Federal Communications CommissionFCC 01-90

Before the

Federal Communications Commission

Washington, D.C. 20554

In the Matter of
Industry Guidance On the Commission’s
Case Law Interpreting 18 U.S.C. § 1464
and Enforcement Policies Regarding
Broadcast Indecency / )
)
)
)
)
)
) / File No. EB-00-IH-0089

POLICY STATEMENT

Adopted: March 14, 2001Released: April 6, 2001

By the Commission: Commissioners Ness and Furchtgott-Roth issuing separate statements; Commissioner Tristani dissenting and issuing a statement.

I.INTRODUCTION

  1. The Commission issues this Policy Statement to provide guidance to the broadcast industry regarding our case law interpreting 18 U.S.C. § 1464 and our enforcement policies with respect to broadcast indecency. This document is divided into five parts. Section I gives an overview of this document. Section II provides the statutory basis for indecency regulation and discusses the judicial history of such regulation. Section III describes the analytical approach the Commission uses in making indecency determinations. This section also presents a comparison of selected rulings intended to illustrate the various factors that have proved significant in resolving indecency complaints. The cited material refers only to broadcast indecency actions and does not include any discussion of case law concerning indecency enforcement actions in other services regulated by this agency such as cable, telephone, or amateur radio. Section IV describes the Commission’s broadcast indecency enforcement process. Section V is the conclusion.

II.Statutory Basis/JUDICIAL HISTORY

  1. It is a violation of federal law to broadcast obscene or indecent programming. Specifically, Title 18 of the United States Code, Section 1464 (18 U.S.C. § 1464), prohibits the utterance of “any obscene, indecent, or profane language by means of radio communication."[1] Congress has given the Federal Communications Commission the responsibility for administratively enforcing 18 U.S.C. § 1464. In doing so, the Commission may revoke a station license, impose a monetary forfeiture, or issue a warning for the broadcast of indecent material.[2] See 47 U.S.C. Sections 312(a)(6) and 503(b)(1)(D).
  2. The FCC’s enforcement policy under Section 1464 has been shaped by a number of judicial and legislative decisions. In particular, because the Supreme Court has determined that obscene speech is not entitled to First Amendment protection, obscene speech cannot be broadcast at any time. [3] In contrast, indecent speech is protected by the First Amendment, and thus, the government must both identify a compelling interest for any regulation it may impose on indecent speech and choose the least restrictive means to further that interest.[4] Even under this restrictive standard, the courts have consistently upheld the Commission’s authority to regulate indecent speech, albeit with certain limitations.
  3. FCC v. Pacifica Foundation, 438 U.S. 726 (1978), provides the judicial foundation for FCC indecency enforcement. In that case, the Supreme Court held that the government could constitutionally regulate indecent broadcasts.[5] In addition, the Court quoted the Commission’s definition of indecency with apparent approval.[6] The definition, “language or material that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory activities or organs,” has remained substantially unchanged since the time of the Pacifica decision.[7] Moreover, the definition has been specifically upheld against constitutional challenges in the Action for Children’s Television (ACT) cases in the D.C. Circuit Court of Appeals.[8] Further, in Reno v. ACLU, 521 U.S. 844 (1997), the U.S. Supreme Court struck down an indecency standard for the Internet but did not question the constitutionality of our broadcast indecency standard. Rather, the Court recognized the “special justifications for regulation of the broadcast media that are not applicable to other speakers.” Reno v. ACLU, 521 U.S. at 868.[9]
  4. Although the D.C. Circuit approved the FCC’s definition of indecency in the ACT cases, it also established several restrictive parameters on FCC enforcement. The court’s decisions made clear that the FCC had to identify the compelling government interests that warranted regulation and also explain how the regulations were narrowly tailored to further those interests. In ACT I, the court rejected as inadequately supported the Commission’s determination that it could reach and regulate indecent material aired as late as 11:00 p.m., and remanded the cases involved to the Commission for proceedings to ascertain the proper scope of the “safe harbor” period,that is, the time during which indecent speech may be legally broadcast. Before the Commission could comply with the court’s remand order, however, Congress intervened and instructed the Commission to adopt rules that enforced the provisions of 18 U.S.C. § 1464 on a “24 hour per day basis.”[10] The rule adopted to implement this legislative mandate was stayed and was ultimately vacated by the court in ACT II as unconstitutional. In 1992, responding to the decision in ACT II, Congress directed the Commission to adopt a new “safe harbor” – generally 12 midnight to 6:00 a.m., but 10:00 p.m. to 6:00 a.m. for certain noncommercial stations. The Commission implemented this statutory scheme in January 1993.[11] Before this rule could become effective, however, the court stayed it pending judicial review. In 1995, the D.C. Circuit, en banc, held in ACT III that there was not a sufficient justification in the record to support a preferential “safe harbor” period for noncommercial stations and that the more restrictive midnight to 6:00 a.m. “safe harbor” for commercial stations was therefore unconstitutional. The court concluded, however, that the less restrictive 10:00 p.m. to 6:00 a.m. “safe harbor” had been justified as a properly tailored means of vindicating the government’s compelling interest in the welfare of children and remanded the case to the Commission “with instructions to limit its ban on the broadcasting of indecent programs to the period from 6:00 a.m. to 10:00 p.m.” ACT III, 58 F.3d at 669-70. The Commission implemented the court’s instructions by appropriately conforming Section 73.3999 of its rules.[12] These changes became effective on August 28, 1995.[13]
  5. Thus, outside the 10:00 p.m. to 6:00 a.m. safe harbor, the courts have approved regulation of broadcast indecency to further the compelling government interests in supporting parental supervision of children and more generally its concern for children’s well being. Act III, 58 F.3dat 661 (and cases cited therein).[14] The principles of enforcement articulated below are intended to further these interests.

