Federal Communications Commission FCC 08-55 Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of Complaints Against Various Television Licensees Concerning Their February 25, 2003 Broadcast of the Program “NYPD Blue” ) ) ) ) ) File Nos. EB-03-IH-0122 and EB-03-IH-03531 FORFEITURE ORDER Adopted: February 19, 2008 Released: February 19, 2008 By the Commission: Commissioner McDowell issuing a statement. I. INTRODUCTION 1. In this Forfeiture Order, issued pursuant to section 503 of the Communications Act of 1934, as amended (the “Act”), and section 1.80 of the Commission’s rules, 2 we find that ABC Television Network (“ABC”) affiliated stations and ABC owned-and-operated stations listed in Attachment A, infra, broadcast indecent material during an episode of the program NYPD Blue on February 25, 2003, in willful violation of 18 U.S.C. § 1464 and section 73.3999 of the Commission’s rules.3 Based on our review of the facts and circumstances in this case, we conclude that each station is liable for a forfeiture in the amount of $27,500. II. BACKGROUND 2. NYPD Blue was a weekly, hour-long program that ran on the ABC Television Network from 1993 through 2005. The Commission received numerous complaints alleging that certain affiliates of ABC and ABC owned-and-operated stations broadcast indecent material during the February 25, 2003 episode of NYPD Blue that aired at 9:00 p.m. in the Central and Mountain Standard Time Zones. After reviewing the complaints, the Enforcement Bureau (the “Bureau”) sent a letter of inquiry to ABC on February 3, 2004.4 As a result of its investigation, the Bureau received a response from ABC and a tape of the episode.5 1 The NAL Acct. No. and FRN number for each licensee subject to this Forfeiture Order are listed in Attachment A, infra. 2 See 47 U.S.C. § 503(b); 47 C.F.R. § 1.80. 3 See 18 U.S.C. § 1464; 47 C.F.R. § 73.3999. 4 See Letter from William D. Freedman, Deputy Chief, Investigations and Hearings Division, Enforcement Bureau, Federal Communications Commission, to Susan L. Fox, ABC, Inc., dated February 3, 2004 (“LOI”). 5 See Letter from Susan L. Fox, ABC, Inc., to William D. Freedman, Deputy Chief, Investigations and Hearings Division, Enforcement Bureau, Federal Communications Commission, dated February 9, 2004; Letter from John W. Zucker, Senior Vice President, Law and Regulation, ABC, Inc., and Susan L. Fox, Vice President, Government Relations, The Walt Disney Company, to William D. Freedman, Deputy Chief, Investigations and Hearings Federal Communications Commission FCC 08-55 2 3. ABC’s response to the Bureau’s letter of inquiry confirmed the inclusion in the program of a scene, referenced in the complaints, in which a woman and a boy, who plays the eight-year old son of another character on the show, are involved in an incident that includes adult female nudity.6 Specifically, the woman’s naked buttocks and a portion of her breasts were depicted in a scene in which she is shown disrobing and preparing to take a shower, and the boy unexpectedly enters the bathroom.7 ABC also confirmed that 52 of the stations about which we had received complaints aired the material outside the “safe harbor.”8 In its responses to the letters of inquiry, ABC argued, without citing any authority, that the buttocks are not a sexual or excretory organ.9 ABC conceded that the scene included back and side nudity, but contended that it was “not presented in a lewd, prurient, pandering, or titillating way.”10 ABC further asserted that the purpose of the scene was to “illustrate[ ] the complexity and awkwardness involved when a single parent brings a new romantic partner into his or her life,” and that the nudity was not included to depict an attempted seduction or a sexual response from the young boy.11 ABC also asserted that, because of the “modest number of complaints” the network received, and the program’s generally high ratings, the contemporary community standards of the viewing community embrace, rather than reject, this particular material.12 4. On January 25, 2008, the Commission released the Notice of Apparent Liability for Forfeiture (“NAL”), finding that the material at issue apparently violated the broadcast indecency standard. Applying its two-prong indecency analysis, the Commission first found that the material depicted sexual or excretory organs or activities.13 The Commission then concluded that the material, in context, was patently offensive as measured by contemporary community standards for the broadcast medium and thus satisfied the second prong of our indecency standard. In reaching this conclusion, we reviewed each of the three principal factors relevant to a finding of patent offensiveness under our contextual analysis of indecency cases. We first determined that the material presented in the episode “contains explicit and graphic depictions of sexual organs.”14 Turning to the second principal factor in our patent offensiveness inquiry, the Commission found “that the broadcast dwells on and repeats the sexual material.”15 Finally, the Commission concluded that the material was shocking and titillating, Division, Enforcement Bureau, Federal Communications Commission, dated February 17, 2004 (“February 17 Response”). 6 See Complaints Against Various Television Licensees Concerning Their February 25, 2003 Broadcast of the Program “NYPD Blue,” Notice of Apparent Liability for Forfeiture, FCC 08-25, at ¶¶ 9-10 (rel. January 25, 2008) (“NAL”). 7 See id. 8 The “safe harbor” is that part of each day between 10:00 p.m. and 6:00 a.m. in which indecent programming may be broadcast. See 47 C.F.R. § 73.3999(b) (stating that “[n]o licensee of a radio or television broadcast station shall broadcast on any day between 6:00 a.m. and 10:00 p.m. any material which is indecent.”) 9 See February 17 Response at 7. 10 See id. at 9. 11 See id. at 3-4, 9-11. 12 See id. at 9. 13 See NAL at ¶ 11. 14 Id. at ¶ 12. 15 Id at ¶ 13. Federal Communications Commission FCC 08-55 3 explaining, among other things, that “the scene’s depiction of adult female nudity, particularly the repeated shots of a woman’s naked buttocks, is titillating and shocking.”16 5. Accordingly, the NAL found the licensees of 52 stations that broadcast the episode apparently liable for forfeitures in the amount of $27,500 per station for broadcasting indecent material, in apparent willful violation of 18 U.S.C. § 1464 and section 73.3999 of the Commission’s rules. In response to the NAL, numerous letters and pleadings were filed with the Commission.17 III. DISCUSSION 6. The proposed forfeiture amount in this case was assessed in accordance with section 503(b) of the Communications Act,18 section 1.80 of the Commission’s Rules,19 and the Commission’s forfeiture guidelines set forth in its Forfeiture Policy Statement.20 In assessing forfeitures, section 503(b) of the Act requires that we take into account the nature, circumstances, extent, and gravity of the violation, and with respect to the violator, the degree of culpability, any history of prior offenses, ability to pay, and other matters as justice may require.21 As discussed further below, we have examined the licensees’ responses to the NAL pursuant to the aforementioned statutory factors, our rules, and the Forfeiture Policy Statement, and, with the exception of the seven stations listed in paragraph 56 hereof, we find no basis for cancellation or reduction of the forfeiture. A. Application of Indecency Test to NYPD Blue 7. Indecency findings involve two fundamental determinations. First, the material alleged to be indecent must fall within the subject matter scope of our indecency definition, i.e., “the material must describe or depict sexual or excretory organs or activities.”22 In the NAL, the Commission concluded that the programming at issue here is within the scope of our indecency definition because it depicts sexual and excretory organs, specifically, an adult woman’s buttocks.23 ABC and the ABC Affiliates contest this finding, arguing that the buttocks are not sexual or excretory organs and thus are outside the scope of indecency regulation. Relying primarily on medical texts, the ABC Affiliates argue that sexual organs are “biologically defined” as the genitalia or reproductive organs that are involved in reproduction.24 Similarly, they argue that excretory organs include only the organs of the excretory system that eliminate urine and other waste products of metabolism, and that the “[t]he only external 16 Id at ¶ 14. 17 See Attachment B, infra, for a list of these submissions. To the extent that any of the submissions sought an extension of time within which to file a substantive response to the NAL, those requests are hereby denied for the reasons discussed below in Section III.B.2 of this Order. 18 See 47 U.S.C. § 503(b). 19 See 47 C.F.R. § 1.80. 20 See The Commission’s Forfeiture Policy Statement and Amendment of Section 1.80 of the Rules to Incorporate the Forfeiture Guidelines, Report and Order, 12 FCC Rcd 17087 (1997), recons. denied, 15 FCC Rcd 303 (1999) (“Forfeiture Policy Statement”). 21 See 47 U.S.C. § 503(b)(2)(D). 22 See 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 (2001) (“Indecency Policy Statement”). 23 See NAL at ¶ 11. 24 See ABC Affiliates Response at 36-37. Federal Communications Commission FCC 08-55 4 organs or structures of the excretory system are the penis in males, and the urethral opening in females, which appears between the walls of the labia.”25 ABC argues that the buttocks are not an excretory or sexual organ because they do not have a sexual or excretory physiological function.26 In addition, both argue that the precedents cited in the NAL are inapposite and that the Commission has never treated mere depictions of naked buttocks as within the scope of its indecency definition.27 All of these arguments lack merit. 8. The Commission has consistently interpreted the term “sexual or excretory organs” in its own definition of indecency as including the buttocks, which, though not physiologically necessary to procreation or excretion, are widely associated with sexual arousal and closely associated by most people with excretory activities.28 Thus, the Commission has in many cases treated naked buttocks as coming within the scope of its indecency definition, even though it has not always concluded that particular depictions or descriptions were patently offensive and thus actionably indecent.29 9. The indecency standard that we are applying here was formulated by the Commission to enforce 18 U.S.C. § 1464 through administrative action.30 The Commission has broad discretion to interpret and apply the standards and terminology it has developed, as long as it does so in a manner that is consistent with the statute and the Constitution.31 In the context of interpreting and applying the statutory and regulatory proscription against indecent programming, it is appropriate to interpret these 25 Id. at 37-38. 26 See ABC Response at 15-16. 27 See ABC Response at 16-21; ABC Affiliates Response at 39-44. 28 See, e.g., Complaints Regarding Various Television Broadcasts Between February 2, 2002 and March 8, 2005, 21 FCC Rcd 2664, 2681 ¶ 62, 2718 ¶ 225 (2006) (Omnibus Order) ( finding buttocks are sexual and excretory organs within the subject matter scope of indecency definition); Entercom Kansas City License, LLC, Notice of Apparent Liability for Forfeiture, 19 FCC FCC Rcd 25011 ¶ 7 (2004) (comments concerning contestants’ genitals, buttocks and breasts describe or depict sexual or excretory organs); Rubber City Radio Group, Notice of Apparent Liability for Forfeiture, 17 FCC Rcd 14745, 14747 ¶ 6 (Enf. Bur. 2002) (dialogue in complaint referring to a "baby's ass" referred to a child’s excretory organ and thus came within the first prong of the indecency definition). 29 See id. Similarly, the Commission also has consistently treated female breasts as sexual organs though, like the buttocks, they are not physiologically necessary to procreation. See, e.g., Complaints Against Various Television Licensees Concerning Their February 1, 2004 Broadcast of the Super Bowl XXXVIII Halftime Show, Notice of Apparent Liability for Forfeiture, 19 FCC Rcd 19230 (2004) (“Super Bowl NAL”), affirmed, Forfeiture Order, 21 FCC Rcd 2760 (2006) (“Super Bowl Forfeiture Order”), affirmed, Order on Reconsideration, 21 FCC Rcd 6653 (2006), (“Super Bowl Order on Reconsideration”), on appeal sub nom. CBS Corp. v. FCC, No. 06-3575 (3d Cir. 2006). 30 See 47 U.S.C. § 503(b)(1)(D). 31 See, e.g., Udall v. Tallman, 380 U.S. 1, 16 (1965) (Court “shows great deference to the interpretation given the statute by the agency charged with its administration.…When the construction of an administrative regulation rather than a statute is in issue, deference is even more clearly in order.”); Dana Corp. v. ICC, 703 F. 2d 1297, 1300 (D.C. Cir. 1983) (“The [ICC] has not violated its own rules, given the broad discretion it is accorded in interpreting them”); Solite Corp. v. EPA, 952 F. 2d 473, 497 (D.C. Cir. 1991) (“EPA’s determination…was thus the result of the Agency’s interpretation and application of its own rules, and the interpretation was far from ‘plainly wrong’”); Chemical Waste Management, Inc .v. EPA, 869 F. 2d 1526, 1538-39 (D.C. Cir. 1989) (“[a]n agency’s interpretation of its own regulations will be accepted unless it is plainly wrong” ); General Carbon Co. v. OSHRC, 860 F.2d 479, 483 (D.C. Cir. 1988) (“petitioner, in asserting that the agency has misconstrued its own standards, has assumed a heavy burden.