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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 )
)
NOTICES OF APPARENT LIABILITY AND
MEMORANDUM OPINION AND ORDER
Adopted: February 21, 2006 Released: March 15, 2006
By the Commission: Chairman Martin, Commissioners Copps and Tate issuing
separate statements; Commissioner Adelstein concurring, dissenting in part
and issuing a statement.
Table of Contents
Heading Paragraph #
I. INTRODUCTION 1
II. BACKGROUND 8
III. DISCUSSION 22
A. Notices of Apparent Liability for Forfeiture 22
1. "The Surreal Life 2" (February 8, 2004) 22
2. "Con El Corazon En La Mano" (October 9, 2004) 33
3. "Fernando Hidalgo Show" (October 19, 2004) 43
4. "Video Musicales" (February 2-March 8, 2002) 52
5. "The Blues: Godfathers and Sons" (March 11, 2004) 72
6. "The Pursuit of D.B. Cooper" (March 15, 2003) 87
B. Indecent And/Or Profane Broadcasts But No Forfeiture Proposed 100
1. "The 2002 Billboard Music Awards" (December 9, 2002) 101
2. "The 2003 Billboard Music Awards" (December 10, 2003) 112
3. "NYPD Blue" (various dates between January 14 and May 6, 2003) 125
4. "The Early Show" (December 13, 2004) 137
C. Broadcasts That Do Not Violate Indecency/Profanity/Obscenity
Restrictions 146
1. "Alias" (January 5, 2005) 147
2. "Will and Grace" (November 11, 2004) 153
3. "Two and a Half Men" (February 21, 2005) 160
4. "Committed" (March 8, 2005) 163
5. "Golden Phoenix Hotel & Casino Commercial" (February 19, 2005) 166
6. "The Oprah Winfrey Show" (March 18, 2004) 173
7. Political Advertisement (October 14, 2004) 180
8. "The Amazing Race 6" (December 21, 2004) 188
9. Various Programs Containing Expletives (various dates between August
31, 2004 and February 28, 2005) 193
10. "Family Guy" (January 16, 2005) 200
11. "The Academy Awards" (February 27, 2005) 206
12. "8 Simple Rules" (February 4, 2005) 210
13. "The Today Show" (January 11, 2005) 213
14. "The Simpsons" (September 9, 2004) 219
15. "America's Funniest Home Videos" (February 5, 2005) 224
16. "Green Bay Packers v. Minnesota Vikings" (January 9, 2005) 227
17. "Medium" (January 17, 2005) 230
IV. ordering clauses 233
I. INTRODUCTION
1. The Commission has regulated the broadcast of indecent programming for
decades, and our authority in this area has long been upheld as
constitutional by the U.S. Supreme Court. During the last few years,
however, we have witnessed increasing public unease with the nature of
broadcast material. In particular, Americans have become more
concerned about the content of television programming, with the number
of complaints annually received by the Commission rising from fewer
than 50 in 2000 to approximately 1.4 million in 2004. At the same
time, broadcasters have sought guidance from the Commission about our
rules, arguing that they lack certainty regarding the meaning of our
indecency and profanity standards. The decisions we issue today
respond to both of these concerns.
2. In these decisions, we address hundreds of thousands of complaints
alleging that various broadcast television programs aired between
February 2002 and March 2005 are indecent, profane, and/or obscene.
The cases we resolve today represent a broad range of factual
patterns. Taken both individually and as a whole, we believe that they
will provide substantial guidance to broadcasters and the public about
the types of programming that are impermissible under our indecency
standard. The cases also further refine our standard regarding the use
of profane language in the broadcast medium and illustrate the types
of language proscribed by that standard. Overall, the decisions
demonstrate repeatedly that we must always look to the context in
which words or images occur to determine whether they are indecent. In
addition, while we find certain highly offensive language to be
presumptively profane, we also take care to emphasize that such words
may not be profane in specified contexts.
3. Section II below is devoted to providing a full description of the
Commission's standards for analyzing whether programming is indecent
and/or profane and referencing the legal sources upon which these
standards are based. In Section II, we also fully describe our
methodology for calculating proposed forfeitures against broadcast
licensees when there has been an apparent violation of our
prohibitions against indecency and/or profanity.
4. In Section III, we apply these indecency and/or profanity standards to
the complaints before us on a case-by-case basis. We begin with cases
in which we have determined that the broadcast licensee apparently
aired indecent and/or profane material and propose forfeitures against
the licensee. The monetary forfeitures proposed demonstrate that the
Commission will exercise its statutory authority to ensure that the
broadcast of indecent and/or profane material will be appropriately
sanctioned.
5. Section III next addresses cases in which we find the complained-of
material indecent and/or profane but do not propose taking action
against the licensee. In these cases, the licensee was not on notice
at the time of the broadcast that we would deem the relevant material
indecent or profane. For example, we hold that a single use of the
word "shit" and its variants (the "S-Word") in the contexts presented
is both indecent and profane. However, we do not propose adverse
action in these cases because we have not previously announced this
conclusion.
6. Section III concludes with a discussion of a number of cases in which
we determine that various words, phrases, or scenes that occur in a
variety of programs, while undoubtedly upsetting to some viewers, do
not warrant action against the broadcast station licensee. We reach
these determinations either because the complained-of material is not
within the scope of our indecency or profanity definitions or because,
even if it is within the scope of our indecency definition, it is not,
in the contexts before us, patently offensive as measured by
contemporary community standards for the broadcast medium.
7. Together, these decisions demonstrate the Commission's strong
commitment to fulfilling the responsibility vested in us by Congress
within the parameters of the United States Constitution. We believe
that issuing these decisions as a single order will enable
broadcasters to better understand the boundaries of our indecency and
profanity standards, while at the same time responding to the concerns
expressed by hundreds of thousands of citizens in complaints filed
with the Commission. In the end, our primary objective is to fulfill
our statutory obligation to enforce the law in this area and to do so
in a clear and consistent manner.
II. BACKGROUND
8. Section 1464 of title 18, United States Code, prohibits the broadcast
of obscene, indecent, or profane programming. The FCC rules
implementing that statute, a subsequent statute establishing a "safe
harbor" during certain hours, and the Communications Act of 1934, as
amended (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. Broadcasters also may not air profane
material during this time period.
9. The federal prohibition against the broadcast of indecent and profane
material is longstanding. In the Radio Act of 1927, Congress first
provided that "[n]o person within the jurisdiction of the United
States shall utter any obscene, indecent, or profane language by means
of radio communication." This prohibition was then reenacted as part
of the Act and was moved subsequently to title 18 of the United States
Code in 1948.
10. Indecency Analysis. The federal courts have consistently upheld
Congress's authority to regulate the broadcast of indecent material,
as well as the Commission's interpretation and implementation of the
governing statute. In 1978, the U.S. Supreme Court, in upholding the
constitutionality of the prohibition against the broadcast of indecent
material, concluded that "special treatment of indecent broadcasting"
was appropriate. The Court noted that the Commission's authority to
regulate indecent broadcast material is justified by two primary
considerations, both of which are equally, if not more, applicable
today. First, the broadcast media occupy "a uniquely pervasive
presence in the lives of all Americans." Indecent material "presented
over the airwaves confronts the citizen, not only in public, but also
in the privacy of their own home, where the individual's right to be
left alone plainly outweighs the First Amendment rights of an
intruder." "Because the broadcast audience is constantly tuning in and
out, prior warnings cannot completely protect the listener or viewer
from unexpected program content." Indeed, while the Supreme Court's
observation regarding the pervasiveness of the broadcast media dates
back to 1978, the ubiquity of television in the lives of Americans has
only increased in the intervening 28 years. Second, the Supreme Court
observed that "broadcasting is uniquely accessible to children, even
those too young to read." This finding is even more relevant today
given the increased accessibility of the broadcast media to children.
11. Enforcement of the provisions restricting the broadcast of indecent,
obscene, or profane material is an important component of the
Commission'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 program material or interfering with broadcasters' free
speech rights. As such, in making indecency determinations, the
Commission proceeds cautiously and with appropriate restraint.
12. 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.
Indecency findings involve at least two fundamental determinations. First,
the material alleged to be indecent must fall within the subject matter
scope of our indecency definition--that is, the material must describe or
depict sexual or excretory organs or activities. . . . Second, the
broadcast must be patently offensive as measured by contemporary community
standards for the broadcast medium.
13. In our assessment of whether broadcast material is patently offensive,
"the full context in which the material appeared is critically
important." Three principal 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 descriptions
of sexual or excretory organs or activities; and (3) whether the
material panders to, titillates, or shocks the audience. In examining
these three factors, 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 presents its own particular
mix of these, and possibly, other factors." In particular cases, one
or two of the factors may outweigh the others, either rendering the
broadcast material patently offensive and consequently indecent, or,
alternatively, removing the broadcast material from the realm of
indecency.
14. In each of the cases below in which the complaint alleges indecency,
we apply the two-pronged indecency analysis described above.
Specifically, we first determine whether the complained-of material is
within the scope of our indecency definition; i.e., whether it
describes or depicts sexual or excretory activities or organs. If so,
we then turn to the three principal factors of the second prong to
determine whether, taken in context, the material is patently
offensive as measured by contemporary community standards for the
broadcast medium.
15. As evidenced below, our contextual analysis takes into account the
manner and purpose of broadcast material. For example, material that
panders to, titillates, or shocks the audience is treated quite
differently than material that is primarily used to educate or inform
the audience. In particular, we recognize the need for caution with
respect 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.
16. Profanity Analysis. In the Golden Globe Awards Order, we concluded
that the "F-Word" constituted "profane language" within the meaning of
18 U.S.C. S 1464 because, in context, it involved vulgar and coarse
language "so grossly offensive to members of the public who actually
hear it as to amount to a nuisance." We indicated in that decision
that we would analyze other potentially profane words on a
case-by-case basis.
17. Just as with indecent broadcasting, we are mindful that, in exercising
our statutory authority over profane broadcast material, we must
proceed with "due respect for the high value our Constitution places
on freedom and choice in what the people say and hear." In the Golden
Globe Awards Order, we interpreted profanity, citing a decision by the
U.S. Court of Appeals for the Seventh Circuit, as "denoting certain of
those personally reviling epithets naturally tending to provoke
violent resentment or denoting language so grossly offensive to
members of the public who actually hear it as to amount to a
nuisance." In the context of broadcasting, however, it is not clear
whether the "fighting words" portion of this definition applies. Given
the nature of television and radio, it appears unlikely that broadcast
material would provoke immediate violence between those uttering such
words and the audience. Therefore, in the cases below, and as a
general matter, we will analyze potentially profane language with
respect to whether it is "so grossly offensive as to constitute a
nuisance."
18. Additionally, given the sensitive First Amendment implications in this
area, we establish a presumption that our regulation of profane
language will be limited to the universe of words that are sexual or
excretory in nature or are derived from such terms. As our regulation
of profane language is based on a nuisance rationale similar to that
which forms the basis for indecency regulation, we believe that the
same limitation on the scope of our regulation is appropriate and
rests upon sound constitutional footing. Although we recognize that
additional words, such as language conveying racial or religious
epithets, are considered offensive by most Americans, we intend to
avoid extending the bounds of profanity to reach such language given
constitutional considerations.
19. We conclude below that certain vulgar sexual or excretory terms are so
grossly offensive to members of the public that they amount to a
nuisance and are presumptively profane. We reserve that distinction
for the most offensive words in the English language, the broadcast of
which are likely to shock the viewer and disturb the peace and quiet
of the home. We also note, however, that in rare 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. As detailed below, we caution that we will find this
exception to be applicable only in unusual circumstances.