III.Indecency Determinations

A.Analytical Approach

  1. Indecency findings involve at least two fundamental determinations. First, the material alleged to be indecent must fall within the subject matter scope of our indecency definition – that is, the material must describe or depict sexual or excretory organs or activities. WPBN/WTOM License Subsidiary, Inc. (WPBN-TV and WTOM-TV), 15 FCC Rcd 1838, 1840-41 (2000).
  2. Second, the broadcast must be patently offensive as measured by contemporary community standards for the broadcast medium. In applying the "community standards for the broadcast medium" criterion, the Commission has stated:

The determination as to whether certain programming is patently offensive is not a local one and does not encompass any particular geographic area. Rather, the standard is that of an average broadcast viewer or listener and not the sensibilities of any individual complainant.

WPBN/WTOM License Subsidiary, Inc., 15 FCC Rcd at 1841.[15]

  1. In determining whether material is patently offensive, the fullcontext in which the material appeared is critically important.[16] It is not sufficient, for example, to know that explicit sexual terms or descriptions were used, just as it is not sufficient to know only that no such terms or descriptions were used. Explicit language in the context of a bona fide newscast might not be patently offensive,[17] while sexual innuendo that persists and is sufficiently clear to make the sexual meaning inescapable might be.[18] Moreover, contextual determinations are necessarily highly fact-specific, making it difficult to catalog comprehensively all of the possible contextual factors that might exacerbate or mitigate the patent offensiveness of particular material.[19] An analysis of Commission case law reveals that various factors have been consistently considered relevant in indecency determinations. By comparing cases with analogous analytical structures, but different outcomes, we hope to highlight how these factors are applied in varying circumstances and the impact of these variables on a finding of patent offensiveness.

B.Case Comparisons

  1. The principal factors that have proved significant in our decisions to date are: (1) the explicitness or graphic nature of the description or depiction of sexual or excretory organs or activities; (2) whether the material dwells on or repeats at length descriptions of sexual or excretory organs or activities; (3) whether the material appears to pander or is used to titillate, or whether the material appears to have been presented for itsshock value. In assessing all of the factors, and particularly the third factor, the overall context of the broadcast in which the disputed material appeared is critical. Each indecency case presents its own particular mix of these, and possibly other, factors, which must be balanced to ultimately determine whether the material is patently offensive and therefore indecent. No single factor generally provides the basis for an indecency finding. To illustrate the noted factors, however, and to provide a sense of the weight these considerations have carried in specific factual contexts, a comparison of cases has been organized to provide examples of decisions in which each of these factors has played a particularly significant role, whether exacerbating or mitigating, in the indecency determination made.
  2. It should be noted that the brief descriptions and excerpts from broadcasts that are reproduced in this document are intended only as a research tool and should not be taken as a meaningful selection of words and phrases to be evaluated for indecency purposes without the fuller context that the tapes or transcripts provide. The excerpts from broadcasts used in this section have often been shortened or compressed. In order to make the excerpts more readable, however, we have frequently omitted any indication of these ellipses from the text. Moreover, in cases where material was included in a complaint but not specifically cited in the decision based on the complaint, we caution against relying on the omission as if it were of decisional significance. For example, if portions of a voluminous transcript are the object of an enforcement action, those portions not included are not necessarily deemed not indecent. The omissions may be the result of an editing process that attempted to highlight the most significant material within its context. No inference should be drawn regarding the material deleted.