…This court has previously noted ‘the high level of deference to be afforded an agency on review when the issue turns on the interpretation of the agency’s own prior proclamations.”). Federal Communications Commission FCC 08-55 5 terms not in a medical sense but rather in the sense of organs that are closely associated with sexuality or excretion and that are typically kept covered because their public exposure is considered socially inappropriate and shocking.32 We believe that it is appropriate to use the terms sexual or excretory organs – as we have in the past – in a manner consonant with the purpose of the regulatory regime to protect children from indecent depictions of organs associated with sex and excretion and sexual and excretory activities. The purpose of indecency regulation, obviously, is not to regulate procreation or excretion, so we do not think a technical physiological definition is appropriate.33 10. Moreover, if we interpreted these terms in the narrow physiological sense advocated by ABC and the ABC Affiliates, the airwaves could be filled with naked buttocks and breasts during daytime and prime time hours because they would be outside the scope of indecency regulation (at least if no sexual or excretory activities were shown or discussed). We find it impossible to believe that ABC or the ABC Affiliates ever thought this to be the Commission’s policy. In short, while their Responses to the NAL are brimming with medical definitions and arguments, the respondents offer no legal or public policy reason for their argument, and we find it lacking in merit. 11. Contrary to the ABC Affiliates’ contention, the “rule of lenity” does not require that the Commission construe the indecency proscription in section 1464 narrowly even when it is imposing administrative sanctions for violations.34 The Supreme Court made clear in FCC v. Pacifica that the removal of the indecency provision from the Communications Act and its codification in section 1464 of the criminal code in 1948 was not intended to effect any “substantive change.”35 The Court thus found it unnecessary to “consider any question relating to the possible application of § 1464 as a criminal statute.”36 It is similarly unnecessary here – all the more so because the term we are construing is one that 32 Under the “nuisance” rationale upheld by the Supreme Court in Pacifica, it is appropriate to treat as coming within the scope of the indecency definition those body parts that are considered socially inappropriate to reveal in public for “[a]s Mr. Justic Sutherland wrote a ‘nuisance may be merely a right thing in the wrong place, -- like a pig in the parlor instead of the barnyard.” FCC v. Pacifica Foundation, 438 U.S. 726, 750 (1978) (“Pacifica”). Under its nuisance approach, the Commission has determined that daytime and primetime broadcast programming is the “wrong place” to display naked buttocks in a patently offensive manner. 33 Indeed, the arguments presented by the ABC Affiliates demonstrate the absurdity of employing a technical physiological definition in the context of indecency regulation. First, the ABC Affiliates maintain, from a medical standpoint, that the skin is an excretory organ because it excretes perspiration. See ABC Affiliates Response at 37 & n.42. But it is preposterous to suggest that any display of skin falls within the subject matter scope of our indecency regulation, and the ABC Affiliates even disclaim the logical consequence of their own argument, stating that the “ABC Affiliates do not believe that the Commission intends . . . to proscribe depictions of skin as an excretory organ.” Id. Such a concession indicates that the ABC Affiliates do not seriously believe their own argument – that the subject matter scope of our indecency regulation is to be determined through technical physiological definitions. Second, the ABC Affiliates draw a distinction between excretion, which they claim refers to the elimination of the waste products of metabolism from the body, and defecation, which refers to the elimination of feces, “undigested food and bacteria [that] have never been a part of the functioning of the body.” Id. at 38. Thus, pursuant to the technical physiological definitions presented by the ABC Affiliates, sweating would be considered an “excretory activity” while defecating would not. Again, such an approach makes no sense in the context of indecency regulation, and no reasonable person would believe that the Commission would use such technical definitions in the context of indecency regulation. We note, for instance, that according to the logic of the ABC Affilates, two of the seven “Filthy Words” in the Carlin monologue at issue in Pacifica – “shit” and “tits” – would appear not to fall within the subject matter scope of our indecency definition. 34 See ABC Affiliates Response at 44-45. 35 Pacifica, 438 U.S. at 739 n.13. 36 Id. Federal Communications Commission FCC 08-55 6 appears in the standard formulated by this Commission for purposes of imposing administrative forfeitures. 12. Turning to the second aspect of our indecency test, we also find that, in context and on balance, the complained-of material is patently offensive as measured by contemporary community standards for the broadcast medium. In our analysis of the three principal factors involved in determining whether material is patently offensive, “the overall context of the broadcast in which the disputed material appeared is critical. Each indecency case presents its own particular mix of these, and possibly other, factors, which must be balanced to ultimately determine whether the material is patently offensive and therefore indecent.”37 Each of the three principal factors contributes to a finding of patent offensiveness here. ABC points to factors that, it argues, mitigate the patent offensiveness of the disputed material, in particular the NYPD Blue series’ “outstanding artistic and social merit,” the relationship of the scene in question to a theme stretching across multiple episodes, and the parental advisory and rating at the beginning of the episode.38 On balance, however, for the reasons discussed below, we find that the material is patently offensive as measured by contemporary community standards for the broadcast medium. 13. First, we find that the depiction of an adult woman’s naked buttocks was sufficiently graphic and explicit to support an indecency finding. Indeed, we do not believe that the explicit and graphic nature of the material is reasonably debatable. Although the language-based examples that it provides are not entirely apposite, examination of the Indecency Policy Statement reveals that, in a case such as this one, the issue under the first principal factor is whether the visual depiction of the sexual or excretory organ is clear and unmistakable.39 Here, the scene in question shows a female actor naked from behind, with her buttocks fully visible at close range. She is not wearing a g-string or other clothing, nor are the shots of her buttocks pixillated or obscured.40 Thus, the material is sufficiently graphic and explicit to support an indecency finding.41 Although the partial views of her naked breast from behind and from the side are not sufficiently graphic and explicit, in and of themselves, to support an indecency finding, they also add somewhat to the first factor’s weight here. 14. The cases cited by the ABC Affiliates for the proposition that nudity is not necessarily graphic or explicit are easily distinguishable from this case.42 ABC cites cases in which the Commission 37 Indecency Policy Statement, 16 FCC Rcd at 8003 ¶ 10. See id. at 8002-8003 ¶ 9 (“contextual determinations are necessarily highly fact-specific, making it difficult to catalog comprehensively all of the possible contextual factors that might exacerbate or mitigate the patent offensiveness of particular material.”). 38 See ABC Response at 26; ABC Affiliates Response at 51-52, 54-55, 61-62 39 See Indecency Policy Statement, 16 FCC Rcd at 8004-8008 ¶¶ 13-16. 40 Cf. Complaints by Parents Television Council Against Various Broadcast Licensees Regarding Their Airing of Allegedly Indecent Material, Memorandum Opinion and Order, 20 FCC Rcd 1920, 1927 ¶ 9 (2005) (“PTC I”) (material that involved “characters whose sexual and/or excretory organs were covered by bedclothes, household objects, or pixilation” but did not “actually depict[ ] sexual or excretory organs” held not sufficiently graphic or explicit to support a patent offensiveness finding). 41 See Super Bowl Forfeiture Order, 21 FCC Rcd at 2765-66 (broadcast of a female performer’s breast was graphic and explicit); Young Broadcasting of San Francisco, Notice of Apparent Liability, 19 FCC Rcd 1751 (2004) (broadcast of performer’s exposed penis was graphic and explicit). 42 See ABC Affiliates Response at 47. See Omnibus Order at 2716 ¶ 215 (scene from The Today Show was not graphic or explicit where “[t]he shot of the man’s penis is not at close range, and the overall focus of the scene is on the rescue attempt, not on the man’s sexual organ”); Complaints by Parents Television Council Against Various Broadcast Licensees Regarding Their Airing of Allegedly Indecent Material, Memorandum Opinion and Order, 20 FCC Rcd 1931, 1938 ¶ 9 (2005) (“PTC II”) (“rudimentary depiction of a cartoon boy’s buttocks” was not Federal Communications Commission FCC 08-55 7 did not find depictions of naked buttocks to be patently offensive, but none held that the clear and unmistakable depiction of nudity was not sufficiently explicit to support a finding of patent offensiveness.43 Rather, each held that the material at issue, in light of all of the relevant factors, was not patently offensive.44 We emphasize that our finding with respect to explicitness does not represent a conclusion that the scene in question is pandering or titillating; that issue relates to our analysis of the third principal factor below. We simply conclude here that the disputed material’s clear, unobscured, close-range visual depiction of a woman’s buttocks was graphic and thus supports a finding of patent offensiveness. 15. Second, we find that the disputed material’s repeated depictions of a woman’s naked buttocks provide some support for a patent offensiveness finding. As set forth in the Indecency Policy Statement, the issue under the second principal factor is focus and repetition versus “passing or fleeting” reference to sexual or excretory material.45 Here, the disputed scene includes repeated shots of a woman’s naked buttocks and focuses on her nudity. At one point, when her buttocks already have been displayed once and she is about to step into the shower, the camera deliberately pans down her back to reveal another full view of her buttocks before panning up again. While we concede that a longer scene or additional depictions of nudity throughout the episode would weigh more heavily in favor of an indecency finding, we conclude here that the focus on and repeated shots of the woman’s naked buttocks provides some support for a finding of indecency under the second factor.46 In this regard, it is worth noting that our analysis under this factor is best viewed on a continuum rather than as a binary “all or nothing” determination. To be sure, the depiction here is not as lengthy or repeated as some of the cases cited by ABC and ABC Affiliates in which the Commission has indicated that this factor supported a finding of patent offensiveness (and thus does not provide as much support for a finding of patent offensiveness as was present in those cases).47 However, this material does contain more shots or lengthier depictions of nudity, or more focus on nudity, than other cases involving nudity where the Commission has found that this factor did not weigh in favor of a finding of patent offensiveness.48 16. Third, we find that the scene’s pandering, titillating, and shocking nature supports a patent offensiveness finding. The female actor’s nudity is presented in a manner that clearly panders to and titillates the audience. The viewer is placed in the voyeuristic position of viewing an attractive woman disrobing as she prepares to step into the shower. Moreover, not only does the scene include a shot of her naked buttocks as she removes her robe in front of the bathroom mirror, the scene goes farther, providing the audience with another full view of her naked buttocks as she stands in front of the shower. This second shot, in which the camera pans down her naked back to her buttocks, pauses for a moment and then pans up her back, highlights the salacious aspect of the scene, clearly suggesting that its interest lies at least partly in seeing the actress’s naked buttocks. The subsequent camera shots of the boy’s sufficiently graphic or explicit to support a patent offensiveness finding). 43 See ABC Response at 18-19. 44 See id. 45 See Indecency Policy Statement, 16 FCC Rcd at 8008 ¶ 17. 46 See id. 47 See ABC Response at 21-24; ABC Affiliates Response at 48-50. 