20. Forfeiture Calculations. The Notices of Apparent Liability for
Forfeiture ("NALs") contained in this decision are issued pursuant to
section 503(b)(1) of the Act. Under that provision, 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. Section 312(f)(1) of the Act defines willful as
"the conscious and deliberate commission or omission of [any] act,
irrespective of any intent to violate" the law. The legislative
history to section 312(f)(1) of the Act clarifies that this definition
of willful applies to both sections 312 and 503(b) of the Act, and the
Commission has so interpreted the term in the section 503(b) context.
The term "repeated" means that the action was committed or omitted
more than once, or lasts more than one day. We emphasize that every
licensee is responsible for the decision to air particular programming
and will be held accountable for violating federal restrictions on the
willful or repeated broadcast of obscene, indecent, or profane
material.
21. The Commission's Forfeiture Policy Statement establishes a base
forfeiture amount of $7,000 for the transmission of indecent or
obscene materials. The Forfeiture Policy Statement also specifies that
the Commission shall adjust a forfeiture based upon consideration of
the factors enumerated in section 503(b)(2)(D), such as "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 such other matters as justice may
require." For the cases in this decision, the statutory maximum
forfeiture amount for each apparent violation occurring prior to
September 7, 2004 was $27,500. The statutory maximum forfeiture amount
for violations discussed in this decision occurring on or after
September 7, 2004 is $32,500. Consistent with the Forfeiture Policy
Statement, we calculate forfeiture amounts by: (1) determining whether
to use the base statutory amount, the maximum statutory amount, or a
different figure below the statutory maximum based upon consideration
of the factors enumerated in section 503(b)(2)(D); and (2) multiplying
that figure by the number of violations. Where repeated violations
have occurred but the resulting total forfeiture amount would be
excessive to achieve the appropriate level of punishment and
deterrence, we also may adjust the total proposed forfeiture according
to the stated statutory factors.
III. DISCUSSION
A. Notices of Apparent Liability for Forfeiture
1. "The Surreal Life 2" (February 8, 2004)
22. The Programming. The Commission received a complaint alleging that
WBDC Broadcasting, Inc. ("WBDC Broadcasting"), licensee of Station
WBDC-TV, Washington, D.C., and other station affiliates of the WB
Television Network (the "WB Network"), broadcast indecent material
during the Pool Party Episode of the program "The Surreal Life 2" on
February 8, 2004, at 9:00 p.m. Eastern Standard Time. On September 27,
2004, the Bureau sent a letter of inquiry to the WB Network concerning
this and other episodes of "The Surreal Life 2." In response to the
letter of inquiry, the WB Network stated, inter alia, that Station
WBDC-TV aired the complained-of episode on February 8, 2004 at 9:00
p.m. Eastern Standard Time.
23. "The Surreal Life 2" is a "reality-based" television program in which
six cast members from diverse backgrounds share a luxurious house for
12 days. One of the six cast members, Ron Jeremy, is a veteran actor
in pornographic movies. In the Pool Party Episode, he gives a pool
party for about twenty of his friends in the pornographic movie
industry. During the ten-minute sequence depicting this party, the
episode displays approximately 20 pixilated views of various female
guests' nude breasts and, in one case, a female guest's entire nude
body. In addition, there are numerous other examples of sexual images
and innuendo, including two brief, pixilated scenes in which Mr.
Jeremy touches or kisses a female guest's bare breast; a scene in
which Andy Dick, another guest at the party, places his mouth on the
top portion of a female cast member's breast and makes a comic sound,
and the female cast member explains that they are just friends;
another scene in which Andy Dick kisses a female guest's pixilated
bare breast and spanks her buttocks, stating jestingly that she should
go to her room and he'll join her there shortly; a scene where a
female guest appears to sexually proposition a male cast member; and a
scene in which another female cast member suggests that the party
attendees play a game of "strip truth or dare to get naked," saying to
Ron Jeremy, "[c]ome on porn star, everyone knows about your big
[bleep], though I haven't seen it."
24. Indecency Analysis. We find that the material meets the first prong of
the indecency test. As noted above, the episode contains several
pixilated views of nude breasts and a nude body, as well as other
sexual images and innuendo described above. All of this material
depicts or describes sexual activities and organs.
25. Moving to the second prong of our indecency test, we also find that
the material is, in the context presented here, patently offensive as
measured by contemporary community standards for the broadcast medium.
The first of the three principal factors in our contextual analysis
weighs in favor of a finding of patent offensiveness because the
material is explicit and graphic. In this regard, the mere pixilation
of sexual organs is not necessarily determinative under our analysis
because the material must be assessed in its full context. Here,
despite the obscured nature of the nudity, it is unmistakable that
partygoers are exposing and discussing sexual organs as well as
participating in sexual activities, such as when Mr. Jeremy touches or
kisses an unclothed female breast. Indeed, a child watching this
program could easily discern that nude or partially nude adults are
attending a party and participating in, or soliciting participation
in, sexual activities. We, therefore, find that the complained-of
material is explicit and graphic.
26. With respect to the second prong of our contextual analysis, we find
that the broadcast dwells on and repeats the sexual material. We have
repeatedly held that repetition and persistent focus on sexual or
excretory material is a relevant factor in evaluating the potential
offensiveness of broadcasts. In this case, the presentation of
approximately 20 views of pixilated female nudity within a ten-minute
segment, together with other depictions or descriptions of sexual
organs or activities during the same episode, demonstrates that this
episode dwells upon and repeats sexual material.
27. Looking to the final prong of our test, we conclude that the broadcast
material is presented in a manner that panders to, titillates, and
shocks the audience. Among other things, the material depicts male
cast members and party guests ogling, fondling, and kissing female
party guests' bare breasts, a male party guest spanking a female
guest's buttocks and placing his lips on a female cast member's
breast, a female party guest sexually propositioning a male cast
member, and a male and female cast member attempting to goad one
another into disrobing, with the female cast member proposing a game
of "strip truth or dare to get naked." The strong emphasis on the fact
that some female party guests are pornographic film stars also panders
to the audience.
28. In reaching our determination, we disagree with WB Network's
contention that "these isolated scenes contain no graphic depictions
or profanity that might rise to the level of actionable indecency." In
support of its argument, WB Network cites the KSAZ MO&O and the Buffy
the Vampire Slayer MO&O in which we denied indecency complaints. Both
of these cases, however, are distinguishable from the Pool Party
Episode of the "The Surreal Life 2." Each of those cases involved two
fully clothed adults, and the individual scenes involved were less
graphic, explicit, and sustained than the complained-of material here.
29. In sum, because the material is explicit and graphic, is dwelled upon,
and presented in a manner to titillate and shock viewers, we conclude
that the broadcast of the material at issue here is patently offensive
under contemporary community standards for the broadcast medium and
thus apparently indecent. The complained-of material was broadcast
within the 6 a.m. to 10 p.m. time frame relevant to an indecency
determination under section 73.3999 of the Commission's rules.
Therefore, there is a reasonable risk that children may have been in
the viewing audience and the broadcast is legally actionable.
30. Forfeiture Calculation. In the instant case, WBDC Broadcasting
consciously and deliberately broadcast this episode. Accordingly, we
find that WBDC Broadcasting's broadcast in apparent violation of 18
U.S.C. S 1464 and 47 C.F.R. S 73.3999 was willful within the meaning
of section 503(b)(1) of the Act, and subject to forfeiture.
31. Based on the egregious nature of the broadcast material at issue, and
the factors enumerated in section 503(b)(2)(D) of the Act, we further
find that a forfeiture amount of $27,500, the statutory maximum in
effect at the time of the broadcasts, is appropriate. The gravity of
the apparent violation is heightened by the degree to which the scene
dwells on and repeats sexual material in a manner that titillates and
shocks viewers. The scene lasts for over ten minutes, contains
approximately twenty pixilated images of nude adults, including a
fully nude body, and focuses almost entirely on men and women
disrobing, ogling, fondling, kissing, and sexually propositioning one
another during a pool party. Moreover, the Pool Party Episode of "The
Surreal Life 2" is a taped program with an obvious sexual theme that
could have been ascertained and preempted by the licensee or shown
after 10 p.m.
32. Although other stations also may have broadcast the Pool Party
Episode, we propose a forfeiture only against WBDC Broadcasting, Inc.
as the only licensee whose broadcast of the material was actually the
subject of a viewer complaint to the Commission. We recognize that
this approach differs from that taken in previous Commission decisions
involving the broadcast of apparently indecent programming. Our
commitment to an appropriately restrained enforcement policy, however,
justifies this more limited approach towards the imposition of
forfeiture penalties. Accordingly, we propose a forfeiture of $27,500
against WBDC Broadcasting, Inc.
1. "Con El Corazon En La Mano" (October 9, 2004)
33. The Programming. The Commission received a complaint alleging that NBC
Telemundo License Co. ("NBC Telemundo"), licensee of Station KWHY-TV,
Los Angeles, California, aired indecent material at approximately 8:15
p.m. on October 9, 2004, during a broadcast of the Spanish-language
movie, "Con El Corazon En La Mano." The complaint alleged that the
broadcast contains a scene depicting a man and woman engaged in sexual
intercourse while another individual watches them.
34. On April 8, 2005, the Bureau directed a letter of inquiry to NBC
Telemundo concerning the broadcast. NBC Telemundo responded by letters
dated May 19 and June 24, 2005. As confirmed by a videotape of the
program provided by NBC Telemundo, the scene in question depicts a man
raping a woman in a public restroom while another man stands nearby,
acting as a lookout. NBC Telemundo acknowledges that it aired the
movie over Station KWHY-TV, Los Angeles, California, beginning at 8:00
p.m. on October 9, 2004, and that the scene took place within the
first 15 minutes of the broadcast. NBC Telemundo maintains, however,
that "the complained-of material is not actionably indecent because it
does not include depictions of nude sexual or excretory organs,
offensive language or other material that the Commission previously
has deemed indecent."
35. Indecency Analysis. We find that the programming at issue is within
the scope of our indecency definition because it clearly depicts
sexual activity. NBC Telemundo does not deny that the material
portrays a woman being raped.
36. We also find that the complained-of material is, in the context
presented, patently offensive as measured by contemporary community
standards for the broadcast medium. Turning to the three principal
factors that inform our contextual analysis, the scene is explicit and
graphic. The material depicts a woman being savagely attacked and
raped in a public restroom. One man grabs the woman and forcibly
kisses her as she struggles to free herself. He strikes her to the
floor and, kneeling down, grabs one of her breasts as she screams. As
they struggle together on the floor, the camera focuses on their hips,
showing his hand pulling her underwear down her bare thigh as he
maneuvers on top of her with his groin between her legs. She forces
him off her by grabbing his testicles, but the other man blocks her
escape from the room, and the first man again pulls her to the floor,
re-mounts her and begins kissing her. She appears to cease resisting
and returns his kisses. The camera again pans to their hips, showing
his hand fumbling at his zipper. They quite clearly appear to have
sexual intercourse, with his groin thrusting into hers as she moans,
until he finally stops and rolls off of her. The scene then continues
for several minutes, depicting her reaction to the attack. The
material by its very design is extraordinarily intense and extremely
graphic. We reject NBC Telemundo's claim that the material is neither
explicit nor graphic simply because it contained no actual nudity. For
example, in the Married By America NAL, we found that scenes in which
nudity is electronically obscured may be considered graphic and
explicit if the sexual nature of the scene is unmistakable. In this
case, the sexual nature of the scene is unquestionable, and the
material is undeniably graphic, notwithstanding the lack of nudity.
