*Pages 1--76 from þÿ* Federal Communications Commission FCC 06- 17 1 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 Corazón 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 1 Federal Communications Commission FCC 06- 17 2 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 referenc ing 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 2 Federal Communications Commission FCC 06- 17 3 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. 1 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. 2 Broadcasters also may not air profane material during this time period. 3 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 1 18 U. S. C. § 1464. 2 See 47 C. F. R. § 73.3999; see also Public Telecommunications Act of 1992, Pub. L. No. 102- 356, 106 Stat. 949 (1992) (setting the safe harbor of 10 p. m. to 6 a. m. for the broadcast of indecent material); see also Action for Children’s Television v. FCC, 58 F. 3d 654 (D. C. Cir. 1995) (en banc) (“ ACT III”), cert. denied, 516 U. S. 1072 (1996) (affirming restrictions prohibiting the broadcast of indecent material between the hours of 6 a. m. and 10 p. m.) 3 See Complaints Against Various Broadcast Licensees Regarding Their Airing of the “Golden Globe Awards” Program, Memorandum Opinion and Order 18 FCC Rcd 19859 (Enf. Bur. 2004), review granted, 19 FCC Rcd 4975, 4981 ¶¶ 13 and 14 (2004) (“ Golden Globe Awards Order”), petitions for stay and recon. pending. The Commission established a “safe harbor” period from 10 p. m. to 6 a. m. during which profane speech may be legally broadcast as a narrowly tailored means of vindicating its compelling interests in assisting parents and protecting minors, consistent with the D. C. Circuit’s decision that the same “safe harbor” period for indecent material is consistent with the Constitution. See ACT III, 58 F. 3d at 667. 3 Federal Communications Commission FCC 06- 17 4 of radio communication.” 4 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.” 5 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.” 6 “Because the broadcast audience is constantly tuning in and out, prior warnings cannot completely protect the listener or viewer from unexpected program content.” 7 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.” 8 This finding is even more relevant today given the increased accessibility of the broadcast media to children. 9 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. 10 As such, in making indecency determinations, the Commission proceeds cautiously and with appropriate restraint. 11 4 44 Stat. 1172. 5 FCC v. Pacifica Foundation, 438 U. S. 726, 748 (1978) (“ Pacifica”). 6 Id. 7 Id. 8 Id. at 749. 9 See Donald F. Roberts, Ulla G. Foehr, and Victoria Rideout, Generation M: Media in the Lives of 8- 18 Year Olds (March 2005) at 12- 13 (finding that 99% of children 8- 18 have a television set in their home and that 68% of children 8- 18 have a television set in their bedroom). 10 U. S. CONST., amend. I; 47 U. S. C. § 326. See also United States v. Playboy Entertainment Group, Inc., 529 U. S. 803, 813- 15 (2000). 11 See Action for Children’s Television v. FCC, 852 F. 2d 1332, 1344, 1340 n. 14 (1988) (“ ACT I”) (stating that “[ b] roadcast material that is indecent but not obscene is protected by the First Amendment; the FCC may regulate such material only with due respect for the high value our Constitution places on freedom and choice in what people may say and hear,” and that any “potential chilling effect of the FCC’s generic definition of indecency will be tempered by the Commission’s restrained enforcement policy.”). 4 Federal Communications Commission FCC 06- 17 5 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. 12 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 13. In our assessment of whether broadcast material is patently offensive, “the full context in which the material appeared is critically important.” 14 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. 15 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.” 16 In particular cases, one or two of the factors may outweigh the others, either rendering the broadcast material patently 12 See Infinity Broadcasting Corporation of Pennsylvania, Memorandum Opinion and Order, 2 FCC Rcd 2705 (1987) (subsequent history omitted) (citing Pacifica Foundation, Memorandum Opinion and Order, 56 FCC 2d 94, 98 (1975), aff’d sub nom. Pacifica, 438 U. S. 726). 13 Industry Guidance on the Commission’s Case Law Interpreting 18 U. S. C. §1464 and Enforcement Policies Regarding Broadcast Indecency, Policy Statement, 16 FCC Rcd 7999, 8002 ¶¶ 7- 8 (2001) (“ Indecency Policy Statement”) (emphasis in original). 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., Memorandum Opinion and Order, 15 FCC Rcd 1838, 1841 ¶ 10 (2000) (“ WPBN/ WTOM MO& O”). The Commission’s interpretation of the term “contemporary community standards” flows from its analysis of the definition of that term set forth in the Supreme Court’s decision in Hamling v. United States, 418 U. S. 87 (1974), reh’g denied, 419 U. S. 885 (1974). In Infinity Broadcasting Corporation of Pennsylvania (WYSP( FM)), Memorandum Opinion and Order, 3 FCC Rcd 930 (1987) (subsequent history omitted), the Commission observed that in Hamling, which involved obscenity, “the Court explained that the purpose of ‘contemporary community standards’ was to ensure that material is judged neither on the basis of a decisionmaker’s personal opinion, nor by its effect on a particularly sensitive or insensitive person or group.” Id. at 933 (citing 418 U. S. at 107). The Commission also relied on the fact that the Court in Hamling indicated that decisionmakers need not use any precise geographic area in evaluating material. Id. at 933 (citing 418 U. S. at 104- 05). Consistent with Hamling, the Commission concluded that its evaluation of allegedly indecent material is “not one based on a local standard, but one based on a broader standard for broadcasting generally.” Id. at 933. 