48 In any event, even were we to conclude that the second principal factor in our contextual analysis does not support a finding a patent offensiveness, we would still reach the same conclusion based on the strength of the first and third principal factors. See, e.g., Super Bowl Forfeiture Order, 21 FCC Rcd at 2766 ¶ 12; Young Broadcasting of San Francisco, 19 FCC Rcd at 1755 ¶¶ 10, 12 (broadcast of performer’s exposed penis was graphic and explicit). Federal Communications Commission FCC 08-55 8 shocked face from between the woman’s legs, and of her naked, partially-obscured upper torso from behind his head, also serve to heighten the titillating and shocking nature of the scene. We disagree with ABC’s position that these shots convey “nothing sexual or lewd.”49 Although the scene does not depict any sexual response in the child, his presence serves to heighten the shocking nature of the scene’s depiction of her nudity.50 17. Contrary to ABC’s arguments, comparison of the instant scene to Commission precedents does not undermine our finding regarding the third principal factor. The disputed material is easily distinguishable from the nudity addressed by the Commission in Schindler’s List.51 In Schindler’s List, the complainant conceded that the material he alleged to be actionably indecent was not presented to pander or titillate.52 Indeed, the “full frontal nudity” that aired outside of safe harbor and was the subject of the complaint was, as the ABC Affiliates explain, a scene depicting concentration group prisoners “made to run around the camp fully nude as the sick are sorted from the healthy.”53 While the scene is certainly disturbing, it is neither pandering nor titillating and bears no contextual resemblance to the material in NYPD Blue.54 Accordingly, we disagree with the claim of the ABC Affiliates that it is 49 ABC Response at 31. 50 While the scene does not depict any sexual response in the child, the effect of the nudity on the child is joked about later in the episode. The woman, who is on the police force, is discussing with another policewoman whether seeing her naked might have a long-term impact on the boy when the older detective who is the boy's father walks into the squad room. The woman asks him: “How was he when you dropped him off at school?” He responds: “Dropped him off at a Hooters.” When she looks perplexed, he adds: “He insisted,” at which point she smiles and walks away. 51 See WPBN/WTOM License Subsidiary, Inc., Memorandum Opinion and Order, 15 FCC Rcd 1838, 1840 (nudity in broadcast of Schindler’s List not patently offensive when considered in context of World War II concentration camp). 52 See id. at 1840 ¶ 6. 53 ABC Affiliates Response at 57. 54 Neither do we credit ABC’s argument that the nudity here is presented in a similar manner to the expletives in Saving Private Ryan. See ABC Response at 27, (citing 20 FCC Rcd 4507) (In Complaints Against Various Television Licensees Regarding Their Broadcast on November 11, 2004, of the ABC Television Network’s Presentation of the Film “Saving Private Ryan”, Memorandum Opinion and Order, 20 FCC Rcd 4507 (2005), the Commission found that use of coarse, vulgar expletives in broadcast of Saving Private Ryan not patently offensive when considered in wartime context). The conclusion that the material here (a woman disrobing to reveal her naked buttocks) is presented in a pandering and titillating manner whereas the material in Saving Private Ryan (expletives uttered by soldiers in the midst of World War II) was not presented in a pandering and titillating manner is entirely unremarkable. Federal Communications Commission FCC 08-55 9 “difficult to distinguish” the nudity here from the nudity in the Schindler’s List scene.55 Likewise, the Will and Grace episode cited by ABC is easily distinguishable because it presents no nudity.56 18. We also disagree with ABC’s contention that we are refusing to defer to its artistic judgment, in contrast to cases such as Schindler’s List and Saving Private Ryan.57 We are not “second- guessing” an artistic decision by concluding that the nudity contained in NYPD Blue was graphic and presented in a pandering and titillating manner.58 Art may very well be graphic, and we recognize that NYPD Blue was a longstanding television drama that garnered writing, directing, and acting awards, and that the scene in question related to a broad storyline of the show.59 Our finding does not represent a conclusion that the disputed material lacked artistic or social merit. As the D.C. Circuit has recognized, however, “merit is properly treated as a factor in determining whether material is patently offensive, but it does not render such material per se not indecent.”60 Further, we agree with ABC that the parental advisory and rating at the beginning of the program is relevant and weighs against a finding of indecency.61 As discussed above, however, we must weigh these factors along with the three principal factors above to ultimately determine whether the disputed material is patently offensive and therefore indecent. In context and on balance, we conclude that the graphic, repeated, pandering, titillating, and shocking nature of the scene’s visual depiction of a woman’s naked buttocks warrant a finding that it is patently offensive under contemporary community standards for the broadcast medium, notwithstanding any artistic or social merit and the presence of a parental advisory and rating. Therefore, it is actionably indecent. B. Procedural Arguments 19. ABC and the ABC Affiliates raise several procedural objections to the NAL, including attacks on the sufficiency of the complaints underlying the Commission’s action and arguments that the parties have been denied their due process rights by the Commission because of an alleged delay in 55 See ABC Affiliates Response at 58. For the same reason, we reject the ABC Affiliates’ assertion that the Commission has created a per se prohibition of nudity. We need not address Respondents’ reliance on unpublished staff letters denying indecency complaints against broadcasts of the film Catch-22 and other programs that contained nudity. See ABC Response at 18-19, 25-27; ABC Affiliates Response at 58-60. See 47 C.F.R. § 0.445(e) (unpublished opinions and orders of the Commission or its staff “may not be relied upon, used or cited as precedent, except against persons who have actual notice of the document in question or by such persons against the Commission”); Pathfinder Communications Corp., Memorandum Opinion and Order, 18 FCC Rcd 9272, 9279 ¶ 13 & n.47 (2003); see also Indep. Ins. Agents of America, Inc. v. Ludwig, 997 F.2d 958, 962 (D.C. Cir. 1993) (“In the real world of agency practice, informal unpublished letters should not engender reliance.”) (internal quotes and citations omitted). 56 See Omnibus Order, 21 FCC Rcd at 2702 ¶ 158 (“the touching of the breasts is not portrayed in a sexualized manner, and does not appear to elicit any sexual response from Grace.”). 57 See ABC Response at 27; ABC Affiliates Response at 51-52. 58 See ABC Affiliates Response at 52. 59 See ABC Response at 26-27. 60 Action for Children’s Television v. FCC, 852 F.2d 1332, 1340 (D.C. Cir. 1988) (“ACT I”) 61 As ABC points out, the Commission made clear in dismissing indecency complaints against broadcasts of Schindler’s List and Saving Private Ryan that a prominent broadcast parental advisory, while not necessarily precluding an indecency finding, should be considered in assessing the degree to which the broadcaster is acting in a responsible manner and the degree to which the public may be surprised and offended by unexpected material. See ABC Response at 34-35 (citing 20 FCC Rcd at 4513 ¶¶ 15-16, 15 FCC Rcd at 1840 ¶ 6, 1842 ¶ 13); ABC Affiliates Response at 61-62. Federal Communications Commission FCC 08-55 10 providing the complaints to them and the alleged truncated period afforded them to respond to the NAL. We address these arguments in turn. 1. Sufficiency of Complaints 20. ABC and the ABC Affiliates contend that the complaints underlying the NAL did not meet the requirements of the Commission’s indecency enforcement policy and should have been summarily dismissed.62 Specifically, both ABC and the ABC Affiliates argue that the Commission failed to make an initial determination as to the sufficiency of each complaint in this case, as required by the Omnibus Remand Order. According to ABC and the ABC Affiliates, with one exception, the subject complaints in this case were identical “form” complaints generated by a single advocacy group. Furthermore, they claim there is no evidence that any of the complainants actually viewed the subject episode of NYPD Blue on the stations cited in the NAL or on any station.63 For these reasons, ABC and the ABC affiliates argue that the complaints are not bona fide, actionable complaints and should have been dismissed for lack of sufficiency. Accordingly, they contend that the Commission should rescind the NAL.64 21. The arguments advanced by ABC and ABC Affiliates regarding the sufficiency of the complaints are without merit because they are based upon a flawed understanding of our indecency enforcement policy.65 As the Commission clarified in the Omnibus Remand Order, it is sufficient that viewers in markets served by each of the ABC Stations filed complaints identifying the allegedly indecent episode of NYPD Blue at issue.66 Moreover, and contrary to the arguments of ABC and the ABC Affiliates, there is no requirement that a complaint include a statement that the complainant viewed the material alleged to be indecent. The Commission has considered and rejected similar arguments.67 22. Each of the initial e-mail complaints received by the Commission specifically identified the February 25, 2003 episode of NYPD Blue, each stated that the material was aired on stations affiliated with the ABC Network, and each provided a significant excerpt of the allegedly indecent material.68 62 See ABC Response at 10-14 (citing Complaints Regarding Various Television Broadcasts Between February 2, 2002 and March 8, 2005, Order, 21 FCC Rcd 13299 (2006) (“Omnibus Remand Order”)); ABC Affiliates Response at 21-34 (citing Omnibus Order, 21 FCC Rcd at 2673 ¶ 32, 2676 ¶ 42, 2687 ¶ 86; Complaints Regarding Various Television Broadcasts Between February 2, 2002 and March 8, 2005, Order, 21 FCC Rcd 13299, 13328- 329 ¶¶ 74-77 (2006) (“Omnibus Remand Order”)). In addition, Channel 12 of Beaumont, Inc. (Beaumont), which joined in the ABC Affiliates Response, filed a supplement directed to matters pertinent to Station KBMT(TV). See Beaumont Response. 63 See ABC Response at 10-14; ABC Affiliates Response at 23-29; Beaumont Response at 4. 64 See ABC Response at 10-14; ABC Affiliates Response at 21-34; Beaumont Response at 6. 65 See Super Bowl Order on Reconsideration 21 FCC Rcd at 6665 ¶ 30. 66 See Omnibus Remand Order, 21 FCC Rcd at 13323 ¶ 57, n.180, 13328-329 ¶75. 67 See Omnibus Remand Order, 21 FCC Rcd at 13323 ¶ 57, n.180 68 We reject the ABC Affiliates’ argument that the complaints singularly concern the exposure of a child actor to adult female nudity on the set of NYPD Blue during production of the episode and cannot be read to raise a broadcast indecency issue. See ABC Affiliates Response at 24. There is no reasonable basis for this extremely narrow construction of the complaints. Indeed, many of the complaints specifically stated, “it is shameless that this kind of broadcast is going unchallenged by the FCC.” We note, in this regard, that the Commission does not require that indecency complaints be “letter perfect,” or provide an exact description of the allegedly indecent material. See, e.g., Indecency Policy Statement, 16 FCC Rcd at 8015 ¶ 24 & n.20 citing Citicasters Co., Licensee of Station KSJO(FM), San Jose, California, Notice of Apparent Liability, 15 FCC Rcd 19095 (Enf. Bur. 2000) Federal Communications Commission FCC 08-55 11 Although the complainants initially did not provide call letters of a specific ABC affiliate or other information identifying the market in which the complainant resided, Commission staff requested further information on these points in follow-up e-mails to the complainants. Specifically, the staff requested information about the television station over which the complainant saw the subject program,69 including, if available, the station’s call letters or “the city and town in which the station you watched is located.”70 The staff received numerous responses to the follow-up e-mails identifying the ABC Stations referenced in the NAL.71 The follow-up emails permitted the staff to ensure that there was a complainant in the market of each of the ABC Stations against which a forfeiture is imposed herein, consistent with the Commission’s enforcement policy.72 23. Consequently, this complaint proceeding does not present the same issues as did the complaints against KMBC-TV discussed in the Omnibus Order Remand and which both ABC and the ABC Affiliates cite in their responses.73 In that case, there were no complaints filed by anyone residing in the market served by KMBC-TV. Instead, the complaints were filed by a complainant residing outside the KMBC-TV market and there was nothing in the record to tie the complaints to KMBC-TV’s local viewing area.74 With respect to stations at issue in this Order, we have affirmative statements from the complainants tying the complaints to a particular ABC station or affiliated station.75 24. Moreover, we find no merit in the argument by ABC and the ABC Affiliates that complaints which were not filed contemporaneously with the airing of the February 25, 2003, episode of NYPD Blue should be dismissed.76 The Commission does not require complainants to file indecency complaints within a specified time frame.77 Under these circumstances, we find that the NAL was consistent with our commitment to an appropriately restrained enforcement policy and recent (forfeiture paid). Once the Commission receives a valid complaint, it reviews the program material to determine whether it is indecent. 