37. Moving to the second factor in our contextual analysis, we conclude
that the broadcast dwells on sexual material. We have repeatedly held
that a persistent focus on sexual material is a relevant factor in
evaluating the potential offensiveness of broadcasts. The rape scene
in question lasts several minutes and, contrary to NBC Telemundo's
claim, is hardly ephemeral. As we stated in the Indecency Policy
Statement, "[r]epetition and persistent focus on sexual or excretory
material have been cited consistently as factors that exacerbate the
potential offensiveness of broadcasts."
38. With respect to the third factor, we find the material to be shocking.
In this regard, NBC Telemundo concedes that the rape scene was
designed to portray the "intensity of [a] serious and unspeakable
event . . . ." We agree. Not only does the scene portray an
"unspeakable" event of a profoundly disturbing sexual and violent
nature, it depicts an incident that was unquestionably shocking and
one to which children should not have been exposed. We reject NBC
Telemundo's argument that the instant case is indistinguishable from
Saving Private Ryan, wherein we determined that graphic language
throughout the movie was critical to portraying serious events
realistically. NBC Telemundo has not demonstrated here that the
depiction of a woman being violently raped in such a sustained and
graphic manner is essential. In any event, even if these aspects of
the scene were essential to the movie, that finding would not alter
our ultimate conclusion in this case because the other two factors
weigh heavily in favor of a finding of patent offensiveness as
measured by contemporary community standards for the broadcast medium.
We also do not find that NBC Telemundo's parental advisory prior to
its broadcast of "Con El Corazon En La Mano" insulates the licensee
from liability.
39. In sum, because the material is explicit and graphic, is dwelled upon,
and is shocking, we conclude that its broadcast was patently offensive
under contemporary community standards for the broadcast medium and
thus apparently indecent. The complained-of material was broadcast
within the 6 a.m. to 10 p.m. time frame relevant to an indecency
determination under section 73.3999 of the Commission's rules.
Therefore, there was a reasonable risk that children may have been in
the viewing audience and the broadcast is legally actionable.
40. Forfeiture Calculation. In the instant case, we find that NBC
Telemundo consciously and deliberately broadcast the film in question.
Accordingly, we find that NBC Telemundo's apparent violation of 18
U.S.C. S 1464 and section 73.3999 of our rules was willful within the
meaning of section 503(b)(1) of the Act, and subject to forfeiture.
41. We therefore turn to the proposed forfeiture amount, based on the
factors enumerated in section 503(b)(2)(D) of the Act and the facts
and circumstances of this case. We find that the statutory maximum,
$32,500, is appropriate for several reasons. As discussed in detail
above, the scene is extremely shocking, depicting a violent rape in a
graphic and sustained manner. Also, the broadcast was prerecorded. NBC
Telemundo knew that the film contained this material and should have
taken efforts to edit the scene. Indeed, NBC Telemundo did include a
warning of the upcoming scene. Although inclusion of a warning might
warrant a lower forfeiture under certain circumstances, we find that
it does not here in light of all of the circumstances surrounding the
apparent violation, including the shocking and gratuitous nature of
the scene and the fact that it was prerecorded. Therefore, we find
that NBC Telemundo is apparently liable for a forfeiture of $32,500
for its October 9, 2004 broadcast of "Con El Corazon En La Mano."
42. Although other stations may have broadcast the material at issue here
between 6 a.m. and 10 p.m., we propose a forfeiture against only the
licensee and station whose broadcast of the material was actually the
subject of a viewer complaint to the Commission. We recognize that
this approach differs from that taken in previous Commission decisions
involving the broadcast of apparently indecent programming. Our
commitment to an appropriately restrained enforcement policy, however,
justifies this more limited approach towards the imposition of
forfeiture penalties.
1. "Fernando Hidalgo Show" (October 19, 2004)
43. The Programming. The Commission received a complaint alleging that
Station WJAN-CA, Miami, Florida, aired indecent material during the
October 19, 2004 broadcast of the program the "Fernando Hidalgo Show,"
a Spanish-language talk show. The complaint refers to a segment that
involved partial female adult nudity. The segment was more than
fifteen minutes in duration.
44. On February 11, 2005, the Bureau sent a letter of inquiry to Sherjan
Broadcasting Company, Inc., the licensee of Station WJAN-CA,
concerning the material described above allegedly broadcast over the
station. Sherjan responded by letter dated March 14, 2005. As
confirmed by the videotape of the program provided by Sherjan, during
the segment in question, the host introduces a female guest by
stating, "before we present Juliana I want to tell the gentlemen to be
careful because she is dressed in a way that can cause a heart
attack." The female guest then appears in an open-front dress, with
her nipples covered, but her breasts otherwise fully exposed. As she
makes her entrance, she pirouettes in front of the audience, then
shakes her breasts towards the cameras. When she turns to face the
host, he briefly stares at her breasts, then mugs for the camera.
Sherjan acknowledges that the material in question was aired over
Station WJAN-CA at 7:00 p.m. on October 19, 2004, and that the female
guest appeared in an open-front dress. However, Sherjan maintains that
the complained-of material is not actionably indecent because it is "a
comedy routine" and does not shock or titillate.
45. Indecency Analysis. We find that the programming at issue is within
the scope of our indecency definition because it depicts sexual organs
- specifically an adult woman's breasts. Sherjan argues that the
complained-of material "did not include any description of sexual or
excretory functions in either the video or audio portion, let alone
graphic descriptions." However, the indecency definition clearly
encompasses depictions of sexual organs as well as sexual activities.
Moreover, the explicitness of the depiction is not relevant to the
threshold issue of whether the material depicts or describes a sexual
or excretory organ or activity, and is more appropriately considered
in our analysis of whether the material is patently offensive.
46. Turning to that issue, we find that, based on our contextual analysis,
the material in question is patently offensive as measured by
contemporary community standards for the broadcast medium. With
respect to the first factor of our contextual analysis, we find that
the material is explicit and graphic. The material clearly depicts a
woman's naked breasts, which are sexual organs. In this respect, this
case is similar to other cases in which we have held depictions of
nudity to be graphic and explicit. The fact that the guest's nipples
are covered with jewelry does not render the depiction of her breasts,
which were otherwise fully exposed, insufficiently graphic to weigh in
favor of a finding of patent offensiveness. Here, the audience had a
sustained view of the guest's breasts from several different angles,
and the dress only served to enhance the view.
47. With respect to the second factor of our analysis, we find that the
broadcast dwells on the sexual material. The guest's naked breasts are
visible throughout much of the segment in question, which lasts more
than fifteen minutes. Furthermore, the camera focuses on the female
guest's torso during much of that time. We have repeatedly held that
repetition and persistent focus on sexual or excretory material is a
relevant factor in evaluating the offensiveness of broadcasts.
48. With respect to the third factor, we find that the female guest's
partial nudity shocked, pandered to, and titillated the audience.
Indeed, the behavior of the guest and the host as she came on stage
highlighted the titillating nature of the material. Finally, we reject
the licensee's contention that the material broadcast is not indecent
because it is "a comedy routine." Even if this segment was comedic, it
is well settled that comedy formats do not insulate otherwise indecent
material.
49. In sum, we find that the broadcast material referenced in the
complaint contains an explicit and graphic depiction of sexual organs,
and that the nudity is dwelled upon and shocked, pandered to, and
titillated the audience. Therefore, we find that the material is
patently offensive as measured by contemporary community standards for
the broadcast medium and is apparently indecent. The complained-of
material was broadcast within the 6 a.m. to 10 p.m. time frame
relevant to an indecency determination under section 73.3999 of the
Commission's rules. Therefore, there is a reasonable risk that
children may have been in the viewing audience at the time that the
material at issue was broadcast, and the broadcast is legally
actionable.
50. Forfeiture Calculation. In the instant case, Sherjan consciously and
deliberately aired the "Fernando Hidalgo Show." By airing the
complained-of material, we find that Sherjan's apparent violation of
section 73.3999 and 18 U.S.C. S 1464 was willful within the meaning of
section 503(b)(1) of the Act, and subject to forfeiture.
51. We therefore turn to the proposed forfeiture amount, based on the
factors enumerated in section 503(b)(2)(D) of the Act and the facts
and circumstances of this case. For the following reasons, we propose
a forfeiture of $32,500, the statutory maximum, for this broadcast.
The scene is sustained, lasting 15 minutes, and contains no warning of
the adult-oriented content. In addition, the gravity of the apparent
violation is heightened because of its egregious nature. Thus we find
Sherjan Broadcasting Company, Inc. is apparently liable for a
forfeiture of $32,500 for its October 19, 2004 broadcast of the
"Fernando Hidalgo Show."
1. "Video Musicales" (February 2 -March 8, 2002)
52. The Programming. The Commission received a series of written
complaints from individuals associated with the group D'Vanguardia
("Complainants") alleging that Aerco Broadcasting Corp. ("Aerco"),
licensee of Station WSJU-TV, San Juan, Puerto Rico, repeatedly
broadcast indecent material between the hours of 6:00 a.m. and 10:00
p.m. during the "Video Musicales" program in early 2002. After
reviewing the complaints and videotapes provided by the Complainants,
the Bureau directed a letter of inquiry to Aerco requesting further
information about the music videos that Station WSJU-TV allegedly
broadcast, specifically including "DJ Joe, Fatal Fantasy 2 - Feat,
Trebol, Clan," "DJ Joe, Fatal Fantasy 2-- Feat, Nejo, Speedy,"
"Operation Sandunga," and a promotional spot for a DVD entitled
"Dangerous -- Fatal Fantasy 2."
53. Aerco responded to the Bureau's letter on March 23, 2004, providing a
Spanish transcription and English translation of each of the music
videos and other material. Aerco states that it is not able to confirm
whether it broadcast some of the material at the times and dates
provided in the complaints and whether the music videos and other
material on the videotape provided by the Complainants accurately
reflect Station WSJU-TV's broadcasts. However, Aerco did not provide
any documentation that challenged or raised questions about any of the
complaints or videotapes made by the Complainants. Aerco also did not
provide a complete record of its program logs for the dates alleged in
the complaints.
54. Aerco asserts that it is not aware of any other complaints about the
material in question and thus contends that each of the complaints
represents only a single viewer who objects to the broadcast matter.
In addition, Aerco asserts that, in many instances, significant
portions of the material are inaudible and thus an ordinary viewer
would be not be able to understand the lyrics. Aerco explains that it
hired an independent firm to prepare the transcript to respond to the
Bureau's LOI, which isolated the music portion from the speaking
portion to identify the lyrics. Aerco asserts that the lyrics do not
contain offensive or indecent language and that there were no nude
scenes that would satisfy the Commission's standards for the
definition of indecency. Aerco concedes that some of the material is
suggestive, but that any "sexual or excretory import to the innuendo
or artistic license taken by the performers is subject to individual
interpretation and to be categorized as indecent, and not merely poor
taste, such innuendo must be unmistakable."
55. "DJ Joe, Fatal Fantasy 2 - Feat, Trebol, Clan." This song repeatedly
mentions the singer's near-constant state of sexual arousal. There is
a segment of the video in which a boy appears to masturbate in a
bathroom stall. The lyrics accompanying the segment translate as
follows:
When I had been barely born, I instantly knew where I had come from. Since
then until I grew up, I have always yearned to be inside a similar hole.
In elementary school they called me Mr. Corner. In intermediate school
they called me "little masturbator" because this is where my vice of
rubbing myself incessantly began.
