**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | *  |                              |
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| Complaints Regarding Various     | ** |                              |
| Television                       |    |                              |
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| Broadcasts Between February 2,   | *) |                              |
| 2002 and                         | ** |                              |
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| March 8, 2005                    | *  |                              |
|                                  | *) |                              |
|                                  | ** |                              |
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|                                  | *  |                              |
|                                  | *) |                              |
|                                  | ** |                              |
|                                  |    |                              |
|                                  | *  |                              |
|                                  | *) |                              |
|                                  | ** |                              |
+----------------------------------+----+------------------------------+

**ORDER**

**Adopted: November 6, 2006 Released: November 6, 2006**

By the Commission: Commissioner Adelstein concurring in part, dissenting
in part, and issuing a statement.

Table of Contents

Heading Paragraph \#

I. INTRODUCTION 1

II\. BACKGROUND 2

III\. DISCUSSION 11

A. "The 2003 Billboard Music Awards" 12

B. "The 2002 Billboard Music Awards" 55

C. "The Early Show" 67

D. "NYPD Blue" 74

IV\. ordering clauses 78

# INTRODUCTION

1.  In this Order, we address complaints alleging that four television
    programs ("The 2002 Billboard Music Awards," "The 2003 Billboard
    Music Awards," "NYPD Blue," and "The Early Show") contained indecent
    and/or profane material.[^1] After considering the comments
    submitted by broadcasters as well as other interested parties, we
    find that comments made by Nicole Richie during "The 2003 Billboard
    Music Awards" and by Cher during the "The 2002 Billboard Music
    Awards" are indecent and profane as broadcast but that the
    complained-of material aired on "The Early Show" is neither indecent
    nor profane. In addition, we dismiss on procedural grounds the
    complaints involving "NYPD Blue" as inadequate to trigger
    enforcement action.

# BACKGROUND

2.  On March 15, 2006, the Commission released Notices of Apparent
    Liability and a Memorandum Opinion and Order ("*Omnibus Order*")
    resolving numerous complaints that television broadcasts aired
    between February 2, 2002, and March 8, 2005, contained indecent,
    profane, and/or obscene material.[^2] Section III.A of the *Omnibus
    Order* proposed monetary forfeitures against six different
    television broadcasts for apparent violations of our prohibitions
    against indecency and/or profanity.[^3] Section III.C addressed
    twenty-eight broadcasts that we concluded did not violate indecency,
    profanity, and/or obscenity restrictions for various reasons.[^4] In
    the portion of the *Omnibus Order* at issue here, Section III.B, the
    Commission considered complaints filed against four programs.

3.  "*The 2002 Billboard Music Awards.*" The Commission received a
    complaint concerning "The 2002 Billboard Music Awards" program that
    aired on Station WTTG(TV), Washington, DC, beginning at 8:00 p.m.
    Eastern Standard Time on December 9, 2002.[^5] The complaint
    specifically alleged that during the broadcast Cher, an award
    winner, stated, "'People have been telling me I'm on the way out
    every year, right? So fuck 'em.'"[^6]

4.  "*The 2003 Billboard Music Awards.*" The Commission received a
    number of complaints about the "The 2003 Billboard Music Awards"
    program that aired on Fox Television Network stations beginning at
    8:00 p.m. Eastern Standard Time on December 10, 2003.[^7] The
    complaints concerned a segment in which Nicole Richie, an award
    presenter, stated, "Have you ever tried to get cow shit out of a
    Prada purse? It's not so fucking simple."[^8]

5.  "*NYPD Blue.*" The Commission received complaints concerning the use
    of the term "bullshit" in several "NYPD Blue" episodes that aired on
    KMBC-TV, Kansas City, Missouri, beginning at 9:00 p.m. Central
    Standard Time on various dates between January 14 and May 6,
    2003.[^9]

6.  "*The Early Show.*" The Commission received a viewer complaint that
    Station KDKA-TV, Pittsburgh, Pennsylvania, licensed to CBS
    Broadcasting, Inc. ("CBS"), aired the word "bullshit" during "The
    Early Show" at approximately 8:10 a.m. Eastern Standard Time on
    December 13, 2004.[^10] A videotape obtained from CBS showed that
    during a live interview with Twila Tanner, a contestant on the CBS
    program "Survivor: Vanuatu," Ms. Tanner referred to another
    contestant as a "bullshitter."[^11]

7.  In Section III.B of the *Omnibus Order*, the Commission found that
    the broadcasts at issue apparently violated the statutory and
    regulatory prohibitions against airing indecent and profane
    material.[^12] In light of the circumstances, however, the
    Commission did not initiate forfeiture proceedings against the
    relevant licensees.[^13] All of the broadcasts discussed in Section
    III.B, except for the "The Early Show," preceded the *Golden Globe
    Awards Order*,[^14] in which the Commission made clear that the
    isolated use of an offensive expletive could be actionably
    indecent.[^15] The FCC also stated that its precedent at the time of
    "The Early Show" broadcast "did not clearly indicate that the
    Commission would take enforcement action against an isolated use" of
    "shit" (the "S-Word") or its variants.[^16] Accordingly, consistent
    with its commitment to proceed with caution and restraint in this
    area, the Commission decided that it would not take any adverse
    action against any licensee as a result of these apparent
    violations.[^17]

8.  Following release of the *Omnibus Order*, several parties petitioned
    for judicial review of Section III.B, asserting a variety of
    constitutional and statutory challenges. Fox Television Stations,
    Inc. ("Fox") and CBS filed a joint petition for review in the United
    States Court of Appeals for the Second Circuit.[^18] ABC Television
    Network ("ABC") and Hearst-Argyle Television, Inc. ("Hearst") filed
    a joint petition for review in the United States Court of Appeals
    for the D.C. Circuit, which later transferred the petition to the
    Second Circuit. The Second Circuit consolidated the petitions on
    June 14, 2006.[^19]

9.  At the same time, several parties complained to the Commission about
    the process the Commission followed in formulating Section III.B of
    the *Omnibus Order*. The Commission ordinarily provides broadcasters
    with an opportunity to file responses and raise arguments before
    imposing forfeiture liability.[^20] With one exception, however, the
    FCC did not seek the views of the licensees affected by Section
    III.B of the *Omnibus Order* because the Commission did not impose
    any sanctions on them.[^21] Following the release of the *Omnibus
    Order*, broadcasters complained that they should have had an
    opportunity to present their views before the Commission reached its
    decisions in Section III.B. Upon reflection, the Commission agreed
    and stated that it wanted to ensure that all of the affected
    licensees were afforded a full opportunity to be heard before the
    Commission issued a final decision with respect to the broadcasts at
    issue. Accordingly, on July 5, 2006, the Commission asked the Second
    Circuit for a voluntary remand of the case and stay of the briefing
    schedule. The Commission asked the court to remand the case for 60
    days in order to afford interested parties an opportunity to file
    responses and the Commission an opportunity to give the issues
    further consideration.

10. The Second Circuit granted the Commission's motion on September 7,
    2006, remanding for a period of 60 days "for the entry of a further
    final or appealable order of the FCC following such further
    consideration as the FCC may deem appropriate in the
    circumstances."[^22] On the same day, the Commission announced a
    two-week filing period for interested parties wishing to submit
    comments concerning the four cases.[^23] The Enforcement Bureau
    separately issued Letters of Inquiry ("LOIs") to Fox, CBS, and KMBC
    Hearst-Argyle Television, Inc. on September 7, 2006, and to those
    broadcasters as well as other parties to the Second Circuit
    proceeding on September 18, 2006.

# DISCUSSION

11. Consistent with our commitment to consider the comments and LOI
    responses filed following the Second Circuit's *Remand Order* and to
    take a fresh look at the issues raised by the four programs at issue
    on remand, we vacate Section III.B of the *Omnibus Order* in its
    entirety and replace it with the decisions below.

## "The 2003 Billboard Music Awards"

12. *The Programming.* The Commission, Fox, stations licensed to Fox or
    its affiliated companies, and affiliates of the Fox Television
    Network all received a number of complaints from individual viewers
    and organizations alleging that Fox stations aired indecent material
    during "The 2003 Billboard Music Awards" program on December 10,
    2003 between 8 p.m. and 10 p.m. Eastern Standard Time.[^24] The
    complainants alleged that Nicole Richie, who with Paris Hilton
    presented an award on the program, uttered language that was
    indecent and profane in violation of 18 U.S.C. § 1464 and the
    Commission's rule restricting the broadcast of indecent material.
    The complainants requested that the Commission impose sanctions
    against each station that aired the remarks.

13. The Bureau sent Fox a letter of inquiry on January 7, 2004.[^25] Fox
    responded on January 30, 2004, attaching a transcript of the
    material at issue.[^26] According to Fox, the program announcer
    introduced Paris Hilton and Nicole Richie, stars of the Fox
    Television Network show "The Simple Life,"[^27] as follows: "To
    present the award for Top 40 Mainstream Track, here are two babes
    whose lives are anything but mainstream. From their hit TV series,
    'The Simple Life,' please welcome Nicole Richie and Paris Hilton."
    Following that introduction, Paris Hilton and Nicole Richie walked
    onstage to present the award. Fox-owned stations and Fox affiliates
    in the Eastern and Central Time Zones then broadcast the following
    exchange between them:

> Paris Hilton: Now Nicole, remember, this is a live show, watch the bad
> language.
>
> Nicole Richie: Okay, God.
>
> Paris Hilton: It feels so good to be standing here tonight.
>
> Nicole Richie: Yeah, instead of standing in mud and \[audio blocked\].
> Why do they even call it "The Simple Life?" Have you ever tried to get
> cow shit out of a Prada purse? It's not so fucking simple.[^28]

14. Fox contends that this broadcast was not actionably indecent.
    Although Fox concedes that it broadcast the F-Word, it argues that
    the word, in context, did not depict or describe sexual activities
    but rather, "at most," was a "vulgar expletive used to express
    emphasis," and thus is outside the scope of the Commission's
    indecency definition.[^29] As for the use of the S-Word, Fox does
    not deny that it was used in the excretory sense. It argues,
    however, that the dialogue "contained at most a passing reference to
    an excretory by-product (i.e., 'cow shit') and an expletive used for
    emphasis," that the dialogue lasted only 22 seconds, and that it was
    not pandering, titillating or shocking.[^30] Therefore, Fox contends
    that the dialogue is not actionably indecent.