14 Indecency Policy Statement, 16 FCC Rcd at 8002 ¶ 9 (emphasis in original). 15 Id. at 8002- 15 ¶¶ 8- 23. 16 Id. at 8003 ¶ 10. 5 Federal Communications Commission FCC 06- 17 6 offensive and consequently indecent, 17 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. 18 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. 19 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. § 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.” 20 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.” 21 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.” 22 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 17 Id. at 8009 ¶ 19 (citing Tempe Radio, Inc (KUPD- FM), Notice of Apparent Liability for Forfeiture, 12 FCC Rcd 21828 (Mass Media Bur. 1997) (forfeiture paid), and EZ New Orleans, Inc. (WEZB( FM)), Notice of Apparent Liability for Forfeiture, 12 FCC Rcd 4147 (Mass Media Bur. 1997) (forfeiture paid) (finding that the extremely graphic or explicit nature of references to sex with children outweighed the fleeting nature of the references). 18 Indecency Policy Statement, 16 FCC Rcd at 8010 ¶ 20 (noting that “the manner and purpose of a presentation may well preclude an indecency determination even though other factors, such as explicitness, might weigh in favor of an indecency finding”). 19 See Syracuse Peace Council, Memorandum Opinion and Order, 2 FCC Rcd 5043, 5050- 51 ¶ 52 (1987) (subsequent history omitted) (eliminating the fairness doctrine, which placed an affirmative obligation on broadcasters to cover, and present contrasting viewpoints on, controversial issues of public importance). 20 19 FCC Rcd at 4981 ¶ 13. 21 ACT I, 852 F. 2d at 1344 (noting that “the potentially chilling effect of the FCC’s generic definition will be tempered by the Commission’s restrained enforcement policy.”). 22 19 FCC Rcd at 1980 ¶ 12. 6 Federal Communications Commission FCC 06- 17 7 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. 23 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. 24 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. 25 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. 26 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. 27 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, 28 and the Commission has so interpreted the term in the section 503( b) context. 29 The term “repeated” means that the action was committed or omitted more than once, or lasts more than one day. 30 We emphasize that every licensee is responsible for the decision to air particular programming and will be held 23 See Pacifica, 438 U. S. at 748- 751; Golden Globe Awards Order, 19 FCC Rcd at 4981- 82 ¶¶ 13- 16. 24 See, e. g., Raycom America, Inc., Memorandum Opinion and Order, 18 FCC Rcd 4186, 4187, ¶¶ 3- 4 (2003); Complaint of Julian Bond, Atlanta NAACP, Letter, 69 FCC 2d 943 (Broadcast Bur. 1978). 25 See Complaints Against Various Television Licensees Regarding Their Broadcast on November 11, 2004 of the ABC Television Network’s Presentation of the Film “Saving Private Ryan,” Memorandum Opinion and Order, 20 FCC Rcd 4507, 4512- 14 ¶¶ 13- 18 (2005) (“ Saving Private Ryan”). 26 47 U. S. C. § 503( b)( 1)( B) & D. See also 47 C. F. R. 1.80( a)( 1). 27 47 U. S. C. § 312( f)( 1). 28 See H. R. Rep. No. 97- 765, 97 th Cong. 2d Sess. 51 (1982). 29 See Southern California Broadcasting Co., Memorandum Opinion and Order, 6 FCC Rcd 4387, 4388 (1991). 30 Callais Cablevision, Inc., Grand Isle, Louisiana, Notice of Apparent Liability for Forfeiture, 16 FCC Rcd 1359, 1362 ¶ 9 (2001). 7 Federal Communications Commission FCC 06- 17 8 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. 31 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.” 32 For the cases in this decision, the statutory maximum forfeiture amount for each apparent violation occurring prior to September 7, 2004 was $27,500. 33 The statutory maximum forfeiture amount for violations discussed in this decision occurring on or after September 7, 2004 is $32,500. 34 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) 35 22. The Programming. The Commission received a complaint alleging that WBDC Broadcasting, Inc. (“ WBDC Broadcasting”), licensee of Station WBDC- TV, Washington, D. C., 36 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 31 See Commission’s Forfeiture Policy Statement and Amendment of Section 1.80 of the Rules to Incorporate the Forfeiture Guidelines, Report and Order, 12 FCC Rcd 17087, 17113 (1997), recon. denied, 15 FCC Rcd 303 (1999) (“ Forfeiture Policy Statement”); see also 47 C. F. R. § 1.80( b). 32 Forfeiture Policy Statement, 12 FCC Rcd at 17100- 01 ¶ 27. 33 Effective September 7, 2004, the Commission amended its rules to increase the maximum penalties to account for inflation since the last adjustment of the penalty rates. See Amendment of Section 1.80 of the Commission’s Rules, Order, 19 FCC Rcd 10945, 10946 ¶ 6 (2004). 34 Id. 35 FCC File No. EB- 04- IH- 0166. 36 See Letter from Lara Mahaney, Parents Television Council, to David H. Solomon, Chief, Enforcement Bureau, Federal Communications Commission (February 17, 2004). In its complaint, PTC incorrectly states that the call sign of the station is “KBDC- TV,” but it appears that the complained- of station is Station WBDC- TV based on our review of the videotape of the program provided by PTC. 8 Federal Communications Commission FCC 06- 17 9 2.” 