to NAL

157
Responses to the Notices of Apparent Liability for For-
feiture:
Opposition to Notice of Apparent Liability for
Forfeiture of 50 Television Broadcast Stations
Affiliated with the ABC Television Network and
of the ABC Television Affiliates Association, filed
on February 11, 2008, by Cedar Rapids Televi-
sion Company, Licensee of Station KCRG-TV,
Cedar Rapids, Iowa; Centex Television Limited
Partnership, Licensee of Station KXXV(TV),
Waco, Texas; Channel 12 of Beaumont, Inc., Li-
censee of Station KBMT(TV), Beaumont, Texas;
Citadel Communications, LLC, Licensee of Sta-
tion KLKN(TV), Lincoln, Nebraska; Duhamel
Broadcasting Enterprises, Licensee of Station
KOTA-TV, Rapid City, South Dakota; Forum
Communications Company, Licensee of Station
WDAY-TV, Fargo, North Dakota; Gray Televi-
sion Licensee, Inc., Licensee of Stations KAKE-
TV, Wichita, Kansas and KLBY(TV), Colby, Kan-
sas; KATC Communications, Inc., Licensee of
Station KATC(TV), Lafayette, Louisiana; KATV
157
This list excludes any Freedom of Information Act requests.

207a
LLC, Licensee of Station KATV(TV), Little Rick
Arkansas; KDNL Licensee, LLC, Licensee of
Station KDNL-TV, St. Louis, Missouri; Hearst-
Argyle Television, Inc., Parent of the Licensee of
Stations KETV(TV), Omaha, Nebraska, KHOG-
TV, Fayetteville, Arkansas, KMBC-TV, Kansas
City, Missouri, KOCO-TV, Oklahoma City,
Oklahoma, WAPT(TV), Jackson, Mississippi, and
WISN-TV, Milwaukee, Wisconsin; KLTV/KTRE
License Subsidiary, LLC, Licensee of Station
KLTV(TV), Tyler, Texas; KSTP-TV, LLC, Li-
censee of Station KSTP-TV, St. Paul, Minnesota;
KSWO Television Co., Inc., Licensee of Station
KSWO-TV, Lawton, Oklahoma; KTBS, Inc., Li-
censee of Station KTBS-TV, Shreveport, Louisi-
ana; KTUL, LLC, Licensee of Station
KTUL(TV),Tulsa, Oklahoma; KVUE Television,
Inc., Licensee of Station KVUE(TV), Austin,
Texas; Louisiana Television Broadcasting, LLC,
Licensee of Station WBRZ-TV, Baton Rouge,
Louisiana; McGraw-Hill Broadcasting Company,
Licensee of Station KMGH-TV, Denver, Colo-
rado; Media General Communication Holdings,
LLC, Licensee of Station WMBB(TV), Panama
City, Florida; Mission Broadcasting, Inc., Li-
censee of Station KODE-TV, Joplin, Missouri;
Mississippi Broadcasting Partners, Licensee of
Station WABG-TV, Greenwood, Mississippi; Lo-

208a
cal TV Illinois License, LLC, Licensee of Station
WQAD-TV, Moline, Illinois; Nexstar Broadcast-
ing, Inc., Licensee of Stations WDHN(TV), Doth-
an, Alabama, and KQTV(TV), St. Joseph, Mis-
souri; Northeast Kansas Broadcast Service, Inc.,
Former Licensee of Station KTKA-TV, Topeka,
Kansas; NPG of Texas, L.P., Licensee of Station
KVIA-TV, El Paso, Texas; Piedmont Television
of Huntsville License, LLC, Licensee of Stations
WAAY-TV, Huntsville, Alabama and KSPR(TV),
Springfield, Missouri; Pollack/Belz Communica-
tions Co., Inc., Licensee of Station KLAX-TV,
Alexandria, Louisiana; Post-Newsweek Stations,
San Antonio, Inc., Licensee of Station KSAT-TV,
San Antonio, Texas; Scripps Howard Broadcast-
ing Company, Licensee of Station KNXV-TV,
Phoenix, Arizona; Southern Broadcasting, Inc.,
Licensee of Station WKDH(TV), Houston, Texas;
Tennessee Broadcasting Partners, Licensee of
Station WBBJ-TV, Jackson, Tennessee; Tribune
Company, Parent of the Licensee of Station
WGNO(TV), New Orleans, Louisiana; WDIO-TV,
LLC, Licensee of Station WDIO-TV, Duluth,
Minnesota; WEAR Licensee, LLC, Licensee of
Station WEAR-TV, Pensacola, Florida; WFAA-
TV, Inc., Licensee of Station WFAA-TV, Dallas,
Texas; WKOW Television, Inc., Licensee of Sta-
tion WKOW-TV, Madison, Wisconsin; WKRN,

209a
G.P., Licensee of Station WKRN-TV, Nashville,
Tennessee; WSIL-TV, Inc., Licensee of Station
WSIL-TV, Harrisburg, Illinois; WXOK-WQOW
Television, Inc., Licensee of Station WXOW-TV,
LaCrosse, Wisconsin; Young Broadcasting of
Green Bay, Inc., Licensee of Station WBAY-TV,
Green Bay, Wisconsin;
Opposition of Channel 12 of Beaumont, Inc. to
Notice of Apparent Liability for Forfeiture filed
by Channel 12 of Beaumont, Inc. ("Beaumont"),
Licensee of Station KBMT(TV), Beaumont, Tex-
as, on February 11, 2008 ("Beaumont Response");
Letter to Benigno E. Bartolome, Acting Chief,
Investigations and Hearings Division, Enforce-
ment Bureau, filed by The Wooster Printing
Company ("WPRC"), Parent of the former Li-
censee of Station KFBB-TV, Great Falls,
Montana, filed on February 5, 2008 ("WPRC Re-
sponse");
Statement of Support filed by Max Media of
Montana II LLC ("Max Media"), current Licen-
see of Station KFBB-TV, Great Falls, Montana,
filed on February 11, 2008 ("KFBB Response");
Opposition of ABC, Inc. to Notice of Apparent
Liability for Forfeiture filed on February 11,
2008 by ABC, Inc. ("ABC"), Parent of the WLS

210a
Television, Inc., Licensee of Station WLS-TV,
Chicago, Illinois, and KTRK Television, Inc., Li-
censee of Station KTRK-TV, Houston, Texas
("ABC Response");
Response of Former Licensee, filed by Northeast
Kansas Broadcast Service, Inc. ("Northeast"),
Former Licensee of Station KTKA-TV, Topeka,
Kansas, on February 6, 2008 ("Northeast Re-
sponse");
Requests for Extension of Time:
Petition for Extension of Time filed by Channel
12 of Beaumont, Inc., Licensee of Station
KBMT(TV), Beaumont, Texas, on February 4,
2008;
Letter to Matthew Berry, General Counsel, Fed-
eral Communications Commission, cc: Benigno E.
Bartolome, Acting Chief, Investigations and
Hearings Division, Enforcement Bureau, Re-
quest for Extension of Time on February 1, 2008
from Forum Communications Company, Licensee
of Station WDAY-TV, Fargo, North Dakota;
KVUE Television, Inc., Licensee of Station
KVUE(TV), Austin, Texas; and WFAA-TV, Inc.,
Licensee of Station WFAA-TV, Dallas, Texas;

