[Federal Register Volume 66, Number 85 (Wednesday, May 2, 2001)]
[Notices]
[Pages 21984-21986]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-10869]


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FEDERAL COMMUNICATIONS COMMISSION

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


Industry Guidance on the Commission's Case Law Interpreting 18 
U.S.C. 1464 and Enforcement Policies Regarding Broadcast Indecency

AGENCY: Federal Communications Commission.

ACTION: Notice; policy statement.

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

FOR FURTHER INFORMATION CONTACT: Norman Goldstein, Assistant Chief, or 
Catherine Withers, Attorney, Investigations and Hearings Division, 
Enforcement Bureau, Federal Communications Commission, (202) 418-1420. 
This document is available from the FCC's web site at http://www.fcc.gov/Bureaus/Enforcement/Orders/2001/fcc01090.doc or you may 
visit the Reference Information Center at the FCC's headquarters 
located at 445 12th Street, SW., Room CY-A257, Washington, DC 20554. 
The FCC reference center is open to the public Monday through Thursday 
from 8 a.m. until 4:30 p.m. and Friday from 8 a.m. to 11:30 a.m. You 
may also reach the reference center at (202) 418-0270. As

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an alternative, information that is routinely available to the public 
can be obtained from International Transcription Services (ITS), a 
private government contractor. ITS has an office at the FCC's 
Washington, DC location and can be reached directly at (202) 857-3800.

SUPPLEMENTARY INFORMATION: It is a violation of federal law to 
broadcast obscene or indecent programming. 18 U.S.C. 1464. The 
Commission issues this Policy Statement to provide guidance to the 
broadcast industry regarding our case law interpreting 18 U.S.C. 1464 
and our enforcement policies with respect to broadcast indecency.\1\ 
The Policy Statement is divided into five parts. Section I gives an 
overview of the Policy Statement. Section II provides the statutory 
basis for indecency regulation and discusses the judicial history of 
such regulation. In addition, Section II explains that in accordance 
with judicial precedent, Sec. 73.3999 of the Commission's rules limits 
the ban on the broadcasting of indecent programming so as to provide a 
``safe harbor'' from 10 p.m. to 6 a.m. Thus, Sec. 73.3999 provides that 
``[n]o licensee of a radio or television broadcast station shall 
broadcast on any day between 6 a.m. and 10 p.m. any material which is 
indecent.'' 47 CFR 73.3999(b).
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    \1\ This Policy Statement addresses the February 22, 1994, 
Agreement for Settlement and Dismissal with Prejudice between the 
United States of America, by and through the Department of Justice 
and Federal Communications Commission, and Evergreen Media 
Corporation of Chicago, AM, Licensee of Radio Station WLUP (AM).
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    Section III describes the analytical approach the Commission uses 
in making indecency determinations. Indecency findings involve at least 
two fundamental determinations. First, the material alleged to be 
indecent must fall within the subject matter scope of our indecency 
definition--that is, the material must describe or depict sexual or 
excretory organs or activities. Second, the broadcast must be patently 
offensive as measured by contemporary community standards for the 
broadcast medium. In applying the ``community standards for the 
broadcast medium'' criterion, the Commission has ruled that the 
standard is not a local one, but rather is that of an average broadcast 
viewer or listener and not the sensibilities of any individual 
complainant.
    In determining whether material is patently offensive, the full 
context in which the material appeared is critically important. It is 
not sufficient, for example, to know that explicit sexual terms or 
descriptions were used, just as it is not sufficient to know only that 
no such terms or descriptions were used. Explicit language in the 
context of a bona fide newscast might not be patently offensive, while 
sexual innuendo that persists and is sufficiently clear to make the 
sexual meaning inescapable might be. Moreover, contextual 
determinations are necessarily highly fact-specific, making it 
difficult to catalog comprehensively all of the possible contextual 
factors that might exacerbate or mitigate the patent offensiveness of 
particular material.
    Section III also sets out the principal factors that have proved 
significant in our decisions to date : (1) The explicitness or graphic 
nature of the description or depiction of sexual or excretory organs or 
activities; (2) whether the material dwells on or repeats at length 
descriptions of sexual or excretory organs or activities; (3) whether 
the material appears to pander or is used to titillate, or whether the 
material appears to have been presented for its shock value. In 
assessing all of the factors, and particularly the third factor, the 
overall context of the broadcast in which the disputed material 
appeared is critical. Each indecency case presents its own particular 
mix of these, and possibly other, factors, which must be balanced to 
ultimately determine whether the material is patently offensive and 
therefore indecent. No single factor generally provides the basis for 
an indecency finding. To illustrate the noted factors, however, and to 
provide a sense of the weight these considerations have carried in 
specific factual contexts, Section III contains a comparison of cases 
that has been organized to provide examples of decisions in which each 
of these factors has played a particularly significant role, whether 
exacerbating or mitigating, in the indecency determination made. The 
comparison of selected rulings is intended to illustrate the various 
factors that have proved significant in resolving indecency complaints. 
The cited material refers only to broadcast indecency actions and does 
not include any discussion of case law concerning indecency enforcement 
actions in other services regulated by this agency such as cable, 
telephone, or amateur radio.
    Section IV describes the Commission's broadcast indecency 
enforcement process. The Commission does not independently monitor 
broadcasts for indecent material. Its enforcement actions are based on 
documented complaints of indecent broadcasting received from the 
public. Given the sensitive nature of these cases and the critical role 
of context in an indecency determination, it is important that the 
Commission be afforded as full a record as possible to evaluate 
allegations of indecent programming. In order for a complaint to be 
considered, our practice is that it must generally include: (1) A full 
or partial tape or transcript or significant excerpts of the program; 
(2) the date and time of the broadcast; and (3) the call sign of the 
station involved. Any tapes or other documentation of the programming 
supplied by the complainant, of necessity, become part of the 
Commission's records and cannot be returned. Documented complaints 
should be directed to the FCC, Investigations and Hearings Division, 
Enforcement Bureau, 445 Twelfth Street, SW., Washington, DC 20554.
    If a complaint does not contain the supporting material described, 
or if it indicates that a broadcast occurred during ``safe harbor'' 
hours or the material cited does not fall within the subject matter 
scope of our indecency definition, it is usually dismissed by a letter 
to the complainant advising of the deficiency. In many of these cases, 
the station may not be aware that a complaint has been filed. If, 
however, the staff determines that a documented complaint meets the 
subject matter requirements of the indecency definition and the 
material complained of was aired outside ``safe harbor'' hours, then 
the broadcast at issue is evaluated for patent offensiveness. Where the 
staff determines that the broadcast is not patently offensive, the 
complaint will be denied. If, however, the staff determines that 
further enforcement action might be warranted, the Enforcement Bureau, 
in conjunction with other Commission offices, examines the material and 
decides upon an appropriate disposition, which might include any of the 
following: (1) Denial of the complaint by staff letter based upon a 
finding that the material, in context, is not patently offensive and 
therefore not indecent; (2) issuance of a Letter of Inquiry (LOI) to 
the licensee seeking further information concerning or an explanation 
of the circumstances surrounding the broadcast; (3) issuance of a 
Notice of Apparent Liability (NAL) for monetary forfeiture; and (4) 
formal referral of the case to the full Commission for its 
consideration and action. Generally, the last of these alternatives is 
taken in cases where issues beyond straightforward indecency violations 
may be involved or where the potential sanction for the indecent 
programming exceeds the Bureau's delegated forfeiture authority of 
$25,000 (47 CFR 0.311).