69 See e-mail from William H. Davenport, Chief, Investigations and Hearings Division, Enforcement Bureau, Federal Communications Commission dated December 29, 2005. 70 Id. 71 Contrary to the ABC Affiliates’ suggestion, there is no requirement that the complainant include a physical address matching the affiliate’s television market. See ABC Affiliates Response at 23. 72 See Indecency Policy Statement, 16 FCC Rcd at 8015, ¶ 24 (requirements generally for consideration of an indecency complaint). There is no merit in the contention that it was improper for the staff to seek additional clarifying information from the complainants. The staff exercises its reasonable discretion in determining whether a particular complaint warrants further inquiry or should be dismissed as insufficient. The decision here to seek further identifying information was well within that discretion. In any event, even if the initial complaints had been dismissed, our ordinary practice would have afforded the complainants the option to refile their complaints with additional information. 73 See ABC Response at 10-11; ABC Affiliates Response at 28-29; Beaumont Response at 4. 74 See Omnibus Remand Order, 21 FCC Rcd at 13328-329 ¶ 75. 75 We do note, however, that we must exclude as insufficient under the enforcement policy set forth in the Omnibus Order the complaints against 5 stations from the NAL – specifically, WBRZ-TV, Baton Rouge, LA; WXOW-TV, LaCrosse, WI; KMBC-TV, Kansas City, MO, KHOG-TV, Fayetteville, AR, and WDAY-TV, Fargo, ND. 76 See ABC Response at 12-13; ABC Affiliates Response at 23-24; Beaumont Response at 4-6. 77 See Indecency Policy Statement, 16 FCC Rcd at 8015, ¶ 24. Federal Communications Commission FCC 08-55 12 Commission practice to limit the imposition of forfeiture penalties to licensees whose stations serve markets from which specific complaints are received.78 2. Notice and Length of Time to Respond to NAL 25. The ABC Affiliates contend that the length of time between when the episode aired and the NAL was issued, combined with the “unusually shortened” period of time they had for responding to the NAL, effectively deprived them of their administrative due process rights.79 Beaumont, in a separate response, makes similar arguments.80 More specifically, the ABC Affiliates claim that they did not know until the NAL was issued that there were pending complaints against the ABC affiliate stations concerning its broadcast of the subject NYPD Blue episode.81 The ABC Affiliates note that although the Commission issued a letter of inquiry to ABC, Inc., concerning the indecency complaints the Commission had received,82 the affiliates did not directly receive similar notice from the Commission and, therefore, did not have as much time as the ABC owned-and-operated stations to conduct a contemporaneous investigation of the facts. As such, they assert that pertinent records may be non-existent or hard to locate, and knowledgeable witnesses may no longer readily be available.83 Moreover, they argue that 78 The ABC Affiliates argue that the Commission's production of the complaints, pursuant to numerous FOIA and informal requests, compounded the alleged injury to their due process rights and more specifically, that the Commission never provided copies of complaints respecting eight of the stations cited in the NAL. See ABC Affiliates Response at 14-17, 22-23. Two of these stations, KTKA-TV and KFBB-TV, are no longer subject to forfeitures for reasons discussed elsewhere in this Order, and thus the argument as to them is moot. As to the remaining six stations, the Commission responded on an expedited basis to all requests for complaints concerning stations named in the NAL where the requesting party represented the station(s) whose complaints it sought. Our records reflect that the only party requesting the complaints for these six stations did not indicate that it represented these stations and the complaints were not, therefore, provided on an expedited basis. The complaints have now been provided, but any prejudice alleged to have resulted from the timing of their production must be attributed to the stations’ failure to timely request them. In addition, the ABC Affiliates point out that certain discrepancies among the responses to their FOIA requests for the underlying complaints - mainly, the format of the information provided - raised questions as to whether they had received copies of the genuine complaints. See ABC Affiliates Response at 22-23. We have since corrected any such deficiencies, to the extent they existed. We note, in this regard, that the parties have not established that they suffered any actual harm as a result of these discrepancies and that they were able to and did rely on the complaints in responding to the NAL. Moreover, in responding to the parties’ requests for the underlying complaints, we explained that the copies we first produced were Access database versions of the complaints rather than the original Outlook e-mail versions. See E-mail from Ben Bartolome to Mark Prak, Wade Hargrove, and David Kushner, sent Monday, February 4, 2008, at 8:02 p.m. (attaching copies of complaints in Access Version) (copy of E-mail available in FCC record). The next day, we located and produced the original Outlook versions. See E-mail from Ben Bartolome to Mark Prak, Wade Hargrove, and David Kushner, sent Tuesday, February 5, 2008, at 4:54 p.m. (attaching copies of same complaints, but in Outlook version) (copy of E-mail available in FCC record). There is no question that the complaints we provided were “genuine.” 79 See ABC Affiliates Response at 9-21. 80 See Beaumont Response at 5-6. 81 See ABC Affiliates Response at 11-13. 82 See Letter from William D. Freedman, Deputy Chief, Investigations & Hearings Division, Enforcement Bureau, FCC to Susan L. Fox, Esq., ABC Inc., dated February 3, 2004 (“Letter of Inquiry”). 83 See ABC Affiliates Response at 12. Federal Communications Commission FCC 08-55 13 once the NAL was issued, they were afforded only 17 days, rather than the usual 30 days, in which to respond and that this shortened period further prejudiced their rights.84 26. We find no merit in ABC Affiliates’ and Beaumont’s due process arguments. Both parties fail to demonstrate that the Commission’s process somehow impeded their ability to fully exercise their due process rights. The arguments advanced by the parties with respect to insufficient notice suggest a misunderstanding of the nature of the Commission’s forfeiture process. Pursuant to section 1.80 of the Commission’s rules, before imposing a forfeiture penalty, the Commission must provide each licensee with a written notice of apparent liability which includes an explanation of the nature of the misconduct, the rule section that the Commission believes was violated, and the proposed forfeiture amount. The NAL in this instance provided such required notice. There is no requirement that the Commission direct a letter of inquiry to a licensee as part of an investigation of alleged indecent programming aired by a broadcast station before issuing an NAL. Moreover, section 1.80 of the Commission’s rules specifies that each licensee to which such notice is provided may file a written response demonstrating why a forfeiture penalty should not be imposed or should be reduced. By their responses to the NAL and various FOIA filings to obtain copies of complaints , the ABC Affiliates and other parties availed themselves of the opportunity to respond the Commission’s concerns, belying their claims to the contrary. 27. Furthermore, as a practical matter we are not persuaded that the ABC Affiliates suffered any harm from the shortened NAL response period or the time period between the broadcast and the NAL under the circumstances involved here. The principal record involved here is the tape of the episode, which the ABC Affiliates do not maintain was difficult to obtain. In addition, while they argue that individual stations may have had difficulty determining whether they aired the episode within the “safe harbor,” ABC provided that information to the Commission in 2004.85 The parties’ timely filings also contradict any potential claim that they have suffered actual harm and/or that the NAL response time was so inadequate as to jeopardize their due process rights. The ABC Affiliates claim that “pertinent records of the broadcast may be non-existent or difficult to locate, and knowledgeable witnesses may no longer be readily available.” They do not argue that such records or witnesses were, in fact, impossible to locate or that any particular material relevant to their case could not be found. At best, the parties argue inconvenience, which, even if true, they clearly surmounted, considering the number, coordinated nature, and overall comprehensiveness of their filings. 28. Section 1.80 provides that the “[r]espondent will be afforded a reasonable period of time (usually 30 days from the date of the notice) to show, in writing, why a forfeiture penalty should not be imposed or should be reduced, or to pay the forfeiture.”86 The Commission’s rules do not state that the reasonable period of time will always be 30 days. A 30-day response period is not mandated. The rule only requires that the response period be reasonable, and the parties have not submitted evidence of actual harm or presented any persuasive arguments to convince the Commission that the 17 days afforded for a response in this case was not reasonable. Indeed, the evidence before us demonstrates that the ABC Affiliates were able to substantively respond to the NAL and to fully incorporate in that response relevant materials, including the underlying complaints in this proceeding. Legal counsel from 20 law firms and/or companies coordinated and responded to the NAL in one, consolidated, 70-page brief, with exhibits, on behalf of the majority of ABC affiliated stations. Accordingly, we conclude that the period 84 We note that potential statute of limitations concerns under 28 U.S.C. § 2462 warranted the Commission’s action in providing Respondents a shorter time period than usual to respond to the NAL. 85 See supra, ¶2. 86 See 47 C.F.R. § 1.80(f)(3) (emphasis added). Federal Communications Commission FCC 08-55 14 provided for the licensees’ response was reasonable and that they were neither deprived of the required notice nor an opportunity to be heard. 29. The ABC Affiliates also complain that the quality of the notice received through the NAL does not meet the standards set forth in Section 1.80(f)(1)(ii) because it allegedly fails to “[s]et forth the nature of the act or omission charged against the respondent and the facts upon which such charge is based.”87 We find this argument wholly unpersuasive. The NAL set forth the episode, air date and time, and a sufficient description of the content and how it violated the Commission’s indecency rules.88 There is no requirement, as the ABC Affiliates suggest, that the Commission provide the underlying complaint itself as part of the notice. Accordingly, we reject this argument. 30. Finally, the ABC Affiliates’ argument that their due process rights have been denied because they did not have the benefit of producing evidence in the context of an administrative hearing proceeding is misplaced.89 As the Commission has previously stated: It is, of course, true that the complainant’s statement is “untested,” in that no evidentiary hearing has been held. However, the Communications Act of 1934, as amended (“Act”) permits the imposition of a forfeiture without an evidentiary hearing. The Act also protects the rights of parties subject to a forfeiture assessed without a hearing by providing that such a forfeiture cannot be used to the prejudice of the party unless it is paid or a court of competent jurisdiction has issued a final order after a trial de novo requiring that the forfeiture be paid.90 Accordingly, given the foregoing, we deny the ABC Affiliates’ and Beaumont’s argument that the NAL should be rescinded based on any due process or insufficient notice grounds. C. Other Arguments 1. Broadcast Satellite Station 31. Gray Television Licensee, Inc. (“Gray”), argues that the Commission should dismiss the case as to its satellite station, KLBY(TV), Colby, KS, and remove it from liability for the forfeiture assessed in the NAL.91 Gray explains that KLBY is a satellite station of Gray’s full-power station, KAKE-TV, Wichita, KS, which is already subject to the NAL.92 As such, Gray asserts that KLBY(TV) “offers little more than an extension of the signal of its parent station, and makes virtually no independent programming judgments about the programming it broadcasts.”93 Further, it states that it broadcasts less than one half hour a week of programming that differs from the full power station.94 Gray contends that 87 See ABC Affiliates Response at 21; 47 C.F.R. § 1.80(f)(1)(ii). 