211a
Motion for Extension of Time filed by Pollack/
Belz Communications Co., Inc., Licensee of Sta-
tion KLAX-TV, Alexandria, Louisiana, on Febru-
ary 1, 2008;
Motion for Extension of Time filed by Post-News-
week Stations, San Antonio, Inc., Licensee of Sta-
tion KSAT-TV, San Antonio, Texas, on February
1, 2008;
Motion for Extension of Time KLTV/KTRE Li-
cense Subsidiary, LLC, Licensee of Station
KLTV(TV), Tyler, Texas, on February 1, 2008;
Letter to Benigno E. Bartolome, Acting Chief,
Investigations and Hearings Division, Enforce-
ment Bureau, Request for Extension of Time on
February 1, 2008 from Centex Television Limited
Partnership, Licensee of Station KXXV(TV),
Waco, Texas; and KSWO Television Co., Inc.,
Licensee of Station KSWO-TV, Lawton,
Oklahoma;
Letter to Benigno E. Bartolome, Acting Chief,
Investigations and Hearings Division, Enforce-
ment Bureau, Request for Extension of Time,
from Scripps Hoard Broadcasting Company, Li-
censee of Station KNXV-TV, Phoenix, Arizona,
on February 1, 2008;

212a
Motion by ABC Television Affiliates Association
and Named Licensees for Extension of Time to
Response to Notice of Apparent Liability for For-
feiture and Letter to Matthew Berry, General
Counsel, Federal Communications Commission,
cc: Benigno E. Bartolome, Acting Chief, Investi-
gations and Hearings Division, Enforcement Bu-
reau, Request for Extension of Time on February
1, 2008 from Cedar Rapids Television Company,
Licensee of Station KCRG-TV, Cedar Rapids,
Iowa; Citadel Communications, LLC, Licensee of
Station KLKN(TV), Lincoln, Nebraska; Request
for Extension of Time filed by Duhamel Broad-
casting Enterprises, Licensee of Station KOTA-
TV, Rapid City, South Dakota; KATV LLC, Li-
censee of Station KATV(TV), Little Rick Arkan-
sas; Hearst-Argyle Television, Inc., Parent of the
Licensee of Stations KETV(TV), Omaha, Ne-
braska; KHOG-TV, Fayetteville, Arkansas;
KMBC-TV, Kansas City, Missouri; KOCO-TV,
Oklahoma City, Oklahoma; WAPT(TV), Jackson,
Mississippi; WISN-TV, Milwaukee, Wisconsin;
KTBS, Inc., Licensee of Station KTBS-TV,
Shreveport, Louisiana; KTUL, LLC, Licensee of
Station KTUL(TV),Tulsa, Oklahoma; NPG of
Texas, L.P., Licensee of Station KVIA-TV, El
Paso, Texas; WKOW Television, Inc., Licensee of
Station WKOW-TV, Madison, Wisconsin; WKRN,

213a
G.P., Licensee of Station WKRN-TV, Nashville,
Tennessee; WSIL-TV, Inc., Licensee of Station
WSIL-TV, Harrisburg, Illinois; WXOK-WQOW
Television, Inc., Licensee of Station WXOW-TV,
LaCrosse, Wisconsin; Young Broadcasting of
Green Bay, Inc., Licensee of Station WBAY-TV,
Green Bay, Wisconsin; Tennessee Broadcasting
Partners, Licensee of Station WBBJ-TV, Jack-
son, Tennessee; Mississippi Broadcasting Part-
ners, Licensee of Station WABG-TV, Greenwood,
Mississippi; Request for Extension of Time filed
by Louisiana Television Broadcasting, LLC, Li-
censee of Station WBRZ-TV, Baton Rouge, Loui-
siana;
Motion for Extension of Time of KSPT-TV and
WDIO-TV filed on February 4, 2008 by KSTP-
TV, LLC, Licensee of Station KSTP-TV, St. Paul,
Minnesota; WDIO-TV, LLC, Licensee of Station
WDIO-TV, Duluth, Minnesota.

214a

STATEMENT OF

COMMISSIONER ROBERT M. McDOWELL

RE:
Complaints Against Various Television Licens-
ees Concerning Their February 25, 2003 Broad-
cast of the Program "NYPD Blue", Forfeiture
Order, File Nos. EB-03-IH-0122 and EB-03-IH-
0353
While I agree with the substance of the Commis-
sion's decision today, I write separately to note my con-
cerns about a procedural aspect to this proceeding. Af-
ter the Commission issued its notice of apparent liability
for forfeiture, the stations were given only 17 days to file
a response--far shorter than the 30 days that is our
usual practice. In this instance, the 52 stations, repre-
sented by the network and affiliates association, had the
resources and wherewithal to prepare a comprehensive
and timely response. That may not always be the case.
I hope that in future proceedings, we will grant parties
a more reasonable opportunity to respond to Commis-
sion charges.

215a

APPENDIX F

FEDERAL COMMUNICATIONS COMMISSION
WASHINGTON, D.C. 20554
File Nos. EB-03-IH-0122 and EB-03-IH-03531
IN THE MATTER OF COMPLAINTS AGAINST VARIOUS
TELEVISION LICENSEES CONCERNING
THEIR FEBRUARY 25, 2003 BROADCAST OF THE
PROGRAM "NYPD BLUE"
Adopted: Jan. 25, 2008
Released: Jan. 25, 2008

NOTICE OF APPARENT LIABILITY

FOR FORFEITURE

By the Commission: Commissioner Tate issuing a sepa-
rate statement.
1 The NAL/Acct. No. and FRN number for each licensee subject to
this Notice are enumerated in the Attachment.

216a

I. INTRODUCTION

1. In this Notice of Apparent Liability for Forfei-
ture ("NAL"), issued pursuant to Section 503(b) of the
Communications Act of 1934, as amended (the "Act"),
and Section 1.80 of the Commission's rules,2 we find that
the ABC Television Network ("ABC") affiliated stations
and ABC owned-and-operated stations listed in the At-
tachment to this NAL aired material that apparently
violates the federal restrictions regarding the broadcast
of indecent material.3 Specifically, during the February
25, 2003 episode of the ABC program "NYPD Blue,"
aired at 9:00 p.m. Central Standard Time and Mountain
Standard Time, these licensees each broadcast adult
female nudity. Based upon our review of the facts and
circumstances of this case, we conclude that each li-
censee listed in the Attachment is apparently liable for
a monetary forfeiture in the amount of $27,500 per sta-
tion for broadcasting indecent material in apparent vio-
lation of 18 U.S.C. 1464 and Section 73.3999 of the
Commission's rules.
2 See 47 U.S.C. 503(b); 47 C.F.R. 1.80.
3 See 18 U.S.C. 1464; 47 C.F.R. 73.3999.

217a

II. BACKGROUND

2. Section 1464 of Title 18, United States Code,
prohibits the broadcast of obscene, indecent, or profane
programming.4 The FCC rules implementing that stat-
ute, a subsequent statute establishing a "safe harbor"
during certain hours, and the Act prohibit radio and
television stations from broadcasting obscene material
at any time and indecent material between 6 a.m. and 10
p.m.5
3. Indecency Analysis. Enforcement of the provi-
sions restricting the broadcast of indecent, obscene, or
profane material is an important component of the Com-
mission's overall responsibility over broadcast radio and
television operations. At the same time, however, the
Commission must be mindful of the First Amendment to
the United States Constitution and Section 326 of the
Act, which prohibit the Commission from censoring pro-
gram material or interfering with broadcasters' free
speech rights.6 As such, in making indecency determina-
4 See 18 U.S.C. 1464.
5 See 47 C.F.R. 73.3999.
6 See U.S. CONST., amend. I; 47 U.S.C. 326. See also United States
v. Playboy Entertainment Group, Inc., 529 U.S. 803, 813-15 (2000).