15. *Indecency Analysis*. The Commission defines indecent speech as
    material that, in context, depicts or describes sexual or excretory
    activities or organs in terms patently offensive as measured by
    contemporary community standards for the broadcast medium.[^31]
    Thus, indecency findings require two primary determinations. First,
    the material alleged to be indecent must fall within the subject
    matter scope of our indecency definition -- that is, the material
    must describe or depict sexual or excretory organs or activities.
    Second, the material must be patently offensive as measured by
    contemporary community standards for the broadcast medium.[^32] In
    our assessment of whether broadcast material is patently offensive,
    "the full context in which the material appeared is critically
    important."[^33] 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
    the descriptions; and (3) whether the material panders to,
    titillates or shocks the audience.[^34] 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."[^35] In particular cases, one or two of the factors may
    outweigh the others, either rendering the broadcast material
    patently offensive and consequently indecent,[^36] or,
    alternatively, removing the broadcast material from the realm of
    indecency.[^37]

16. With respect to the first determination, Fox does not dispute that
    Ms. Richie's comment -- "Have you ever tried to get cow shit out of
    a Prada purse?" -- refers to excrement, and we conclude that it is
    clearly within the scope of our indecency definition. Fox does
    contend that Ms. Richie's use of the "F-Word" -- in the statement
    "\[i\]t's not so fucking simple" -- does not describe sexual
    activities and thus falls outside the scope of our indecency
    definition, but we disagree. A long line of precedent indicates that
    the use of the "F-Word" for emphasis or as an intensifier comes
    within the subject matter scope of our indecency definition.[^38]
    Given the core meaning of the "F-Word," any use of that word has a
    sexual connotation even if the word is not used literally. Indeed,
    the first dictionary definition of the "F-Word" is sexual in
    nature.[^39] Moreover, it hardly seems debatable that the word's
    power to "intensify" and offend derives from its implicit sexual
    meaning.[^40] Accordingly, we conclude that, as we stated in *Golden
    Globe*,[^41] its use inherently has a sexual connotation and thus
    falls within the scope of our indecency definition. The material
    thus warrants further scrutiny to determine whether it is patently
    offensive as measured by contemporary community standards for the
    broadcast medium. Looking at the three principal factors in our
    contextual analysis, we conclude that it is.

17. We will first address the first and third principal factors in our
    contextual analysis -- the explicitness or graphic nature of the
    material and whether the material panders to, titillates, or shocks
    the audience. The complained-of material is quite graphic and
    explicit. Ms. Richie's comment referring to excrement conveys a
    graphic image of Ms. Richie trying to scrape cow excrement out of
    her designer hand bag. Because of her use of the "S-Word," Ms.
    Richie's description also contained quite vulgar language.
    Furthermore, the vulgar description of excrement was coupled with
    the use of the "F-Word." As we have previously concluded, the
    "F-Word" is one of the most vulgar, graphic, and explicit words for
    sexual activity in the English language.[^42] Here, Ms. Richie's use
    of the "F-Word" coupled with her graphic and explicit description of
    the handling of excrement during a live broadcast of a popular music
    awards ceremony when children were expected to be in the audience
    was vulgar and shocking.[^43] Her comments were also presented in a
    pandering manner. As part of their dialogue, Ms. Hilton reminded Ms.
    Richie to "watch the bad language," a comment that served to preview
    and highlight for the viewing audience Ms. Richie's remarks.
    Moreover, Fox does not argue that there was any justification for
    Ms. Richie's comments.[^44]

18. We note that when the Supreme Court stressed the importance of
    context in *Pacifica*, it mentioned as relevant contextual factors
    the time of day of the broadcast, program content as it affects "the
    composition of the audience," and the nature of the medium.[^45] All
    of these factors support the conclusion that the dialogue here was
    patently offensive in context. The complained-of material was
    broadcast early in prime time. The program's content was, as
    discussed above, graphic, explicit and vulgar, both in its excretory
    description and its use of the "F-Word." The program was designed to
    draw a large nationwide audience that could be expected to include
    many children interested in seeing their favorite music stars.
    Although there is no requirement that we document the presence of
    children in the audience for a program that is subject to an
    indecency complaint and is aired between 6 a.m. and 10 p.m.,[^46] we
    note that in this case a significant portion of the viewing audience
    for this program was under 18. According to Nielsen ratings data,
    during an average minute of "The 2003 Billboard Music Awards"
    broadcast, 2,312,000 (23.4%) of the 9,871,000 people watching the
    program were under 18, and 1,089,000 (11%) were between the ages of
    2 and 11. In addition, we note that this program was rated
    TV-PG(DL). Such a rating would *not* have put parents or others on
    notice of such vulgar language, and the broadcast contained no other
    warnings to viewers that it might contain material highly unsuitable
    for children.[^47] This no doubt helps explain the strong feelings
    that many of the complainants, particularly those who were watching
    the program with their children, expressed regarding the
    unexpectedly vulgar content.[^48] In light of all of these factors,
    we conclude that the first and third factors in our contextual
    analysis both weigh heavily in favor of a finding that the material
    is patently offensive.

19. With respect to the second factor in our contextual analysis --
    whether the complained-of material was sustained or repeated -- Fox
    argues that the dialogue here was a "fleeting and isolated
    utterance" and that such material is not actionably indecent.[^49]
    We disagree.

20. Fox's argument that a "fleeting and isolated utterance" is not
    actionably indecent is based largely on staff letters and dicta in
    decisions predating the Commission's *Golden Globe Awards Order*.
    For example, in a 1987 decision clarifying that our indecency
    definition was not restricted only to the seven words contained in
    the George Carlin monologue determined to be indecent in *Pacifica,*
    the Commission distinguished in dicta between "expletives" -- words
    such as the "F-Word" or the "S-Word" used outside of their core
    sexual or excretory meanings -- and descriptions of sexual or
    excretory functions. And, in so doing, the Commission suggested: "If
    a complaint focuses solely on the use of expletives, we believe that
    . . . deliberate and repetitive use in a patently offensive manner
    is a requisite to a finding of indecency."[^50] The Commission made
    clear, however, that repetition was *not* required when speech
    "involv\[es\] a description or depiction of sexual or excretory
    functions" and that "\[t\]he mere fact that specific words or
    phrases are not *repeated* does not mandate a finding that material
    that is otherwise patently offensive to the broadcast medium is not
    indecent."[^51] In this case, Ms. Richie's use of the "S-Word"
    clearly involved "a description of excretory functions."[^52]

21. Subsequent to this 1987 guidance, there were several Bureau-level
    decisions finding the isolated use of an expletive not to be
    actionably indecent.[^53] In no case, however, did the Commission
    itself, when evaluating an actual program, find that the isolated
    use of an expletive, such as the "F-Word," as broadcast was not
    indecent or could not be indecent. In our 2001 *Indecency Policy
    Statement*,[^54] we explained that "where sexual or excretory
    references have been made once or have been passing or fleeting in
    nature, this characteristic has tended to weigh against a finding of
    indecency,"[^55] but also noted "even relatively fleeting references
    may be found indecent where other factors contribute to a finding of
    patent offensiveness."[^56] Then, in 2004, the Commission itself
    considered for the first time in an enforcement action whether a
    single use of an expletive could be indecent. And in evaluating the
    broadcast of the F-Word during "The Golden Globe Awards," we
    overturned the Bureau-level decisions holding that an isolated
    expletive could not be indecent and disavowed our 1987 dicta on
    which those decisions were based.

22. While it is important to understand the history of the Commission's
    decisions in this area, we reject Fox's suggestion that Nicole
    Richie's comments would not have been actionably indecent prior to
    our *Golden Globe* decision.[^57] Rather, Ms. Richie's remarks would
    have been actionably indecent prior to our *Golden Globe* decision
    for three separate reasons. First, even under our pre-*Golden Globe*
    dicta, the offensive material here does not consist solely of the
    use of expletives; as discussed above, the "S-Word" was used here in
    its excretory sense and was integral to a graphic and vulgar
    description that clearly falls within the scope of our indecency
    rule. As we stated in our 1987 guidance, "repetitive use" was not
    required under such circumstances.[^58] Second, the offensive
    language was "repeated" in that it included not one but two
    extremely graphic and offensive words. Third, there seems to be
    little doubt that Ms. Richie's comments were deliberately uttered
    and that she planned her comments in advance.[^59] Ms. Hilton's
    opening remark to Ms. Richie that this was a live show and she
    should "watch the bad language" strongly suggests that the offensive
    language that followed was not spontaneous. Further, there is
    nothing in Ms. Richie's confident and fluid delivery of the lines,
    and her use of multiple offensive words, that suggests that any of
    the language was a spontaneous slip of the tongue. Thus, given the
    presence of a graphic description of excretory functions, the
    presence of multiple offensive words, and the deliberate nature of
    Ms. Richie's comments, we conclude that this broadcast would have
    been actionably indecent consistent with prior Commission guidance
    even in the absence of our *Golden Globe* decision.[^60]

23. In addition, this broadcast is actionably indecent under the *Golden
    Globe Awards Order*.[^61] In that Order, we stated that the "mere
    fact that specific words or phrases are not sustained or repeated
    does not mandate a finding that material that is otherwise patently
    offensive to the broadcast medium is not indecent."[^62] While, as
    explained above, Commission dicta and Bureau-level decisions issued
    before *Golden Globe* had suggested that expletives had to be
    repeated to be indecent but "descriptions or depictions of sexual or
    excretory functions" did not need to be repeated to be indecent, we
    believe that this guidance was seriously flawed. We thus reaffirm
    that it was appropriate to disavow it. To begin with, any strict
    dichotomy between "expletives" and "descriptions or depictions of
    sexual or excretory functions" is artificial and does not make sense
    in light of the fact that an "expletive's" power to offend derives
    from its sexual or excretory meaning.[^63] Indeed, this is why it
    has long been clear that such words fall within the subject matter
    scope of our indecency definition, which since *Pacifica* has
    involved the description of sexual or excretory organs or
    activities.[^64] Moreover, in certain cases, it is difficult (if not
    impossible) to distinguish whether a word is being used as an
    expletive or as a literal description of sexual or excretory
    functions. Finally, and perhaps most importantly, categorically
    requiring repeated use of expletives in order to find material
    indecent is inconsistent with our general approach to indecency
    enforcement, which stresses the critical nature of context.[^65] In
    evaluating whether material is patently offensive, the Commission's
    approach has generally been to examine all factors relevant to that
    determination.[^66] To the extent that Commission dicta had
    previously suggested that one of these factors --whether material
    had been repeated -- would always be decisive in a certain category
    of cases, we believe that such dicta was at odds with the
    Commission's overall enforcement policy and was appropriately
    disavowed.