56. "DJ Joe, Fatal Fantasy 2 -- Feat, Nejo, Speedy." There are multiple
segments in which women clad in bikini tops and thongs bend away from
the camera - exposing their buttocks to the viewer -- and simulate
sexual intercourse. The music video includes a specific scene of a
woman bending away from the camera wearing a thong while one of the
male singers slaps her on the buttocks. The lyrics accompanying the
segment translate as follows:
I pushed her from the front. I took her and had her. I took her bra off. I
lowered her panties like old times. I will give it to you through the ass.
I will give it to you through the ass.
57. "Dangerous -- Fatal Fantasy 2." This promo for a DVD includes
multiple scenes with scantily-clad women fondling themselves and each
other in a sexual fashion. For example, there are scenes in which
females caress their breasts, buttocks and/or genital area. The promo
also includes several close-up camera shots of thong-clad buttocks, of
scantily-clad breasts and crotches, and of a woman removing her top
(with the shot changing just before her breasts are completely
exposed). Some of these scenes also show a woman applying baby oil to
another woman's buttocks and women caressing each other's breasts and
buttocks.
58. "Operation Sandunga." This material contains scenes with scantily-clad
women depicting lap dances and a scene simulating oral sex. In one
scene, the male singer is seated on a sofa with his legs spread apart.
In between his legs kneeling on the floor is a female with her back to
the camera whose head bobs up and down over the male's genital area,
simulating oral sex. In other scenes, the woman is also variously
shown kneeling and gyrating between his legs or straddling one leg and
gyrating with her chest in his face. According to Aerco, the lyrics
for the scene in which oral sex is simulated translate to: "You have
to lick, lick, lick, lick, lick ... You have to lick, mami, really
`be' ... `tra', [sic] to feel my thing and lick, mami, really `be' ...
`tra', [sic] to feel my thing."
59. Indecency Analysis. For the reasons discussed below, we find that each
of the complained-of videos and promo is apparently indecent.
60. "DJ Joe, Fatal Fantasy 2 - Feat, Trebol, Clan." The material dwells on
the singer's near-constant state of arousal, depicts a male child
simulating masturbation, and the accompanying lyrics also refer to
masturbation. We find, therefore, that the material meets the first
prong of our indecency analysis.
61. Turning to the three principal factors that comprise our contextual
analysis, as mentioned above, we also find that the material, in the
context presented, is patently offensive under contemporary community
standards for the broadcast medium. With respect to the first factor,
the material explicitly depicts a male child simulating masturbation,
and includes lyrics also graphically and explicitly describing
masturbation, including characterization of the child as a
"masturbator," and a description of "rubbing himself" incessantly. We
find, with respect to the second factor, that the material repeatedly
discusses the singer's sexual arousal. We also find that the simulated
masturbation and lyrics that refer to masturbation by a male child are
not only pandering and titillating, they are shocking.
62. "DJ Joe, Fatal Fantasy 2 -- Feat, Nejo, Speedy." We find that this
material depicts simulated sexual activity between a woman in a thong
and a male singer. The lyrics accompanying this depiction refer to
sexual activity, including "I took her and had her," "I lowered her
panties like old times," and "I will give it to you through the ass."
This material also depicts and describes the buttocks, which are
sexual and excretory organs.
63. We also find that the material, in the context presented, is patently
offensive under contemporary community standards for the broadcast
medium. The segment depicts simulated sexual intercourse and contains
lyrics that graphically and explicitly describe sexual activities ( "I
will give it to you through the ass"). In this segment, women's
buttocks are also clearly visible on screen. The segment dwells on and
repeats the sexual material, the second factor in our analysis. We
have repeatedly held that repetition and persistent focus on sexual
material is a relevant factor in evaluating the potential
offensiveness of broadcasts. The camera angles throughout repeatedly
dwell on shots that provide views of the female dancers' buttocks. The
segment is focused entirely on the repetition of simulated sexual
activity with accompanying lyrics that describe such activity. With
respect to the third factor, we find that the simulated sexual
activity, accompanied by explicit lyrics that reference sexual
activity ("I will give it to you through the ass"), and the persistent
visual focus on the female dancer's buttocks are presented in a manner
that is obviously pandering and titillating.
64. "Dangerous -- Fatal Fantasy 2." We find that this material meets the
first prong of the Commission's indecency test. The material includes
close-up shots of thong-clad buttocks, breasts and crotches, as well
as females fondling their breasts, buttocks and genital areas while
they dance, gyrate, and fondle one another in a sexually suggestive
manner. These scenes clearly depict sexual organs and activities.
65. We also find that this material, in the context presented, is patently
offensive under contemporary community standards for the broadcast
medium. The material contains close-up shots of thong-clad buttocks, a
female fondling her genital area, and women caressing their own
breasts and buttocks as well as those of others. Thus, we conclude
that the material is graphic and explicit. Second, while not
dispositive, it is relevant that these types of images appear numerous
times throughout the promo and, therefore, that sexual images are
sustained and repetitious. Finally, the close-up shots of thong-clad
buttocks and women fondling their own breasts, buttocks and genital
areas as well as the breasts and buttocks of other women in a sexually
suggestive manner are presented in a pandering and titillating manner.
Indeed, this material appears to have little other purpose. Therefore,
because the complained-of material is explicit and graphic, repeated,
and is pandering and titillating, we conclude that the promo is
patently offensive and thus indecent.
66. "Operation Sandunga." This material meets the first prong of the
indecency test. As noted above, this material includes a scene and
lyrics describing and depicting oral sex, a sexual activity.
Accordingly, we find that the material describes and depicts a sexual
activity. We also find that the material, in the context presented
here, is patently offensive under contemporary community standards for
the broadcast medium. With respect to the first principal factor that
informs our contextual analysis, the scene and lyrics depict and
describe a female performing oral sex in a manner that is graphic and
explicit. With respect to the second factor, while not dispositive, it
is relevant that sexual references are sustained and repeated. The
scene depicting oral sex is coupled with numerous other scenes
depicting the same woman gyrating suggestively as she kneels between
the male singer's legs or straddles one of his legs with her chest
thrust in his face, apparently simulating a "lap dance." Finally, the
graphic depictions of oral sex, joined with the repeated and explicit
lyrics in which men direct women to lick their genitals, panders to
and titillates the audience. Therefore, because the complained-of
material is explicit and graphic, repeated, and shocks, panders, and
titillates, we conclude that the video is patently offensive and thus
indecent.
67. Aerco states that the music videos and other broadcast material at
issue here may be suggestive, but are not indecent or obscene under
prevailing standards. Aerco cites the Indecency Policy Statement to
support its assertion. We disagree with Aerco's analysis. These
broadcasts combine sexually explicit language and innuendo with visual
depictions that graphically depict the meaning of the lyrics. We also
do not agree with Aerco's argument that the lyrics are barely
intelligible.
68. According to the Complaints and videotapes, Aerco broadcast each of
the music videos and the promo on multiple occasions. Aerco, in its
Response, states that it is unable to determine whether it broadcast
"DJ Joe, Fatal Fantasy 2 - Feat, Trebol, Clan" or "DJ Joe -- Fatal
Fantasy 2-Feat, Nejo, Speedy" because its program logs list three
music videos with similar titles. Aerco confirms that the promo for
the DVD titled "Dangerous - Fatal Fantasy 2" aired on the four dates
alleged in the complaints, but states that it is unable to determine
the broadcast times. Aerco also asserts that it is unable to determine
whether "Operation Sandunga" was aired on the date alleged in the
complaint because it has no records of this music video. Aerco states
that it broadcast programs produced by independent producers after
10:00 p.m. and that it "could" have aired the independently produced
"Operation Sandunga" music video during this time period.
69. Based on the complaints and the accompanying videotapes, and in the
absence of any evidence to the contrary, we find that Aerco broadcast
each of the music videos and the promo in question multiple times - a
total of at least 14 broadcasts - between the hours of 6 a.m. and 10
p.m., the time frame relevant to an indecency determination. Because
there is a reasonable risk that children may have been in the audience
when the material in each was broadcast, the material broadcast is
legally actionable. By broadcasting this material during these times
over Station WSJU-TV, Aerco apparently violated the prohibitions in
the Act and the Commission's rules against broadcast indecency.
70. Forfeiture Calculation. Aerco consciously and deliberately broadcast
the videos and the DVD promo. Accordingly, we find that the broadcasts
in apparent violation of 18 U.S.C. S 1464 and 47 C.F.R. S 73.3999 were
willful within the meaning of section 503(b)(1) of the Act.
Additionally, Aerco aired this material a total of 14 times.
Accordingly, we find that Aerco's apparent violation of 18 U.S.C. S
1464 and 47 C.F.R. S 73.3999 was also repeated.
71. We therefore turn to the proposed forfeiture amount, based on the
factors enumerated in section 503(b)(2)(D) of the Act and the facts
and circumstances of this case. Based on consideration of the
statutory factors, we find it is appropriate to use the statutory
maximum amount of $27,500 to calculate the proposed forfeiture in this
case. The gravity of the apparent violations is heightened in this
case because, as discussed above, the music videos and the DVD promo
at issue are extremely graphic and explicit, including close-up scenes
of sexual fondling and simulated oral sex, which are repeated
throughout the material. One broadcast segment explicitly depicts a
child masturbating, and another repeatedly displays women's buttocks
in a pandering and titillating manner. All of the material depict and
describe sexual organs or activities in a highly shocking, vulgar, and
gratuitous manner. In addition, this material could have been reviewed
by Aerco prior to broadcast. Multiplying the statutory maximum amount
of $27,500 by the 14 broadcasts at issue here results in a total
forfeiture amount of $385,000. Under the specific circumstances of
this case, however, we believe that such a forfeiture would be
excessive to achieve the appropriate level of punishment and
deterrence and that $220,000 is a more appropriate amount. We base
this conclusion on several factors, including the fact that Aerco is
the licensee of only San Juan, Puerto Rico, Stations WSJU-TV and
WQBS(AM) and that it has no prior indecency violations. Therefore, for
the reasons stated above, we propose a forfeiture of $220,000 against
Aerco Broadcasting Corp. for its willful and repeated violations of 18
U.S.C. S 1464 and 47 C.F.R. S 73.3999.
1. "The Blues: Godfathers and Sons" (March 11, 2004)
72. The Programming. The Commission received a complaint alleging that San
Mateo County Community College District ("San Mateo"), licensee of
noncommercial educational Station KCSM-TV, San Mateo, California,
aired indecent material over the station during its broadcast of the
program "The Blues: Godfathers and Sons" on March 11, 2004 between the
hours of 8:42 and 9:32 p.m. Pacific Standard Time. The complaint
alleged that the broadcast, an episode of a prerecorded documentary
series provided by the Public Broadcasting Service ("PBS"), contains
numerous "obscenities," including the "F-Word," the "S-Word" and
various derivatives of those words, in violation of the Commission's
rules restricting the broadcast of indecent material. The complainant
therefore asked that the Commission investigate and take appropriate
enforcement action.
73. Thereafter, the Bureau sent a letter of inquiry to San Mateo,
attaching a copy of the Complaint. In its response, San Mateo
acknowledges that it aired "The Blues: Godfathers and Sons," a
documentary containing interviews of blues performers and a record
producer, over Station KCSM-TV as alleged, between 8 and 10 p.m. on
March 11, 2004, but not on any other dates between 6:00 a.m. and 10:00
p.m. With its response, San Mateo provided a DVD and a written
transcript of the program. San Mateo does not dispute that it aired
the material described in the complaint. It states, "[t]he intent of
the program is to provide a window into [the world of the individuals
being interviewed] with their own words, all of which becomes an
educational experience for the viewer." Thus, San Mateo maintains that
the language contained in the program was not "used in a prurient way,
but rather as an infrequent conversational expression of the artist
[being interviewed], and was not edited to remove their dialogue,
which accurately reflected their viewpoints." San Mateo represents
that, subsequent to its station's airing of the program, PBS alerted
its member stations that this and similar PBS-supplied programs
contained material that might be deemed indecent in light of
then-recent Commission rulings, and advised licensees that PBS had
changed its procedures involving the editing of potentially indecent
or offensive language in programming that it provides them and will
now alert licensees to potential problems.