218a
tions, the Commission proceeds cautiously and with ap-
propriate restraint.7
4. The Commission defines indecent speech as ma-
terial that, in context, depicts or describes sexual or ex-
cretory activities or organs in terms patently offensive
as measured by contemporary community standards for
the broadcast medium.8
Indecency findings involve at least two fundamental
determinations. First, the material alleged to be in-
decent must fall within the subject matter scope of
our indecency definition--that is, the material must
describe or depict sexual or excretory organs or ac-
tivities. . . . Second, the broadcast must be patently
7 See Action for Children's Television v. FCC, 852 F.2d 1332, 1344,
1340 n.14 (1988) ("ACT I") (stating that "[b]roadcast material that is in-
decent 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," and that any "potential chilling effect of the FCC's generic defin-
ition of indecency will be tempered by the Commission's restrained
enforcement policy.").
8 See Infinity Broadcasting Corporation of Pennsylvania, Memo-
randum Opinion and Order, 2 FCC Rcd 2705 (1987) (subsequent history
omitted) (citing Pacifica Foundation, Memorandum Opinion and Or-
der, 56 FCC 2d 94, 98 (1975), aff'd sub nom. FCC v. Pacifica Founda-
tion, 438 U.S. 726 (1978) ("Pacifica")).

219a
offensive as measured by contemporary community
standards for the broadcast medium.9
9 Industry Guidance on the Commission's Case Law Interpreting
18 U.S.C. 1464 and Enforcement Policies Regarding Broadcast In-
decency, Policy Statement, 16 FCC Rcd 7999, 8002 7-8 (2001) ("Inde-
cency Policy Statement") (emphasis in original). In applying the "com-
munity standards for the broadcast medium" criterion, the Commission
has stated:
The determination as to whether certain programming is patently of-
fensive is not a local one and does not encompass any particular geo-
graphic area. Rather, the standard is that of an average broadcast
viewer or listener and not the sensibilities of any individual complain-
ant.
WPBN/WTOM License Subsidiary, Inc., Memorandum Opinion and
Order, 15 FCC Rcd 1838, 1841 10 (2000) ("WPBN/WTOM MO&O").
The Commission's interpretation of the term "contemporary commu-
nity 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 Broadcast-
ing Corporation of Pennsylvania (WYSP(FM)), Memorandum Opinion
and Order, 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 stand-
ards' was to ensure that material is judged neither on the basis of a de-
cisionmaker's personal opinion, nor by its effect on a particularly sensi-
tive or insensitive person or group." Id. at 933 (citing 418 U.S. at 107).
The Commission also relied on the fact that the Court in Hamling indi-
cated that decisionmakers need not use any precise geographic area in
evaluating material. Id. at 933 (citing 418 U.S. at 104-05). Consistent
with Hamling, the Commission concluded that its evaluation of alleged-

220a
5. In our assessment of whether broadcast material
is patently offensive, "the full context in which the mate-
rial appeared is critically important."10 Three principal
factors are significant to this contextual analysis: (1) the
explicitness or graphic nature of the material; (2) wheth-
er the material dwells on or repeats at length depictions
or descriptions of sexual or excretory organs or activi-
ties; and (3) whether the material panders to, titillates,
or shocks the audience.11 In examining these three fac-
tors, we must weigh and balance them on a case-by-case
basis to determine whether the broadcast material is
patently offensive because "[e]ach indecency case pres-
ents its own particular mix of these, and possibly, other
factors."12 In particular cases, one or two of the factors
may outweigh the others, either rendering the broadcast
material patently offensive and consequently indecent,13
ly indecent material is "not one based on a local standard, but one based
on a broader standard for broadcasting generally." Id. at 933.
10 Indecency Policy Statement, 16 FCC Rcd at 8002 9 (emphasis in
original).
11 See id. at 8002-15 8-23.
12 Id. at 8003 10.
13 See id. at 8009 19 (citing Tempe Radio, Inc (KUPD-FM), Notice
of Apparent Liability for Forfeiture, 12 FCC Rcd 21828 (Mass Media
Bur. 1997) (forfeiture paid), and EZ New Orleans, Inc. (WEZB(FM)),
Notice of Apparent Liability for Forfeiture, 12 FCC Rcd 4147 (Mass
Media Bur. 1997) (forfeiture paid) (finding that the extremely graphic
or explicit nature of references to sex with children outweighed the

221a
or, alternatively, removing the broadcast material from
the realm of indecency.
6. Forfeiture Calculations. This NAL is issued pur-
suant to Section 503(b)(1) of the Act. Under that provi-
sion, any person who is determined by the Commission
to have willfully or repeatedly failed to comply with any
provision of the Act or any rule, regulation, or order
issued by the Commission or to have violated Section
1464 of Title 18, United States Code, shall be liable to
the United States for a forfeiture penalty.14 Section
312(f)(1) of the Act defines willful as "the conscious and
deliberate commission or omission of [any] act, irrespec-
tive of any intent to violate" the law.15 The legislative
history to Section 312(f)(1) clarifies that this definition
of willful applies to both Sections 312 and 503(b) of the
Act,16 and the Commission has so interpreted the term
in the Section 503(b) context.17
7. The Commission's Forfeiture Policy Statement
establishes a base forfeiture amount of $7,000 for the
fleeting nature of the references).
14 See 47 U.S.C. 503(b)(1)(B) & D. See also 47 C.F.R. 1.80(a)(1).
15 See 47 U.S.C. 312(f)(1).
16 See H.R. Rep. No. 97-765, 97th Cong. 2d Sess. 51 (1982).
17 See Southern California Broadcasting Co., Memorandum Opinion
and Order, 6 FCC Rcd 4387, 4388 (1991).

222a
transmission of indecent or obscene materials.18 The
Forfeiture Policy Statement also specifies that the Com-
mission shall adjust a forfeiture based upon consider-
ation of the factors enumerated in Section 503(b)(2)(D)
of the Act, such as "the nature, circumstances, extent
and gravity of the violation, and, with respect to the vio-
lator, the degree of culpability, any history of prior of-
fenses, ability to pay, and such other matters as justice
may require."19 The statutory maximum forfeiture
amount for violations that occurred in February 2003 is
$27,500.20

III. DISCUSSION

8. The Programming. The Commission received
numerous complaints alleging that certain affiliates of
ABC and ABC owned-and-operated stations, as listed in
18 See Commission's Forfeiture Policy Statement and Amendment
of Section 1.80 of the Rules to Incorporate the Forfeiture Guidelines,
Report and Order, 12 FCC Rcd 17087, 17113 (1997), recon. denied, 15
FCC Rcd 303 (1999) ("Forfeiture Policy Statement"); see also 47 C.F.R.
1.80(b).
19 Forfeiture Policy Statement, 12 FCC Rcd at 17100-01 27.
20 The statutory maximum amount for violations occurring after Nov-
ember 13, 2000, and before September 7, 2004, is $27,500. See 65 FR
60868-01 (2000); see also Amendment of Section 1.80 of the Commis-
sion's Rules, Order, 19 FCC Rcd 10945, 10946 6 (2004) (amending
rules to increase maximum penalties due to inflation since last adjust-
ment of penalty rates).