88 See NAL at ¶¶ 9-19. 89 See ABC Affiliates Response at 10. 90 See Infinity Broadcasting Corporation of Los Angeles, Memorandum Opinion and Order, 16 FCC Rcd 6867, 6869 ¶ 8 nn.2-3 (Enf. Bur. 2001), affirmed, Memorandum Opinion and Order, 17 FCC Rcd 9892 (2002). 91 See Motion to Dismiss, filed by Gray Television Licensee, Inc., Licensee of Stations KAKE-TV, Wichita, Kansas and KLBY(TV), Colby, Kansas, on February 11, 2008 (“Gray Response”). 92 See id. at 2. 93 See id. 94 See id. Federal Communications Commission FCC 08-55 15 the Commission’s treatment of KLBY here is inconsistent with its differential treatment of satellite stations in other arenas, such as their exemption from television broadcast ownership restrictions.95 Gray claims that subjecting it to forfeitures for both KAKE-TV and KLBY airing the same content would effectively make it more expensive to own satellite stations, which contrasts with the Commission’s treatment in other contexts making it less burdensome to own satellite stations.96 In making these arguments, Gray relies on precedent concerning ownership restrictions, the burdens an applicant must satisfy to own a satellite station, and limits on independent programming a satellite station may offer.97 32. Notably, however, Gray does not cite indecency enforcement rules or policy to support its theory. While the Commission might have eased certain burdens on those seeking to own satellite stations, it has not made the pronouncement that Gray suggests, in effect, that the Commission should not apply the same indecency rules to satellite stations as it does to full-service stations. Nor has the Commission concurred in Gray’s implicit contention that when a satellite station’s parent station is subject to forfeiture for the airing indecent programming, the satellite station should not be fined for carrying the same material.98 33. The Commission first authorized TV satellite operations in small or sparsely populated areas with insufficient economic bases to support full-service operations. As such, Gray is correct that KLBY offers “a unique and irreplaceable service.”99 That does not mean, however, that KLBY is effectively exempt from the Commission’s indecency regulation. In fact, the Commission abolished the limit on the amount of original local programming that a satellite station may originate.100 This elimination cuts against Gray’s argument because it chooses for its satellite station to carry most of the same programming aired by its full-service parent station rather than originate different programming. In any event, there is no reason why the viewers of a satellite station should not expect it to abide by the same content restrictions as a full-service station. Accordingly, Gray is no less responsible for the programming of its satellite station than for its full-service station. Therefore, we reject Gray’s arguments on these points. 95 See id. at 1-2 (citing Television Satellite Stations Review of Policy & Rules, Second Further Notice of Proposed Rulemaking, 6 FCC Rcd 5010 ¶ 3 (1991); Review of the Commission’s Regulations Governing Television Broadcasting, Report and Order, 14 FCC Rcd 12903, 12943 ¶ 90 (1999); 2002 Biennial Regulatory Review, Report and Order and Notice of Proposed Rulemaking, 18 FCC Rcd 13620, 13710 ¶ 233 (2003); Television Satellite Stations: Review of Policy & Rules, Report and Order, 6 FCC Rcd 4212, 4215-16 ¶¶ 23-25 (1991)). 96 See id. at 2. 97 See supra, note 94. 98 We note, in fact, that the Commission has previously imposed a forfeiture on a satellite station for violation of the indecency rules and has done so while concurrently imposing a forfeiture on the satellite station’s parent station for airing the same programming. See, e.g., Super Bowl NAL, 19 FCC Rcd at 19235 ¶ 13 (finding satellite stations KCCO-TV and KCCW-TV and their parent station, WCCO-TV, apparently liable for forfeiture for their broadcast of the Super Bowl XXXVIII Halftime Show), affirmed, Forfeiture Order, 21 FCC Rcd 2760 (2006), affirmed, Order on Reconsideration, 21 FCC Rcd 6653 (2006), pet. for review pending on different grounds, CBS Corp. v. FCC, No. 06-3575 (3d Cir. Filed July 28, 2006). On a related topic, we note that the Commission has specifically stated that it will apply indecency rules to the low power broadcast service. See An Inquiry into the Future Role of Low Power Television Broadcasting and Television Translators in the National Telecommunications System, 51 Rad. Reg. 2nd 476 ¶ 105 (1982) (noting that the statutory prohibitions against broadcast of obscene material apply to the low power service). 99 See Gray Response at 2. 100 See Television Satellite Stations: Review of Policy & Rules, Report and Order, 6 FCC Rcd 4212, 4215 ¶ 23 (1991) (eliminating 5% restriction on local programming by satellite television stations). Federal Communications Commission FCC 08-55 16 2. Statute of Limitations 34. Northeast Kansas Broadcast Service and KFBB Corporation correctly argue that the statute of limitations for the Commission to assess a forfeiture precludes it from assessing liability for KTKA-TV and KFBB-TV due to an intervening renewal grant for each station between the episode in question and the issuance of the NAL.101 The Commission accordingly cancels the NAL insofar as it relates to these stations. D. Constitutional Issues 35. Respondents argue that imposition of a forfeiture in this case would violate the First Amendment. ABC contends that Commission’s indecency standard is unconstitutional on its face. In support, it asserts that the justifications that existed for adopting the current indecency standard are no longer valid; the current indecency standard is impermissibly vague; the availability of new blocking technologies has rendered the current indecency standard overbroad; and the indecency standard is subjective in a way that violates the First Amendment. The ABC Affiliates assert that the Supreme Court’s decision in Pacifica bars the Commission from regulating brief material; the Commission failed to follow the context-driven approach required by the First Amendment; a prohibition on all broadcast nudity is overbroad; and the Commission must apply local, not national, community standards of patent offensiveness. For the reasons discussed below, we reject Respondents’ arguments. 36. Validity of Indecency Test. ABC argues that the underpinnings of the Commission’s current indecency standard date back to the Supreme Court’s decision in Federal Communications Commission v. Pacifica Foundation,102 and that the justifications upon which the Court relied in its decision – the uniquely pervasive presence of the broadcast medium and the unique accessibility of broadcasting to children – are no longer viable. In this regard, ABC argues that cable and satellite transmissions now reach the majority of the nation’s television households and offer hundreds of channels as well as the signals of broadcast stations.103 37. We disagree with ABC’s claim that the justifications upon which the Supreme Court relied in Pacifica are no longer valid and note that the D.C. Circuit has rejected this precise argument: “Despite the increasing availability of receiving television, such as cable . . . there can be no doubt that the traditional broadcast media are properly subject to more regulation than is generally permissible under the First Amendment.”104 Notwithstanding ABC’s arguments to the contrary, the broadcast media continue to have a “uniquely pervasive presence” in American life. The Supreme Court has recognized that “[d]espite the growing importance of cable television and alternative technologies, ‘broadcasting is demonstrably a principal source of information and entertainment for a great part of the Nation's 101 See Response of Former Licensee, filed by Northeast Kansas Broadcast Service, Inc., Former Licensee of Station KTKA-TV, Topeka, Kansas, on February 6, 2008; Letter to Benigno E. Bartolome, Acting Chief, Investigations and Hearings Division, Enforcement Bureau, filed by The Wooster Printing Company, Parent of the Former Licensee of Station KFBB-TV, Great Falls, Montana, filed on February 5, 2008. 102 See 438 U.S. 726 (1978). 103 See ABC Response at 43 (citing Fox Television Stations, 489 F.3d at 464-66). 104 Action for Children’s Television v. FCC, 58 F.3d 654, 660 (D.C. Cir. 1995) (en banc) cert. denied, 516 U.S. 1043 (1996) (“ACT III ”). See also Prometheus Radio Project v. FCC, 373 F.3d 372, 401-02 (3d Cir. 2004) (rejecting argument that broadcast ownership regulations should be subjected to higher level of scrutiny in light of rise of “non-broadcast media”). Federal Communications Commission FCC 08-55 17 population.”105 In 2003, 98.2% of households had at least one television, and 99% had at least one radio.106 Although the majority of households with television subscribe to a cable or satellite service, millions of households continue to rely exclusively on broadcast television,107 and the National Association of Broadcasters estimates that there are some 73 million broadcast-only television sets in American households.108 Moreover, many of those broadcast-only televisions are in children’s bedrooms.109 Although the broadcast networks have experienced declines in the number of viewers over the last several years, the programming they offer remains by far the most popular and is available to almost all households.110 Indeed, elsewhere in its response, ABC trumpets the fact that “NYPD Blue . . . enjoyed great popular success on the ABC Television Network, averaging more than 15 million viewers during its 12 years on the network.”111 38. The broadcast media are also “uniquely accessible to children.” In this respect, broadcast television differs from cable and satellite television. Parents who subscribe to cable exercise some choice in their selection of a package of channels, and they may avoid subscribing to some channels that present programming that, in their judgment, is inappropriate for children. Indeed, upon the request of a subscriber, cable providers are required by statute to “fully block the audio and video programming of each channel carrying such programming so that one not a subscriber does not receive it.”112 In contrast, as the D.C. Circuit has observed, “broadcast audiences have no choice but to ‘subscribe’ to the entire output of traditional broadcasters.”113 The V-chip provides parents with some ability to control their children’s access to broadcast programming, but it does not eliminate the need for the Commission to vigorously enforce its indecency rules. In particular, as explained in further detail below, we note that numerous televisions do not contain a V-chip, and most parents who have a television set with a V-chip 105 Turner Broadcasting Sys., Inc. v. FCC, 520 U.S. 180, 190 (1997) ( quoting U.S. v. Southwestern Cable Co., 392 U.S. 157, 177 (1968)). See id. at 194 (though broadcast television is “but one of many means for communication, by tradition and use for decades now it has been an essential part of the national discourse on subjects across the whole broad spectrum of speech, thought, and expression.”). 106 See U.S. Census Bureau, Statistical Abstract of the United States 737 (2006). 107 Annual Assessment of the Status of Competition in the Market for the Delivery of Video Programming, Twelfth Annual Report, 21 FCC Rcd 2503, 2506-07 ¶ 8, 2508 ¶ 15 (2006). 108 See id. at 2552 ¶ 97. It also has been estimated that almost half of direct broadcast satellite subscribers receive their broadcast channels over the air, Media Bureau Staff Report Concerning Over-the-Air Broadcast Television Viewers, 2005 WL 473322, No. 04-210, ¶ 9 (MB Feb. 28, 2005), and many subscribers to cable and satellite still rely on broadcast for some of the televisions in their households. Annual Assessment, 21 FCC Rcd at 2508 ¶ 15. 109 See Kaiser Family Foundation, Generation M: Media in the Lives of 8-18 Year-olds 77 (2005). According to the Kaiser Family Foundation report, 68 percent of children aged eight to 18 have a television set in their bedrooms, and nearly half of those sets do not have cable or satellite connections. 110 A large disparity in viewership still exists between broadcast and cable television programs. For example, during the week of February 4, 2008, each of the top ten programs on broadcast television had more than 12.5 million viewers, while only two programs on cable television that week – both professional wrestling programs – managed to attract more than 5 million viewers. See Nielsen Media Research, “Trend Index,” available at http://www.nielsen.com/media/toptens_television.html (visited Feb. 14, 2008). Indeed, that same week, 90 of the top 100-rated programs appeared on broadcast channels, and the highest rated cable program was number 71. See Television Bureau of Advertising, “Top 100 Programs on Broadcast and Subscription TV: Households,” available at http://www.tvb.org/nav/build_frameset.aspx (visited Feb. 14, 2008). 111 ABC Response at 4. 112 47 U.S.C. § 560 (2000). See also United States v. Playboy Entertainment Group, Inc., 529 U.S. 803 (2000). 113 ACT III, 58 F.3d at 660. Federal Communications Commission FCC 08-55 18 are unaware of its existence or do not know how to use it.114 Accordingly, there is no merit to ABC’s claim that Pacifica – and more importantly, our indecency rules – are invalid, obsolete or outdated. 