74. Indecency Analysis. The Commission determined in its Golden Globe
Awards Order that the "F-Word" meets the first prong of the indecency
test. We stated, "given the core meaning of the "F-Word," any use of
that word or a variation, in any context, inherently has a sexual
connotation, and therefore falls within the first prong of our
indecency definition." Similarly, we now find that the "S-Word," at
issue here, has an inherently excretory connotation. In light of the
core meanings of the "F-Word" and "S-Word," any use of those terms
inherently has sexual or excretory connotations and falls within the
first prong of our indecency definition.
75. We also find that the broadcast material is, in context, patently
offensive as measured by contemporary community standards for the
broadcast medium. First, as we stated in Golden Globe Awards Order,
the "F-Word" is one of the most vulgar, graphic, and explicit
descriptions of sexual activity in the English language. Its use
invariably invokes a coarse sexual image." Similarly, we find the
"S-Word" to be one of the most vulgar, graphic and explicit words
relating to excretory activity in the English language. Use of the
"S-Word" invariably invokes a coarse excretory image. Consequently, we
conclude that the broadcast by San Mateo of a program containing
numerous uses of the "F-Word" and the "S-Word," under the
circumstances presented here, is vulgar, graphic, and explicit.
76. Second, the program repeats this language numerous times during the
broadcast. We note that, while prior FCC staff actions had indicated
as of the date this program aired that isolated broadcasts of certain
expletives were not indecent or would not be acted upon, the program
at issue here contains numerous repeated utterances of the "F-Word"
and "S-Word," and their variants. Our precedent is clear that
broadcasts containing numerous expletives may be actionably indecent.
77. Third, the gratuitous and repeated use of this language in a program
that San Mateo aired at a time when children were expected to be in
the audience is shocking. While San Mateo contends that the expletives
in question were not removed from the program so that the viewpoints
of those being interviewed would be accurately reflected, as discussed
below we disagree that the use of such language was necessary to
express any particular viewpoint in this case. We also note that many
of the expletives in the broadcast are not used by blues performers.
For example, based on our review of the DVD and transcript, Marshall
Chess, a former label owner and record producer, states in discussing
the relationship between Chess Records and its artists, "my dad had so
many people at his funeral, my uncle said, `You see all those
motherfuckers? They're coming to make sure he's dead, so they don't
have to pay back those motherfuckin' notes.'" In another scene,
discussing his relationship with his father at Chess Records, Marshall
Chess states, "[h]e said, `What's your job? You stupid motherfucker!
Your job is watching me!'" During a scene showing hip-hop artists Kyle
Jason, Juice, and Chuck D. shopping in a record store with Chess, Kyle
Jason states, "I'll buy some shit," and Juice states, "This looks
crazy! See that? This is the kind of shit I buy! I mean, my man is
wearing pink gear--that shit, that shit is crazy right there! I'm
buyin' it!"
78. In sum, because the expletives in the program are vulgar, explicit,
graphic, dwelled upon and shocking to the audience, we conclude that
the broadcast of the material at issue here is patently offensive
under contemporary community standards for the broadcast medium and
thus apparently indecent. The complained-of material was broadcast
within the 6 a.m. to 10 p.m. time frame relevant to an indecency
determination under section 73.3999 of the Commission's rules.
Therefore, there is a reasonable risk that children may have been in
the viewing audience and the broadcast is legally actionable.
79. Profanity Analysis. In the Golden Globe Awards Order, the Commission
concluded that the "F-Word" was profane within the meaning of 18
U.S.C. S 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 nuisance." We indicated in that decision
that the Commission would analyze other potentially profane words on a
case-by-case basis.
80. The "F-Word" is a vulgar sexual term so grossly offensive to members
of the public that it amounts to a nuisance and is presumptively
profane. It is one of the most offensive words in the English
language, the broadcast of which is likely to shock the viewer and
disturb the peace and quiet of the home. Consistent with our decision
in the Golden Globe Awards Order, we find here that the use of the
"F-Word" in the program at issue violated 18 U.S.C. S 1464's
prohibition of the broadcast of "profane" language.
81. In addition, we find 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. Like the "F-Word," it is one of
the most offensive words in the English language, the broadcast of
which is likely to shock the viewer and disturb the peace and quiet of
the home.
82. As noted previously, in rare contexts, 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.
However, we will find this to be the case only in unusual
circumstances, and such circumstances are not present here. Although
in this case the profane language may have had some communicative
purpose, we do not believe that San Mateo has demonstrated that it was
essential to the nature of an artistic or educational work or
essential to informing viewers on a matter of public importance, or
that the substitution of other language would have materially altered
the nature of the work. In this respect, this case is unlike Saving
Private Ryan, where we concluded that deleting offensive words "would
have altered the nature of the artistic work and diminished the power,
realism and immediacy of the film experience for viewers." While we
recognize here that the documentary had an educational purpose, we
believe that purpose could have been fulfilled and all viewpoints
expressed without the repeated broadcast of expletives.
83. 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 under section 73.3999
of the Commission's rules. Because there was a reasonable risk that
children may have been in the audience at the time the material at
issue was broadcast on March 11, 2004, the material broadcast is
legally actionable.
84. Forfeiture Calculation. San Mateo consciously and deliberately
broadcast this episode. Accordingly, we find that the broadcast in
apparent violation of 18 U.S.C. S 1464 and 47 C.F.R. S 73.3999 was
willful within the meaning of section 503(b)(1) of the Act, and
subject to forfeiture. Taking into account the statutory factors and
the circumstances of this case, we conclude that the appropriate
proposed forfeiture in this case is $15,000.
85. The Commission's prohibition on the repeated use of expletives,
including the "F-Word" and "S-Word," was well settled prior to March
2004. The complained-of material contains numerous unedited
expletives. The program in question was supplied to the licensee by
PBS replete with two words that are among the most vulgar, graphic,
and explicit descriptions of sexual and excretory activity in the
English language, but whose propriety San Mateo nevertheless failed to
question. By broadcasting the program complete with these expletives,
San Mateo effectively abdicated this aspect of its programming control
to an outside entity, PBS. On the other hand, however, we do recognize
that the expletives here were contained in a documentary, and while we
conclude that the arguments made by the licensee are mistaken, we do
find that the licensee may have been under the good faith belief that
the use of these expletives served a legitimate informational purpose.
Additionally, we recognize the fact that the licensee runs a small,
community station that airs college level educational courses for most
of the day. Under these circumstances, we believe that a proposed
forfeiture in the amount of $15,000 is warranted here.
86. Although other stations may have also broadcast the subject episode of
"The Blues: Godfathers and Sons," we propose a forfeiture only against
San Mateo as the only licensee with a station whose broadcast of the
material between 6 a.m. and 10 p.m. was the subject of a viewer
complaint filed with the Commission. We recognize that this approach
differs from that taken in previous Commission decisions involving the
broadcast of apparently indecent programming. We find, in this case,
however, that, in the absence of complaints concerning the program
filed by viewers of other stations, it is appropriate that we sanction
only the licensee of the station whose viewers complained about that
program. Our commitment to an appropriately restrained enforcement
policy, however, justifies this more limited approach towards the
imposition of forfeiture penalties. Accordingly, we propose a
forfeiture of $15,000 against San Mateo.
1. "The Pursuit of D.B. Cooper" (March 15, 2003)
87. The Programming. A viewer filed a complaint with the Bureau alleging
that Station KTVI(TV), St. Louis, Missouri, licensed to KTVI License,
Inc ("KTVI"), repeatedly aired the "S-Word" on the afternoon of
Saturday, March 15, 2003, during the broadcast of a movie featuring a
fictional account of the fate of D.B. Cooper, the alias used by a
person who disappeared after skyjacking an airplane and extorting
money from an airline in 1971. The movie contains numerous scenes in
which the "S-Word" is used: a scene in which D.B. Cooper refers to an
aborted disguise ("shit"); a flashback scene between Cooper and his
then-commanding officer ("horseshit"); a scene between the insurance
investigator pursuing Cooper and the investigator's boss ("shit'); a
cafe scene ("bullshit"); a scene between Cooper's father and ex-wife
in which she describes Cooper as having a "shit-eating grin;" a scene
after a fire ("bullshit" used twice); a scene during which Cooper
escapes from his pursuers by boarding a river raft ("oh, shit!"); and
a scene in which a former crony of Cooper buys a used car
("bullshit"). In a subsequent scene involving repairs to a car, an
auto mechanic claims he will have the car running "slicker'n owl shit"
and "smoother'n owl shit." When the car breaks down, Cooper refers
back to the mechanic's words ("smoother'n owl shit" twice). At the end
of the movie, in scenes in which Cooper is pursued by his former crony
and the investigator, the "S-Word" is reiterated on several occasions:
in a scene featuring the two pursuers ("shit"); a scene featuring a
telephone call between the investigator and his boss ("shit"); a scene
taking place aboard an airplane ("shit" and "oh, shit!"); a scene in
which Cooper uses the airplane to chase a car driven by his former
crony ("holy shit" and "shit"); and a scene after the airplane crashes
("bullshit").
88. The Bureau sent the licensee a letter of inquiry and attached the
complaint. KTVI contends that the aired material is not actionably
indecent. The licensee argues that the material at issue is not
graphic or explicit, that it is not dwelled upon and that it is not
titillating or presented for shock value. KTVI does not claim to have
provided any parental warnings prior to or during its broadcast of the
film, which occurred from 2:00 to 4:00 p.m.
89. Indecency Analysis. KTVI acknowledges - and our review confirms -
that the aired movie, "The Pursuit of D.B. Cooper," includes repeated
uses of the words "shit," "bullshit," and "owl shit." Each of those
terms, of course, has a clear excretory connotation and describes an
excretory activity. Thus, the complained-of material falls within the
first prong of our indecency definition.
90. Turning to the second step of our indecency analysis - whether the
broadcast material is patently offensive - we conclude, looking at the
three principal factors in our contextual evaluation, that the
complained-of material is patently offensive under contemporary
community standards for the broadcast medium.
91. First, the material is quite graphic and explicit. The "S-Word" is a
vulgar, graphic and explicit description of excrement. Its use
invariably invokes a coarse excretory image. Consequently, we conclude
that the broadcast of a program containing numerous uses of the
"S-Word" and its variations, under the circumstances presented here,
is vulgar, graphic and explicit.
92. Second, the "S-Word," in various iterations, is used on a number of
occasions. We note that, while prior Commission and staff actions had
indicated as of the date this program aired that isolated broadcasts
of certain expletives were not indecent or would not be acted upon,
the program at issue here contains repeated utterances of the
"S-Word," and its variants. As noted above, the Commission has
previously held that repeated use of expletives may be actionably
indecent.
93. Third, and most important to our analysis, multiple gratuitous
iterations of the "S-Word" broadcast on a weekend afternoon at a time
when children are likely to be in the audience, shock, pander to, and
titillate the audience. By failing to edit the movie, the licensee
needlessly offended unsuspecting viewers in their homes on a weekend
afternoon.