223a
the Attachment, broadcast indecent material during the
February 25, 2003 episode of the ABC program "NYPD
Blue" at 9:00 p.m. in the Central and Mountain Standard
Time Zones.
9. The complaints refer to a scene at the beginning
of the program, during which a woman and a boy, who
appears to be about seven or eight years old, are in-
volved in an incident that includes adult female nudity.
As confirmed by a tape of the program provided by
ABC, during the scene in question, a woman wearing a
robe is shown entering a bathroom, closing the door, and
then briefly looking at herself in a mirror hanging above
a sink. The camera then shows her crossing the room,
turning on the shower, and returning to the mirror.
With her back to the camera, she removes her robe,
thereby revealing the side of one of her breasts and a
full view of her back. The camera shot includes a full
view of her buttocks and her upper legs as she leans
across the sink to hang up her robe. The camera then
tracks her, in profile, as she walks from the mirror back
toward the shower. Only a small portion of the side of
one of her breasts is visible. Her pubic area is not visi-
ble, but her buttocks are visible from the side.
10. The scene shifts to a shot of a young boy lying in
bed, kicking back his bed covers, getting up, and then
walking toward the bathroom. The camera cuts back to
the woman, who is now shown standing naked in front of

224a
the shower, her back to the camera. The frame consists
initially of a full shot of her naked from the back, from
the top of her head to her waist; the camera then pans
down to a shot of her buttocks, lingers for a moment,
and then pans up her back. The camera then shifts back
to a shot of the boy opening the bathroom door. As he
opens the door, the woman, who is now standing in front
of the mirror with her back to the door, gasps, quickly
turns to face the boy, and freezes momentarily. The
camera initially focuses on the woman's face but then
cuts to a shot taken from behind and through her legs,
which serve to frame the boy's face as he looks at her
with a somewhat startled expression. The camera then
jumps to a front view of the woman's upper torso; a full
view of her breasts is obscured, however, by a silhouette
of the boy's head and ears. After the boy backs out of
the bathroom and shuts the door, the camera shows the
woman facing the door, with one arm and hand covering
her breasts and the other hand covering her pubic area.
The scene ends with the boy's voice, heard through the
closed door, saying "sorry," and the woman while look-
ing embarrassed, responds, "It's okay. No problem."
The complainants contend that such material is indecent
and request that the Commission impose sanctions
against the licensees responsible for broadcasting this
material.

225a
11. Indecency Analysis. As an initial matter, we find
that the programming at issue is within the scope of our
indecency definition because it depicts sexual organs
and excretory organs--specifically an adult woman's
buttocks.21 Although ABC argues, without citing any
authority, that the buttocks are not a sexual organ,22 we
reject this argument, which runs counter to both case
law23 and common sense.
12. We also find that the material is, in the context
presented here, patently offensive as measured by con-
temporary community standards for the broadcast me-
dium. Turning to the first principal factor in our contex-
21 See Complaints Regarding Various Television Broadcasts Be-
tween February 2, 2002 and March 8, 2005, Notices of Apparent Liabil-
ity and Memorandum Opinion and Order, 21 FCC Rcd 2664, 2681 62,
vacated in part on other grounds, 21 FCC Rcd 13299 (2006) (subse-
quent history omitted) ("2006 Indecency Omnibus Order").
22 See Response at 7.
23 See, e.g., City of Erie v. Pap's A.M., 529 U.S. 277 (2000) (Supreme
Court did not disturb a city's indecency ordinance prohibiting public
nudity, where the buttocks was listed among other sexual organs/body
parts subject to the ordinance's ban on nudity); Loce v. Time Warner
Entertainment Advance/Newhouse Partnership, 191 F.3d 256, 269 (2d.
Cir. 1999) (upholding state district court's determination that Time
Warner's decision to not transmit certain cable programming that it
reasonably believed indecent (some of which included "close-up shots
of unclothed breasts and buttocks") did not run afoul of the Constitu-
tion).

226a
tual analysis, the scene contains explicit and graphic
depictions of sexual organs. The scene depicts multiple,
close-range views of an adult woman's naked buttocks.
In this respect, this case is similar to other cases in
which we have held depictions of nudity to be graphic
and explicit.24
13. Turning to the second factor in our contextual
analysis, although not dispositive, we find that the
broadcast dwells on and repeats the sexual material. We
have held that repetition and persistent focus on sexual
or excretory material is a relevant factor in evaluating
the potential offensiveness of broadcasts.25 Here, the
24 See, e.g., Complaints Against Various Television Licensees Con-
cerning Their February 1, 2004, Broadcast of the Super Bowl XXXVIII
Halftime Show, Notice of Apparent Liability for Forfeiture, 19 FCC
Rcd 19230, 19235 13 (2004) ("Super Bowl NAL") (finding that a broad-
cast of a performer's exposed breast was graphic and explicit), af-
firmed, Forfeiture Order, 21 FCC Rcd 2760 (2006), affirmed, Order on
Reconsideration, 21 FCC Rcd 6653 (2006), appeal pending. See also
Young Broadcasting of San Francisco, Inc., Notice of Apparent Lia-
bility for Forfeiture, 19 FCC Rcd 1751, 1755 11 (2004) ("Young Broad-
casting NAL") (finding that a broadcast of a performer's exposed penis
was graphic and explicit), NAL response pending.
25 See Indecency Policy Statement, 16 FCC Rcd at 8008 17 (citing
cases); see also Complaints Against Various Licensees Regarding
Their Broadcast of the Fox Television Network Program "Married By
America" on April 7, 2003, Notice of Apparent Liability for Forfeiture,
19 FCC Rcd 20191, 20195 11 (2004) ("Married By America NAL")
(NAL response pending); Entercom Seattle License, LLC, Order on

227a
scene in question revolves around the woman's nudity
and includes several shots of her naked buttocks. The
material is thus dwelled upon and repeated.
14. With respect to the third factor, we find that the
scene's depiction of adult female nudity, particularly the
repeated shots of a woman's naked buttocks, is titillating
and shocking. ABC concedes that the scene included
back and side nudity, but contends that it was "not pre-
sented in a lewd, prurient, pandering, or titillating
way."26 ABC asserts that the purpose of the scene was
to "illustrate[] the complexity and awkwardness in-
volved when a single parent brings a new romantic part-
ner into his or her life," and that the nudity was not in-
cluded to depict an attempted seduction or a sexual re-
sponse from the young boy.27 Even accepting ABC's
assertions as to the purpose of the scene, they do not
alter our conclusion that the scene's depiction of adult
female nudity is titillating and shocking. As discussed
above, the scene includes multiple, close-up views of the
woman's nude buttocks, with the camera at one point
panning down her naked back for a lingering shot of her
buttocks. The partial views of the woman's breasts, as
well as the camera shots of the boy's shocked face from
Review, 19 FCC Rcd 9069, 9073-74 13 (2004), petition for recon.
pending.
26 See Response at 9.
27 See id. at 3-4, 9-11.

228a
between her legs and of her upper torso from behind his
head, are also relevant contextual factors that serve to
heighten the titillating and shocking nature of the scene.
Thus, we find that the scene in question, which included
repeated and lingering images of a woman naked from
the back, with close-up views of her naked buttocks, pre-
sented adult female nudity in a manner that shocks and
titillates viewers.
15. Finally, we reject ABC's argument that, because
of the "modest number of complaints" the network re-
ceived,28 and the program's generally high ratings,29 the
contemporary community standards of the viewing com-
munity embrace, rather than reject, this particular ma-
terial. As a matter of clarification, while ABC may not
have received many complaints about the program, the
Commission received numerous complaints, including
thousands of letters from members of various citizen
advocacy groups. The Commission's indecency determi-
nations are not governed by the number of complaints
received about a given program, however, nor do they
turn on whether the program or the station that broad-
cast it happens to be popular in its particular market.30
Indeed, with respect to the latter factor, the fact that
28 See id. at 9, n.7.
29 See id. at 9.
30 See The Rusk Corporation, Notice of Apparent Liability for Forfei-
ture, 8 FCC Rcd 3228, 3229 (1993) (forfeiture paid).