24. Turning back to "The 2003 Billboard Music Awards" broadcast, we
    believe that we need not ignore "the first blow" to the television
    audience in the circumstances presented here.[^67] Nor do we think
    that *Pacifica* requires that approach. The major broadcast networks
    ("Networks") argue that the *Pacifica* Court "would have never
    approved" an indecency enforcement regime that applied to isolated
    and fleeting expletives.[^68] But this claim finds no support in
    *Pacifica*, in which the Court specifically reserved the question of
    "an occasional expletive" and noted that it addressed only the
    "particular broadcast" at issue in that case.[^69] Indeed, we think
    it significant that the "occasional expletive" contemplated by the
    Court was one that occurred in "a two-way radio conversation between
    a cab driver and a dispatcher," -- a conversation not broadcast to a
    wide audience -- "or a telecast of an Elizabethan comedy," settings
    far removed from the broadcast at issue here.[^70]

25. In explaining the special nature of the broadcast medium, the
    Supreme Court emphasized the "pervasive presence \[of the broadcast
    medium\] in the lives of all Americans" and that indecent broadcasts
    invade the privacy of the home. It rejected the argument that one
    could protect oneself by turning off the broadcast upon hearing
    indecent language: "To say that one may avoid further offense by
    turning off the radio when he hears indecent language is like saying
    that the remedy for an assault is to run away after the first
    blow."[^71] We believe that granting an automatic exemption for
    "isolated or fleeting" expletives unfairly forces viewers (including
    children) to take "the first blow." Indeed, it would as a matter of
    logic permit broadcasters to air expletives at all hours of a day so
    long as they did so one at a time. For example, broadcasters would
    be able to air any one of a number of offensive sexual or excretory
    words, regardless of context, with impunity during the middle of the
    afternoon provided that they did not air more than one expletive in
    any program segment.[^72] Such a result would be inconsistent with
    our obligation to enforce the law responsibly. We do not believe
    that viewers of free television broadcasts utilizing the public
    airwaves should feel, as so many of the complaining viewers of "The
    2003 Billboard Music Awards" clearly do, that they cannot safely
    allow their families to watch prime-time broadcasts.[^73]

26. Nor, as discussed above, are the Networks correct in their
    suggestion that fleeting utterances have never before been
    regulated. On the contrary, our *Golden Globe Awards* decision was
    not the first time that a fleeting utterance had been found to be
    indecent.[^74] We have long recognized that "even relatively
    fleeting references may be found indecent" if the context makes them
    patently offensive.[^75]

27. We thus conclude that the fact that the offensive dialogue here was
    relatively brief is not dispositive under these particular
    circumstances. This is not a case involving a single, spontaneously
    uttered expletive. Rather, it was two sentences, one of which
    contained a graphic excretory description and the other a vulgar
    expletive used to heighten the effect of the excretory description.
    And, as noted above, these statements were not spontaneous slips of
    the tongue, but rather were planned by the speaker and presaged by
    the introductory remark to "watch the bad language."

28. With respect to our analysis of the complained-of material, we
    emphatically reject the argument made by Fox and other broadcasters
    that the "contemporary community standards" employed by the
    Commission merely reflect the "subjective opinions" or "the tastes
    of the individuals with seats on the Commission."[^76] Rather, as we
    have previously stated, in evaluating material, we rely on the
    Commission's "collective experience and knowledge, developed through
    constant interaction with lawmakers, courts, broadcasters, public
    interest groups, and ordinary citizens."[^77]

29. In this case, moreover, our assessment of contemporary community
    standards for the broadcast medium is strongly bolstered by
    broadcasters' own practices. As mentioned above, during the 10:00
    p.m.-6:00 a.m "safe harbor," broadcasters are permitted to air
    indecent and profane material. Nevertheless, with rare exceptions,
    they do not allow the "F-Word" or the "S-Word" to be broadcast
    during that time period. Fox, for example, "generally prohibit\[s\]
    use of any form of the F-word or S-word during any day part,
    *including late-night programming*."[^78] NBC also "does not
    broadcast the 'F-Word' and the 'S-Word'" during the "safe harbor"
    "except in unusual circumstances" and generally does not allow such
    language to be broadcast on its flagship late-night program "The
    Tonight Show with Jay Leno."[^79] Similarly, ABC, even during safe
    harbor hours, "generally has not approved the broadcast of the
    'f-word' and the 's-word.'"[^80] For instance, during a recent
    broadcast of "Nightline," ABC deleted uses of the "F-Word" in a
    piece on actor Mark Wahlberg.[^81] CBS, likewise, indicates that
    "\[g\]enerally speaking, broadcast\[s\] of the 'F-word' and 'S-word'
    are not permitted under CBS's Television Network Standards *at any
    time of \[the\] day*."[^82] Hearst also reports that its general
    policy, "which applies *at all times*, is that vulgar language such
    as the F-Word and the S-Word \[is\] not to be knowingly
    broadcast."[^83] To be sure, each of the broadcasters avers that in
    certain contexts, such as the motion picture *Saving Private Ryan*,
    they do permit the broadcast of the "F-Word" and the "S-Word."
    However, none of these examples bears even the slightest resemblance
    to Nicole Richie's comments during "The 2003 Billboard Music
    Awards."[^84] Indeed, in Congressional testimony, Fox's President of
    Entertainment recognized that the very comments at issue here -- Ms.
    Richie's remarks -- contained "inappropriate language."[^85]
    Moreover, Fox edited out her comments in its broadcasts to the
    Mountain and Pacific Time Zones.

30. Taken as a whole, broadcasters' practices with respect to
    programming aired during the safe harbor reflect their recognition
    that airing the "F-Word" and the "S-Word" on broadcast television is
    generally offensive to the viewing audience and, in the usual case,
    not consistent with contemporary community standards for the
    broadcast medium. They also reinforce our conclusion that Nicole
    Richie's comments during "The 2003 Billboard Music Awards" were
    patently offensive under contemporary community standards. For all
    of these reasons, we conclude that, given the explicit, graphic,
    vulgar, and shocking nature of Ms. Richie's comments, they were
    patently offensive under contemporary community standards for the
    broadcast medium and thus indecent as broadcast.[^86]

31. We also disagree that it would be inequitable to hold Fox
    responsible for airing offensive language during "The 2003 Billboard
    Music Awards" due to the live, unscripted nature of the
    material.[^87] In disclaiming responsibility, Fox states that Nicole
    Richie's and Paris Hilton's scripted dialogue did not contain the
    "F-Word" or "S-Word." Rather, Ms. Richie's first scripted line read:
    "Yeah -- instead of standing in mud and pig crap." When she spoke,
    she substituted "cow shit" (which was blocked out in the audio feed)
    for "pig crap" in that line. In the sentences at issue here, Ms.
    Richie was scripted to say "Have you ever tried to get cow manure
    out of a Prada purse? It's not so freaking simple."[^88]

32. Fox also describes the measures it employed to delete objectionable
    material from the broadcast. It says that as in previous years --
    including during "The 2002 Billboard Music Awards" broadcast when it
    aired Cher's use of the phrase "fuck 'em" -- it utilized a
    five-second delay that it normally used during the production of
    live entertainment programming. A Broadcast Standards employee
    monitored the broadcast and operated a "delay button" that enables
    an employee to edit out objectionable content before it airs. Fox
    also assigned a Broadcast Standards representative to the event to
    review the script, attend dress rehearsals and be present at the
    event, as it normally did for the production of live entertainment
    events. During "The 2003 Billboard Music Awards" program, the
    employee operating the delay button edited out the vulgar phrase
    "cow shit" the first time Ms. Richie said it, but failed to edit out
    the remaining offensive language discussed above. The program aired
    several hours later on stations in the Mountain and Pacific time
    zones, and Fox did remove the offensive language before it aired on
    those stations.[^89]

33. As Fox points out, the FCC has long recognized that it may be
    inequitable to hold a licensee responsible for airing offensive
    speech during live coverage of a public event under some
    circumstances.[^90] But the Commission has not hesitated to enforce
    its indecency standard where, as here, a licensee fails to exercise
    "reasonable judgment, responsibility and sensitivity to the public's
    needs and tastes to avoid patently offensive broadcasts."[^91] Here,
    the original script for "The 2003 Billboard Music Awards" increased
    the likelihood that Ms. Richie would ad-lib offensive remarks; as
    noted above, it called for her to make excretory references to "pig
    crap" and "cow manure," and to substitute the euphemism "freaking"
    for the "F-Word."[^92] Such a script might have posed minimal risk
    in the hands of some performers. Relying on Ms. Hilton and Ms.
    Richie to avoid vulgar language, however, involved a substantially
    greater risk.[^93] As Fox well knew, Ms. Richie frequently used
    indecent language in inappropriate contexts. For example, during the
    three episodes of "The Simple Life" that it broadcast in the days
    leading up to the "The 2003 Billboard Music Awards," Fox felt it
    necessary to bleep expletives (the "F-Word" or "S-Word") uttered by
    Ms. Richie no fewer than nine times.[^94] Yet Ms. Richie was still
    selected as a presenter for the live, prime-time awards show, and
    Fox has not claimed it made any effort to caution Ms. Richie about
    its broadcast standards for the program or that it took any special
    precautions (beyond its standard five-second delay) to guard against
    her use of expletives on the air. Indeed, Fox does not even contend
    that it took any action against Ms. Richie after this episode.

34. Even more significant, the particular five-second delay and editing
    system that Fox used in this case had already proved inadequate to
    delete Cher's offensive language during Fox's broadcast of "The 2002
    Billboard Music Awards" the previous year. During that broadcast,
    Cher, when accepting an award, had stated, "'People have been
    telling me I'm on the way out every year, right? So fuck 'em.'"[^95]
    According to Fox, the employee in charge of deleting objectionable
    material did not act quickly enough and ended up editing out
    dialogue that aired after Cher's comment.[^96] Despite this failure,
    Fox took no additional precautions to avoid airing such material the
    next year.[^97] The record also demonstrates that steps may be
    taken, such as adding "delay buttons" or lengthening the delay, that
    allow for far more effective editing of potentially objectionable
    content.[^98] Here, Fox itself contends that the time delay and
    editing system that it used for "The 2003 Billboard Music Awards"
    was inadequate, maintaining that it imposed on the operator a
    "Herculean task" because he was "essentially trying to watch two
    programs at once -- the live version occurring in real-time and the
    delayed version that was broadcast seconds later."[^99] Then, if he
    heard or saw objectionable content, he was required to "press the
    appropriate audio and/or video delay buttons at the precise instant
    necessary to eliminate the objectionable content from the delayed
    feed" while at the same time "staying abreast of the continuing live
    feed."[^100] In short, under these circumstances, Fox should have
    recognized the high risk that "The 2003 Billboard Music Awards"
    broadcast raised of airing indecent material. Nevertheless, Fox
    chose to rely on the same delay and editing system that had proved
    inadequate the previous year to delete an expletive during the same
    show. We are not persuaded, therefore, that Fox's efforts to edit
    out the offensive language were diligent or reasonable.

35. We recognize that no delay and editing system is foolproof and that
    there is always a possibility of human error in using delay
    equipment to edit live programming. The Commission can and will
    consider these facts in deciding what, if any, remedy is
    appropriate. In this case, however, as discussed above, we conclude
    that Fox's efforts to prevent and edit out Ms. Richie's comments
    were not diligent or reasonable.

36. Holding Fox responsible for airing indecent material in this case
    does not place live broadcasts at risk or impose undue burdens on
    broadcasters.[^101] This case does not involve breaking news
    coverage that Fox and other broadcasters have traditionally
    presented in so-called "real time."[^102] Nevertheless, Fox argues
    that "\[t\]he live presentation of awards shows . . . is what makes
    this content so compelling."[^103] Fox, however, did not even decide
    to air the program live in much of the country. Rather, viewers in
    the Mountain Time Zone saw the program with a one-hour delay, and
    those in the Pacific Time Zone experienced a three-hour delay. We
    find it difficult to understand why viewers on the East Coast would
    no longer find "live programming" to be "compelling" with a
    ten-second delay while it is evidently acceptable to provide this
    programming to viewers in the western half of the country with a
    one-hour or three-hour delay. Moreover, with respect to awards shows
    as a whole, the record reflects that the vast majority of awards
    shows are not aired by major networks live in the Pacific Time
    Zone.[^104] Rather, they are generally broadcast with a three-hour
    delay, thus undermining any assertion that it is important that
    viewers see the presentation of the awards without the comparatively
    minimal delay required to remove indecent language.