39. Vagueness and Overbreadth. ABC argues that the Commission’s indecency standard is unconstitutionally vague, citing Reno v. ACLU.115 Reno addressed the constitutionality of provisions of the Communications Decency Act (“CDA”) that sought to protect minors from harmful material on the Internet. The Court determined that the CDA’s indecency standard was impermissibly vague because it failed to define key terms, thereby provoking uncertainty among speakers and preventing them from discerning what speech would violate the statute.116 ABC asserts that, because the CDA definition of indecency was determined by the Court to be fatally imprecise, and the Commission’s definition of indecency is similar to the CDA definition, it follows that the Commission’s definition is similarly flawed.117 40. We reject ABC’s arguments that the Commission’s indecency standard is vague. That standard is essentially the same as the one used in the order that was reviewed in Pacifica,118 and the Supreme Court had no difficulty applying that definition and using it to conclude that the broadcast at issue in that case was indecent. We therefore agree with the D.C. Circuit that “implicit in Pacifica” is an acceptance of the FCC’s generic definition of ‘indecent’ as capable of surviving a vagueness challenge.”119 41. We also believe that ABC’s reliance on Reno is without merit. The Court in Reno expressly distinguished Pacifica, giving three different reasons for doing so.120 Thus, far from casting doubt on Pacifica’s vagueness holding, Reno recognizes its continuing vitality. 42. We also reject ABC’s claim that the “contemporary community standards for the broadcast medium” criterion is impermissibly subjective.121 The “contemporary community standards for the broadcast medium” criterion – which was upheld by the Supreme Court in Pacifica – is that of an average broadcast listener or viewer.122 Our approach to discerning community standards parallels that 114 See infra, ¶ 47. 115 See ABC Response at 40-41 (citing 521 U.S. 844 (1997)). 116 Id. at 871. 117 ABC Response at 40. 118 See 438 U.S. at 732. 119 See ACT I, 852 F.2d at 1339; accord ACT III, 58 F.3d at 659. ABC also contends that “imposition of forfeitures in this case would be . . . inconsistent with the Commission’s past treatment of similar broadcasts and similar material,” thus rendering the Commission’s indecency enforcement unconstitutionally vague. ABC Response at 39-40. As we explain above, see supra ¶¶ 13 - 18, there is no inconsistency, so this argument necessarily fails. 120 See Reno v. ACLU, 521 U.S. 844, 867 (1997). First, the Court noted that the Commission is “an agency that [has] been regulating radio stations for decades,” and that the Commission’s regulations simply “designate when— rather than whether—it would be permissible” to air indecent material.” Id. The CDA, in contrast, was not administered by an expert agency, and it contained “broad categorical prohibitions” that were “not limited to particular times.” Id. Second, the CDA was a criminal statute, whereas the Commission has no power to impose criminal sanctions for indecent broadcasts. See id. at 867, 872. Third, unlike the Internet, the broadcast medium has traditionally “received the most limited First Amendment protection.” Id. at 867. 121 See ABC Response at 41-42. 122 See Indecency Policy Statement, 16 FCC Rcd at 8002, ¶ 8 and n.15. Federal Communications Commission FCC 08-55 19 used in obscenity cases, where the jury is instructed to rely on its own knowledge of community standards in determining whether material is patently offensive.123 Here, however, the Commission has the added advantage of being an expert agency, and as we have explained before, “[w]e rely on our collective experience and knowledge, developed through constant interaction with lawmakers, courts, broadcasters, public interest groups and ordinary citizens, to keep abreast of contemporary community standards for the broadcast medium.”124 In applying this standard, the Commission does not apply its own “personal sensibilities,”125 but at the same time it is settled that “merit is properly treated as a factor in determining whether material is patently offensive.”126 43. The ABC Affiliates contend that the Commission’s application of community standards “is unconstitutionally overbroad because it constitutes a national standard to determine whether broadcast material is patently offensive, rather than local community standards.”127 Instead, the ABC Affiliates contend that the Commission must “examine[ ] the mores of the more than four dozen various geographic communities in which the NYPD Blue episode was viewed and for which the ABC Affiliates are being cited.”128 44. This argument is unavailing. Our longstanding indecency test focuses on whether material is patently offensive as measured by contemporary community standards for the “broadcast medium” generally, rather than those of any particular community. That is the standard the Supreme Court affirmed in Pacifica, without any suggestion that the Commission erred by not determining whether broadcast of the Carlin monologue was patently offensive according to the community standards of New York, the only community in which there was a complaint about its broadcast.129 If application of a national standard was appropriate in Pacifica, it clearly was in this case, which involves a national broadcast and complaints arising from many parts of the country. 45. For their contrary position, the ABC Affiliates rely principally on criminal obscenity prosecutions, which present distinct concerns not applicable to this non-criminal proceeding involving indecency, not obscenity.130 Even in the context of obscenity, however, the Supreme Court has said only that the First Amendment does not require juries to apply nationwide community standards. States therefore have the option of defining obscenity based on more localized community standards, but nothing in the Supreme Court’s obscenity case law requires them to do so.131 Indeed, a national standard actually facilitates national broadcasting, since it provides more certainty and avoids the necessity of 123 See Smith v. United States, 431 U.S. 291, 305 (1977). 124 See Infinity Radio License, Inc., Memorandum Opinion and Order, 19 FCC Rcd 5022, 5026 ¶ 12, recon. denied, 19 FCC Rcd 16959 (2004). 125 See ABC Response at 42. 126 See ACT I, 852 F.2d at 1340. 127 See ABC Affiliates’ Response at 69. 128 See ABC Affiliates’ Response at 69. 129 See Pacifica, 438 U.S. at 729, 732. 130 See Pacifica, 438 U.S. at 739 n.13 (“the validity of the civil sanctions [for violation of 18 U.S.C. § 1464] is not linked to the validity of the criminal penalty.”). 131 See Jenkins v. Georgia, 418 U.S. 153, 157 (1974) (“Miller approved the use of such instructions [requiring application of state-specific community standards]; it did not mandate their use.”); see also Ashcroft v. ACLU, 535 U.S. 564, 587-89 (2002) (O’Connor, J., concurring in part and concurring in the judgment) (a national community standard for evaluating possible indecency on the Internet would be “not only constitutionally permissible, but also reasonable”). Federal Communications Commission FCC 08-55 20 tailoring national programming station-by-station based on the potentially disparate community standards of a nationwide television audience.132 46. ABC also asserts that television viewers today are able to effectively prevent reception of any programming that they consider unsuitable for children through the use of voluntary ratings of programs by the entertainment industry and so-called “V-Chip” technology.133 The existence of a less intrusive solution, according to ABC, thus renders the Commission’s regulatory scheme unconstitutionally overbroad.134 Likewise, the ABC Affiliates state that the “V-chip is not itself dispositive of the legal issue in this case” but nonetheless claim that its availability creates “constitutional ramifications” militating against a finding of indecency here.135 47. We reject these arguments. While we agree that the V-chip provides some assistance in protecting children from indecent material, it does not eliminate the need for the Commission to enforce its indecency rules. Numerous televisions do not contain a V-chip, and most parents who have a television set with a V-chip are unaware of its existence or do not know how to use it.136 In addition, we note that some categories of programming, including news and sports, are not rated and, therefore, are not subject to blocking by V-chip technology.137 Finally, numerous studies have raised serious questions about the accuracy of the television ratings on which the effectiveness of a V-chip depends.138 In this case, for example, the V-chip would have failed a parent attempting to shield her children from exposure to nudity by filtering out all programs with an “S” content descriptor (for “sexual situations”) since ABC did not include such a descriptor for this program.139 48. The ABC Affiliates also argue that a finding of indecency in this case is unconstitutionally overbroad because it amounts to proscription of “all non-sexual nudity on 132 See Ashcroft, 535 U.S. at 591 (Breyer, J., concurring in part and concurring in the judgment) (First Amendment militates in favor of national, as opposed to local, community standards in evaluating possible indecency on the Internet). 133 See ABC Response at 43-45. 134 See id. at 44. 135 ABC Affiliates Response at 65-66. 136 See Super Bowl Order on Reconsideration, 21 FCC Rcd at 6667 ¶ 37. According to a 2003 study, parents’ low level of V-chip use is explained in part by parents’ ignorance of the device and the “multi-step and often confusing process” necessary to use it. Annenberg Public Policy Center, Parents’ Use of the V-Chip to Supervise Children’s Television Use 3 (2003). Only 27 percent of mothers in the study group could figure out how to program the V- Chip, and “many mothers who might otherwise have used the V-Chip were frustrated by an inability to get it to work properly.” Id. at 4. 137 See Implementation of Section 551 of the Telecommunications Act of 1996, Report and Order, 13 FCC Rcd 8232, 8242-43, ¶ 21 (1998). 138 See, e.g., Barbara K. Kaye & Barry S. Sapolsky, Offensive Language in Prime-Time Television: Four Years After Television Age and Content Ratings, 48 Journal of Broadcasting & Electronic Media 554, 563-64 (2004) (finding that there was more coarse language broadcast during TV-PG programs than those rated TV-14, just the opposite of what these age-based ratings would lead a viewer to believe); Henry J. Kaiser Family Foundation, Parents, Media and Public Policy: A Kaiser Family Foundation Survey 5 (2004) (nearly 4 in 10 parents of children aged 2-17 stated that most television programs are not rated accurately); David A. Walsh & Douglas A. Gentile, A Validity Test of Movie, Television, and Video-Game Ratings, 107 Pediatrics 1302, 1306 (2001) (study finding that parents concluded that half of television shows the industry had rated as appropriate for teenagers were in fact inappropriate, “a signal that the ratings are misleading.”). 139 See ABC Response at 6. Federal Communications Commission FCC 08-55 21 television.”140 This argument is based on a false premise. As discussed above, our finding that the broadcast included a depiction of sexual or excretory organs – namely a woman’s buttocks – was necessary, but not sufficient, to find the broadcast indecent.141 We find the nudity here indecent because it was patently offensive when considered in light of contemporary community standards for the broadcast medium. In particular, we find that, in context, the material was shocking, pandering, and titillating.142 This case therefore does not present the question whether a prohibition on broadcast of all “non-sexual nudity” would be constitutionally overbroad. 49. Conflict with Pacifica. The ABC Affiliates also argue that the “Pacifica decision makes it clear that the fleeting nature of the nudity depicted here . . . may not be proscribed.”143 We reject this contention. As an initial matter, the ABC Affiliates are wrong factually: the nudity included in this broadcast was not fleeting.144 Even if it were, however, Pacifica would pose no barrier to a finding of indecency. First, Pacifica involved spoken expletives, not images of nudity. Even if it were true that the Court in Pacifica had drawn the First Amendment line at the twelve minutes it took Carlin to complete his monologue, there is no reason to believe it would require the same amount of repetition in a case of nudity.145 In any event, contrary to the ABC Affiliates’ contention, Pacifica did not decide that regulation of brief expletives would be unconstitutional but instead expressly reserved the question.146 50. The ABC Affiliates also contend that a forfeiture here would conflict with Pacifica’s recognition that “‘context is all-important’”147 because of “the fact that the depiction of bare buttocks occurred in a gritty, realistic police drama unlikely to attract an audience of children, even at 9:00 p.m.”148 Contrary to the ABC Affiliates’ contention, our finding of indecency takes full account of context and reflects careful application of three contextual factors we apply in all our indecency cases.149 Moreover, it is settled that the Commission is permitted to regulate indecency between the hours of 6 a.m. and 10 p.m. – the time of day when children are most likely to be in the audience – and is not required to determine on a broadcast-by-broadcast basis whether children were watching.150 The licensees could have, but did not, 140 ABC Affiliates Response at 67. 