37 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. 38 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; 39 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. 40 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. 41 Here, despite the 37 See Letter from William H. Davenport, Chief, Investigations and Hearings Division, Enforcement Bureau, Federal Communications Commission, to John Maatta, Executive Vice- President and General Counsel, The WB Television Network (September 27, 2004). 38 See Letter from Arthur H. Harding, Esquire, Fleischman and Walsh, L. L. P., counsel for The WB Television Network, to David Brown, Assistant Chief, Investigations and Hearings Division, Enforcement Bureau, Federal Communications Commission (October 6, 2004) (“ October Response”); Letter from Arthur H. Harding, Esquire, Fleischmann and Walsh, L. L. P., counsel for the WB Television Network, to William H. Davenport, Chief, Investigations and Hearings Division, Enforcement Bureau, Federal Communications Commission (November 1, 2004). 39 In this scene, program participant Erik Estrada says that one of the female guests propositioned him with “an oral compliment.” The camera then turns to a scene where the female guest in question says to Mr. Estrada: “Wanna come inside [bleep].” Mr. Estrada responds with a shocked facial expression. The camera then turns to a scene in which he says into the camera: “And I said ‘ah you’re very kind and generous, but you know what? I’m a married man. ’” 40 See Complaints Against Various Licensees Regarding Their Broadcast of the Fox Television Network Program “Married By America” on April 7, 2003, Notice of Apparent Liability for Forfeiture, 19 FCC Rcd 20191, 20194 ¶ 10 (2004) (“ Married By America NAL”) (program featuring bachelor and bachelorette parties with pixilated nudity of professional strippers met first prong of indecency standard). 41 Id. 9 Federal Communications Commission FCC 06- 17 10 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. 42 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. 43 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.” 44 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 42 Id. (finding that “although the nudity was pixilated, even a child would have known that the strippers were topless and that sexual activity was being shown.”). 43 See Indecency Policy Statement, 16 FCC Rcd at 8008 ¶ 17 (citing cases); see also Married by America NAL, 19 FCC Rcd at 20195 ¶ 11; ; Entercom Seattle License, LLC, Order on Review, 19 FCC Rcd 9069, 9073- 74 ¶ 13 (2004) (“ Entercom Seattle Order on Review”), petition for recon. pending. 44 October Response at 2 (citing KSAZ Licenses, Inc., Memorandum Opinion and Order, 19 FCC Rcd 15999 (2004) (“ KSAZ MO& O”) and Complaints Against Various Broadcast Licensees Regarding Their Airing of the UPN Network Program “Buffy the Vampire Slayer” On November 20, 2001, Memorandum Opinion and Order, 19 FCC Rcd 15995 (2004) (“ Buffy the Vampire Slayer MO& O”)). 10 Federal Communications Commission FCC 06- 17 11 73.3999 of the Commission’s rules. 45 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. § 1464 and 47 C. F. R. § 73.3999 was willful within the meaning of section 503( b)( 1) of the Act, and subject to forfeiture. 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. 46 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. 47 We recognize that this approach differs from that taken in previous Commission decisions involving the broadcast of apparently indecent programming. 48 Our commitment to an appropriately restrained enforcement policy, however, justifies this more limited approach towards the imposition of forfeiture penalties. 49 Accordingly, we propose a forfeiture of $27, 500 against WBDC Broadcasting, Inc. 45 See 47 C. F. R. § 73.3999. 46 The subject broadcast occurred prior to the September 7, 2004, effective date of the most recent adjustment of the statutory maximum forfeiture amount. Accordingly, the appropriate maximum statutory amount here is $27,500. See supra ¶ 21. 47 The fact that WBDC may not have originated the programming in question is irrelevant to whether there is an indecency violation. See Review of the Commission’s Regulations Governing Programming Practices of Broadcast Television Networks and Affiliates, Notice of Proposed Rulemaking, 10 FCC Rcd 11951,11961, ¶ 20 (1995) (internal quotation omitted) (“ We conclude that a licensee is not fulfilling his obligations to operate in the public interest, and is not operating in accordance with the express requirements of the Communications Act, if he agrees to accept programs on any basis other than his own reasonable decision that the programs are satisfactory.”). 48 See Married By America NAL, 19 FCC Rcd at 20196 ¶ 16 (proposing forfeitures against all Fox Television Network affiliate stations that broadcast apparently indecent material). See also Clear Channel Broadcasting Licenses, Inc. et al., Notice of Apparent Liability for Forfeiture, 19 FCC Rcd 6773, 6779 ¶ 16 (2004) (proposing forfeiture against all commonly owned and operated stations that broadcast the programming at issue, and directing an investigation into stations owned by another licensee that broadcast the same program), vacated per consent decree, 19 FCC Rcd 10880 (2004). 49 See supra ¶ 11 and note 11. 11 Federal Communications Commission FCC 06- 17 12 2. “Con El Corazón En La Mano” (October 9, 2004) 50 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. 51 NBC Telemundo responded by letters dated May 19 and June 24, 2005. 