37. Under the circumstances, we fail to see how a delay of five, ten, or
    even fifteen seconds meaningfully affects the value of this
    programming or significantly implicates First Amendment values. In
    this vein, we note that so-called "live" programming is not
    literally live -- viewers at home do not see an event at the very
    time that it is actually occurring. Rather, there is a natural delay
    caused by the time that it takes a signal to reach viewers. The
    record shows that digital signals, for example, may take up to 1.3
    to 3.3 seconds to reach viewers over-the-air.[^105] And, if viewers
    are receiving such signals through a cable operator or satellite
    provider, there may be an additional delay of up to 3 seconds.[^106]
    Finally, if a viewer has a digital video recorder, there is another
    additional delay of approximately another half-second.[^107] Thus,
    using a conservative estimate, a viewer may be watching an event
    more than three seconds after it occurs, even in the absence of any
    delay technology. In light of this, we fail to see how there is a
    meaningful adverse impact on a viewer's experience because he or she
    learns the winner of the Billboard Award for Top 40 Mainstream Track
    some eight to eighteen seconds after the winner is announced on
    stage in Las Vegas (with a delay) as opposed to after the normal
    three to six seconds (without one).

38. Finally, we note that our decision here will not deprive Fox of the
    ability to present such programming in substantially the same way
    that it has in the past. Fox has utilized a time delay and other
    procedures to avoid airing patently offensive material during live
    entertainment broadcasts such as "The 2003 Billboard Music Awards"
    for years before the Commission's decision in the *Golden Globe
    Awards Order*.[^108] We also disagree that "delaying live broadcasts
    to edit potentially offensive language inevitably results in
    overbroad censorship of appropriate material."[^109] As the D.C.
    Circuit observed, "some degree of self-censorship is inevitable and
    not necessarily undesirable so long as proper standards are
    available."[^110] The possibility that an over-zealous broadcast
    standards employee may "dump" material that is not actionably
    indecent during the live presentation of an awards show does not
    outweigh the compelling interest in preventing patently offensive
    broadcasts such as the one that occurred in this case.

39. For all of these reasons, we conclude that Fox's broadcast of "The
    2003 Billboard Music Awards" violated the prohibitions in 18 U.S.C.
    § 1464 and the Commission's rules against broadcast indecency and
    that it is not inequitable to hold Fox responsible for these
    violations.

40. *Profanity Analysis*. Consistent with our decisions in the *Golden
    Globe Awards Order* and the *Omnibus Order*, we also find that the
    complained-of language in the program at issue violated Section
    1464's prohibition on the broadcast of "profane" utterances.[^111]
    In the *Golden Globe Awards Order*, the Commission concluded that
    the "F-Word" was profane within the meaning of Section 1464 because,
    in context, it constituted vulgar and coarse language "'so grossly
    offensive to members of the public who actually hear it as to amount
    to a nuisance.'"[^112] Similarly, we concluded in the *Omnibus
    Order* that the "S-Word" is a vulgar excretory term so grossly
    offensive to members of the public that it amounts to a nuisance and
    is presumptively profane.[^113] In certain cases, language that is
    presumptively profane will not be found to be profane where it is
    demonstrably essential to the nature of an artistic or educational
    work or essential to informing viewers on a matter of public
    importance.[^114] However, such circumstances are not present here:
    Fox does not contend that Ms. Richie's profane language was
    essential to informing viewers on a matter of public importance or
    that modifying the language would have had a material impact on its
    function as a source of news and information. On the contrary, Fox
    sought (albeit unsuccessfully) to delete the profane language, and
    did remove it before the program aired on time delay in the Mountain
    and Pacific Time Zones.[^115] It is undisputed that the
    complained-of material, including the "F-Word" and the "S-Word," was
    broadcast within the 6 a.m. to 10 p.m. time frame relevant to a
    profanity determination.[^116] Because there was a reasonable risk
    that children may have been in the audience at the time of the
    broadcast on December 10, 2003,[^117] the broadcast is legally
    actionable.

41. Contrary to the Networks' *Joint Comments*, we believe that our
    interpretation of "profane" as used in Section 1464 is
    appropriate.[^118] The word has long carried a variety of meanings,
    including non-religious meanings.[^119] Several courts have
    interpreted the word in a non-religious sense, consistent with the
    established rule that a court should construe a statute, if
    reasonably possible, to avoid constitutional problems.[^120]
    Further, when viewed in its statutory context with the words
    "obscene" and "indecent," both of which have vulgar overtones, we
    believe that the word "profane" is reasonably interpreted in the
    related sense of "grossly offensive."[^121] We do not read the cases
    cited by the Networks as precluding a non-religious interpretation.
    *Duncan* upheld a conviction for broadcasting profanity where the
    defendant "referred to an individual as 'damned,'" "used the
    expression 'By God' irreverently," and "announced his intention to
    call down the curse of God upon certain individuals."[^122] But the
    court held only that this language was "within the meaning of that
    term" as used in the Radio Act of 1927, not that the provision
    *only* covered such language.[^123] *Gagliardo* addressed the
    meaning of "profane" in Section 1464 only in *dicta*, because the
    government in that case did not contend that the words at issue were
    profane.[^124] Finally, the fact that the Commission has a specific
    rule addressing "obscene" and "indecent" programming[^125] plainly
    does not foreclose the agency from exercising in an adjudication its
    express statutory authority to take enforcement action against
    broadcasts that are "profane."[^126]

42. *Constitutional Issues.* The Networks offer a variety of arguments
    attacking the constitutionality of the Commission's indecency
    framework as it relates to "The 2003 Billboard Music Awards"
    broadcast. We do not find any of these arguments to be persuasive.

43. First, the Networks argue that our definition of indecency is
    unconstitutionally vague.[^127] However, that definition is
    essentially the same as the one that we articulated in the order
    under review in *FCC v. Pacifica Foundation*.[^128] The Supreme
    Court had no difficulty in applying that definition and using it to
    conclude that the broadcast at issue in that case was
    indecent.[^129] We 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."[^130]

44. The Networks suggest that the Supreme Court's more recent decision
    in *Reno v. ACLU*[^131] has "undermine\[d\] any constitutional
    defense of the Commission's current approach" to indecency.[^132] In
    *Reno*, the Court considered the constitutionality of the
    Communications Decency Act of 1996 (CDA), a statute that regulated
    indecency on the Internet and that contained a definition similar to
    ours.[^133] Though the Court did not hold that the statute was "so
    vague that it violates the Fifth Amendment," it concluded that "the
    many ambiguities concerning the scope of its coverage render it
    problematic for purposes of the First Amendment."[^134]

45. *Reno* in no way undermines *Pacifica*. On the contrary, the Court
    in *Reno* expressly distinguished *Pacifica*, and it gave three
    different reasons for doing so. 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.[^135] The CDA, in contrast, was not
    administered by an expert agency, and it contained "broad
    categorical prohibitions" that were "not limited to particular
    times."[^136] Second, the CDA was a criminal statute, whereas the
    Commission has no power to impose criminal sanctions for indecent
    broadcasts.[^137] Third, unlike the Internet, the broadcast medium
    has traditionally "received the most limited First Amendment
    protection."[^138] Thus, far from casting doubt on *Pacifica*'s
    vagueness holding, *Reno* recognizes its continuing vitality.

46. The Networks also argue that the more relaxed level of First
    Amendment scrutiny discussed in *Pacifica* should no longer apply to
    broadcasting in light of changes in the media marketplace.
    Specifically, they contend that because of the prevalence of other
    media, such as the Internet and cable and satellite television, "it
    is fanciful to believe that aggressive enforcement of § 1464 against
    broadcasters will be effective in preventing children from being
    exposed to potentially offensive words."[^139]

47. We disagree that technological changes have undermined the validity
    of the reasoning in *Pacifica*.[^140] In *Pacifica*, the Court
    identified two reasons why broadcasting has received "the most
    limited First Amendment protection."[^141] First, "the broadcast
    media have established a uniquely pervasive presence in the lives of
    all Americans. Patently offensive, indecent material presented over
    the airwaves confronts the citizen, not only in public, but also in
    the privacy of the home."[^142] Second, "broadcasting is uniquely
    accessible to children, even those too young to read."[^143]

48. Notwithstanding the growth of other communications media, courts
    have recognized the continuing validity of these rationales. In
    1994, the Supreme Court reaffirmed that "our cases have permitted
    more intrusive regulation of broadcast speakers than of speakers in
    other media."[^144] And the D.C. Circuit has rejected precisely the
    argument advanced by the Networks here: "Despite the increasing
    availability of other means 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."[^145]

49. 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
    population.'"[^146] 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."[^147]
    In 2003, 98.2% of households had at least one television, and 99%
    had at least one radio.[^148] The Networks correctly point out that
    almost 86% of households with television subscribe to a cable or
    satellite service.[^149] That still leaves 15.4 million households
    that rely exclusively on broadcast television, hardly an
    inconsequential number.[^150] In addition, it has been estimated
    that almost half of direct broadcast satellite subscribers receive
    their broadcast channels over the air,[^151] and many subscribers to
    cable and satellite still rely on broadcast for some of the
    televisions in their households.[^152] All told, the National
    Association of Broadcasters ("NAB") estimates that there are an
    estimated 73 million broadcast-only television sets in American
    households.[^153] Moreover, many of those broadcast-only televisions
    are in children's bedrooms.  According to a 2005 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.[^154] 

50. In addition, the bare number of cable and satellite service
    subscribers does not reflect the large disparity in viewership that
    still exists between broadcast and cable television programs. For
    example, during the week of September 18, 2006, each of the top ten
    programs on broadcast television had more than 15 million viewers,
    while only one program on cable television that week managed to
    attract more than 5 million viewers.[^155] Similarly, of the 495
    most-watched television programs during the 2004-2005 season, 485
    appeared on broadcast television, and the highest-rated program on
    cable television was only the 257th most-viewed program of the
    season.[^156]

51. 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."[^157]
    In contrast, as the D.C. Circuit has observed, "broadcast audiences
    have no choice but to 'subscribe' to the entire output of
    traditional broadcasters."[^158] The V-chip provides parents with
    some ability to control their children's access to broadcast
    programming. But most 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.[^159] In addition, the
    effectiveness of a V-chip depends on the accuracy of program
    ratings; a V-chip is of little use when, as here, the rating does
    not reflect the material that is broadcast.[^160] In light of the
    TV-PG rating given to "The 2003 Billboard Music Awards," even an
    informed use of a V-chip would not necessarily have protected
    children from Ms. Richie's vulgar comments,[^161] and studies
    demonstrate that inaccurate ratings are far from an isolated
    problem. In a Kaiser Family Foundation survey, for example, nearly 4
    in 10 parents of children aged 2-17 stated that most television
    programs are not rated accurately.[^162]

