FCC Record, Volume 19, No. 6, Pages 4326 to 5230, March 10 - March 19, 2004 Page: 5,035
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the broadcast must be patently offensive as measured by
contemporary community standards for the broadcast medium.17
8. As an initial matter, Infinity disputes that it aired material describing or depicting sexual
and excretory activities and organs.18 Specifically, Infinity argues that the material contains "brief and
non-descriptive references to sexual practices that employ only clinical terms such as "evacuating" and
"oral sex."'9 We disagree. Infinity's argument cites only one of the sexual practices described in the
complained-of material.20 In any event, the material at issue clearly describes named sexual practices21
and also describes features of an excretory organ.22 The material, therefore, warrants further scrutiny to
determine whether or not it was patently offensive as measured by contemporary community standards
for the broadcast medium.23
9. In our assessment of whether broadcast material is patently offensive, "thefull context in
which the material appeared is critically important."24 Three principal factors are significant to this
contextual analysis: (1) the explicitness or graphic nature of the description; (2) whether the material
dwells on or repeats at length descriptions of sexual or excretory organs or activities; and (3) whether the
material appears to pander or is used to titillate or shock.25 In examining these three factors, we must
weigh and balance them to determine whether the broadcast material is patently offensive because "[e]ach
indecency case presents its own particular mix of these, and possibly, other factors."26 In particular cases,
one or two of the factors may outweigh the others, either rendering the broadcast material patently
offensive and consequently indecent,27 or, alternatively, removing the broadcast material from the realm
of indecency.28 In this case, we note that the complained-of material is similar to material broadcast by
the same station that we previously found to be patently offensive as measured by contemporary
community standards for the broadcast medium.29 This finding was based upon an examination of all
17 Industry Guidance on the Commission's Case Law Interpreting 18 U.S.C. 1464 and Enforcement Policies
Regarding Broadcast Indecency ("Indecency Policy Statement'), 16 FCC Rcd 7999, 8002, 7-8 (2001) (emphasis
18 Infinity Response at 9-10.
19 Infinity Response at 10.
20 Id. Infinity claims that discussion of a "blumpkin" involves only "brief and non-descriptive references to sexual
practices that employ only clinical terms such as 'evacuating' and 'oral sex."'
21 See Program Transcript, Attachment A, at 9-10, describing a "blumpkin" and at 10-11, describing the "David
Copperfield." See also, note 30, infra.
22 See Program Transcript, Attachment A at 9-10, describing a "balloon knot" as the anal opening.
23 The "contemporary standards for the broadcast medium" criterion is that of an average broadcast listener and with
respect to Commission decisions, does not encompass any particular geographic area. See Indecency Policy
Statement at 8002, 8 and n. 15.
24 Indecency Policy Statement, 16 FCC Rcd at 8002, 9 (emphasis in original).
25 Id. at 8002-15, m 8-23.
26 Id. at 8003, 11 0.
27 Id. at 8009, 19 (citing Tempe Radio, Inc (KUPD-FM), 12 FCC Red 21828 (MMB 1997) (forfeiture paid)
(extremely graphic or explicit nature of references to sex with children outweighed the fleeting nature of the
references); EZNew Orleans, Inc. (WEZB(FM)), 12 FCC Rcd 4147 (MMB 1997) (forfeiture paid) (same).
28 Id. at 8010, 20 ("the manner and purpose of a presentation may well preclude an indecency determination even
though other factors, such as explicitness, might weigh in favor of an indecency finding").
Federal Communications Commission
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United States. Federal Communications Commission. FCC Record, Volume 19, No. 6, Pages 4326 to 5230, March 10 - March 19, 2004, book, March 2004; Washington D.C.. (https://digital.library.unt.edu/ark:/67531/metadc4079/m1/727/: accessed April 25, 2019), University of North Texas Libraries, Digital Library, https://digital.library.unt.edu; crediting UNT Libraries Government Documents Department.