94. In sum, because the material is explicit and graphic, is dwelled upon,
and shocks, panders, and titillates, we conclude that its broadcast
here is patently offensive under contemporary community standards for
the broadcast medium and thus apparently indecent. The complained-of
material was broadcast within the 6 a.m. to 10 p.m. time frame
relevant to an indecency determination under section 73.3999 of the
Commission's rules. Therefore, there is a reasonable risk that
children may have been in the viewing audience and the broadcast is
legally actionable.
95. Profanity Analysis. In the Golden Globe Awards Order, the Commission
concluded that the "F-Word" constituted "profane language" within the
meaning of 18 U.S.C. S 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 nuisance."
96. In this case, as in the related cases in this decision, we similarly
find 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. For the reasons stated above, use of the
"S-Word" invariably invokes a coarse excretory image. Like the
"F-Word," it is one of the most offensive words in the English
language, the broadcast of which is likely to shock the viewer and
disturb the peace and quiet of the home.
97. In rare contexts, 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. We caution, however, that we will
find this to be the case only in unusual circumstances, and such
circumstances are clearly not present here. Although in this case, the
profane language in this film may have had some communicative purpose,
we do not believe that it was essential to the nature of an artistic
or educational work or that editing the language would have materially
altered the nature of the program. Based upon our review of the record
in this case, we conclude that KTVI aired profane material between 6
a.m. and 10 p.m. in violation of 18 U.S.C. S 1464.
98. Forfeiture Calculation. KTVI consciously and deliberately broadcast
this film. Accordingly, we find that the broadcast in apparent
violation of 18 U.S.C. S 1464 and 47 C.F.R. S 73.3999 was willful
within the meaning of section 503(b)(1) of the Act, and subject to
forfeiture. We therefore turn to the proposed forfeiture amount, based
on the factors enumerated in section 503(b)(2)(D) of the Act and the
facts and circumstances of this case.
99. We find that the statutory maximum of $27,500 is an appropriate
proposed amount for the March 15, 2003 broadcast. The material was
prerecorded, and KTVI could have edited the content prior to
broadcast. In addition, as noted above, the gravity of the apparent
violation is heightened here because of its shocking and gratuitous
nature, involving as it does multiple gratuitous utterances of vulgar,
graphic, and offensive expletives during a weekend afternoon
broadcast. The Commission's prohibition of the broadcast of repeated
uses of expletives such as the "S-Word" was well settled prior to its
broadcast. The program in question was replete with an expletive that
is among the most vulgar, graphic, and explicit descriptions of
excretory activity in the English language, but which KTVI
nevertheless failed to edit out, suggesting indifference to our
indecency regulations. Therefore, we find that KTVI License, Inc. is
apparently liable for a proposed forfeiture of $27,500 for its March
15, 2003 broadcast of "The Pursuit of D.B. Cooper."
A. Indecent And/Or Profane Broadcasts But No Forfeiture Proposed
100. In each of the following cases, we find that the broadcasts at issue
are indecent and profane. Because of the specific circumstances
associated with the broadcasts, however, we do not propose
forfeitures. With one exception, these broadcasts preceded the
Commission's decision in the Golden Globe Awards Order reversing
precedent that had suggested that the isolated use of an offensive
word like the "F-Word" is not indecent. In light of our decision not
to impose a forfeiture based upon the facts of each case, we will not
require the licensee 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 impact
adversely upon such licensees as part of the renewal process.
1. "The 2002 Billboard Music Awards" (December 9, 2002)
101. The Programming. The Commission received a complaint concerning the
December 9, 2002 broadcast of the "Billboard Music Awards" program
over Fox Television Network ("Fox") stations, and specifically
Station WTTG(TV), Washington, DC, between 8 and 10 p.m., Eastern
Standard Time. The complaint alleges that, during the broadcast, the
performer Cher states, "People have been telling me I'm on the way
out every year, right? So fuck `em." The complaint alleges that the
expletive was indecent and requests that the Commission levy
sanctions against each station licensee that aired the material. The
Enforcement Bureau obtained a videotape of the offending broadcast
that confirms the complaint's allegation.
102. Indecency Analysis. We held in the Golden Globe Awards Order that,
given the core meaning of the "F-Word," any use of that word
inherently has a sexual connotation and falls within the first prong
of our indecency definition. Cher's retort to her critics used
language that we have found inherently describes sexual activity. The
material, therefore, warrants further scrutiny to determine whether
or not it was patently offensive as measured by contemporary
standards for the broadcast medium. We conclude, looking at the three
principal factors in our contextual analysis, that the material is
patently offensive.
103. First, the complained-of material is quite graphic and explicit. As
we indicated in the Golden Globe Awards Order, the "F-Word" is one of
the most vulgar, graphic, and explicit words relating to sexual
activity in the English language. Its use invariably invokes a coarse
sexual image." We conclude that the broadcast of the "F-Word," under
the circumstances presented here, is vulgar, graphic and explicit.
104. Second, the fact that the material is not repeated or not dwelled
upon at length, while relevant, is not dispositive. As the Commission
indicated in the Golden Globe Awards Order: "[T]he mere fact that
specific words or phrases are not sustained or repeated does not
mandate a finding that material that is otherwise patently offensive
to the broadcast medium is not indecent."
105. Third, and most important to our analysis in this specific context,
Cher's use of the "F-Word" here, at a live broadcast of an awards
ceremony when children were expected to be in the audience, was
shocking and gratuitous. Cher chose to express her displeasure with
her critics in a highly vulgar and coarse manner, and in doing so,
needlessly offended unsuspecting viewers in the peace and quiet of
their homes.
106. In sum, because the material is explicit and shocking and gratuitous,
we conclude that the broadcast of the material at issue here is
patently offensive under contemporary community standards for the
broadcast medium and thus apparently indecent. Technological advances
have made it possible to block the broadcast of offensive words
without disproportionately disrupting a speaker's message. Fox could
have avoided the indecency violation here by delaying the broadcast
for a period of time sufficient to ensure that all offending words
were blocked. It did not do so. As a result, the Fox affiliate
WTTG(TV) broadcast highly offensive material within the 6 a.m. to 10
p.m. time frame relevant to an indecency determination under section
73.3999 of the Commission's rules. By broadcasting this material, the
station apparently violated the prohibitions in 18 U.S.C. S 1464 and
the Commission's rules against broadcast indecency.^.
107. Profanity Analysis. The "F-Word" is a vulgar sexual term so grossly
offensive to members of the public that it amounts to a nuisance and
is presumptively profane. The "F-Word" is one of the most offensive
words in the English language, the broadcast of which is likely to
shock the viewer and disturb the peace and quiet of the home.
Consistent with our decision in the Golden Globe Awards Order, we
find here that the use of the "F-Word" in the program at issue here
apparently violated 18 U.S.C. S 1464's prohibition of the broadcast
of "profane" language.
108. In rare contexts, language that is presumptively profane will not be
found to be profane where its use is demonstrably essential to the
nature of an artistic or educational work or essential to informing
viewers on a matter of public importance. We caution, however, that
we will find this to be the case only in unusual circumstances, and
such circumstances are not present here. Although in this case, the
profane language used by Cher may have had some communicative
purpose, we do not believe that Fox has demonstrated that the use of
such language was essential to informing viewers on a matter of
public importance or that editing the language in question would have
had a material impact on the network's function as a source of news
and information. We note again that Fox or Station WTTG(TV) could
have used a delaying technique to avoid the offending broadcast.
109. It is undisputed that the complained-of material was broadcast within
the 6 a.m. to 10 p.m. time frame relevant to a profanity
determination under section 73.3999 of the Commission's rules.
Because there was a reasonable risk that children may have been in
the audience at the time the material at issue was broadcast, the
material broadcast is legally actionable.
110. No Sanction Proposed. In the instant case, we find that the Fox
Network affiliate Station WTTG(TV) consciously and deliberately
broadcast the program in question. Accordingly, we find that the
station's apparent violation of 18 U.S.C. S 1464 and section 73.3999
of our rules was willful. Thus, we conclude that the Fox affiliate
Station WTTG(TV) aired indecent and profane material between 6 a.m.
and 10 p.m. in apparent violation of 18 U.S.C. S 1464 and our rules.
111. The gratuitous use of indecent and profane language on a national
network broadcast ordinarily would warrant a forfeiture under the
standards announced in the Golden Globe Awards Order. Nonetheless, we
recognize that our precedent at the time of the broadcast indicated
that the Commission would not take enforcement action against
isolated use of expletives. "But for the fact that existing precedent
would have permitted this broadcast, it would be appropriate to
initiate a forfeiture proceeding against [Fox] and other licensees
that broadcast the program prior to 10 p.m." Accordingly, we find
that no forfeiture is warranted in this case.
1. "The 2003 Billboard Music Awards" (December 10, 2003)
112. The Programming. The Commission received a number of complaints
alleging that the Fox Television Network ("Fox" or "Fox Network")
aired indecent material during the "Billboard Music Awards" program
on December 10, 2003 between 8 and 10 p.m., Eastern Standard Time.
The complainants allege that, during the broadcast, Nicole Richie, an
award presenter, uttered vulgar expletives in violation of the
Commission's rules restricting the broadcast of indecent material.
The complainants request that the Commission levy sanctions against
each station licensee that aired the remarks.
113. The Bureau sent Fox a letter of inquiry and attached a transcript of
the material in question. Fox responded on January 30, 2004. Fox
contends that the aired material is not actionably indecent and does
not contain any description or depiction of sexual or excretory
organs or activities in a patently offensive manner.
114. Indecency Analysis. During her appearance on the "Billboard Music
Awards," Ms. Richie uttered the "F-Word" and the "S-Word." Fox does
not dispute that the "S-Word" refers to excrement. Fox contends,
however, that Ms. Richie used the "F-Word" as a mere vulgar expletive
to express emphasis, not to depict or describe sexual activities. We
disagree. Given the core meaning of the "F-Word," any use of that
word inherently has a sexual connotation and falls within the first
prong of our indecency definition. We conclude that the material at
issue clearly describes sexual and excretory activity. The material,
therefore, warrants further scrutiny to determine whether or not it
is patently offensive as measured by contemporary community standards
for the broadcast medium. We conclude, looking at the three principal
factors in our contextual analysis, that it is.
115. First, the complained-of material is quite graphic and explicit. The
"F-Word" is one of the most vulgar, graphic, and explicit depictions
of sexual activity in the English language. Its use invariably
invokes a coarse sexual image. Similarly, the "S-Word" is a vulgar,
graphic, and explicit depiction of excretory activity. Its use
invariably invokes a coarse excretory image. Consequently, we
conclude that the broadcast of the "F-Word" and the "S-Word," under
the circumstances presented here, is vulgar, graphic and explicit.
116. Second, the fact that use of the words was not sustained or repeated,
while relevant, is not dispositive. As the Commission indicated in
the Golden Globe Awards Order: "[T]he mere fact that specific words
or phrases are not sustained or repeated does not mandate a finding
that material that is otherwise patently offensive to the broadcast
medium is not indecent."
117. Third, and most important to our analysis in this context, Ms.
Richie's use of the "F-Word" and the "S-Word" here, during a live
broadcast of a music awards ceremony when children were expected to
be in the audience, was shocking and gratuitous. Indeed, Fox admits
that the tone of the material was vulgar.
118. Like the broadcaster discussed the Golden Globe Awards Order, Fox was
"on notice that an award presenter or recipient might use offensive
language during the live broadcast, and it could have taken
appropriate steps to ensure that it did not broadcast such language."