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    Where an LOI is issued, the licensee's comments are generally 
sought concerning the allegedly indecent broadcast to assist in 
determining whether the material is actionable and whether a sanction 
is warranted. If it is determined that no further action is warranted, 
the licensee and the complainant will be so advised. Where a 
preliminary determination is made that the material was aired and was 
indecent, an NAL is issued. If the Commission previously determined 
that the broadcast of the same material was indecent, the subsequent 
broadcast constitutes egregious misconduct and a higher forfeiture 
amount is warranted.
    The licensee is afforded an opportunity to respond to the NAL, a 
step which is required by statute. 47 U.S.C. 503(b). Once the 
Commission or its staff has considered any response by the licensee, it 
may order payment of a monetary penalty by issuing a Forfeiture Order. 
Alternatively, if the preliminary finding of violation in the NAL is 
successfully rebutted by the licensee, the NAL may be rescinded. If a 
Forfeiture Order is issued, the monetary penalty assessed may either be 
the same as specified in the NAL or it may be a lesser amount if the 
licensee has demonstrated that mitigating factors warrant a reduction 
in forfeiture.
    A Forfeiture Order may be appealed by the licensee through the 
administrative process under several different provisions of the 
Commission's rules. The licensee also has the legal right to refuse to 
pay the fine. In such a case, the Commission may refer the matter to 
the U.S. Department of Justice, which can initiate a trial de novo in a 
U.S. District Court. The trial court may start anew to evaluate the 
allegations of indecency.
    Section V is the conclusion. The Commission has issued the Policy 
Statement to provide guidance to broadcast licensees regarding 
compliance with the Commission's indecency regulations. By summarizing 
the regulations and explaining the Commission's analytical approach to 
reviewing allegedly indecent material, the Commission provides a 
framework by which broadcast licensees can assess the legality of 
airing potentially indecent material. Numerous examples are provided in 
this document in an effort to assist broadcast licensees. However, the 
Policy Statement is not intended to be an all-inclusive summary of 
every indecency finding issued by the Commission and it should not be 
relied upon as such. There are many additional cases that could have 
been cited. Further, the excerpts from broadcasts quoted in the Policy 
Statement are intended only as a research tool. A complete 
understanding of the material, and the Commission's analysis thereof, 
requires review of the tapes or transcripts and the Commission's 
rulings thereon.

Federal Communications Commission.
Magalie Roman Salas,
Secretary.
[FR Doc. 01-10869 Filed 5-1-01; 8:45 am]
BILLING CODE 6712-01-P