52 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. 53 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.” 54 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 50 FCC File No. EB- 04- IH- 0572. 51 See Letter from William D. Freedman, Deputy Chief, Investigations and Hearings Division, Enforcement Bureau, to NBC Telemundo License Co. (April 8, 2005). 52 See Letter from F. William LeBeau, Senior Regulatory Counsel and Assistant Secretary, NBC Telemundo License Co., to David Brown, Assistant Chief, Investigations and Hearings Division, Enforcement Bureau (May 19, 2005) (“ Response”); Letter from F. William LeBeau, Senior Regulatory Counsel and Assistant Secretary, NBC Telemundo License Co., to David Brown, Assistant Chief, Investigations and Hearings Division, Enforcement Bureau (June 24, 2005). 53 Response at 2- 3. 54 Id at 2. 12 Federal Communications Commission FCC 06- 17 13 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. 55 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. 56 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.” 57 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 . . . .” 58 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, 59 wherein we determined that graphic language throughout the movie was critical to portraying serious events realistically. 60 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. 61 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 55 19 FCC Rcd at 20194 ¶ 10. See also Back Bay Broadcasting, Notice of Apparent Liability for Forfeiture, 14 FCC Rcd 3997, 3998 (Mass Media Bur. 1999) (“ Back Bay NAL”) (forfeiture paid) (finding broadcast indecent despite attempt to obscure objectionable language because words remained clearly “recognizable, notwithstanding the editing”). 56 See Indecency Policy Statement, 16 FCC Rcd at 8008, ¶ 17 (citing cases); see also “Married By America” NAL, 19 FCC Rcd at 20195 ¶ 11; Entercom Seattle Order on Review, 19 FCC Rcd at 9073- 74 ¶ 13. 57 16 FCC Rcd at 8008 ¶ 17. 58 Response at 8. 59 Id. at 7- 8. 60 Saving Private Ryan, 20 FCC Rcd at 4512- 13, ¶ 14. 61 See Pacifica, 438 U. S. at 748- 49 (holding that warnings are not necessarily effective because the audience is constantly changing stations). 13 Federal Communications Commission FCC 06- 17 14 under section 73.3999 of the Commission’s rules. 62 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. § 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, 63 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. 64 Our commitment to an appropriately restrained enforcement policy, however, justifies this more limited approach towards the imposition of forfeiture penalties. 65 3. “Fernando Hidalgo Show” (October 19, 2004) 66 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. 67 Sherjan responded by letter dated March 14, 2005. 68 As 62 See 47 C. F. R. § 73.3999. 63 The subject broadcast occurred after the September 7, 2004, effective date of the most recent adjustment of the statutory maximum forfeiture amount. Accordingly, the appropriate maximum statutory amount here is $32,500. See supra ¶ 21. 64 See supra note 48. 65 See supra ¶ 11 and note 11. 66 FCC File No. EB- 04- IH- 0625. 67 See Letter from William D. Freedman, Deputy Chief, Investigations and Hearings Division, Enforcement Bureau, Federal Communications Commission, to Sherjan Broadcasting Company, Inc. (February 11, 2005) ( “LOI”). 14 Federal Communications Commission FCC 06- 17 15 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.” 69 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. 70 However, Sherjan maintains that the complained- of material is not actionably indecent because it is “a comedy routine” and does not shock or titillate. 71 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.” 72 However, the indecency definition clearly encompasses depictions of sexual organs as well as sexual activities. 73 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. 74 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 (... continued from previous page) 68 See Letter from Peter Tannenwald, Irwin, Campbell & Tannenwald, P. C., to David Brown, Assistant Chief, Investigations and Hearings Division, Enforcement Bureau, Federal Communications Commission (March 14, 2005). 69 Id. at Attachment 2 (licensee’s English- language translation of broadcast ). Also according to the licensee’s translation, immediately before the woman appears on stage, the host asks another guest, “Do you know Juliana?” The guest states that she knows “Juliana How Bad You Are,” a popular Spanish- language song. The host replies, “Well this one is worse than that! And we’re going to present her now!” Id. 70 Id. 71 Id. at 2. 72 Id. at 1- 2. 73 See, e. g., Complaints Against Various Television Licensees Concerning Their February 1, 2004, Broadcast of the Super Bowl XXXVIII Halftime Show, Notice of Apparent Liability for Forfeiture, 19 FCC Rcd 19230, 19235 ¶ 11 (2004) (“ Super Bowl NAL”) (finding that Super Bowl halftime show, which displayed a bare female breast, satisfied subject matter prong of indecency analysis) . 74 Id., 19 FCC Rcd at 19235 ¶ 13 (finding that a broadcast, which showed a performer’s exposed breast, was graphic and explicit). See also Young Broadcasting of San Francisco, Inc., Notice of Apparent Liability for Forfeiture, 19 FCC Rcd 1751, 1755 ¶ 11 (2004) (“ Young Broadcasting NAL”) (finding that a broadcast of performer’s exposed penis was graphic and explicit). 15 Federal Communications Commission FCC 06- 17 16 graphic to weigh in favor of a finding of patent offensiveness. 75 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. 