229a
the program is watched by a significant number of view-
ers serves to increase the likelihood that children were
among those who may have seen the indecent broad-
casts, thereby increasing the public harm from the licens-
ees' misconduct.
16. In sum, although the broadcast of nudity is not
necessarily indecent in all contexts,31 taking into account
the three principal factors in our contextual analysis, we
conclude that the broadcast of the material at issue here
is apparently indecent. As reviewed above, the material
in this episode was explicit, dwelled upon, and shocking,
pandering and titillating. The complained-of material
was broadcast by the licensees listed in the Attachment
within the 6 a.m. to 10 p.m. time frame relevant to an in-
decency determination under Section 73.3999 of the Com-
mission's rules.32 Although ABC included in the pro-
gram a warning that "this police drama contains adult
language and partial nudity,"33 the Supreme Court has
ruled that such warnings are not necessarily effective
31 Compare WPBN/WTOM MO&O, 15 FCC Rcd at 1840-41 8-13
(finding that nudity in the broadcast of the movie "Schindler's List"
was not indecent because it was not patently offensive in context) with
Young Broadcasting NAL, 19 FCC Rcd at 1756, 14 (finding that expo-
sure of male genitalia was patently offensive because it was gratuitous
and apparently intended to shock and titillate the audience).
32 See 47 C.F.R. 73.3999.
33 Response at 10-11.

230a
because the audience is constantly changing stations.34
Therefore, notwithstanding the warning, there is a rea-
sonable risk that children may have been in the audience
and the broadcast is legally actionable.35
17. Forfeiture Calculation. We find that the ABC
affiliates and ABC owned-and-operated stations listed
in the Attachment consciously and deliberately broad-
cast the programming at issue here. Accordingly,
we find that each broadcast in apparent violation of
18 U.S.C. 1464 and 47 C.F.R. 73.3999 was willful
within the meaning of Section 503(b)(1) of the Act, and
subject to forfeiture.
18. We therefore turn to the proposed forfeiture
amount, which is based on the factors enumerated in
Section 503(b)(2)(D) of the Act and the facts and circum-
stances of this case. For the following reasons, we find
that $27,500 is an appropriate proposed forfeiture for
the material found to be apparently indecent in this
case. The scene depicts a nude woman with her buttocks
entirely exposed. The material was prerecorded, and
ABC or its affiliates could have edited or declined the
content prior to broadcast.36 Although ABC included a
34 See Pacifica, 438 U.S. at 748-49.
35 See Action for Children's Television v. FCC, 58 F. 3d 654, 660-63
(D.C. Cir. 1995) (en banc), cert. denied, 516 U.S. 1072 (1996).
36 See Married By America NAL, 19 FCC Rcd at 20196 16.

231a
warning, we find that a lower forfeiture is not warranted
here in light of all the circumstances surrounding the
apparent violation, including the shocking and titillating
nature of the scene. On balance and in light of all of the
circumstances, we find that a $27,500 forfeiture amount
for each station would appropriately punish and deter
the apparent violation in this case. Therefore, we find
that each licensee listed in the Attachment is apparently
liable for a proposed forfeiture of $27,500 for each sta-
tion that broadcast the February 25, 2003, episode of
"NYPD Blue" prior to 10 p.m.37
19. Although we are informed that other stations
not mentioned in any complaint also broadcast the
complained-of episode of "NYPD Blue," we propose for-
feitures against only those licensees whose broadcasts
of the material between 6 a.m. and 10 p.m. were actually
the subject of viewer complaints to the Commission.
This result is consistent with the approach set forth
37 The fact that the stations in question may not have originated the
programming is irrelevant to whether there is an indecency violation.
See Review of the Commission's Regulations Governing Programming
Practices of Broadcast Television Networks and Affiliates, Notice of
Proposed Rulemaking, 10 FCC Rcd 11951,11961, 20 (1995) (internal
quotation omitted) ("We conclude that a licensee is not fulfilling his obli-
gations to operate in the public interest, and is not operating in accor-
dance with the express requirements of the Communications Act, if he
agrees to accept programs on any basis other than his own reasonable
decision that the programs are satisfactory.").

232a
by the Commission in its most recent indecency orders.38
As indicated in those orders, our commitment to an ap-
propriately restrained enforcement policy justifies this
more limited approach toward the imposition of forfei-
ture penalties. Accordingly, we propose forfeitures as
set forth in the Attachment.

IV. ORDERING CLAUSES

20. Accordingly, IT IS ORDERED, pursuant to Sec-
tion 503(b) of the Communications Act of 1934, as
amended, and Section 1.80 of the Commission's rules,
that the licensees of the stations that are affiliates of the
ABC Television Network and of the stations owned and
operated by ABC, as enumerated in the Attachment, are
hereby NOTIFIED of their APPARENT LIABILITY
FOR FORFEITURE in the amount of $27,500 per sta-
tion for willfully violating 18 U.S.C. 1464 and Section
73.3999 of the Commission's rules by their broadcast of
the program "NYPD Blue" on February 25, 2003.
21. IT IS FURTHER ORDERED that a copies of
this NAL shall be sent by Certified Mail, Return Re-
ceipt Requested, to John W. Zucker, Senior Vice Presi-
dent, Law & Regulation, ABC Inc., 77 West 66th Street,
New York, New York 20024, and to Susan L. Fox, Vice
President, Government Relations, The Walt Disney
38 See 2006 Indecency Omnibus Order, 21 FCC Rcd at 2673 32.

233a
Company, 1150 17th Street, N.W., Suite 400, Washing-
ton, D.C. 20036, and to the licensees of the stations list-
ed in the Attachment, at their respective addresses not-
ed therein.
22. IT IS FURTHER ORDERED, pursuant to Sec-
tion 1.80 of the Commission's rules, that not later than
February 11, 2008, each licensee identified in the At-
tachment SHALL PAY the full amount of its proposed
forfeiture or SHALL FILE a written statement seeking
reduction or cancellation of their proposed forfeiture.
23. Payment of the forfeitures must be made by
check or similar instrument, payable to the order of the
Federal Communications Commission. Payments must
include the relevant NAL/Acct. No. and FRN No. refer-
enced in the Attachment. Payment by check or money
order may be mailed to Federal Communications Com-
mission, P.O. Box 358340, Pittsburgh, Pennsylvania
15251-8340. Payment by overnight mail may be sent
to Mellon Bank/LB 358340, 500 Ross Street, Room
1540670, Pittsburgh, Pennsylvania 15251. Payment by
wire transfer may be made to ABA Number 043000261,
receiving bank Mellon Bank, and account number 911-
6106.
24. The responses, if any, must be mailed to Benigno
E. Bartolome, Acting Chief, Investigations and Hear-
ings Division, Enforcement Bureau, Federal Communi-

234a
cations Commission, 445 12th Street, S.W., Room 4-
C330, Washington D.C. 20554, and MUST INCLUDE
the relevant NAL/Acct. No. referenced for each pro-
posed forfeiture in the Attachment hereto.
25. The Commission will not consider reducing or
canceling a forfeiture in response to a claim of inability
to pay unless the respondent submits: (1) federal tax
returns for the most recent three-year period;
(2) financial statements prepared according to generally
accepted accounting practices ("GAAP"); or (3) some
other reliable and objective documentation that accu-
rately reflects the respondent's current financial status.
Any claim of inability to pay must specifically identify
the basis for the claim by reference to the financial docu-
mentation submitted.
26. Requests for payment of the full amount of this
NAL under an installment plan should be sent to: Asso-
ciate Managing Director--Financial Operations, 445
12th Street, S.W., Room 1-A625, Washington, D.C.
20554.39
27. Accordingly, IT IS ORDERED that the com-
plaints in this NAL proceeding ARE GRANTED to the
extent indicated herein, AND ARE OTHERWISE DE-
39 See 47 C.F.R. 1.1914.