141 See supra ¶ 7 . 142 See supra ¶ 16. 143 ABC Affiliates Response at 63. 144 See supra ¶ 15. 145 Cf. United States v. Martin, 746 F.2d 964, 971-72 (3d Cir. 1984) (“The hackneyed expression, ‘one picture is worth a thousand words’ fails to convey adequately the comparison between the impact of the televised portrayal of actual events upon the viewer of the videotape and that of the spoken or written word upon the listener or reader.”) 146 See 438 U.S. at 750. 147 ABC Affiliates Response at 64 (quoting Pacifica, 438 U.S. at 750). 148 ABC Affiliates Response at 64-65. 149 See supra ¶¶ 12 - 18. 150 See ACT III, 58 F.3d at 665-66. As the D.C. Circuit explained, ratings data likely under-estimate the number of children in the audience for indecent programming because “[c]hildren will not likely record, in a Nielsen diary or other survey, that they listen to or view programs of which their parents disapprove.” Id. at 665. In addition, the court noted that “changes in the program menu make yesterday’s findings irrelevant today” and “such station-and program-specific data do not take ‘children's grazing’ into account.” Id. at 665-66. Federal Communications Commission FCC 08-55 22 broadcast this episode of NYPD Blue after 10 p.m. – as their counterparts in the Eastern and Pacific time zones did – and not run afoul of the Commission’s indecency regulations. IV. CONCLUSION 51. Section 503(b) of the Act, 47 U.S.C. § 503(b), and section 1.80(a) of the Commission’s rules, 47 C.F.R § 1.80, both state that any person who willfully or repeatedly fails to comply with the provisions of the Act or the rules shall be liable for a forfeiture penalty. For purposes of section 503(b) of the Act, the term “willful” means that the violator knew it was taking the action in question, irrespective of any intent to violate the Commission’s rules.151 Based on our determination that the stations in question willfully broadcast this episode of NYPD Blue and the material before us, we find that the ABC stations willfully violated 18 U.S.C. § 1464 and section 73.3999 of the Commission’s rules, by airing indecent programming during the NYPD Blue program on February 25, 2003. 52. The Commission’s Forfeiture Policy Statement sets a base forfeiture amount of $7,000 for the transmission of indecent or obscene materials.152 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) of the Act, 47 U.S.C. § 503(b)(2)(D), such as “the nature, circumstances, extent and gravity of the violation, and, with respect to the violator, the degree of culpability, any history of prior offenses, ability to pay, and such other matters as justice may require.” For the following reasons, we find that $27,500, the maximum applicable forfeiture during the time the material was broadcast, is an appropriate proposed forfeiture for the material found to be apparently indecent in this case. The scene depicts a woman’s naked buttocks in a graphic and shocking manner. The material was prerecorded, and ABC or its affiliates could have edited or declined the content prior to broadcast.153 Although ABC included a warning, we find that a lower forfeiture is not warranted here in light of all the circumstances surrounding the apparent violation, including the shocking and titillating nature of the scene. On balance and in light of all of the circumstances, we find that a $27,500 forfeiture amount for each station would appropriately punish and deter the apparent violation in this case. Therefore, we find that each licensee listed in the Attachment is apparently liable for a proposed forfeiture of $27,500 for each station that broadcast the February 25, 2003, episode of NYPD Blue prior to 10 p.m.154 53. Although we are informed that other stations not mentioned in any complaint also broadcast the complained-of episode of NYPD Blue, we propose forfeitures against only those licensees whose broadcasts of the material between 6 a.m. and 10 p.m. were actually the subject of viewer complaints to the Commission. This result is consistent with the approach set forth by the Commission in 151 See Southern California Broadcasting Co., 6 FCC Rcd 4387, 4388 (1991). 152 See The Commission’s Forfeiture Policy Statement and Amendment of Section 1.80 of the Rules to Incorporate the Forfeiture Guidelines, Memorandum Opinion and Order, 12 FCC Rcd 17087, 17113 (1997), recons. denied 15 FCC Rcd 303 (1999) (“Forfeiture Policy Statement”); 47 C.F.R. § 1.80(b). 153 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, 19 FCC Rcd 20191, 20196 ¶ 16 (2004). 154 The fact that the stations in question may not have originated the programming is irrelevant to whether there is an indecency violation. See Review of the Commission’s Regulations Governing Programming Practices of Broadcast Television Networks and Affiliates, Notice of Proposed Rulemaking, 10 FCC Rcd 11951,11961, ¶ 20 (1995) (internal quotation omitted) (“We conclude that a licensee is not fulfilling his 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.”). Federal Communications Commission FCC 08-55 23 its most recent indecency orders.155 As indicated in those orders, our commitment to an appropriately restrained enforcement policy justifies this more limited approach toward the imposition of forfeiture penalties. Accordingly, we propose forfeitures as set forth in the Attachment. 54. We have thoroughly considered all of the licensees’ arguments as well as the factors listed in section 503(b)(2)(D) of the Act. On balance, we believe that a forfeiture penalty in the base amount of $27,500 against the stations listed in Attachment A is appropriate. V. ORDERING CLAUSES 55. ACCORDINGLY, IT IS ORDERED, pursuant to section 503(b) of the Communications Act of 1934, as amended, and section 1.80 of the Commission’s rules,156 that each of the ABC stations listed in Attachment A of this Forfeiture Order are liable for a forfeiture in the amount of $27,500 each for broadcasting indecent material, in willful violation of 18 U.S.C. § 1464 and section 73.3999 of the Commission’s rules. 56. IT IS FURTHER ORDERED that the NAL is cancelled as to Northeast Kansas Broadcast Service, Inc., for KTKA-TV; KFBB Corporation, for KFBB-TV; Louisiana Television Broadcasting, LLC, for WBRZ-TV; WXOW-WQOW Television, Inc., for WXOW-TV; KMBC Hearst-Argyle Television, Inc., for KMBC-TV; KHBS Hearst-Argyle Television, Inc., for KHOG-TV; and Forum Communications Company, for WDAY-TV, for the reasons discussed elsewhere in this Order. 57. IT IS FURTHER ORDERED, pursuant to section 1.80 of the Commission’s rules, that each of the stations listed in Attachment A of this Forfeiture Order SHALL PAY the full amount of its respective forfeiture by the close of business on Thursday, February 21, 2008. Payment of the forfeiture must be made by check or similar instrument, payable to the order of the Federal Communications Commission. The payment must include the NAL/Account number and FRN Number referenced in the Attachment. Payment by check or money order may be mailed to Federal Communications Commission, P.O. Box 979088, St. Louis, MO 63197-9000. Payment by overnight mail may be sent to U.S. Bank – Government Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St. Louis, MO 63101. Payments by wire transfer may be made to ABA Number 021030004, receiving bank TREAS/NYC, and account number 27000001. For payment by credit card, an FCC Form 159 (Remittance Advice) must be submitted. When completing the FCC Form 159, enter the NAL/Account number in block number 23A (call sign/other ID), and enter the letters “FORF” in box 24A (payment type code). Requests for full payment under an installment plan should be sent to: Chief Financial Officer - Financial Operations, 445 12th Street, S.W., Room 1-A625, Washington, D.C. 20554. Please contact the Financial Operations Group Help Desk at 1-877-480-3201 or Email: ARINQUIRIES@fcc.gov with any questions regarding payment procedures. Any station that pays its forfeiture by close of business on February 21 shall so notify Ben Bartolome, Acting Chief of the Enforcement Bureau's Investigations and Hearings Division, by email (Ben.Bartolome@fcc.gov) by close of business that day. The Commission will ensure that each of the stations listed in Attachment A of the Forfeiture Order is notified immediately upon release by the Commission. 58. IT IS FURTHER ORDERED that the Commission will not consider reducing or canceling a forfeiture in response to a claim of inability to pay unless the respondent submits: (1) federal tax returns for the most recent three-year period; (2) financial statements prepared according to generally accepted accounting practices (“GAAP”); or (3) some other reliable and objective documentation that 155 See Omnibus Order, 21 FCC Rcd at 2673 ¶ 32; Omnibus Remand Order, 21 FCC Rcd at 13328-329 ¶¶ 74-77. 156 47 C.F.R. § 1.80. Federal Communications Commission FCC 08-55 24 accurately reflects the respondent’s current financial status. Any claim of inability to pay must specifically identify the basis for the claim by reference to the financial documentation submitted. 59. IT IS FURTHER ORDERED that a copy of this Forfeiture Order shall be sent, by Certified Mail/Return Receipt Requested, to each of the licensees identified in Attachment A hereto and to their respective counsel and representatives identified in Attachment B hereto. FEDERAL COMMUNICATIONS COMMISSION Marlene H. Dortch Secretary Federal Communications Commission FCC 08-55 25 ATTACHMENT A Forfeitures For February 25, 2003 Broadcasts Of NYPD Blue Licensee Name and Mailing Address FRN No. NAL Acct. No. Station Call Sign and Community of License Facility ID Nos. Forfeiture Amount Cedar Rapids Television Company, 2nd Avenue at 5th Street, NE, Cedar Rapids, IA 52401 0002589489 200832080013 KCRG-TV Cedar Rapids, IA 9719 $27,500 Centex Television Limited Partnership, P. O. Box 2522, Waco, TX 76702 0001675719 200832080014 KXXV(TV) Waco, TX 9781 $27,500 Channel 12 of Beaumont, Inc., 525 Interstate Highway, 10 South, Beaumont, TX 77701 0006587307 200832080015 KBMT(TV) Beaumont, TX 10150 $27,500 Citadel Communications, LLC, 44 Pondfield Road, Suite 12, Bronxville, NY 10708 0003757481 200832080016 KLKN(TV) Lincoln, NE 11264 $27,500 KLTV/KTRE License Subsidiary, LLC, 201 Monroe Street, RSA Tower 20th Floor, Montgomery, AL 36104 0015798341 200832080017 KLTV(TV) Tyler, TX 68540 $27,500 Duhamel Broadcasting Enterprises, 518 St. Joseph Street,, Rapid City, SD 57701 0002433340 200832080018 KOTA-TV Rapid City, SD 17688 $27,500 Gray Television Licensee Corp., 1500 North West Street, Wichita, KS 67203 0002746022 200832080020 KAKE-TV Wichita, KS 65522 $27,500 Gray Television Licensee, Inc., P. O. Box 10, Wichita, KS 67201 0002746022 200832080021 KLBY(TV) Colby, KS 65523 $27,500 Federal Communications Commission FCC 08-55 26 Licensee Name and Mailing Address FRN No. NAL Acct. No. Station Call Sign and Community of License Facility ID Nos. Forfeiture Amount KSTP-TV, LLC, 3415 University Avenue, West, St. Paul, MN 55114- 2099 0009769621 200832080022 KSTP-TV St. Paul, MN 28010 $27,500 KATC Communications, Inc., 1103 Eraste Landry Road, Lafayette, LA 70506 0003822285 200832080023 KATC(TV) Lafayette, LA 33471 $27,500 KATV, LLC, P. O. Box 77, Little Rock, AR 72203 0001694462 200832080024 KATV(TV) Little Rock, AR 33543 $27,500 KDNL Licensee, LLC, c/o Pillsbury Winthrop Shaw Pittman, LLP, 2300 N Street, NW, Washington, DC 20037-1128 0002144459 200832080025 KDNL-TV St. Louis, MO 56524 $27,500 KETV Hearst- Argyle Television, Inc., c/o Brooks, Pierce, et al, P. O. Box 1800, Raleigh, NC 27602 0003799855 200832080026 KETV(TV) Omaha, NE 53903 $27,500 KSWO Television Company, Inc., P. O. Box 708, Lawton, OK 73502 0001699248 200832080030 KSWO-TV Lawton, OK 35645 $27,500 KTBS, Inc., P. O. Box 44227, Shreveport, LA 71104 0003727419 200832080031 KTBS-TV Shreveport, LA 35652 $27,500 KTRK Television, Inc., 77 W. 66th Street, Floor 16, New York, NY 10023- 6201 0012480109 200832080032 KTRK-TV Houston, TX 35675 $27,500 KTUL, LLC, 3333 S. 29th West Avenue, Tulsa, OK 74107 0001694413 200832080033 KTUL(TV) Tulsa, OK 35685 $27,500 KVUE Television, Inc., 400 South Record Street, Dallas, TX 75202 0001545581 200832080034 KVUE(TV) Austin, TX 35867 $27,500 McGraw-Hill Broadcasting Company, 123 Speer Boulevard, Denver, CO 80203 0003476827 200832080036 KMGH-TV Denver, CO 40875 $27,500 Federal Communications Commission FCC 08-55 27 Licensee Name and Mailing Address FRN No. NAL Acct. No. Station Call Sign and Community of License Facility ID Nos. Forfeiture Amount Media General Communication Holdings, LLC,, 333 E. Franklin Street, Richmond, VA 23219-2213 0015751217 200832080037 WMBB(TV) Panama City, FL 66398 $27,500 Mission Broadcasting, Inc., 544 Red Rock Drive, Wadsworth, OH 44281 0004284899 200832080038 KODE-TV Joplin, MO 18283 $27,500 Mississippi Broadcasting Partners, c/o Anne Swanson, Dow Lohnes PLLC, 1200 New Hampshire Avenue, NW, Suite 800, Washington