52. Broadcast television is also significantly different from the
    Internet. The Internet, unlike television, is not accessible to
    children "too young to read."[^163] And parents who wish to control
    older children's access to inappropriate material can use widely
    available filtering software \-- an option that, whatever its flaws,
    lacks an effective analog in the context of broadcast
    television[^164] in light of the numerous problems with the V-chip
    and program ratings discussed above.[^165]

53. *No Sanction Proposed*. For the reasons stated above, we conclude
    that "The 2003 Billboard Music Awards" contained indecent and
    profane material in violation of Section 1464 and our rules. Fox
    stations broadcast indecent and profane language in an awards show
    that aired between 6 a.m. and 10 p.m. and was watched by people of
    all ages. Under the circumstances, however, we propose no forfeiture
    here. We originally declined to propose a sanction in this case
    because the broadcast occurred prior to the *Golden Globe Awards
    Order*. As discussed above, we believe on further consideration that
    the complained-of language was actionable under Commission decisions
    preceding the *Golden Globe Awards Order*. Nevertheless, we still
    decline to propose a forfeiture here. To begin with, proposing a
    sanction would require issuance of a notice of apparent liability,
    which would not be "a further final or appealable order of the FCC,"
    as required by the *Remand Order*.[^166] In addition, even absent
    the requirement that we issue a "final or appealable order," we
    would not exercise our enforcement discretion to propose a
    forfeiture here given the limited remand under which we are
    proceeding.  Accordingly, we find that no forfeiture is warranted in
    this case.[^167] In light of our decision not to impose a
    forfeiture, we will not require the licensees of any of the stations
    that broadcast the material to report our finding here to us as part
    of their renewal applications, and we will not consider the
    broadcast to have an adverse impact upon such licensees as part of
    the renewal process or in any other context.

54. In light of our decision not to impose a forfeiture, we need not
    address whether the violations of Section 1464 and our rule were
    willful within the meaning of Section 503(b).[^168] We disagree with
    the Networks, however, that Section 1464 is not violated unless a
    broadcaster acts with the state of mind required for a criminal
    conviction.[^169] The Supreme Court has squarely rejected the
    argument that the FCC's civil authority to enforce Section 1464 must
    be interpreted in accordance with rules that apply to criminal
    statutes, explaining: "The legislative history of the provisions
    establishes their independence. As enacted in 1927 and 1934, the
    prohibition on indecent speech was separate from the provisions
    imposing civil and criminal penalties for violating the prohibition.
    . . Although the 1948 codification of the criminal laws and the
    addition of new civil penalties changed the statutory structure, no
    substantive change was apparently intended. . . Accordingly, we need
    not consider any question relating to the possible application of §
    1464 as a criminal statute."[^170] Thus, the *mens rea* necessary
    for a criminal conviction is not a prerequisite to the Commission's
    finding a Section 1464 violation.[^171]

## "The 2002 Billboard Music Awards"

55. *The Programming.* The Commission received a complaint alleging that
    WTTG(TV), Washington, DC, broadcast indecent material during "The
    2002 Billboard Music Awards" program which aired at 8 p.m. Eastern
    Standard Time on December 9, 2002.[^172] Specifically, the
    complainant alleged that while accepting an award, Cher stated:
    "People have been telling me I'm on the way out every year, right?
    So fuck 'em."[^173] The "2002 Billboard Music Awards" was broadcast
    nationwide on the Fox Television Network.

56. Examination of a videotape of the broadcast reveals that Cher, a
    singer and actress, was presented with an "Artist Achievement Award"
    during "The 2002 Billboard Music Awards" program. Cher had been
    selected to receive this award at least three weeks before the
    broadcast.[^174]  In the course of her remarks accepting the award,
    she stated as follows: "I've had unbelievable support in my life and
    I've worked really hard. I've had great people to work with. Oh,
    yeah, you know what? I've also had critics for the last 40 years
    saying that I was on my way out every year. Right. So fuck 'em. I
    still have a job and they don't."

57. Following the Second Circuit's remand, the Bureau sent Fox a letter
    of inquiry on September 7, 2006 concerning "The 2002 Billboard Music
    Awards" broadcast.[^175] Fox responded on September 21, 2006.[^176]
    Fox's response confirms that it broadcast the material described in
    the complaint.[^177] Nevertheless, Fox argues that its broadcast of
    the "F-Word," in context, did not depict or describe sexual
    activities but rather, "at most," was a "vulgar expletive directed
    as an insult toward an individual or group against whom the speaker
    held deep-seated feelings of ill-will," and thus is outside the
    scope of the Commission's indecency definition.[^178] Further, Fox
    argues that the complained-of material was not actionably indecent
    because it "contained at most the passing use of an expletive used
    to convey an insult," it "lasted only a couple of seconds out of a
    two-hour program," and Fox did not present it to pander to or
    titillate the audience, or for shock value.[^179] Therefore, Fox
    contends that the dialogue is not actionably indecent.[^180]

58. *Indecency Analysis*. With respect to the first prong of the
    indecency test, Fox contends that Cher's statement "fuck 'em" does
    not describe sexual activities and thus falls outside the scope of
    our indecency definition. We disagree. As discussed above, a long
    line of precedent indicates that both literal and non-literal uses
    of the "F-Word" come within the subject matter scope of our
    indecency definition.[^181] Given the core meaning of the "F-Word,"
    any use of that word has a sexual connotation.[^182] Moreover, it
    hardly seems debatable that the word's power to insult and offend
    derives from its sexual meaning.[^183] Here, for example, Cher's use
    of the "F-Word" to reference a sexual act as a metaphor to express
    hostility to her critics is inextricably linked to the sexual
    meaning of the term.[^184] Accordingly, we conclude that, as we
    stated in *Golden Globe*,[^185] its use falls within the scope of
    our indecency definition. The material thus warrants further
    scrutiny to determine whether it is patently offensive as measured
    by contemporary community standards for the broadcast medium.
    Looking at the three principal factors in our contextual analysis,
    we conclude that it is.

59. We will first address the first and third principal factors in our
    contextual analysis -- the explicit or graphic nature of the
    material and whether the material panders to, titillates, or shocks
    the audience. As we have previously concluded, the "F-Word" is one
    of the most vulgar, graphic, and explicit words for sexual activity
    in the English language.[^186] Moreover, the gratuitous use of this
    language during a live broadcast of a popular music awards ceremony
    when children were expected to be in the audience was vulgar and
    shocking. The complained-of material was broadcast in prime time,
    and the program was designed to draw a large nationwide audience
    that could be expected to include many children interested in seeing
    their favorite music stars.[^187] As in the case of "The 2003
    Billboard Music Awards,"[^188] a significant portion of the viewing
    audience for this program was under 18. According to Nielsen ratings
    data, during an average minute of "The 2002 Billboard Music Awards"
    broadcast, 2,608,000 (27.9%) of the 9,361,000 people watching the
    program were under 18, and 1,186,000 (12.7%) were between the ages
    of 2 and 11. In addition, the program's TV-PG rating[^189] would
    *not* have put parents or others on notice of such vulgar language,
    and the broadcast contained no other warnings to viewers that it
    might contain material highly unsuitable for children.[^190]
    Furthermore, Fox does not argue that there was any justification for
    Cher's comment.[^191] In light of all of these factors, we conclude
    that the first and third factors in our contextual analysis weigh in
    favor of a finding that the material is patently offensive.[^192]

60. We next turn to the second factor in our contextual analysis --
    whether the complained-of material was sustained or repeated. Fox
    argues that this factor precludes a finding of indecency. As
    reviewed above, Commission dicta and Bureau-level decisions issued
    before our *Golden Globe* decision had suggested that expletives had
    to be repeated to be indecent but that such a repetition requirement
    would not apply to "descriptions or depictions of sexual or
    excretory functions." In this case, Cher did more than use the
    "F-Word" as a mere interjection or intensifier. Rather, she used the
    word to describe or reference a sexual act as a metaphor to express
    hostility to her critics. The fact that she was not literally
    suggesting that people engage in sexual activities does not
    necessarily remove the use of the term from the realm of
    descriptions or depictions. This case thus illustrates the
    difficulty in making the distinction between expletives on the one
    hand and descriptions or depictions on the other. Particularly in
    light of this lack of clarity, we acknowledge that it was not
    apparent that Fox could be penalized for Cher's comment at the time
    it was broadcast. This case also shows that the inquiry into whether
    a word is used an expletive rather than a description or depiction
    is wholly artificial. Whether used as an expletive, or as a
    description or depiction, the offensive nature of the "F-Word" is
    inherently tied to the term's sexual meaning.

61. In any event, under our *Golden Globe* precedent, the fact that Cher
    used the "F-Word" once does not remove her comment from the realm of
    actionable indecency.[^193] We stated in *Golden Globe* that the
    "mere fact that specific words or phrases are not sustained or
    repeated does not mandate a finding that material that is otherwise
    patently offensive to the broadcast medium is not indecent."[^194]
    To be sure, the fact that material is not repeated does weigh
    against a finding of indecency, and in certain cases, when all of
    the relevant factors are considered together, this factor may tip
    the balance in a decisive manner. This, however, is not one of those
    cases.

62. We believe that Cher's use of the "F-Word" here during a program
    aired in prime time was patently offensive under contemporary
    community standards for the broadcast medium. The patent
    offensiveness is compounded by the fact that the warnings
    accompanying the broadcast were inadequate and misleading.[^195] We
    do not believe that the Commission should ignore "the first blow" to
    the television audience in the particular circumstances presented
    here.[^196] Our determination, moreover, is consistent with the
    networks' own broadcast standards during the "safe harbor," which
    would not allow the broadcast of a single use of the "F-Word" under
    these circumstances.[^197] Such standards reflect the networks'
    recognition that even a single use of the "F-Word" under most
    circumstances is not consistent with contemporary community
    standards for the broadcast medium. Indeed, Fox edited out Cher's
    comment in its broadcasts to the Mountain and Pacific Time Zones.

63. In sum, we conclude that, given the explicit, graphic, vulgar, and
    shocking nature of Cher's use of the "F-Word," Fox's broadcast was
    patently offensive under contemporary community standards for the
    broadcast medium.

64. Fox also argues that it should not be held responsible for airing
    Cher's comment. In particular, Fox argues that Cher's remarks were
    unscripted and that the five-second delay and editing system that it
    used for "The 2002 Billboard Music Awards" previously had been
    effective in preventing the airing of objectionable material.[^198]
    We need not address these arguments, however, because we decide that
    it would not be equitable to sanction Fox for a different reason.
    Specifically, as discussed above, it was not clear at the time that
    broadcasters could be punished for the kind of comment at issue
    here.[^199]

65. *Profanity Analysis*. Consistent with our decisions in the *Golden
    Globe Awards Order* and the *Omnibus Order*, we also find that
    Cher's use of the "F-Word" in the program at issue violated Section
    1464's prohibition on the broadcast of "profane" utterances.[^200]
    In the *Golden Globe Awards Order*, the Commission concluded that
    the "F-Word" was profane within the meaning of Section 1464 because,
    in context, it constituted vulgar and coarse language "'so grossly
    offensive to members of the public who actually hear it as to amount
    to a nuisance.'"[^201] In certain cases, language that is
    presumptively profane will not be found to be profane where it is
    demonstrably essential to the nature of an artistic or educational
    work or essential to informing viewers on a matter of public
    importance.[^202] However, such circumstances are not present here:
    Fox does not contend that Cher's profane language was essential to
    informing viewers on a matter of public importance or that modifying
    the language would have had a material impact on its function as a
    source of news and information. On the contrary, Fox maintains that
    it attempted to delete the profane language, and did remove it
    before the program aired on time delay in the Mountain and Pacific
    Time Zones.[^203] It is undisputed that the "F-Word" was broadcast
    within the 6 a.m. to 10 p.m. time frame relevant to a profanity
    determination.[^204] Because it was broadcast at a time of day when
    there was a reasonable risk of children's presence in the audience
    (indeed, as detailed above, over two-and-a-half million viewers of
    the broadcast were under the age of 18),[^205] the broadcast is
    legally actionable.