76 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. 77 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. 78 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. 79 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. § 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. 80 The scene is sustained, lasting 15 minutes, and contains no warning of the adult- 75 See Super Bowl NAL, 19 FCC Rcd at 19235- 36, ¶ 13 (finding that a broadcast of performer’s exposed breast was “clearly graphic,” even though breast was partially covered). 76 In this connection, we note that in the Super Bowl NAL, we found that the broadcast of an exposed breast was indecent, even though it lasted less than one second. Id. 77 See Indecency Policy Statement, 16 FCC Rcd at 8008 ¶ 17 (citing cases); see also Married By America NAL, 19 FCC Rcd at 20195 ¶ 11; Entercom Seattle Order on Review, 19 FCC Rcd at 9073- 74 ¶ 13. 78 See Pacifica, 438 U. S. at 744 (upholding the Commission’s finding that the broadcast of a comedy mo nologue featuring references to sexual activities and organs was patently offensive and violated the statutory prohibition on indecency). 79 See 47 C. F. R. § 73.3999. 80 The subject broadcast occurred after the September 7, 2004 effective date of the most recent adjustment of the statutory maximum forfeiture amount. Accordingly, the appropriate maximum statutory amount here is $32,500. See supra ¶ 21. 16 Federal Communications Commission FCC 06- 17 17 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. ” 4. “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. 81 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, 82 specifically including “DJ Joe, Fatal Fantasy 2 – Feat, Trebol, Clan,” 83 “DJ Joe, Fatal Fantasy 2-- Feat, Nejo, Speedy,” 84 “Operation Sandunga,” 85 and a promotional spot for a DVD entitled “Dangerous -- Fatal Fantasy 2.” 86 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. 87 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. 88 However, Aerco did not provide any documentation that challenged or raised questions about 81 See Letter from David Ramos and Gloria Cardona, D’Vanguardia, to David Solomon, Chief, Enforcement Bureau, Federal Communications Commission (March 12, 2002); Letter from David Ramos and Gloria Cardona, D’Vanguardia, to David Solomon, Chief, Enforcement Bureau, Federal Communications Commission (March 2, 2002); Letter from David Ra mos and Gloria Cardona, D’Vanguardia, to David Solomon, Chief, Enforcement Bureau, Federal Communications Commission (February 26, 2002); Letter from David Ramos to David Solomon, Chief, Enforcement Bureau, Federal Communications Commission (February 26, 2002); Letter from Gloria Cardona and David Ramos, D’Vanguardia, to David Solomon, Chief, Enforcement Bureau, Federal Communications Commission (February 22, 2002). 82 See Letter from Maureen F. Del Duca, Chief, Investigations and Hearings Division, Enforcement Bureau, to Aerco (December 24, 2003) (“ LOI”). 83 FCC File Nos. EB- 02- IH- 0167, EB- 02- IH- 0198. 84 FCC File Nos. EB- 02- IH- 0167, EB- 02- IH- 0199. 85 FCC File Nos. EB- 02- IH- 0167, EB- 02- IH- 0199. 86 FCC File No. EB- 02- IH- 0258. 87 See Letter from John A. Borsari to Marlene H. Dortch, Secretary, Federal Communications Commission at Exhibits 1- A -- 6- B (March 23, 2004) (“ Response”). 88 Id. at 1- 5. Aerco states that several music videos, all entitled “Fatal Fantasy 2,” were broadcast between January and March 2002. Thus, Aerco claims it cannot confirm the dates and times for the airing of the specific videos “DJ Joe, Fatal Fantasy 2 – Feat, Trebol, Clan” or “DJ Joe -- Fatal Fantasy 2.” Id. at 2- 3. In regard to “Operation Sandunga,” Aerco states that it does not have any records of such a titled music video. Id. at 4. It asserts that Aerco broadcasts programs produced by independent producers after 10: 00 p. m. and some of these broadcasts contain music videos that would not be reflected in Aerco’s program logs. Id. at 4- 5. Aerco further asserts that since these broadcasts are aired after 10: 00 p. m., “Operation Sandunga” could not have been broadcast between 10: 00 a. m. and 10: 52 a. m., as alleged in the complaints. Id. at 5. Aerco confirms that it broadcast the promo for “Dangerous – Fatal Fantasy 2” on the four dates alleged in the Bureau LOI, but is unable to confirm the broadcast times. Id. at 4. 17 Federal Communications Commission FCC 06- 17 18 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. 89 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. 90 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 expla ins 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. 91 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. 92 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.” 93 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. 94 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 89 Id. at Exhibit 7. In response to the Bureau LOI, Aerco provided a program log for only one of the nine days mentioned in the complaints. Aerco also provided program logs for multiple days not mentioned in the Bureau LOI. The program logs list dates and times of program material, but provide only partial titles of the music videos played. Thus, there are multiple entries for a program entitled “Fatal Fantasy,” which could be any of three videos discussed in this Notice of Apparent Liability. Because of the confusing nature of Aerco’s program logs and the fact that Aerco does not dispute the times and dates listed in the videotapes provided by the Complainants, we will rely only on the videotapes as the basis for the proposed forfeiture here. 90 Id. at 8. 91 Id. at 8- 9. 