1.Explicitness/Graphic Description Versus Indirectness/Implication

  1. The more explicit or graphic the description or depiction, the greater the likelihood that the material will be considered patently offensive. Merely because the material consists of double entendre or innuendo, however, does not preclude an indecency finding if the sexual or excretory import is unmistakable.
  2. Following are examples of decisions where the explicit/graphic nature of thedescription of sexual or excretory organs or activities played a central role in the determination that the broadcast was indecent.

WYSP(FM), Philadelphia, PA“Howard Stern Show”

God, my testicles are like down to the floor . . . you could really have a party with these . . . Use them like Bocci balls.

(As part of a discussion of lesbians) I mean to go around porking other girls with vibrating rubber products . . .

Have you ever had sex with an animal? Well, don’t knock it. I was sodomized by Lambchop.

Indecent – Warning Issued. Infinity Broadcasting Corporation of Pennsylvania (WYSP(FM)), 2 FCC Rcd 2705 (1987), aff’d 3 FCC Rcd 930 (1987), aff’d in part, vacated in part on other grounds, remanded sub nom. Act I, 852 F.2d 1332 (D.C. Cir. 1988) (subsequent history omitted). Excerpted material (only some of which is cited above) consisted of “vulgar and lewd references to the male genitals and to masturbation and sodomy broadcast in the context of . . . ‘explicit references to masturbation, ejaculation, breast size, penis size, sexual intercourse, nudity, urination, oral-genital contact, erections, sodomy, bestiality, menstruation and testicles.’” 3 FCC Rcd at 932.

WSUC-FM, Cortland, NY“I’m Not Your Puppet” Rap Song

The only thing that was on my mind, was just shoving my dick up this bitch's behind. I looked at the girl and said, babe, your ass ain't nothing but a base hit. I'm going to have to get rid of your ass, yeah, 'cause you're on my dick, dick, ding-a-ling. Popped my dick in her mouth, and we rocked it back and forth. Now that she sucked my dick and Tony fuck you in the ass. I pulled out my dick, popped it in her mouth, and she sucked it.

Indecent – NAL Issued. State University of New York (WSUC-FM), 8 FCC Rcd 456 (1993), forfeiture reduced 13 FCC Rcd 23810 (1998) (forfeiture paid). The Commission concluded that the language used in this broadcast “describes sexual activities in patently offensive terms and is therefore indecent.” 8 FCC Rcd at 456.

WQAM(AM), Miami, FL“Uterus Guy” Song

I don’t want to grow up, I’m a uterus guy. I want to spend a week or so right here between your thighs. Inhale your clam, with my head jammed by your quivering, crushing gams. No, I don’t want to get up or get a towel to dry, cause I wouldn’t be a uterus guy. I don’t want to get up, I’m a uterus guy and I know where to lick and chew exactly where you like. You’ll have more fun when I make you come, with my nose between your thighs.

Indecent – NAL Issued. WQAM License Limited Partnership (WQAM(AM)), 15 FCC Rcd 1475 (1999), aff’d 15 FCC Rcd 2518 (2000), recon. denied FCC 00-266, released July 26, 2000. The Commission held that the “song’s sexual import is lewd, inescapable and understandable.” 15 FCC Rcd at 2520.

KROQ(FM), Los Angeles, CA“You Suck” Song

I know you’re really proud cause you think you’re well hung but I think its time you learn how to use your tongue. You say you want things to be even and you want things to be fair but you’re afraid to get your teeth caught in my pubic hair. If you’re lying there expecting me to suck your dick, you’re going to have to give me more than just a token lick. . . . Go down baby, you suck, lick it hard and move your tongue around. If you’re worried about babies, you can lower your risk, by giving me that special cunnilingus kiss. . . . you can jiggle your tongue on my clit. Don’t worry about making me have an orgasm. . . . You asshole, you shit. I know it’s a real drag, to suck my cunt when I’m on the rag. . . . You tell me it’s gross to suck my yeast infection. How do you think I feel when I gag on your erection.