235a
NIED, and the complaint proceeding IS HEREBY
TERMINATED.40
FEDERAL COMMUNICATIONS
COMMISSION
Marlene H. Dortch
Secretary
40 Consistent with Section 503(b) of the Act and consistent Commis-
sion practice, for the purposes of the forfeiture proceeding initiated by
this NAL, the only parties to such proceeding will be the licensees spec-
ified in the Attachment.

236a

ATTACHMENT

Proposed Forfeitures For February 25, 2003

Broadcasts Of "NYPD Blue"

Licensee

FRN

NAL

Station Call

Facil-

Proposed

Name and

No.

Acct.

Sign and

ity ID

Forfei-

Mailing

No.

Community

Nos.

ture

Address

of License

Amount

Cedar
KCRG-TV
9719
$27,500
Rapids
0002
2008
Cedar Rap-
Television
5894
3208
ids, IA
Company,
89
0013
2nd Ave-
nue at 5th
Street,
NE, Cedar
Rapids, IA
52401
Centex
KXXV(TV)
9781
$27,500
Television
0001
2008
Waco, TX
Limited
6757
3208
Partner-
19
0014
ship, P. O.
Box 2522,
Waco, TX
76702

237a

Licensee

FRN

NAL

Station Call

Facil-

Proposed

Name and

No.

Acct.

Sign and

ity ID

Forfei-

Mailing

No.

Community

Nos.

ture

Address

of License

Amount

Channel
KBMT(TV)
10150
$27,500
12 of
0006
2008
Beaumont,
Beaumont, 5873
3208
TX
Inc.,
07
0015
525 Inter-
state
Highway,
10 South,
Beaumont,
TX 77701
Citadel
KLKN(TV)
11264
$27,500
Communi-
0003
2008
Lincoln, NE
cations,
7574
3208
LLC, 44
81
0016
Pondfield
Road,
Suite 12,
Bronxville,
NY 10708

238a

Licensee

FRN

NAL

Station Call

Facil-

Proposed

Name and

No.

Acct.

Sign and

ity ID

Forfei-

Mailing

No.

Community

Nos.

ture

Address

of License

Amount

KLTV(TV)
68540
$27,500
KLTV/KT
0015
2008
Tyler, TX
RE Li-
7983
3208
cense Sub- 41
0017
sidiary,
LLC, 201
Monroe
Street,
RSA
Tower
20th
Floor,
Montgom-
ery, AL
36104
Duhamel
KOTA-TV
17688
$27,500
Broadcast- 0002
2008
Rapid City,
ing Enter-
4333
3208
SD
prises, 518 40
0018
St. Joseph
Street,,
Rapid
City, SD
57701

239a

Licensee

FRN

NAL

Station Call

Facil-

Proposed

Name and

No.

Acct.

Sign and

ity ID

Forfei-

Mailing

No.

Community

Nos.

ture

Address

of License

Amount

Forum
WDAY-TV
22129
$27,500
Communi-
0002
2008
Fargo, ND
cations
4800
3208
Company,
85
0019
301 8th
Street
South, P.
O. Box
2466,
Fargo, ND
58103
Gray Tele-
KAKE-TV
65522
$27,500
vision Li-
0002
2008
Wichita, KS
censee
7460
3208
Corp.,
22
0020
1500
North
West
Street,
Wichita,
KS 67203

240a

Licensee

FRN

NAL

Station Call

Facil-

Proposed

Name and

No.

Acct.

Sign and

ity ID

Forfei-

Mailing

No.

Community

Nos.

ture

Address

of License

Amount

Gray Tele-
KLBY(TV)
65523
$27,500
vision Li-
0002
2008
Colby, KS
censee,
7460
3208
Inc.,
22
0021
P. O. Box
10,
Wichita,
KS 67201
KSTP-TV,
KSTP-TV
28010
$27,500
LLC, 3415
0009
2008
St. Paul,
University 7696
3208
MN
Avenue,
21
0022
West, St.
Paul, MN
55114-2099

241a

Licensee

FRN

NAL

Station Call

Facil-

Proposed

Name and

No.

Acct.

Sign and

ity ID

Forfei-

Mailing

No.

Community

Nos.

ture

Address

of License

Amount

KATC
KATC(TV)
33471
$27,500
Communi-
0003
2008
Lafayette,
cations,
8222
3208
LA
Inc., 1103
85
0023
Eraste
Landry
Road, La-
fayette,
LA 70506
KATV,
KATV(TV)
33543
$27,500
LLC, P. O. 0001
2008
Little Rock,
Box 77,
6944
3208
AR
Little
62
0024
Rock, AR
72203

242a

Licensee

FRN

NAL

Station Call

Facil-

Proposed

Name and

No.

Acct.

Sign and

ity ID

Forfei-

Mailing

No.

Community

Nos.

ture

Address

of License

Amount

KDNL
KDNL-TV
56524
$27,500
Licensee,
0002
2008
St. Louis,
LLC, c/o
1444
3208
MO
Pillsbury
59
0025
Winthrop
Shaw
Pittman,
LLP, 2300
N Street,
NW,
Washing-
ton, DC
20037-1128
KETV
KETV(TV)
53903
$27,500
Hearst-
0003
2008
Omaha, NE
Argyle
7998
3208
Television, 55
0026
Inc., c/o
Brooks,
Pierce, et
al, P. O.
Box 1800,
Raleigh,
NC 27602

243a

Licensee

FRN

NAL

Station Call

Facil-

Proposed

Name and

No.

Acct.

Sign and

ity ID

Forfei-

Mailing

No.

Community

Nos.

ture

Address

of License

Amount

KFBB
KFBB-TV
34412
$27,500
Corpora-
0011
2008
Great Falls,
tion,
0942
3208
MT
L.L.C., c/o
81
0027
Wooster
Republi-
can Print-
ing Com-
pany, 40 S
Linden
Ave, Alli-
ance, OH
44601-2447

244a

Licensee

FRN

NAL

Station Call

Facil-

Proposed

Name and

No.

Acct.

Sign and

ity ID

Forfei-

Mailing

No.

Community

Nos.

ture

Address

of License

Amount

KHBS
KHOG-TV
60354
$27,500
Hearst-
0001
2008
Fayetteville,
Argyle
5870
3208
AR
Television, 88
0028
Inc., c/o
Brooks,
Pierce, et
al, P. O.
Box 1800,
Raleigh,
NC 27602
KMBC
KMBC-TV
65686
$27,500
Hearst-
0001
2008
Kansas
Argyle
6759
3208
City, MO
Television, 74
0029
Inc., c/o
Brooks,
Pierce, et
al, P.O.
Box 1800,
Raleigh,
NC 27602

245a

Licensee

FRN

NAL

Station Call

Facil-

Proposed

Name and

No.

Acct.

Sign and

ity ID

Forfei-

Mailing

No.

Community

Nos.

ture

Address

of License

Amount

KSWO
KSWO-TV
35645
$27,500
Television
0001
2008
Lawton, OK
Company,
6992
3208
Inc.,
48
0030
P. O. Box
708,
Lawton,
OK 73502
KTBS,
KTBS-TV
35652
$27,500
Inc., P. O.
0003
2008
Shreveport,
Box 44227, 7274
3208
LA
Shreve-
19
0031
port, LA
71104
KTRK
KTRK-TV
35675
$27,500
Television, 0012
2008
Houston,
Inc., 77 W.
4801
3208
TX
66th
09
0032
Street,
Floor 16,
New York,
NY 10023-
6201

246a

Licensee

FRN

NAL

Station Call

Facil-

Proposed

Name and

No.

Acct.

Sign and

ity ID

Forfei-

Mailing

No.