92 Id. at 9- 10. 93 Id. at 10. 94 This translation is based upon our review of the material at issue. Aerco provides the following translation (the parenthetical is in Aerco’s translation): Just barely a newborn, I soon knew where I’d come out from. Since then and until I grew up, in the same kind of hole I always like to be. In elementary school they called me “Mr. Hop.” In junior high they called me “Punecinco” (invented word), because that’s when I got into the habit of pleasing myself. Response at Exhibit 1- B. 18 Federal Communications Commission FCC 06- 17 19 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. 95 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.” 96 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 discus ses 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. 95 This translation is based upon our review of the material at issue. Aerco provides the following translation: I used to push her with my front part and with my chest far away. I used to take her and screw her. The brassieres I used to take off, the panties I used to take down, like in the old days, I’m giving it to you, I’m giving it to you. Response at Exhibit 3- B. 96 Id. at Exhibit 6- B (punctuation included in the original). 19 Federal Communications Commission FCC 06- 17 20 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. 97 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. 98 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 97 See, e. g., City of Erie v. Pap’s A. M., 529 U. S. 277 (2000) (Supreme Court did not disturb a city’s indecency ordinance prohibiting public nudity, which listed the buttocks as among the body parts subject to the ordinance’s ban on nudity); Loce v. Time Warner Entertainment Advance/ Newhouse Partnership, 191 F. 3d 256, 269 (2d. Cir. 1999) (upholding state district court’s determination that Time Warner’s decision to not transmit certain cable programming that it reasonably believed indecent (some of which included “close- up shots of unclothed breasts and buttocks”) did not run afoul of the Constitution). 98 See Indecency Policy Statement, 16 FCC Rcd at 8008 ¶ 17 (citing cases); see also Married By America NAL, 19 FCC Rcd at 20195 ¶ 11; Entercom Seattle Order on Review, 19 FCC Rcd at 9073- 74 ¶ 13. 20 Federal Communications Commission FCC 06- 17 21 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. 99 Aerco cites the Indecency Policy Statement to support its assertion. 100 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. 101 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. 102 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. 103 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. 104 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 Sand unga” music video during this time period. 105 99 See Response at 10. 100 Id. 101 To the extent that the music videos’ and the promo’s use of visual images in conjunction with lyrics to describe and depict sexual activity could be described as innuendo rather than direct references, they are nonetheless sufficiently graphic and explicit to render the material actionably indecent because the sexual import of those images in conjunction with those lyrics was “unmistakable.” See Married By America NAL, 19 FCC Rcd at 20194 ¶ 10 (proposing forfeiture for airing nudity, finding that despite electronic blurring (“ pixilation”) “even a child would have known the strippers were topless and that sexual activity was being shown”). See also Indecency Policy Statement, 16 FCC Rcd at 8003- 04 ¶ 12; Telemundo of Puerto Rico License Corp. (WKAQ- TV), Notice of Apparent Liability for Forfeiture, 16 FCC Rcd 7157, 7159, ¶ 8 (Enf. Bur. 2001) (forfeiture paid) (“ Telemundo NAL”). 102 See Response at 2- 3. 103 Id. at 4. 104 Id. at 4. 105 Id. at 4- 5. 21 Federal Communications Commission FCC 06- 17 22 69. Based on the complaints and the accompanying videotapes, and in the absence of any evidence to the contrary, 106 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. 107 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 conscious ly and deliberately broadcast the videos and the DVD promo. Accordingly, we find that the broadcasts in apparent violation of 18 U. S. C. § 1464 and 47 C. F. R. § 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. § 1464 and 47 C. F. R. § 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 $27,500 108 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. § 1464 and 47 C. F. R. § 73.3999. 106 See Entercom Sacramento License, LLC, Notice of Apparent Liability for Forfeiture, 19 FCC Rcd 20129 ¶ 5 (2004) (proposing a forfeiture in a case where the licensee could not deny the broadcast occurred). 107 See 47 C. F. R. § 73.3999. Based on the videotape and data provided by the Complainants, we conclude that the station aired “DJ Joe, Fatal Fantasy 2- Feat, Trebol, Clan” between the hours of 6: 00 a. m. and 10: 00 p. m. on February 2 (12: 00- 12: 43 p. m.), 22 (5: 00- 6: 30 p. m.), 26 (3: 00- 3: 30 p. m.) and 28, 2002 (2: 05- 2: 50 p. m.); “DJ Joe, Fatal Fantasy 2-- Feat, Nejo, Speedy” on February 22 (5: 30- 6: 30 p. m.), 26 (6: 00 -6: 30 p. m.), March 6 (10: 00- 10: 52 a. m.), and 27 (5: 45- 5: 48 p. m.). We also find that the station aired “Dangerous -- Fatal Fantasy 2” on February 28 (2: 05- 2: 50 p. m.), March 1 (1: 13- 1: 53 p. m.), 4 (6: 50 p. m.), 5 (9: 40- 10: 17 a. m.) and 8, 2002 (11: 51 a. m.- 12: 55 p. m.). We also find that the station aired “Operation Sandunga” on March 6, 2002, between 10: 00 and 10: 52 a. m. 108 The subject broadcasts occurred prior to the September 7, 2004, effective date of the most recent adjustment of the statutory maximum forfeiture amount. Accordingly, the appropriate maximum statutory amount here is $27, 500. See supra ¶ 21. 