66. *No Sanction Proposed*. For the reasons stated above, we conclude
    that "The 2002 Billboard Music Awards" contained indecent and
    profane material in violation of Section 1464 and our rules. Fox
    stations broadcast indecent and profane language in an awards show
    that aired between 6 a.m. and 10 p.m. and was watched by people of
    all ages. Under the circumstances, however, we find that no
    forfeiture is warranted in this case for the reason set forth
    above.[^206] In light of our decision not to impose a forfeiture, we
    will not require the licensees of any of the stations that broadcast
    the material to report our finding here to us as part of their
    renewal applications, and we will not consider the broadcast to have
    an adverse impact upon such licensees as part of the renewal process
    or in any other context.[^207]

## "The Early Show"

67. "The Early Show" is a two-hour morning program that airs weekdays on
    the CBS Television Network. On December 13, 2004, the program
    devoted significant coverage to discussion of the CBS program
    "Survivor: Vanuatu," which had crowned its winner the prior evening.
    As part of that coverage, "The Early Show" co-host Julie Chen
    conducted a live interview with the final four contestants from
    "Survivor: Vanuatu." During that interview, Ms. Chen asked runner-up
    Twila Tanner whether she agreed with fourth-place finisher Eliza
    Orlins that Chris Daugherty, the winner of the program, would have
    prevailed had he been matched up in the finals against Ms. Orlins.
    Ms. Tanner then responded, "Not necessarily. I knew he was a
    bullshitter from Day One."

68. A viewer subsequently filed a complaint with the Commission that
    Station KDKA-TV, Pittsburgh, Pennsylvania, which is licensed to CBS
    Broadcasting Inc., aired Ms. Tanner's comment at approximately 8:10
    a.m. Eastern Standard Time, on December 13, 2004, and alleged that
    the comment was indecent and profane.[^208] In response to the
    Commission's letter of inquiry, CBS does not deny that the comment
    in question was broadcast on KDKA-TV.[^209] However, CBS argues,
    among other things, that the material is not actionable because it
    was spoken during a *bona fide* news interview.[^210]

69. In the *Omnibus Order*, we "recognize\[d\] the need for caution with
    respect to complaints implicating the editorial judgment of
    broadcast licensees in presenting news and public affairs
    programming, as these matters are at the core of the First
    Amendment's free press guarantee."[^211] Indeed, when we denied an
    indecency complaint regarding material that was aired during "The
    Today Show," which is a competitor of "The Early Show," we
    reiterated the need for the Commission to exercise caution with
    respect to news programming.[^212]

70. This restrained approach is consistent with a long line of
    Commission precedent. For example, in *Peter Branton*, the
    Commission held that an NPR news story on John Gotti, which included
    a wiretap of a conversation in which Gotti repeatedly used
    variations of the "F-Word," was not indecent because "it was an
    integral part of a bona fide news story."[^213] The Commission
    explained that "we traditionally have been reluctant to intervene in
    the editorial judgments of broadcast licensees on how best to
    present serious public affairs programming to their
    listeners."[^214]

71. In today's Order, we reaffirm our commitment to proceeding with
    caution in our evaluation of complaints involving news programming.
    To be sure, there is no outright news exemption from our indecency
    rules.[^215] Nevertheless, in light of the important First Amendment
    interests at stake as well as the crucial role that context plays in
    our indecency determinations, it is imperative that we proceed with
    the utmost restraint when it comes to news programming.

72. Some critics have questioned whether the segments of "The Early
    Show" devoted to "Survivor: Vanuatu" are legitimate news programming
    or instead are merely promotions for CBS's own entertainment
    programming.[^216] CBS nevertheless maintains in its LOI response
    that its interview of the "Survivor: Vanuatu" contestants was a
    "*bona fide* news interview." "The Early Show" is produced by CBS
    News and addressed a variety of other topics that morning, including
    a suicide bombing in Iraq, the withdrawal of Bernard Kerik as a
    candidate to serve as Secretary of Homeland Security, and the
    apparent poisoning of then-Ukrainian opposition leader Viktor
    Yushchenko, which clearly fall under the rubric of news programming.
    In light of these factors and our commitment to exercising caution
    in this area, we believe it is appropriate in these circumstances to
    defer to CBS's plausible characterization of its own programming.
    Accordingly, we find that, in the *Omnibus Order*, we did not give
    appropriate weight to the nature of the programming at issue (i.e.,
    news programming).

73. Turning to the specific material that is the subject of the
    complaint, we can certainly understand that viewers may have been
    offended by Ms. Tanner's coarse language. Nevertheless, given the
    nature of her comment and our decision to defer to CBS's
    characterization of the program segment as a news interview, we
    conclude, regardless of whether such language would be actionable in
    the context of an entertainment program, that the complained-of
    material is neither actionably indecent nor profane in this context.
    Accordingly, we deny the complaint.

##  "NYPD Blue"

74. As discussed above, the Commission received complaints regarding
    several "NYPD Blue" episodes that aired on KMBC-TV, Kansas City,
    Missouri, and other unidentified ABC Television Network affiliates
    beginning at 9:00 p.m. Central Standard Time, in which the "S-Word"
    was used.[^217] In the *Omnibus Order*, the Commission found those
    broadcasts containing the "S-Word" to be apparently indecent and
    profane.[^218] In its response to the Commission's letter of
    inquiry, KMBC Hearst-Argyle Television, Inc. ("Hearst"), licensee of
    KMBC-TV, does not dispute that it aired the complained-of material.
    Hearst argues, however, that the complaints should either be
    dismissed on procedural grounds or denied on the merits.

75. Raising an argument that we did not previously consider, Hearst
    contends that the Commission should dismiss the complaints as
    insufficient under the enforcement policy set forth in the *Omnibus
    Order*.[^219] One complaint was filed against each of the "NYPD
    Blue" broadcasts at issue, and each of these complaints was filed by
    the same person. All of these complaints stated that the
    complained-of broadcast "originally aired at 9:00 p.m. CST on Kansas
    City affiliate KMBC" and was "also seen in homes across the country
    on ABC affiliates."[^220] However, as Hearst accurately maintains,
    none of the complaints was filed by anyone residing in the market
    served by KMBC-TV. Nor were any of the complaints filed by anyone
    residing in a market where the complained-of material aired outside
    of the 10:00 p.m.-6:00 a.m. safe harbor. Instead, each complaint was
    filed by the same individual from Alexandria, Virginia, where, as
    Hearst points out,[^221] the material was aired during the safe
    harbor.[^222] In addition, none of the complaints contains any claim
    that the out-of-market complainant actually viewed the complained-of
    broadcasts on KMBC-TV or any other ABC affiliate where the material
    was aired outside of the safe harbor.[^223] Thus, there is nothing
    in the record either to tie the complaints to Station KMBC-TV's
    local viewing area (or the local viewing area of any station where
    the material was aired outside of the safe harbor), or to suggest
    that the broadcast programming at issue was the subject of
    complaints from anyone who viewed the programming on any station
    that aired the material outside of the safe harbor.

76. We therefore agree with Hearst that we should dismiss the complaints
    regarding "NYPD Blue" pursuant to the enforcement policy that we
    announced in the *Omnibus Order*. There, the Commission stated that
    it would propose forfeitures only against licensees and stations
    whose broadcasts of actionable material were the subject of a viewer
    complaint filed with the Commission,[^224] explaining that "\[i\]n
    the absence of complaints concerning the program filed by viewers of
    other stations, it is appropriate that we sanction only the licensee
    of the station whose viewers complained about that program."[^225]
    In addition to demonstrating appropriate restraint in light of First
    Amendment values, this enforcement policy preserves limited
    Commission resources, while still vindicating the interests of local
    residents who are directly affected by a station's airing of
    indecent and profane material.

77. Based on consideration of Hearst's arguments, we agree that
    consistent application of our restrained enforcement policy requires
    us to apply the same approach to this case that we applied to the
    notices of apparent liability in the *Omnibus Order*. While this
    case does not involve the imposition of forfeitures against KMBC-TV
    or any other licensee, the sufficiency of a complaint is the first
    step rather than the last step in the Commission's analysis. Thus,
    as Hearst puts it, "\[o\]nly the dismissal of the NYPD Blue
    complaints will bring \[this case\] into harmony with the
    Commission's announced enforcement policy."[^226] Accordingly, we
    dismiss these complaints.

# ordering clauses

78. Accordingly, IT IS ORDERED that Section III.B of the *Omnibus Order*
    is VACATED in its entirety.

79. IT IS FURTHER ORDERED that the complaints referenced in this Order
    involving "The 2003 Billboard Music Awards" and "The 2002 Billboard
    Music Awards" are GRANTED to the extent set forth herein and
    OTHERWISE DENIED.

80. IT IS FURTHER ORDERED that the complaints referenced in this Order
    involving "The Early Show" are DENIED.

81. IT IS FURTHER ORDERED that the complaints referenced in this Order
    involving "NYPD Blue" are DISMISSED.

82. IT IS FURTHER ORDERED that a copy of this Order shall be sent
    Certified Mail, Return Receipt Requested, to Susan L. Fox, Esq.,
    Vice President, Government Relations, The Walt Disney Company, 1150
    17^th^ Street, N.W., Suite 400, Washington, D.C. 20036.

83. IT IS FURTHER ORDERED that a copy of this Order shall be sent
    Certified Mail, Return Receipt Requested, to John W. Zucker, Esq.,
    Senior Vice President, Law-Regulation, ABC, Inc., 77 West 66^th^
    Street, New York, N.Y. 10024.

84. IT IS FURTHER ORDERED that a copy of this Order shall be sent
    Certified Mail, Return Receipt Requested, to Seth Waxman, Esq.,
    Counsel to The Walt Disney Company, Wilmer, Cutler, Pickering, Hale
    & Dorr, LLP, 2445 M Street, N.W., Washington, D.C. 20037.

85. IT IS FURTHER ORDERED that a copy of this Order shall be sent
    Certified Mail, Return Receipt Requested, to Anne Lucey, Esq.,
    Senior Vice President, Regulatory Policy, CBS Corporation, 601
    Pennsylvania Ave., N.W., Suite 540, Washington, DC 20004.