Community

Nos.

ture

Address

of License

Amount

KTUL,
KTUL(TV)
35685
$27,500
LLC, 3333
0001
2008
Tulsa, OK
S. 29th
6944
3208
West Ave-
13
0033
nue, Tulsa,
OK 74107
KVUE
KVUE(TV)
35867
$27,500
Television, 0001
2008
Austin, TX
Inc., 400
5455
3208
South Re-
81
0034
cord
Street,
Dallas, TX
75202
Louisiana
WBRZ-TV
38616
$27,500
Television
0001
2008
Baton
Broadcast- 7143
3208
Rouge, LA
ing, LLC,
44
0035
P. O. Box
2906, Ba-
ton Rouge,
LA 70821

247a

Licensee

FRN

NAL

Station Call

Facil-

Proposed

Name and

No.

Acct.

Sign and

ity ID

Forfei-

Mailing

No.

Community

Nos.

ture

Address

of License

Amount

McGraw-
KMGH-TV
40875
$27,500
Hill
0003
2008
Denver, CO
Broadcast- 4768
3208
ing Com-
27
0036
pany, 123
Speer
Boulevard,
Denver,
CO 80203
Media
WMBB(TV)
66398
$27,500
General
0015
2008
Panama
Communi-
7512
3208
City, FL
cation
17
0037
Holdings,
LLC,, 333
E. Frank-
lin Street,
Richmond,
VA 23219-
2213

248a

Licensee

FRN

NAL

Station Call

Facil-

Proposed

Name and

No.

Acct.

Sign and

ity ID

Forfei-

Mailing

No.

Community

Nos.

ture

Address

of License

Amount

Mission
KODE-TV
18283
$27,500
Broadcast- 0004
2008
Joplin, MO
ing, Inc.,
2848
3208
544 Red
99
0038
Rock
Drive,
Wadswort
h, OH
44281

249a

Licensee

FRN

NAL

Station Call

Facil-

Proposed

Name and

No.

Acct.

Sign and

ity ID

Forfei-

Mailing

No.

Community

Nos.

ture

Address

of License

Amount

Missis-
WABG-TV
43203
$27,500
sippi
0003
2008
Greenwood,
Broadcast- 8287
3208
MS
ing Part-
53
0039
ners, c/o
Anne
Swanson,
Dow
Lohnes
PLLC,
1200 New
Hamp-
shire Ave-
nue, NW,
Suite 800,
Washing-
ton DC
20036-6802

250a

Licensee

FRN

NAL

Station Call

Facil-

Proposed

Name and

No.

Acct.

Sign and

ity ID

Forfei-

Mailing

No.

Community

Nos.

ture

Address

of License

Amount

Nexstar
0009
2008
WDHN(TV) 43846
$27,500
Broadcast- 9618
3208
Dothan, AL
ing, Inc.,
89
0040
909 Lake
Carolyn
Parkway,
Suite 1450,
Irving, TX
75039
New York
WQAD-TV
73319
$27,500
Times
0003
2008
Moline, IL
Manage-
4815
3208
ment Ser-
87
0041
vices Co.
c/o New
York
Times Co.
229 W.
43rd
Street
New York,
NY 10036-
3913

251a

Licensee

FRN

NAL

Station Call

Facil-

Proposed

Name and

No.

Acct.

Sign and

ity ID

Forfei-

Mailing

No.

Community

Nos.

ture

Address

of License

Amount

Nexstar
KQTV(TV)
20427
$27,500
Broadcast- 0009
2008
St. Joseph,
ing, Inc.,
9618
3208
MO
909 Lake
89
0042
Carolyn
Parkway,
Suite 1450,
Irving, TX
75039
Northeast
KTKA-TV
49397
$27,500
Kansas
0001
2008
Topeka, KS
Broadcast
8417
3208
Service,
66
0043
Inc., 2121
S.W.
Chelsea
Avenue,
Topeka,
KS 66604

252a

Licensee

FRN

NAL

Station Call

Facil-

Proposed

Name and

No.

Acct.

Sign and

ity ID

Forfei-

Mailing

No.

Community

Nos.

ture

Address

of License

Amount

NPG of
KVIA-TV
49832
$27,500
Texas,
0006
2008
El Paso, TX
L.P., 4140
5480
3208
Rio Bravo, 28
0044
El Paso,
TX 79902
Ohio/Okla
KOCO-TV
12508
$27,500
homa
0001
2008
Oklahoma
Hearst-
5876
3208
City, OK
Argyle
09
0045
Television,
c/o Brooks
Pierce et
al, P. O.
Box 1800,
Raleigh,
NC 27602

253a

Licensee

FRN

NAL

Station Call

Facil-

Proposed

Name and

No.

Acct.

Sign and

ity ID

Forfei-

Mailing

No.

Community

Nos.

ture

Address

of License

Amount

Piedmont
WAAY-TV
57292
$55,000
Television
0004
2008
Huntsville,
of
0634
3208
AL
Huntsville
83
0046
35630
License,
KSPR(TV)
LLC, c/o
Springfield,
Piedmont
MO
Television
Holdings
LLC, 7621
Little Ave-
nue, Suite
506, Char-
lotte, NC
28226

254a

Licensee

FRN

NAL

Station Call

Facil-

Proposed

Name and

No.

Acct.

Sign and

ity ID

Forfei-

Mailing

No.

Community

Nos.

ture

Address

of License

Amount

Pol-
KLAX-TV
52907
$27,500
lack/Belz
0006
2008
Alexandria,
Communi-
0962
3208
LA
cations
00
0047
Co., Inc.,
5500 Pop-
lar Lane,
Memphis,
TN 38119-
3716

255a

Licensee

FRN

NAL

Station Call

Facil-

Proposed

Name and

No.

Acct.

Sign and

ity ID

Forfei-

Mailing

No.

Community

Nos.

ture

Address

of License

Amount

Post-
KSAT-TV
53118
$27,500
Newsweek 0002
2008
San Anto-
Stations,
1499
3208
nio, TX
San Anto-
53
0048
nio, Inc.,
c/o Post-
Newsweek
Stations,
550 West
Lafayette
Boulevard,
Detroit,
MI 48226-
3140
Scripps
KNXV-TV
59440
$27,500
Howard
0012
2008
Phoenix, AZ
Broadcast- 4876
3208
ing Co.,
09
0049
312 Wal-
nut Street,
Cincinnati,
OH 45202

256a

Licensee

FRN

NAL

Station Call

Facil-

Proposed

Name and

No.

Acct.

Sign and

ity ID

Forfei-

Mailing

No.

Community

Nos.

ture

Address

of License

Amount

Southern
WKDH(TV)
83310
$27,500
Broadcast- 0005
2008
Houston,
ing, Inc.,
4116
3208
MS
P. O. Box
32
0050
1645, Tu-
pelo, MS
38802
Tennessee
WBBJ-TV
65204
$27,500
Broadcast- 0003
2008
Jackson, TN
ing Part-
8286
3208
ners, c/o
96
0051
Russell
Schwartz,
One Tele-
vision
Place,
Charlotte,
NC 28205

257a

Licensee

FRN

NAL

Station Call

Facil-

Proposed

Name and

No.

Acct.

Sign and

ity ID

Forfei-

Mailing

No.

Community

Nos.

ture

Address

of License

Amount

Tribune
WGNO(TV)
72119
$27,500
Television
0002
2008
New Or-
New Or-
8475
3208
leans, LA
leans, Inc., 64
0052
1 Galleria
Boulevard,
Suite 850,
Metairie,
LA 70001
WAPT
WAPT(TV)
49712
$27,500
Hearst-
0005
2008
Jackson, MS
Argyle TV, 0088
3208
Inc., (CA
67
0053
Corp.) ,
P. O. Box
1800, Ra-
leigh, NC
27602

258a

Licensee

FRN

NAL

Station Call

Facil-

Proposed

Name and

No.