22 Federal Communications Commission FCC 06- 17 23 5. “The Blues: Godfathers and Sons” (March 11, 2004) 109 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. 110 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. 111 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. 112 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. 113 With its response, San Mateo provided a DVD and a written transcript of the program. 114 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.” 115 San Mateo represents that, subsequent to its station’s 109 FCC File No. EB- 04- IH- 0260. 110 See Letter from complainant to the Investigations and Hearings Division, Enforcement Bureau, Federal Communications Commission March 18, 2004) (“ Complaint”). 111 According to the Complaint, the program includes the following objectionable utterances broadcast between 8: 42 and 9: 32 p. m.: 8: 42 p. m..: “See those, motherfucker? Gotta pay those motherfucking notes.” 8: 51 p. m.: “What’s my job? You stupid motherfucker, your job is to follow me.” 9: 00 p. m.: “Shit it’s good to be next to you.” 9: 04 p. m.: “there’s no white bullshit with [Paul] Butterfield.” 9: 13 p. m.: “I’ll buy some shit.” 9: 14 p. m.: “This is the kind of shit I buy.” 9: 23 p. m.: “Cocksucker Blues” (used as an on- screen Chyron to identify a song title). 9: 32 p. m.: “This poor fucker.” 112 See Letter from William D. Freedman, Deputy Chief, Investigations and Hearings Division, Enforcement Bureau, to San Mateo (August 4, 2004) (“ LOI”). 113 See Letter from Marilyn R. Lawrence, General Manager, KCSM -TV/( FM), to David Brown, Assistant Chief, Investigations and Hearings Division, Enforcement Bureau (August 27, 2004) (“ Response”) at 1. 114 Id. 115 Id. 23 Federal Communications Commission FCC 06- 17 24 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. 116 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.” 117 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. 118 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.” 119 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. 120 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. 121 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 116 Id. San Mateo appears to refer to the Golden Globe Awards Order. 117 Golden Globe Awards Order, 19 FCC Rcd at 4978 ¶ 8. 118 See Pacifica Foundation, 56 FCC 2d at 99. 119 Golden Globe Awards Order, 19 FCC Rcd at 4979 ¶ 9. 120 See Indecency Policy Statement, 16 FCC Rcd at 8008 ¶ 16 (citing Back Bay NAL, 14 FCC Rcd at 3998, which found the broadcast of repeated uncensored uses of the “F- Word,” among other expletives, to be indecent). 121 See infra ¶ 82. 24 Federal Communications Commission FCC 06- 17 25 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. 122 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. § 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. § 1464’s prohibition of the broadcast of “profane” language. 123 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. 124 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 122 See 47 C. F. R. § 73.3999. 123 Id. at 4981 ¶¶ 13- 14. 124 20 FCC Rcd at 4512- 14 ¶¶ 13- 18. 25 Federal Communications Commission FCC 06- 17 26 the power, realism and immediacy of the film experience for viewers.” 125 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. 126 84. Forfeiture Calculation. San Mateo conscious ly and deliberately broadcast this episode. Accordingly, we find that the broadcast in apparent violation of 18 U. S. C. § 1464 and 47 C. F. R. § 73.3999 was willful within the meaning of section 503( b)( 1) of the Act, and subject to forfeiture. 127 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. 128 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. 129 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. 130 125 Id. at 4512- 13 ¶¶ 13- 14. 126 See ACT III, 58 F. 3d at 660- 63. 127 Because the broadcast in question was aired prior to the release of the Golden Globe Awards Order, our profanity finding will not factor in our determination of any sanction in this case. 128 See, e. g., Pacifica, 438 U. S. at 744 (upholding the Commission’s finding that the broadcast of the comedy monologue “Filthy Words” featuring, among other things, repeated uses of the F- Word and the S- Word was patently offensive and violated the statutory prohibition on indecency). 129 San Mateo states that its arrangement with PBS required that it defer for several months from broadcasting the program, which aired over most PBS stations in October and November 2003. San Mateo represents that, because its scheduling is done three months in advance of the actual airdate, “the decision to air this series was made in November since the first episode of the series was aired in February.” Response at 1. To the extent that San Mateo cites this circumstance to suggest that it did not have adequate notice that the exp letives contained in the program were prohibited from broadcast prior to the Commission’s issuance of the Golden Globe Awards Order on March 18, 2004, we reject this contention. To the contrary, San Mateo had months after the national airing of the episode at issue to ascertain the questionable content of the program and to take steps to ensure that it did not broadcast the repeated uses of objectionable words at issue. 130 We exercise our prosecutorial discretion not to propose forfeitures based on the multiple utterances of expletives in this case because the use of individual expletives was not actionable under Commission precedent prior to the (continued....) 