86. IT IS FURTHER ORDERED that a copy of this Order shall be sent
    Certified Mail, Return Receipt Requested, to Robert Corn-Revere,
    Counsel to CBS Corp., Davis Wright Tremaine, LLP, 1500 K Street,
    N.W., Suite 450, Washington, D.C. 20005-1272.

87. IT IS FURTHER ORDERED that a copy of this Order shall be sent
    Certified Mail, Return Receipt Requested, to Mark J. Prak, Esq.,
    Counsel to Hearst-Argyle Television, Inc., Brooks, Pierce, McLendon,
    Humphrey & Leonard, LLP, 150 Fayetteville Street, Suite 1600
    Wachovia Capitol Center, Raleigh, North Carolina 27601.

88. IT IS FURTHER ORDERED that a copy of this Order shall be sent
    Certified Mail, Return Receipt Requested, to Maureen A. O'Connell,
    Esq., News Corporation, 444 North Capitol Street, N.W., Suite 740,
    Washington, D.C. 20001.

89. IT IS FURTHER ORDERED that a copy of this Order shall be sent
    Certified Mail, Return Receipt Requested, to John Quale, Esq.,
    Counsel to Fox Television Stations, Inc., Skadden, Arps, Slate,
    Meagher & Flom, LLP, 1440 New York Ave., N.W., Washington, D.C.
    20005.

    FEDERAL COMMUNICATIONS COMMISSION

    Marlene H. Dortch

    Secretary

    **STATEMENT OF**

    **Commissioner Jonathan S. Adelstein**

    **Concurring in Part, Dissenting in Part**

> *Re:* *Complaints Regarding Various Television Broadcasts Between
> February 2, 2002 and March 8, 2005,* Order

Today's *Order* is pursuant to a grant from the United States Court of
Appeals for the Second Circuit of the Commission's voluntary remand
request to reconsider portions of the March 15, 2006, *Omnibus
Order*.[^227] In that decision, I concurred in part and dissented in
part because I believed the Commission had failed to develop a
consistent and coherent indecency enforcement policy. It was my hope
that the Commission would use this remand to clarify and rationalize our
indecency regime,[^228] but regulatory convenience and avoidance have
prevailed instead. I am, therefore, compelled again to concur in part
and dissent in part.

The proverbial "elephant in the room" looming over today's decision is
the *Golden Globe Awards Order*,[^229] which inexplicably has been
pending reconsideration for more than two and one-half years. While the
Commission has simply refused to review the *Golden Globe* case, we have
relied upon, expanded and applied it more than any other indecency case
in the past two years. As the foundational basis for the Commission's
decision in the cases involved in this remand, we should review and
finalize this watershed decision. [^230]

As I stated in the *Omnibus Order*, "by failing to address the many
serious concerns raised in the *Golden Globe Awards* case, before
prohibiting the use of additional words, we fall short of meeting the
\[appropriate\] constitutional standard and walking the tightrope of a
restrained enforcement policy." [^231] Today, we fail again. Litigation
strategy should not be the dominant factor guiding policy when First
Amendment protections are at stake.

In its remand request, the Commission asked the Second Circuit for an
opportunity to consider the concerns of broadcasters before issuing a
final decision. Yet squandering this opportunity, the Commission fails
to consider fully all concerns relating to an August 22, 2003, complaint
against the December 9, 2002, broadcast of "The Billboard Music Awards"
by WTTG(TV) in Washington, D.C. This *Order* does not adequately address
the Enforcement Bureau's December 18, 2002, decision letter, which
denied the same complaint on the merits.[^232] No one filed either a
petition for reconsideration or an application for review and,
consequentially, the decision letter became a final order. It seems
patently unfair for the Commission to re-adjudicate the same complaint,
involving the same parties on the same cause of action, first in the
initial decision letter, then in the *Omnibus Order*, and then again in
today's *Order*. The Supreme Court has held that the principle of *res
judicata* applies to an adjudicative administrative proceeding where the
agency has properly resolved disputes of fact and the parties have had
an adequate opportunity to litigate.[^233] The Commission should not
have re-adjudicated this complaint a second time in the *Omnibus Order*.
Certainly today, the third time around, this complaint should be
dismissed, or the Commission should reverse the Enforcement Bureau's
decision letter and the resultant final order.

More broadly, today's *Order* notes that the Supreme Court in *Pacifica*
stressed context and we have repeatedly said "the full context in which
the material appeared is critically important." Yet the Commission's
analyses of the 2002 and 2003 broadcasts of "The Billboard Music Awards"
are limited exclusively to a few seconds of a two-hour program. No
consideration whatsoever is given to the entirety of the program. While
it is perfectly reasonable to conclude that, after considering the
entire program, the vulgarity and shock value of a particular scene
permeated and dominated the program, the Commission should consider the
totality of the program, rather than limit our consideration to an
isolated programming segment.

Similarly, the Commission's justification for denying the complaint
against the December 12, 2004, broadcast of "The Early Show," and
reversing its indecency and profanity findings reflect the arbitrary,
subjective and inconsistent nature of the Commission's
decision-making.[^234] In the *Omnibus Order*, the Commission concluded
that the use of the s-word was shocking "*particularly* during a morning
news interview,"[^235] and that this "vulgarity in a morning television
interview is *of particular concern* and *weighs heavily* in our
analysis."[^236] Today, without any legal support found in American
jurisprudence, the Commission, *sua sponte*, creates a new
"plausible"[^237] standard to determine the threshold question of
whether a particular program segment qualifies as a "*bona fide* news
interview."[^238] While the Commission admits that "there is no outright
news exemption from our indecency rules," it will nevertheless defer to
a broadcaster's "plausible characterization of its own programming." I
not only fail to find a legal basis for the Commission's latest
invention,[^239] I also fail to understand the justification for such a
shift in reasoning. While the creation of this "infotainment" exception
that can be invoked by a broadcaster's plausible characterization" may
be convenient in this order today, it will surely create unintended
consequences in future cases.

Even as applied, this new "plausible" standard is problematic. In this
case, the CBS "Early Show" interview of contestants from the CBS program
"Survivor: Vanuatu" was a cross promotion of a network's primetime
entertainment programming on the same network's morning show. It
stretches the bounds to argue this is legitimate news or public affairs
programming. It is unreasonable to say that the latest contestant to be
voted off the island or the latest contestant to hear "you're fired" or
even "come on down" is "serious public affairs programming."[^240] The
network creates its own "reality" on a reality show, and we are somehow
to believe that developments within its own artificial world are news?
The only news here is how far this Commission is willing to stretch the
definition of "news."

I also dissent in part from the Commission's decision to dismiss
numerous complaints against several nationally televised episodes of the
ABC network program "NYPD Blue" because the complaints did not come from
viewers who resided in the station's media market. While the Commission
has not changed its decision on the merits of the complaints, it has
relied on an arbitrary procedural change in our enforcement policy that
creates an unnecessary disconnect between the basis of our indecency
authority and our enforcement policy, and encourages letter-writing
campaigns, which will further burden Commission resources.

The Commission has long maintained, and does not now dispute, that we
enforce a national, contemporary community standard, not a local one.
For instance, in an effort to justify its authority in today's *Order*,
the Commission observes that the broadcast medium has a "special nature"
and "a uniquely pervasive presence in American life."[^241] The
Commission points out the "the Supreme Court emphasized the 'pervasive
presence \[of the broadcast medium\] in the lives of all Americans' and
that indecent broadcasts invade the privacy of the home."[^242] Yet, the
Commission's new enforcement policy is inconsistent with the national
standard we impose and the pervasiveness of the medium we regulate.

This new enforcement policy is also inconsistent with the Commission's
reasoning in other sections of today's *Order*. For example, as an
important factor weighing in support of its finding that the 2002 and
2003 broadcasts of "The Billboard Music Awards" are indecent, the
Commission cites Nielsen rating data on the total number of children
under 18 and children between ages 2 and 11 who watched the programs,
nationally. Yet based on our enforcement policy, the Commission will
actually only protect children in the particular local media market
where there is a complaint.[^243]

The consequences of this new policy reveal its lack of logic. When the
Commission determines a *national* network broadcast violates our
*national* community standards, we will only fine the *local* station
that has a complaint filed against it by a viewer in its media market.
Although our obligation is to enforce the law to protect all children,
we will only fine a local station that has the misfortune of being in a
market where a parent or an adult made the effort to complain. This
policy is misguided because a sufficient and valid complaint is truly
the first, and an important, step in our indecency enforcement regime.
The complaint and the complainant serve an important role, but the real
party in interest is the Commission, acting on behalf the public, rather
than the specific individual or organization that brings allegedly
indecent material to our attention.

According to the new enforcement policy, even after we have determined
the complained-of material is indecent, we will willfully blind
ourselves to the potentially millions of children and households that
watched the indecent program. The new policy would fine only the local
station and only if the complainant is in its coverage area. Other
stations will essentially be "sitting ducks," waiting for an in-market
viewer to file a complaint about the same program, in order for the
Commission to act. I do not understand how we can say we are faithfully
enforcing the law when we are aware of violations of the law that we
simply choose to ignore.

This is not the restrained enforcement policy encouraged by the Supreme
Court in *Pacifica*.[^244] Restraint applies to the standard we use in
our decision-making and the manner in which we decide what constitutes
actionable, indecent material.[^245] Restraint applies to the
development of a coherent framework that is based on rational and
principled distinctions.

The power to limit speech should be exercised responsibly, and with the
utmost caution. While I agree with some aspects of today's *Order*, I
respectfully cannot support our reasoning. For that reason, I concur in
part and dissent in part.

[^1]: For purposes of this Order, we refer to all of the
    complained-about episodes of "NYPD Blue" as a single "program."

[^2]: *Complaints Regarding Various Television Broadcasts Between
    February 2, 2002 and March 8, 2005,* Notices of Apparent Liability
    and Memorandum Opinion and Order, 21 FCC Rcd 2664 (2006) ("*Omnibus
    Order*"), *pets. for review pending*, *Fox Television Stations, Inc.
    v. FCC*, No. 06-1760-AG (2d Cir. filed Apr. 13, 2006), *remanded and
    partially stayed*, Sept. 7, 2006 ("*Remand Order*").

[^3]: *Id.* at 2670-90 ¶¶ 22-99.

[^4]: *Id.* at 2700-20 ¶¶ 146-232.

[^5]: *Id.* at 2690 ¶ 101. *See* Letter from Lara Mahaney, Director of
    Corporate and Entertainment Affairs, PTC to David Solomon, Chief,
    Enforcement Bureau, Federal Communications Commission (August 22,
    2003).

[^6]: *Id.* The Enforcement Bureau obtained a videotape of the broadcast
    that confirmed the allegation in the complaint. *Omnibus Order,* 21
    FCC Rcd at 2690 ¶ 101.

[^7]: *Id.* at 2692 ¶ 112.

[^8]: *Id.* at ¶ 112 and n. 164.