Acct.

Sign and

ity ID

Forfei-

Mailing

No.

Community

Nos.

ture

Address

of License

Amount

WDIO-TV,
WDIO-TV
71338
$27,500
LLC, 3415
0004
2008
Duluth, MN
University 1991
3208
Avenue
39
0054
West, St.
Paul, MN
55114-2099
WEAR
WEAR-TV
71363
$27,500
Licensee,
0004
2008
Pensacola,
LLC,
9709
3208
FL
Pillsbury,
35
0055
Winthrop,
Shaw,
Pittman,
LLP, 2300
N Street,
NW,
Washing-
ton, DC
20037-1128

259a

Licensee

FRN

NAL

Station Call

Facil-

Proposed

Name and

No.

Acct.

Sign and

ity ID

Forfei-

Mailing

No.

Community

Nos.

ture

Address

of License

Amount

WFAA-
WFAA-TV
72054
$27,500
TV, Inc.,
0001
2008
Dallas, TX
400 South
6514
3208
Record
96
0056
Street,
Dallas, TX
75202
WISN
WISN-TV
65680
$27,500
Hearst-
0003
2008
Milwaukee,
Argyle TV, 7926
3208
WI
Inc. (CA
03
0057
Corp.),
P. O. Box
1800, Ra-
leigh, NC
27602
WKOW
WKOW-TV
64545
$27,500
Television, 0004
2008
Madison,
Inc.,
3836
3208
WI
P. O. Box
83
0058
909,
Quincy, IL
62306

260a

Licensee

FRN

NAL

Station Call

Facil-

Proposed

Name and

No.

Acct.

Sign and

ity ID

Forfei-

Mailing

No.

Community

Nos.

ture

Address

of License

Amount

WKRN,
WKRN-TV
73188
$27,500
G.P., c/o
0005
2008
Nashville,
Brooks
0150
3208
TN
Pierce et
37
0059
al, P. O.
Box 1800,
Raleigh,
NC 27602
WLS Tele-
WLS-TV
73226
$27,500
vision,
0003
2008
Chicago, IL
Inc., 77 W.
4713
3208
66th
15
0060
Street,
Floor 16,
New York,
NY 10023-
6201
WSIL-TV,
WSIL-TV
73999
$27,500
Inc., 5009
0002
2008
Harrisburg,
South
8081
3208
IL
Hulen,
37
0061
Suite 101,
Fort
Worth, TX
76132-1989

261a

Licensee

FRN

NAL

Station Call

Facil-

Proposed

Name and

No.

Acct.

Sign and

ity ID

Forfei-

Mailing

No.

Community

Nos.

ture

Address

of License

Amount

WXOW-
0005
2008
WXOW-TV
64549
$27,500
WQOW
0122
3208
La Crosse,
Television, 16
0062
WI
Inc., P.O.
Box 909,
Quincy, IL
62306
Young
WBAY-TV
74417
$27,500
Broadcast- 0004
2008
Green Bay,
ing of
9949
3208
WI
Green
84
0063
Bay, Inc.,
c/o Brooks
Pierce et
al, P. O.
Box 1800,
Raleigh,
NC 27602

262a

STATEMENT OF

COMMISSIONER DEBORAH TAYLOR TATE

Our action today should serve as a reminder to all
broadcasters that Congress and American families con-
tinue to be concerned about protecting children from
harmful material and that the FCC will enforce the laws
of the land vigilantly. In fact, pursuant to the Broadcast
Decency Act of 2005, Congress increased the maximum
authorized fines ten-fold. The law is simple. If a broad-
caster makes the decision to show indecent program-
ming, it must air between the hours of 10 p.m. and 6 a.m.
This is neither difficult to understand nor burdensome
to implement.

263a

APPENDIX G

1. 18 U.S.C. 1464 provides:

Broadcasting obscene language

Whoever utters any obscene, indecent, or profane
language by means of radio communication shall be
fined under this title or imprisoned not more than two
years, or both.
2. 47 U.S.C. 312 provides in relevant part:

Administrative sanctions

(a) Revocation of station license or construction permit
The Commission may revoke any station license or
construction permit--
(1) for false statements knowingly made either
in the application or in any statement of fact which
may be required pursuant to section 308 of this title;
(2) because of conditions coming to the attention
of the Commission which would warrant it in refus-
ing to grant a license or permit on an original appli-
cation;

264a
(3) for willful or repeated failure to operate sub-
stantially as set forth in the license;
(4) for willful or repeated violation of, or willful
or repeated failure to observe any provision of this
chapter or any rule or regulation of the Commission
authorized by this chapter or by a treaty ratified by
the United States;
(5) for violation of or failure to observe any final
cease and desist order issued by the Commission un-
der this section;
(6) for violation of section 1304, 1343, or 1464
Title 18; or
(7) for willful or repeated failure to allow reason-
able access to or to permit purchase of reasonable
amounts of time for the use of a broadcasting station,
other than a non-commercial educational broadcast
station, by a legally qualified candidate for Federal
elective office on behalf of his candidacy.
(b) Cease and desist orders
Where any person (1) has failed to operate substan-
tially as set forth in a license, (2) has violated or failed to
observe any of the provisions of this chapter, or section
1304, 1343, or 1464 Title 18, or (3) has violated or failed
to observe any rule or regulation of the Commission au-

265a
thorized by this chapter or by a treaty ratified by the
United States, the Commission may order such person
to cease and desist from such action.
* * * * *
3. 47 U.S.C. 503 provides in relevant part:

Forfeitures

* * * * *
(b) Activities constituting violations authorizing imposi-
tion of forfeiture penalty; amount of penalty; proce-
dures applicable; persons subject to penalty; liability
exemption period

(1) Any person who is determined by the Commis-
sion, in accordance with paragraph (3) or (4) of this sub-
section, to have--
(A) willfully or repeatedly failed to comply sub-
stantially with the terms and conditions of any li-
cense, permit, certificate, or other instrument or au-
thorization issued by the Commission;
(B) willfully or repeatedly failed to comply with
any of the provisions of this chapter or of any rule,
regulation, or order issued by the Commission under
this chapter or under any treaty, convention, or oth-

266a
er agreement to which the United States is a party
and which is binding upon the United States;
(C) violated any provision of section 317(c) or
509(a) of this title; or
(D) violated any provision of section 1304, 1343,
or 1464 of Title 18;
shall be liable to the United States for a forfeiture pen-
alty. A forfeiture penalty under this subsection shall be
in addition to any other penalty provided for by this
chapter; except that this subsection shall not apply to
any conduct which is subject to forfeiture under sub-
chapter II of this chapter, part II or III of subchapter
III of this chapter, or section 507 of this title.
* * * * *
4. Public Telecommunications Act of 1992, Pub. L.
No. 102-356, 16(a), 106 Stat. 949, provides:
FCC REGULATIONS.--The Federal Communications
Commission shall promulgate regulations to prohibit the
broadcasting of indecent programming--
(1) between 6 a.m. and 10 p.m. on any day by
any public radio station or public television station
that goes off the air at or before 12 midnight; and

267a
(2) between 6 a.m. and 12 midnight on any day
for any radio or television broadcasting station not
described in paragraph (1).
The regulations required under this subsection shall be
promulgated in accordance with section 553 of title 5,
United States Code, and shall become final not later
than 180 days after the date of enactment of this Act.
5. 47 C.F.R. 73.3999 provides:

Enforcement of 18 U.S.C. 1464 (restrictions on the trans-
mission of obscene and indecent material).

(a) No licensee of a radio or television broadcast
station shall broadcast any material which is ob-
scene.

(b) No 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.

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