As the previous case involving Cher demonstrates, Fox had clear
notice that celebrities at this program might utter offensive
expletives, including the "F-Word" during the broadcast. Moreover,
the record of this broadcast shows that Fox, as the producer of the
program and the network that carried it to affiliates throughout the
country, deliberately sought to push the limits of decency. According
to Fox, the original script called for Ms. Richie to make excretory
references to "pig crap" and "cow manure," and to substitute the
euphemism "freaking" for the "F-Word." Under the circumstances, there
was a palpable risk that Ms. Richie would use the "F-Word" and the
"S-Word" instead of the euphemisms in the script.
119. Technological advances have made it possible to block the broadcast
of offensive words without disproportionately disrupting a speaker's
message. Indeed, Fox utilized a five-second delay during the
broadcast in question and successfully blocked Ms. Richie's first use
of the "S-Word." Fox could have avoided the indecency violation here
by delaying the broadcast for a period of time sufficient to ensure
that all offending words were blocked. It did not do so. As a result,
it broadcast highly offensive material within the 6 a.m. to 10 p.m.
time frame relevant to an indecency determination under section
73.3999 of the Commission's rules.
120. In sum, because the material is explicit and shocking and gratuitous,
we conclude that the broadcast of the material at issue here is
patently offensive under contemporary community standards for the
broadcast medium and thus apparently indecent. By broadcasting this
material, the Fox affiliated stations whose broadcasts were the
subject of viewer complaints to the Commission apparently violated
the prohibitions in 18 U.S.C. S 1464 and the Commission's rules
against broadcast indecency.
121. Profanity Analysis. In the Golden Globe Awards Order, the Commission
concluded that the "F-Word" constituted "profane language" within the
meaning of 18 U.S.C. S 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 nuisance." In this
case, we similarly find that the "F-Word" is a vulgar sexual term and
the "S-Word" is a vulgar excretory term, each of which is so grossly
offensive to members of the public as to amount to a nuisance and
that each word accordingly is presumptively profane. For the reasons
stated above, use of the "F-Word" invariably invokes a coarse sexual
image and use of the "S-Word" invariably invokes a coarse excretory
image. Each of these words is among the most offensive words in the
English language, the broadcast of which is likely to shock the
viewer and disturb the peace and quiet of the home.
122. In rare contexts, 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. We caution, however, that we will
find this to be the case only in unusual circumstances, and such
circumstances are not present here. Although in this case, profane
language may have had some communicative purpose, we do not believe
that Fox has demonstrated that it was essential to informing viewers
on a matter of public importance or that editing the language in
question would have had a material impact on the network's function
as a source of news and information.
123. It is undisputed that the complained-of material was broadcast within
the 6 a.m. to 10 p.m. time frame relevant to a profanity
determination under section 73.3999 of the Commission's rules.
Because there was a reasonable risk that children may have been in
the audience at the time the material at issue was broadcast, the
material broadcast is legally actionable.
124. No Sanction Proposed. Based upon our review of the record in this
case, we conclude that the Fox Network affiliated stations in the
Eastern and Central Time Zones whose broadcasts were the subject of
viewer complaints to the Commission aired material in violation of 18
U.S.C. S 1464 and our rules. They each broadcast indecent and profane
words in an awards show that aired between 6 a.m. and 10 p.m. and was
watched by people of all ages. The licensees of these stations each
consciously and deliberately broadcast the program in question.
Accordingly, the apparent violation of 18 U.S.C. S 1464 and section
73.3999 of our rules was willful. The willful broadcast of indecent
and profane material on a national network broadcast ordinarily would
warrant a forfeiture under the standards announced in the Golden
Globe Awards Order. Nonetheless, we recognize that our precedent at
the time of the broadcast indicated that the Commission would not
take indecency enforcement action against isolated use of expletives.
"But for the fact that existing precedent would have permitted this
broadcast, it would be appropriate to initiate a forfeiture
proceeding against [Fox] and other licensees that broadcast the
program prior to 10 p.m." Accordingly, we find that no forfeiture is
warranted in this case.
1. "NYPD Blue" (various dates between January 14 and May 6, 2003)
125. The Commission has received complaints alleging that KMBC
Hearst-Argyle Television, Inc., licensee of Station KMBC-TV, Kansas
City, Missouri, and other network stations affiliated with The ABC
Television Network ("ABC") aired indecent material during several
episodes of "NYPD Blue" broadcast between 9:00 and 10:00 p.m. Central
Standard Time on various dates between January and May 2003. The
complaints allege that, in each of the identified episodes, one or
more characters utter expletives in violation of the Commission's
rules restricting the broadcast of indecent material. The complaints
identify several expletives from the episodes at issue, specifically
"dick," "dickhead" and "bullshit."
126. The terms "dick" and "dickhead" are references to a sexual organ and
therefore fall within the first prong of our indecency definition.
Similarly, "bullshit," whether used literally or metaphorically, is a
vulgar reference to the product of excretory activity and therefore
falls within the first prong of our indecency definition.
Accordingly, we must proceed to the three-part contextual analysis in
our second prong to determine whether the material is patently
offensive as measured by contemporary community standards for the
broadcast medium. For the reasons stated below, we find "dick" and
its derivative, "dickhead," not to be patently offensive in this
context, whereas we find "bullshit" to be patently offensive in this
context. Regarding the former term, we note that last year we found
the same word and its variations not to be indecent in the context
presented.
127. First, we find that the terms "dick" and "dickhead," in this context,
while understandably offensive to some viewers, are not sufficiently
vulgar, explicit, or graphic descriptions of sexual organs or
activities to support a finding of patent offensiveness. Second,
while not dispositive, it is relevant that none of the programs dwell
on these terms. Third, we find that those words, in context, are not
sufficiently shocking to support a finding that they are patently
offensive. Although the words are undeniably coarse and vulgar, they
do not have the same level of offensiveness as the "F-Word" or
"S-Word." As we recently stated, "[a]lthough use of such words may,
depending on the nature of the broadcast at issue, contribute to a
finding of indecency, their use here was not patently offensive."
The broadcasts at issue here used these terms in a similar manner.
Therefore, under our three-part analysis and based on our precedent,
we find the broadcasts of the terms "dick" and its derivative,
"dickhead," as used in the "NYPD Blue" episodes at issue, are not
patently offensive.
128. However, we do conclude that the broadcasts of a derivative of the
"S-Word" at issue here are patently offensive. First, consistent with
our analysis of the "F-Word" in the Golden Globe Awards Order, we
find the "S-Word" to be one of the most vulgar, graphic and explicit
descriptions of excretory activity in the English language. Its use
invariably invokes a coarse excretory image. We conclude that the
broadcast of the "S-Word," under the circumstances presented here, is
vulgar, graphic and explicit.
129. Second, while the word is not dwelled upon, in the Golden Globe
Awards Order, the Commission reversed precedent that had suggested
that the isolated use of an offensive word like the "F-Word" is not
indecent. "[T]he mere fact that specific words or phrases are not
sustained or repeated does not mandate a finding that material that
is otherwise patently offensive to the broadcast medium is not
indecent." Similarly, we find that the fact that these broadcasts
did not dwell on the expletive, though relevant, is not dispositive
under the circumstances presented here.
130. Third, the intentional use of a derivative of the "S-Word" on a
popular network program broadcast is shocking and gratuitous. In this
regard, ABC does not claim that there was any political, scientific
or other independent value to using the word here, or any other
factor to mitigate its offensiveness. To the extent ABC claims that
the word was necessary for dramatic effect, mere dramatic effect does
not justify use of patently offensive expletives during time periods
when numerous children are likely to be in the audience. Programs
utilizing patently offensive expletives for dramatic effect can be
aired after 10 p.m.
131. In sum, because the material is explicit and shocking and gratuitous,
we conclude that the broadcast of the material at issue here that
contained derivatives of the "S-Word" is patently offensive under
contemporary community standards for the broadcast medium and thus
apparently indecent. The complained-of material was broadcast within
the 6 a.m. to 10 p.m. time frame relevant to an indecency
determination under section 73.3999 of the Commission's rules.
Therefore, there is a reasonable risk that children may have been in
the audience and the broadcast is legally actionable.
132. Profanity Analysis. In the Golden Globe Awards Order, the Commission
concluded that the "F-Word" constituted "profane language" within the
meaning of 18 U.S.C. S 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 nuisance." We indicated
in that decision that the Commission would analyze other potentially
profane words on a case-by-case basis.
133. In this case, we find 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. Like the "F-Word," it is one
of the most offensive words in the English language, the broadcast of
which is likely to shock the viewer and disturb the peace and quiet
of the home.
134. In rare contexts, 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. We caution, however, that we will
find this to be the case only in unusual circumstances, and such
circumstances are not present here. Although in this case, the
profane language may have had some communicative purpose, we do not
believe that ABC has demonstrated that it was essential to the nature
of an artistic or educational work or essential to informing viewers
on a matter of public importance. In this respect, this case is
unlike Saving Private Ryan, where we concluded that deleting
offensive words "would have altered the nature of the artistic work
and diminished the power, realism and immediacy of the film
experience for viewers." While we recognize that the expletives may
have made some contribution to the authentic feel of the program, we
believe that purpose could have been fulfilled and all viewpoints
expressed without the broadcast of expletives.
135. It is undisputed that the complained-of material was broadcast within
the 6 a.m. to 10 p.m. time frame relevant to a profanity
determination under section 73.3999 of the Commission's rules.
Because there was a reasonable risk that children may have been in
the audience at the time the material at issue was broadcast, the
material broadcast is legally actionable.
136. No Sanction Proposed. In the instant case, we find that the ABC
network affiliate Station KMBC-TV consciously and deliberately
broadcast the material in question. Accordingly, we find that the
apparent violations of 18 U.S.C. S 1464 and section 73.3999 of our
rules were willful. The station aired indecent and profane material
in violation of our rules because it broadcast indecent and profane
words in a show that aired between 6 a.m. and 10 p.m. and was watched
by people of all ages. The gratuitous use of indecent and profane
language on a national network broadcast ordinarily would warrant a
forfeiture under the standards announced in the Golden Globe Awards
Order. Nonetheless, we recognize that our precedent at the time of
the broadcast indicated that the Commission would not take indecency
enforcement action against the isolated use of expletives. Thus, we
will not impose any sanction in this case on the basis of our
profanity finding. "But for the fact that existing precedent would
have permitted this broadcast, it would be appropriate to initiate a
forfeiture proceeding against [ABC] and other licensees that
broadcast the program prior to 10 p.m." Accordingly, we find that no
forfeiture is warranted in this case.
1. "The Early Show" (December 13, 2004)
137. The Programming. A viewer filed a complaint that CBS Television
Network ("CBS") affiliate Station KDKA-TV, Pittsburgh, Pennsylvania,
licensed to CBS Broadcasting, Inc., aired a variant of the "S-Word"
during the program "The Early Show" on December 13, 2004, at
approximately 8:10 a.m., Eastern Standard Time, during a live
interview with cast member Twila Tanner of the CBS program "Survivor:
Vanuatu." The Bureau requested a tape of the program from CBS, which
CBS submitted. The tape shows, and CBS does not dispute, that Ms.
Tanner described a fellow contestant of "Survivor: Vanuatu" as a
"bullshitter."
138. Indecency Analysis. The Commission determined in the Golden Globe
Awards Order that the "F-Word" meets the first prong of the indecency
test. We stated, "given the core meaning of the "F-Word," any use of
that word or a variation, in any context, inherently has a sexual
connotation, and therefore falls within the first prong of our
indecency definition." Similarly, we now find that the "S-Word,"
including the variant of that word at issue here, is a vulgar,
graphic, and explicit description of excretory material. Its use
invariably invokes a coarse excretory image, even when its meaning is
not the literal one. Accordingly, we must proceed to analyze whether
the material, in context, is patently offensive as measured by
contemporary community standards for the broadcast medium. Based on
our examination of the three principal factors in our contextual
analysis, we conclude that the material is patently offensive.