Indecent – NAL Issued. Infinity Broadcasting Corporation of Los Angeles (KROQ(FM)), 13 FCC Rcd 25349 (MMB 1998), aff’d 15 FCC Rcd 10667 (EB 2000), petition for reconsideration pending (graphically and explicitly describes sexual and excretory organs or activities).

WXTB(FM), Clearwater, FL“Bubba, The Love Sponge”

Most women don’t like swallowing, but I do. The trick is you need to swallow at the right time. Do it when you’re deep throating. . . . I like pleasure giving, I like a pleasure giving woman who really, really likes to enjoy giving oral. . . . She does more than just go up and down, she’s creative by licking, nibbling and using overall different techniques. . . . The sexy turn on for me is when I . . . expel into my partner’s mouth. . . . I don’t mind giving BJs . . . if a man doesn’t get off, that means he wasn’t quite excited by my techniques.

Indecent – NAL Issued. Citicasters Co. (WXTB(FM)), 13 FCC Rcd 22004 (1998), aff’d FCC 00-230, released June 27, 2000 (forfeiture paid).

  1. Less explicit material and material that relies principally on innuendo to convey a sexual or excretory meaning have also been cited by the Commission as actionably indecent where the sexual or excretory meaning was unmistakable.

KLOL(FM), Houston, TX“Stevens and Pruett Show”

The doctor was talking about size. The man complained earlier that he was so large that it was ruining his marriages. Big is good if the guy knows how to use it. She is so big she could handle anything. Some of these guys, a very few of them, a hand full are like . . . two hands full. Twelve inches, about the size of a beer can in diameter. So, now could you handle something like that? It's actually ruined marriages. A big organ for a big cathedral. Somebody big is just going to have to find somebody that's big.

Indecent – NAL Issued. The Rusk Corporation (KLOL(FM)), 8 FCC Rcd 3228 (1993)(forfeiture paid). As to the use of innuendo in the cited passages, the Commission said: "[W]hile [the licensee] may have substituted innuendo and double entendre for more directly explicit sexual references and descriptions in some instances, unmistakable sexual references remain that render the sexual meaning of the innuendo inescapable." 8 FCC Rcd at 3228.

KGB-FM, San Diego, CA“Candy Wrapper” Song

I whipped out my Whopper and whispered, Hey, Sweettart, how'd you like to Crunch on my Big Hunk for a Million Dollar Bar? Well, she immediately went down on my Tootsie Roll and you know, it was like pure Almond Joy. I couldn't help but grab her delicious Mounds, ... this little Twix had the Red Hots. ... as my Butterfinger went up her tight little Kit Kat, and she started to scream Oh, Henry! Oh, Henry! Soon she was fondling my Peter Paul, and Zagnuts and I knew it wouldn't be long before I blew my Milk Duds clear to Mars and gave her a taste of the old Milky Way. ... I said, Look ... why don't you just take my Whatchamacallit and slip it up your Bit-O-Honey. Oh, what a piece of Juicy Fruit she was too. She screamed Oh, Crackerjack. You're better than the Three Musketeers! as I rammed my Ding Dong up her Rocky Road and into her Peanut Butter Cup. Well, I was giving it to her Good 'n Plenty, and all of a sudden, my Starburst. ... she started to grow a bit Chunky and ... Sure enough, nine months later, out popped a Baby Ruth.

Indecent – NAL Issued. KGB, Inc. (KGB-FM), 7 FCC Rcd 3207 (1992), forfeiture reduced 13 FCC Rcd 16396 (1998) (forfeiture paid). See also Great American Television and Radio Company, Inc. (WFBQ(FM)/WNDE(AM)), 6 FCC Rcd 3692, 3693 (MMB 1990) (forfeiture paid) ("While the passages arguably consist of double entendre and indirect references, the language used in each passage was understandable and clearly capable of a specific sexual meaning and, because of the context, the sexual import was inescapable."); and WIOD, Inc. (WIOD(AM)), 6 FCC Rcd 3704 (MMB 1989) (forfeiture paid) (“notwithstanding the use of candy bar names to symbolize sexual activities, the titillating and pandering nature of the song makes any thought of candy bars peripheral at best”).