26 Federal Communications Commission FCC 06- 17 27 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. 131 We recognize that this approach differs from that taken in previous Commission decisions involving the broadcast of apparently indecent programming. 132 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. 133 Accordingly, we propose a forfeiture of $15, 000 against San Mateo. 6. “The Pursuit of D. B. Cooper” (March 15, 2003) 134 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 air line 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 café 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. 135 (... continued from previous page) Golden Globe Awards Order. See Golden Globe Awards Order, 19 FCC Rcd at 4980 ¶ 12. While repetition of expletives in certain scenes might have qualified as actionable before the Golden Globe Awards Order, we decline to establish a method of identifying multiple utterances that applies only to pre- Golden Globe Awards Order programs. 131 The fact that San Mateo may not have originated the programming in question is irrelevant to whether there is an indecency violation. See supra note 47. 132 See supra note 48. 133 See supra ¶ 11 and note 11. 134 FCC File No. EB- 03- IH- 0136. 27 Federal Communications Commission FCC 06- 17 28 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. 136 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. 137 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.” 138 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, 139 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. 140 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. 141 By failing to edit the movie, the licensee (... continued from previous page) 135 See Letter from William H. Davenport, Chief, Investigations and Hearings Division, Enforcement Bureau, to KTVI License, Inc. (December 30, 2004). 136 See Letter from John C. Quale, Counsel to KTVI License, Inc., to the Investigations and Hearings Division, Enforcement Bureau (January 31, 2005), and accompanying “Response of KTVI( TV), St. Louis, Missouri to FCC Letter of Inquiry” at 2. 137 Id. at 1. 138 These terms will be referred to collectively here in as the “S- Word.” 139 We note that in the Golden Globe Awards Order, which was issued after the conduct at issue in this case took place, the Commission overruled prior staff decisions finding that broadcasts containing a single expletive were not indecent. 19 FCC Rcd at 4980 ¶ 12. 140 See Indecency Policy Statement, 16 FCC Rcd 7999, 8008 ¶ 16 (2001) (citing Back Bay NAL ,14 FCC Rcd at 3998, which found the broadcast of repeated uncensored references to the “F- Word,” among other expletives, to be indecent). 141 Golden Globe Awards Order, 19 FCC Rcd at 4979 ¶ 9. See also Agape Broadcasting Foundation, Inc. (KNOM( FM)), Notice of Apparent Liability for Forfeiture, 9 FCC Rcd 1679 (Mass Media Bur. 1999) (subsequent history omitted) (citing licensee’s decision to run explicit material unedited, during a mid- afternoon broadcast when children were likely to be in the audience), cited in Indecency Policy Statement, 16 FCC Rcd at 8014, ¶ 21. 28 Federal Communications Commission FCC 06- 17 29 needlessly offended unsuspecting viewers in their homes on a weekend afternoon. 142 94. In sum, because the materia l 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. 143 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. § 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. 144 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 wo uld 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. § 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. § 1464 and 47 C. F. R. § 73.3999 was willful within the meaning of section 503( b)( 1) of the Act, and subject to forfeiture. 145 We therefore turn to the proposed forfeiture amount, based on the factors 142 In Saving Private Ryan, 20 FCC Rcd at 4513 ¶ 15, we found that that the network “did not intend the broadcast of a feature film as family entertainment, a fact clearly and explicitly stated in the introduction that precedes the film and is repeated in the aural and visual viewer advisory and voluntary parental code that follow each commercial break during the broadcast. Thus, parents had ample warning that this film contained material that might be unsuitable for children and could have exercised their own judgment about the suitability of the language for their children in the context of this film.” Unlike Saving Private Ryan, we find that the vulgar material here could have been edited without materially altering the broadcast. Additionally, we disagree with the licensee’s argument that all of the complained- of material was used as a means of expressing anger or frustration throughout the course of an intense car chase. As a factual matter, it is not correct that all of the material in question occurred during the scenes involving the car chase. Multiple iterations of the “S- Word” occurred in other scenes. 143 See 47 C. F. R. § 73.3999. 144 See Saving Private Ryan, 20 FCC Rcd at 4512- 14 ¶¶ 13- 18. 145 Because the broadcast in question was aired prior to the release of the Golden Globe Awards Order, our profanity finding will not factor in our determination of any sanction in this case. 29 Federal Communications Commission FCC 06- 17 30 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 $27,500 146 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. 147 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.” 148 B. 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) 149 101. The Programming. The Commission received a