139. First, the complained-of material is vulgar, graphic, and explicit.
Consistent with our analysis of the "F-Word" in the Golden Globe
Awards Order, we find the "S-Word" to be one of the most vulgar,
graphic and explicit words describing excrement or excretory activity
in the English language and, for the reasons stated above, its use
inherently has an excretory connotation. We conclude that the
broadcast of the "S-Word," under the circumstances presented here, is
vulgar, graphic and explicit.
140. Second, the fact that the material is not repeated or dwelled upon at
length, while relevant, is not dispositive. As the Commission
indicated in the Golden Globe Awards Order: "the mere fact that
specific words or phrases are not sustained or repeated does not
mandate a finding that material that is otherwise patently offensive
to the broadcast medium is not indecent." Consequently,
non-repetitive broadcasts of the "S-Word" may be found indecent.
141. Third, and most important to our analysis in this specific context,
the use of the "S-Word," particularly during a morning news
interview, is shocking and gratuitous. Because the interview dealt
with the outcome of one of the most popular prime-time shows on
broadcast television among children, it is foreseeable that young
children not only would be in the audience at that time of day, but
also that they would be attentive listeners to the interview with Ms.
Tanner. That CBS or the licensee of Station KDKA-TV failed to take
measures to protect such viewers from vulgarity in a morning
television interview is of particular concern and weighs heavily in
our analysis.
142. Viewing the evidence as a whole, while Ms. Tanner's vulgarity is not
repeated, the patently offensive nature of the broadcast is clearly
established under the first and third principal factors of our
contextual analysis. The complained-of material was broadcast within
the 6 a.m. to 10 p.m. time frame relevant to an indecency
determination under section 73.3999 of the Commission's rules.
Therefore, there is a reasonable risk that children may have been in
the audience and the broadcast is legally actionable.
143. Profanity Analysis. In the Golden Globe Awards Order,, the Commission
concluded that the "F-Word" constituted "profane language" within the
meaning of 18 U.S.C. S1464 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 nuisance." In this case, we
similarly find 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. For the reasons stated above,
use of the "S-Word" invariably invokes a coarse excretory image. Like
the "F-Word," it is one of the most offensive words in the English
language, the broadcast of which is likely to shock the viewer and
disturb the peace and quiet of the home.
144. In rare contexts, 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. We caution, however, that we will
find this to be the case only in unusual circumstances, and such
circumstances are clearly not present here. Although in this case,
Ms. Tanner's profane language may have had some communicative
purpose, we do not believe that it was essential to informing viewers
on a matter of public importance or that editing the language would
have materially impacted the network's function as a source of news
and information.
145. No Sanction Proposed. We find that CBS Broadcasting, Inc., the
licensee of CBS network affiliate Station KDKA-TV, consciously and
deliberately broadcast the program in question. Accordingly, we find
that the apparent violation of 18 U.S.C. S 1464 and section 73.3999
of our rules was willful. Thus based upon our review of the record in
this case, we conclude that the licensee of this station aired
material in violation of 18 U.S.C. S 1464 and our rules by
broadcasting indecent and profane language between 6 a.m. and 10 p.m.
during programming watched by a nationwide audience of all ages. The
gratuitous use of indecent and profane language during a national
broadcast ordinarily would warrant a forfeiture under the standards
announced in Golden Globe Awards Order. However, we recognize that
our precedent at the time of the broadcast did not clearly indicate
that the Commission would take enforcement action against an isolated
use of the "S-Word." "But for the fact that existing precedent would
have permitted this broadcast, it would be appropriate to initiate a
forfeiture proceeding against [CBS] and other licensees that
broadcast the program prior to 10 p.m." Consequently, we find that no
forfeiture is warranted in this case.
A. Broadcasts That Do Not Violate Indecency/Profanity/Obscenity
Restrictions
146. In this section, we conclude that the complained-of programming does
not warrant action against the licensee. Although some of this
programming is undoubtedly upsetting to some viewers, we reach these
determinations either because the programming is not within the scope
of our indecency or profanity definitions or because it is not, in
the contexts before us, patently offensive as measured by
contemporary community standards for the broadcast medium.
1. "Alias" (January 5, 2005)
147. The Programming. The Commission received complaints concerning the
January 5, 2005 broadcast of the program "Alias" by Allbriton
Communications, Inc., licensee of Station WJLA-TV, Washington, D.C.,
from 9:00 to 11:00 p.m. Eastern Standard Time. The show depicts
intelligence agents engaged in various covert operations. In this
episode, a male and female character engage in a covert operation on
a moving train. The female character having completed her portion of
the operation is chased by an assailant. The chase leads to a cargo
car and, after a fight with the assailant, the female character finds
herself hanging out of the cargo car while the train crosses a high
bridge. As the assailant attempts to force the female character off
of the moving train, the male character, having been victorious in a
separate fight with another assailant, rescues the female character
from impending death. The male and female characters hug and stare at
each other. In the next scene, which is the subject of the
complaints, the male and female characters are in bed kissing,
caressing and rubbing against each other. The scene is accompanied by
off-camera music. There are no depictions of sexual organs in the
scene. Afterwards, the couple lay side-by-side and stare at each
other.
148. Indecency Analysis. The episode's references to sexual activities
place it within the subject matter scope of our indecency definition.
In particular, although there are no depictions of sexual organs, the
episode depicts a couple in bed passionately kissing, caressing and
rubbing against each other, each of which is a sexual activity.
Accordingly, we find that the material meets the first prong of our
indecency standard. We now turn to the second prong of our indecency
analysis, whether the material is patently offensive by contemporary
community standards for the broadcast medium.
149. Turning to the first of the three principal factors in our contextual
analysis, the episode does not depict sexual or excretory organs and
does not depict sexual activities in a graphic or explicit way. The
scene involves no display of sexual organs and contains no sexually
graphic language. While viewers see the characters kissing,
caressing, and rubbing; it is not clear whether the characters are
engaged in sexual intercourse.
150. Regarding the second principal factor of our contextual analysis,
while not dispositive, the sexual encounter between the male and
female character is not fleeting.
151. With respect to the third principal component of our contextual
analysis, we find that the sexual activity is not presented in a
pandering, titillating or shocking manner. While the episode shows
the male and female characters kissing, caressing, and rubbing in
bed, the overall context, including the camera angle, the background
music, and the immediately preceding scene, is not shocking in
contrast to clear and graphic depictions of sexual intercourse.
152. Accordingly, although the episode depicts sexual activities within
the meaning of the Commission's indecency definition, taken as a
whole, we conclude that it is not patently offensive as measured by
contemporary community standards for the broadcast medium. While the
sexual encounter between the two characters is not fleeting, the
nature of the encounter is not sufficiently explicit or shocking to
be patently offensive. Accordingly, the complaints are denied.
1. "Will and Grace" (November 11, 2004)
153. The Programming. The Commission received a complaint concerning the
November 11, 2004 broadcast of a "Will and Grace" episode titled
"Saving Grace Again, Part 1." The episode was broadcast at 8:30 p.m.
Central Standard Time over stations affiliated with the NBC
Television Network. In the episode, the lead female character, Grace,
is in her apartment preparing to go out on her first date after her
recent divorce. She is being assisted by her roommate, Will, and is
concerned about her appearance. Before leaving, she asks Will if
there is "anything else" she should know about dating. Will responds
by instructing her to "lean forward" and, as Grace does so, he places
his hands on her dress adjusting her breasts upward to enhance her
appearance. As Grace is leaving the apartment, she is greeted at the
elevator by her friend, Karen, who also knows of the date and places
her hand on Grace's breasts and appears to also adjust her bosoms
upward.
154. Indecency Analysis. The first prong of our indecency analysis is
whether the program depicts or describes sexual or excretory
activities or organs and, therefore, is within the subject matter
scope of the Commission's indecency definition. Although the episode
contains some sexual innuendo, the characters in the scene in
question appear to touch Grace's breast area primarily to enhance her
appearance during her date rather than to elicit a sexual response.
We need not decide, however, whether the scene depicts or describes
sexual activities or organs because even assuming that the first
prong of our indecency analysis is met, we conclude that the material
is not indecent because it is not patently offensive as measured by
contemporary community standards for the broadcast medium.
155. In making this determination, we must look to the full context in
which the material is presented. Here, the context is generally
humorous and consists of light-hearted ridicule and indirect
references to the size of Grace's breasts and the efforts made by her
friends to enhance her sexual appeal for her date by making her
breasts look larger.
156. Regarding the first component of our contextual analysis, the
touching of Grace's breasts is not presented in a graphic or explicit
manner. The program contains no nudity and never explicitly shows or
specifically describes sexual activities or organs. We find that the
episode does not contain "graphic descriptions of sexual activities
and organs or ... language that is so graphic as to qualify as
indecent and profane."
157. With respect to the second component of our contextual analysis,
while not dispositive, we find it relevant that the episode does not
dwell upon or repeat references to sexual organs or activities.
158. Finally, we do not find that the material at issue is used to pander,
titillate, or shock - the third component of our contextual analysis.
Rather, the episode addresses the anxiety associated with a first
date and Grace's friends' efforts to lend assistance -- a topic that
is not shocking, pandering, or titillating. Moreover, the touching of
the breasts is not portrayed in a sexualized manner, and does not
appear to elicit any sexual response from Grace.
159. In sum, we find that, because of the absence of explicit portrayals
of, or references to, sexual organs or activities; the brevity of the
scene at issue; and the absence of shocking, pandering, and/or
titillating effect, the episode, taken as a whole, is not patently
offensive as measured by contemporary community standards for the
broadcast medium, and therefore is not indecent. Accordingly, the
complaint is denied.
1. "Two and a Half Men" (February 21, 2005)
160. The Programming. The Commission received a complaint that the
February 21, 2005 episode of the CBS Television Network program "Two
and a Half Men" had a scene in which a female doctor "was doing a
hernia check" on a male character "with his scrotum in her hand"
while he was trying to seduce her. The broadcast occurred between 9
and 10 p.m. Eastern Standard Time. Based on our review of a videotape
provided by CBS, the scene in question takes place in a doctor's
office and involves a hernia examination, which requires the male
character to remove his pants and cough with the female doctor's hand
on his scrotum. No nudity or touching, however, is actually depicted,
and the examination is not eroticized. During the examination, to
which the male character readily agrees because he apparently finds
the doctor attractive, he comments suggestively that her hands are
warm and asks her out to dinner. She expresses disbelief that he does
not remember her and states that they dated while she was in medical
school until he broke it off without explanation and began seeing her
roommate. The scene ends with him making comments and sounds
indicating that she is painfully squeezing his scrotum.
161. Indecency Analysis. After reviewing a tape of the complained-of
scene, we conclude that it is not indecent. Even assuming that the
scene that the complainant describes falls within the scope of our
indecency definition, it does not, in the context at issue here,
satisfy the second prong of our indecency analysis - that is, it is
not patently offensive under contemporary standards for the broadcast
medium.
162. Looking at the three principal factors that inform our contextual
analysis, first, the material is not graphic or explicit. Although
the episode suggests that one character is touching another's sexual
organs, the apparent touching takes place off-camera; there is never
any nudity, depiction of a sexual organ, or description of sexual
organs or activities. Rather, viewers are left to surmise what is
happening by one character's reactions to another. Turning to the
second factor, while not dispositive, it is relevant that the sc