DC 20036-6802 0003828753 200832080039 WABG-TV Greenwood, MS 43203 $27,500 Nexstar Broadcasting, Inc., 909 Lake Carolyn Parkway, Suite 1450, Irving, TX 75039 0009961889 200832080040 WDHN(TV) Dothan, AL 43846 $27,500 New York Times Management Services Co. c/o New York Times Co., 229 W.43rd Street, New York, NY 10036-3913 0003481587 200832080041 WQAD-TV Moline, IL 73319 $27,500 Nexstar Broadcasting, Inc., 909 Lake Carolyn Parkway, Suite 1450, Irving, TX 75039 0009961889 200832080042 KQTV(TV) St. Joseph, MO 20427 $27,500 NPG of Texas, L.P., 4140 Rio Bravo, El Paso, TX 79902 0006548028 200832080044 KVIA-TV El Paso, TX 49832 $27,500 Ohio/Oklahoma Hearst-Argyle Television, c/o Brooks Pierce et al, P. O. Box 1800, Raleigh, NC 27602 0001587609 200832080045 KOCO-TV Oklahoma City, OK 12508 $27,500 Federal Communications Commission FCC 08-55 28 Licensee Name and Mailing Address FRN No. NAL Acct. No. Station Call Sign and Community of License Facility ID Nos. Forfeiture Amount Piedmont Television of Huntsville License, LLC, c/o Piedmont Television Holdings LLC, 7621 Little Avenue, Suite 506, Charlotte, NC 28226 0004063483 200832080046 WAAY-TV Huntsville, AL KSPR(TV) Springfield, MO 57292 35630 $55,000 Pollack/Belz Communications Co., Inc., 5500 Poplar Lane, Memphis, TN 38119-3716 0006096200 200832080047 KLAX-TV Alexandria, LA 52907 $27,500 Post-Newsweek Stations, San Antonio, Inc., c/o Post-Newsweek Stations, 550 West Lafayette Boulevard, Detroit, MI 48226-3140 0002149953 200832080048 KSAT-TV San Antonio, TX 53118 $27,500 Scripps Howard Broadcasting Co., 312 Walnut Street, Cincinnati, OH 45202 0012487609 200832080049 KNXV-TV Phoenix, AZ 59440 $27,500 Southern Broadcasting, Inc., P. O. Box 1645, Tupelo, MS 38802 0005411632 200832080050 WKDH(TV) Houston, MS 83310 $27,500 Tennessee Broadcasting Partners, c/o Russell Schwartz, One Television Place, Charlotte, NC 28205 0003828696 200832080051 WBBJ-TV Jackson, TN 65204 $27,500 Tribune Television New Orleans, Inc., 1 Galleria Boulevard, Suite 850, Metairie, LA 70001 0002847564 200832080052 WGNO(TV) New Orleans, LA 72119 $27,500 WAPT Hearst- Argyle TV, Inc., (CA Corp.) , P. O. Box 1800, Raleigh, NC 27602 0005008867 200832080053 WAPT(TV) Jackson, MS 49712 $27,500 WDIO-TV, LLC, 3415 University Avenue West, St. Paul, MN 55114- 2099 0004199139 200832080054 WDIO-TV Duluth, MN 71338 $27,500 Federal Communications Commission FCC 08-55 29 Licensee Name and Mailing Address FRN No. NAL Acct. No. Station Call Sign and Community of License Facility ID Nos. Forfeiture Amount WEAR Licensee, LLC, Pillsbury, Winthrop, Shaw, Pittman, LLP, 2300 N Street, NW, Washington, DC 20037-1128 0004970935 200832080055 WEAR-TV Pensacola, FL 71363 $27,500 WFAA-TV, Inc., 400 South Record Street, Dallas, TX 75202 0001651496 200832080056 WFAA-TV Dallas, TX 72054 $27,500 WISN Hearst- Argyle TV, Inc. (CA Corp.), P. O. Box 1800, Raleigh, NC 27602 0003792603 200832080057 WISN-TV Milwaukee, WI 65680 $27,500 WKOW Television, Inc., P. O. Box 909, Quincy, IL 62306 0004383683 200832080058 WKOW-TV Madison, WI 64545 $27,500 WKRN, G.P., c/o Brooks Pierce et al, P. O. Box 1800, Raleigh, NC 27602 0005015037 200832080059 WKRN-TV Nashville, TN 73188 $27,500 WLS Television, Inc., 77 W. 66th Street, Floor 16, New York, NY 10023-6201 0003471315 200832080060 WLS-TV Chicago, IL 73226 $27,500 WSIL-TV, Inc., 5009 South Hulen, Suite 101, Fort Worth, TX 76132-1989 0002808137 200832080061 WSIL-TV Harrisburg, IL 73999 $27,500 Young Broadcasting of Green Bay, Inc., c/o Brooks Pierce et al, P. O. Box 1800, Raleigh, NC 27602 0004994984 200832080063 WBAY-TV Green Bay, WI 74417 $27,500 Federal Communications Commission FCC 08-55 30 ATTACHMENT B Pleadings Filed Responding to NAL157 Responses to the Notices of Apparent Liability for Forfeiture: · Opposition to Notice of Apparent Liability for Forfeiture of 50 Television Broadcast Stations Affiliated with the ABC Television Network and of the ABC Television Affiliates Association, filed on February 11, 2008, by Cedar Rapids Television Company, Licensee of Station KCRG- TV, Cedar Rapids, Iowa; Centex Television Limited Partnership, Licensee of Station KXXV(TV), Waco, Texas; Channel 12 of Beaumont, Inc., Licensee of Station KBMT(TV), Beaumont, Texas; Citadel Communications, LLC, Licensee of Station KLKN(TV), Lincoln, Nebraska; Duhamel Broadcasting Enterprises, Licensee of Station KOTA-TV, Rapid City, South Dakota; Forum Communications Company, Licensee of Station WDAY-TV, Fargo, North Dakota; Gray Television Licensee, Inc., Licensee of Stations KAKE-TV, Wichita, Kansas and KLBY(TV), Colby, Kansas; KATC Communications, Inc., Licensee of Station KATC(TV), Lafayette, Louisiana; KATV LLC, Licensee of Station KATV(TV), Little Rick Arkansas; KDNL Licensee, LLC, Licensee of Station KDNL-TV, St. Louis, Missouri; Hearst-Argyle Television, Inc., Parent of the Licensee of Stations KETV(TV), Omaha, Nebraska, KHOG-TV, Fayetteville, Arkansas, KMBC-TV, Kansas City, Missouri, KOCO-TV, Oklahoma City, Oklahoma, WAPT(TV), Jackson, Mississippi, and WISN-TV, Milwaukee, Wisconsin; KLTV/KTRE License Subsidiary, LLC, Licensee of Station KLTV(TV), Tyler, Texas; KSTP-TV, LLC, Licensee of Station KSTP-TV, St. Paul, Minnesota; KSWO Television Co., Inc., Licensee of Station KSWO- TV, Lawton, Oklahoma; KTBS, Inc., Licensee of Station KTBS-TV, Shreveport, Louisiana; KTUL, LLC, Licensee of Station KTUL(TV),Tulsa, Oklahoma; KVUE Television, Inc., Licensee of Station KVUE(TV), Austin, Texas; Louisiana Television Broadcasting, LLC, Licensee of Station WBRZ-TV, Baton Rouge, Louisiana; McGraw-Hill Broadcasting Company, Licensee of Station KMGH- TV, Denver, Colorado; Media General Communication Holdings, LLC, Licensee of Station WMBB(TV), Panama City, Florida; Mission Broadcasting, Inc., Licensee of Station KODE-TV, Joplin, Missouri; Mississippi Broadcasting Partners, Licensee of Station WABG-TV, Greenwood, Mississippi; Local TV Illinois License, LLC, Licensee of Station WQAD-TV, Moline, Illinois; Nexstar Broadcasting, Inc., Licensee of Stations WDHN(TV), Dothan, Alabama, and KQTV(TV), St. Joseph, Missouri; Northeast Kansas Broadcast Service, Inc., Former Licensee of Station KTKA-TV, Topeka, Kansas; NPG of Texas, L.P., Licensee of Station KVIA- TV, El Paso, Texas; Piedmont Television of Huntsville License, LLC, Licensee of Stations WAAY-TV, Huntsville, Alabama and KSPR(TV), Springfield, Missouri; Pollack/Belz Communications Co., Inc., Licensee of Station KLAX-TV, Alexandria, Louisiana; Post- Newsweek Stations, San Antonio, Inc., Licensee of Station KSAT-TV, San Antonio, Texas; Scripps Howard Broadcasting Company, Licensee of Station KNXV-TV, Phoenix, Arizona; Southern Broadcasting, Inc., Licensee of Station WKDH(TV), Houston, Texas; Tennessee Broadcasting Partners, Licensee of Station WBBJ-TV, Jackson, Tennessee; Tribune Company, Parent of the Licensee of Station WGNO(TV), New Orleans, Louisiana; WDIO-TV, LLC, Licensee of Station WDIO-TV, Duluth, Minnesota; WEAR Licensee, LLC, Licensee of Station WEAR-TV, Pensacola, Florida; WFAA-TV, Inc., Licensee of Station WFAA-TV, Dallas, Texas; WKOW Television, Inc., Licensee of Station WKOW-TV, Madison, Wisconsin; WKRN, G.P., Licensee of Station WKRN-TV, Nashville, Tennessee; WSIL-TV, Inc., Licensee of Station WSIL-TV, Harrisburg, Illinois; WXOK-WQOW Television, Inc., Licensee of Station WXOW- 157 This list excludes any Freedom of Information Act requests. Federal Communications Commission FCC 08-55 31 TV, LaCrosse, Wisconsin; Young Broadcasting of Green Bay, Inc., Licensee of Station WBAY- TV, Green Bay, Wisconsin; · Opposition of Channel 12 of Beaumont, Inc. to Notice of Apparent Liability for Forfeiture filed by Channel 12 of Beaumont, Inc. (“Beaumont”), Licensee of Station KBMT(TV), Beaumont, Texas, on February 11, 2008 (“Beaumont Response”); · Letter to Benigno E. Bartolome, Acting Chief, Investigations and Hearings Division, Enforcement Bureau, filed by The Wooster Printing Company (“WPRC”), Parent of the former Licensee of Station KFBB-TV, Great Falls, Montana, filed on February 5, 2008 (“WPRC Response”); · Statement of Support filed by Max Media of Montana II LLC (“Max Media”), current Licensee of Station KFBB-TV, Great Falls, Montana, filed on February 11, 2008 (“KFBB Response”); · Opposition of ABC, Inc. to Notice of Apparent Liability for Forfeiture filed on February 11, 2008 by ABC, Inc. (“ABC”), Parent of the WLS Television, Inc., Licensee of Station WLS-TV, Chicago, Illinois, and KTRK Television, Inc., Licensee of Station KTRK-TV, Houston, Texas (“ABC Response”); · Response of Former Licensee, filed by Northeast Kansas Broadcast Service, Inc. (“Northeast”), Former Licensee of Station KTKA-TV, Topeka, Kansas, on February 6, 2008 (“Northeast Response”); Requests for Extension of Time: · Petition for Extension of Time filed by Channel 12 of Beaumont, Inc., Licensee of Station KBMT(TV), Beaumont, Texas, on February 4, 2008; · Letter to Matthew Berry, General Counsel, Federal Communications Commission, cc: Benigno E. Bartolome, Acting Chief, Investigations and Hearings Division, Enforcement Bureau, Request for Extension of Time on February 1, 2008 from Forum Communications Company, Licensee of Station WDAY-TV, Fargo, North Dakota; KVUE Television, Inc., Licensee of Station KVUE(TV), Austin, Texas; and WFAA-TV, Inc., Licensee of Station WFAA-TV, Dallas, Texas; · Motion for Extension of Time filed by Pollack/Belz Communications Co., Inc., Licensee of Station KLAX-TV, Alexandria, Louisiana, on February 1, 2008; · Motion for Extension of Time filed by Post-Newsweek Stations, San Antonio, Inc., Licensee of Station KSAT-TV, San Antonio, Texas, on February 1, 2008; · Motion for Extension of Time KLTV/KTRE License Subsidiary, LLC, Licensee of Station KLTV(TV), Tyler, Texas, on February 1, 2008; · Letter to Benigno E. Bartolome, Acting Chief, Investigations and Hearings Division, Enforcement Bureau, Request for Extension of Time on February 1, 2008 from Centex Television Limited Partnership, Licensee of Station KXXV(TV), Waco, Texas; and KSWO Television Co., Inc., Licensee of Station KSWO-TV, Lawton, Oklahoma; Federal Communications Commission FCC 08-55 32 · Letter to Benigno E. Bartolome, Acting Chief, Investigations and Hearings Division, Enforcement Bureau, Request for Extension of Time, from Scripps Hoard Broadcasting Company, Licensee of Station KNXV-TV, Phoenix, Arizona, on February 1, 2008; · Motion by ABC Television Affiliates Association and Named Licensees for Extension of Time to Response to Notice of Apparent Liability for Forfeiture and Letter to Matthew Berry, General Counsel, Federal Communications Commission, cc: Benigno E. Bartolome, Acting Chief, Investigations and Hearings Division, Enforcement Bureau, Request for Extension of Time on February 1, 2008 from Cedar Rapids Television Company, Licensee of Station KCRG-TV, Cedar Rapids, Iowa; Citadel Communications, LLC, Licensee of Station KLKN(TV), Lincoln, Nebraska; Request for Extension of Time filed by Duhamel Broadcasting Enterprises, Licensee of Station KOTA-TV, Rapid City, South Dakota; KATV LLC, Licensee of Station KATV(TV), Little Rick Arkansas; Hearst-Argyle Television, Inc., Parent of the Licensee of Stations KETV(TV), Omaha, Nebraska; KHOG-TV, Fayetteville, Arkansas; KMBC-TV, Kansas City, Missouri; KOCO-TV, Oklahoma City, Oklahoma; WAPT(TV), Jackson, Mississippi; WISN-TV, Milwaukee, Wisconsin; KTBS, Inc., Licensee of Station KTBS-TV, Shreveport, Louisiana; KTUL, LLC, Licensee of Station KTUL(TV),Tulsa, Oklahoma; NPG of Texas, L.P., Licensee of Station KVIA-TV, El Paso, Texas; WKOW Television, Inc., Licensee of Station WKOW-TV, Madison, Wisconsin; WKRN, G.P., Licensee of Station WKRN-TV, Nashville, Tennessee; WSIL-TV, Inc., Licensee of Station WSIL-TV, Harrisburg, Illinois; WXOK-WQOW Television, Inc., Licensee of Station WXOW-TV, LaCrosse, Wisconsin; Young Broadcasting of Green Bay, Inc., Licensee of Station WBAY-TV, Green Bay, Wisconsin; Tennessee Broadcasting Partners, Licensee of Station WBBJ-TV, Jackson, Tennessee; Mississippi Broadcasting Partners, Licensee of Station WABG-TV, Greenwood, Mississippi; Request for Extension of Time filed by Louisiana Television Broadcasting, LLC, Licensee of Station WBRZ-TV, Baton Rouge, Louisiana; · Motion for Extension of Time of KSPT-TV and WDIO-TV filed on February 4, 2008 by KSTP- TV, LLC, Licensee of Station KSTP-TV, St. Paul, Minnesota; WDIO-TV, LLC, Licensee of Station WDIO-TV, Duluth, Minnesota. Federal Communications Commission FCC 08-55 33 STATEMENT OF COMMISSIONER ROBERT M. McDOWELL RE: Complaints Against Various Television Licensees Concerning Their February 25, 2003 Broadcast of the Program “NYPD Blue”, Forfeiture Order, File Nos. EB-03-IH-0122 and EB-03-IH-0353 While I agree with the substance of the Commission’s decision today, I write separately to note my concerns about a procedural aspect to this proceeding. After the Commission issued its notice of apparent liability for forfeiture, the stations were given only 17 days to file a response – far shorter than the 30 days that is our usual practice. In this instance, the 52 stations, represented by the network and affiliates association, had the resources and wherewithal to prepare a comprehensive and timely response. That may not always be the case. I hope that in future proceedings, we will grant parties a more reasonable opportunity to respond to Commission charges.