[^9]: *Id.* at 2696 ¶ 125. The Commission provided the following
    descriptions of the complained-of portions of the broadcasts:

    > 1/14/03 episode (Det. Sipowitz in response to his partner's arrest
    > by Internal Affairs): "Alright, this is Bullshit!"
    >
    > 2/4/03 episode (Det. Sipowitz to street officer regarding that
    > officer's partner framing Sipowitz's partner): "Over time -- over
    > what -- bullshit, a beef!"
    >
    > 2/18/03 episode (stated by a suspect who bragged about, but now
    > denies, killing his daughter): "I told people I killed Samia to
    > try and get respect back. She had ashamed me and my community look
    > at me as a fool." Det. 1: "You took credit for killing your
    > daughter?! Bullshit!"
    >
    > 4/15/03 episode (Det. harassing suspect who had harassed
    > prosecutor): "I'm hoping this bullshit about you trying to get
    > under ADA Haywood's skin is a misunderstanding."
    >
    > 5/6/03 episode (Captain to Det. who harassed suspect in 4/15
    > episode): "He said you nearly assaulted his client last night.'
    > Det.: 'Well, that's a bunch of bullshit."

    *Id.* at n. 187.

[^10]: *Id.* at 2698-99 ¶ 137.

[^11]: *Id. See id.* at 2699 n. 199 ("In commenting on the strategy
    employed by the fellow contestant, Ms. Tanner stated: 'I knew he was
    a bullshitter from Day One.' The interviewer, Julie Chen, recognized
    the inappropriateness of the language, stating: 'I hope we had the
    cue ready on that one . . . We can't say that word . . . There is a
    delay.'").

[^12]: *Id.* at 2690-2700 ¶¶ 100-45. *See* 18 U.S.C. § 1464; 47 C.F.R. §
    73.3999. However, with respect to complaints regarding the use of
    the words "dick" and "dickhead" in episodes of "NYPD Blue," the
    Commission found that in context the broadcasts of these terms were
    not patently offensive under its contextual analysis and based on
    FCC precedent. *Omnibus Order*, 21 FCC Rcd at 2696-97 ¶ 127.

[^13]: *Omnibus Order*, 21 FCC Rcd at 2690 ¶ 100.

[^14]: *Complaints Against Various Broadcast Licensees Regarding Their
    Airing of the "Golden Globe Awards" Program,* Memorandum Opinion and
    Order, 18 FCC Rcd 19859 (Enf. Bur. 2003), *review granted*, 19 FCC
    Rcd 4975, 4981 ¶¶ 13-14 (2004) ("*Golden Globe Awards Order*"),
    *petitions for stay and recon. pending*.

[^15]: *See Omnibus Order*, 21 FCC Rcd at 2692 ¶ 111, 2695 ¶ 124, 2698 ¶
    136.

[^16]: *Id.* at 2700 ¶ 145.

[^17]: *Id.* at 2690 ¶ 100.

[^18]: *See supra* n. Error: Reference source not found (noting pending
    petitions for review).

[^19]: The Second Circuit also granted motions to intervene in the
    Fox-CBS case by NBC Universal, Inc., NBC Telemundo License Co., NBC
    Television Affiliates, FBC Television Affiliates Association, CBS
    Television Network Affiliates Association, and the Center for
    Creative Community, Inc. Before transferring the ABC-Hearst case,
    the D.C. Circuit granted ABC Television Affiliates Association's
    motion to intervene.

[^20]: *See* 47 U.S.C. § 503(b)(4)(A); *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, 8015-16 ¶¶ 26-27 (2001) ("*Indecency Policy Statement*").

[^21]: The Commission did send a narrow Letter of Inquiry ("LOI")
    regarding "The 2003 Billboard Music Awards" broadcast, receiving a
    limited response from Fox on January 30, 2004. Fox also responded to
    a supplemental LOI without presenting new legal arguments. The
    Commission did not send LOIs regarding the complained-of broadcasts
    of "The 2002 Billboard Music Awards," "NYPD Blue," and "The Early
    Show" prior to the court's remand.

[^22]: *Remand Order* at 2.

[^23]: *See* Public Notice, *FCC Announces Filing Procedures In
    Connection With Court Remand of Section III.B of the Commission's
    March 15, 2006 Omnibus Order Resolving Numerous Broadcast Television
    Indecency Complaints*, DA 06-1739 (rel. Sept. 7, 2006).

[^24]: FCC File Nos. EB-03-IH-0617, EB-04-IH-0295, EB-04-IH-0091.

[^25]: *See* Letter from William D. Freedman, Deputy Chief,
    Investigations and Hearings Division, Enforcement Bureau, to Fox
    Television Stations, Inc. (January 7, 2004).

[^26]: *See* Letter from John C. Quale, Counsel, Fox Television
    Stations, Inc., to Investigations and Hearings Division, Enforcement
    Bureau, FCC, File No. EB-03-IH-0617 (January 30, 2004)
    ("*Response*").

[^27]: "The Simple Life," which debuted on December 2, 2003, followed
    Ms. Hilton's and Ms. Richie's fish-out-of-water adventures upon
    being transplanted from Beverly Hills, California to an Arkansas
    farm for 30 days. A *New York Times* review described the show as
    "\[a\]n updated 'Green Acres'" featuring "Ms. Hilton, 22, of the
    hotel fortune, and Ms. Richie, also 22, daughter of the pop singer
    Lionel Richie." Alessandra Stanley, *With a Rich Girl Here and a
    Rich Girl There*, N.Y. Times, Dec. 2, 2003, at E1. The cover of the
    Simple Life DVD describes Ms. Hilton and Ms. Richie in the following
    manner: "They're Rich. They're Sexy. They're
    TOTALLY-OUT-OF-CONTROL!" Discussing Fox executives' original idea
    for the show in an interview, one executive touched on the same
    excretory theme as "The 2003 Billboard Awards" script, stating that
    "'\[t\]hey wanted to see stilettos in cow shit.'"

    [[http://web.archive.org/web/20040215040316/http://www.tvweek.com/topstorys/112403simplelife.html]{.underline}](http://web.archive.org/web/20040215040316/http://www.tvweek.com/topstorys/112403simplelife.html).

    Daily Variety's review of the premiere episode also described Ms.
    Richie's penchant for "bad language," labeling her as
    "potty-mouthed." Brian Lowry, *The Simple Life*, Daily Variety, Nov.
    25, 2003 at 4.

[^28]: *See* *Response* at 3-4.

[^29]: *Id.* at 12-13.

[^30]: *Id.*

[^31]: *Infinity Broadcasting Corporation of Pennsylvania,* Memorandum
    Opinion and Order, 2 FCC Rcd 2705 (1987) (subsequent history
    omitted) (*citing Pacifica Foundation*, Memorandum Opinion and
    Order, 56 FCC 2d 94, 98 (1975), *aff'd sub nom. FCC v. Pacifica
    Foundation*, 438 U.S. 726 (1978)).

[^32]: *Indecency Policy Statement*, 16 FCC Rcd at 8002 ¶ 8 (emphasis in
    original); *see Omnibus Order*, 21 FCC Rcd at 2667 ¶ 12.

[^33]: *Indecency Policy Statement*, 16 FCC Rcd at 8002 ¶ 9 (emphasis in
    original).

[^34]: *Id.* at 8002-15 ¶¶ 8-23.

[^35]: *Id.* at 8003 ¶ 10.

[^36]: *Id.* at 8009 ¶ 19 (*citing Tempe Radio, Inc. (KUPD-FM)*, Notice
    of Apparent Liability for Forfeiture, 12 FCC Rcd 21828 (Mass Media
    Bur. 1997) (forfeiture paid) (extremely graphic or explicit nature
    of references to sex with children outweighed the fleeting nature of
    the references); *EZ New Orleans, Inc. (WEZB(FM))*, Notice of
    Apparent Liability for Forfeiture, 12 FCC Rcd 4147 (Mass Media Bur.
    1997) (forfeiture paid) (same)).

[^37]: *Indecency Policy Statement*, 16 FCC Rcd 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").

[^38]: *See, e.g.*, *Grant Broadcasting System II, Inc. Licensee
    WJPR-TV*, 12 FCC Rcd 8277, 8279 (Mass Media Bur. 1997) (NAL issued
    for non-literal uses of the "F-Word" and the "S-Word," such as "this
    fucking place is going to blow up"); *Pacifica Foundation, Inc.*,
    Memorandum Opinion and Order, 2 FCC Rcd 2698, 2699 ¶¶ 12-13 (1987)
    (subsequent history omitted) (distinguishing between the use of
    "expletives" and "speech involving the description or depiction of
    sexual . . . functions" but indicating that both fall within the
    subject matter scope of our indecency definition). The Enforcement
    Bureau's departure from this precedent in its *Golden Globe Awards*
    decision, [*Complaints Against Various Broadcast Licensees Regarding
    Their Airing of the "Golden Globe Awards,"* Memorandum Opinion and
    Order, 18 FCC Rcd 19859 (Enf. Bur.
    2003)](http://web2.westlaw.com/find/default.wl?rs=WLW6.09&serialnum=2003677856&fn=_top&sv=Split&tc=-1&findtype=Y&tf=-1&db=4493&vr=2.0&rp=%2Ffind%2Fdefault.wl&mt=Westlaw),
    was contrary to this precedent and thus appropriately overturned by
    the Commission. While the Bureau cited two cases for the proposition
    that the use of the "F-Word" did not necessarily fall within the
    subject matter scope of our indecency definition, both cases were
    inapposite. First, the "F-Word" was not even an issue in *Entercom*,
    which addressed the words "prick" and "piss," and, in any event, was
    a Bureau rather than a Commission decision. *See Entercom Buffalo
    License, LLC (WGR(AM))*, Order, 17 FCC Rcd 11997 (Enf. Bur. 2002).
    Second, in *Peter Branton*, the Commission did not rule that the
    some uses of the "F-Word" fell outside the subject matter scope of
    our indecency definition. Rather, we decided that the uses of the
    "F-Word" there were not "patently offensive" in the context of the
    news programming at issue in that case. *See Peter Branton,* 6 FCC
    Rcd 610 (1991), *appeal dismissed,* 993 F.2d 906 (D.C. Cir. 1993),
    *cert. den.* 511 U.S. 1052 (1994).

[^39]: *See, e.g.,* American Heritage College Dictionary 559 (4th ed.
    2002) (defining the F-Word as "1: to have sexual intercourse with").

[^40]: *See* Robert F. Bloomquist, *The F-Word: A Jurisprudential
    Taxonomy of American Morals (In a Nutshell),* 40 Santa Clara L. Rev.
    65, 98 (1999) ("all F-word usage has at least an implicit sexual
    meaning").

[^41]: *See* *Golden Globe Awards Order*, 19 FCC Rcd at 4979 ¶ 8.

[^42]: *See id.*

[^43]: To the extent that Fox argues that it did not present Ms.
    Richie's comment for "shock value," *see, e.g.,* *Response* at 13,
    it fundamentally misunderstands the contextual analysis employed by
    the Commission. "In evaluating whether material is indecent, we
    examine the material itself and the manner in which it is presented,
    not the subjective state of mind of the broadcaster." *Complaints
    Against Various Television Licensees Concerning Their February 1,
    2004 Broadcast of the Super Bowl XXXVIII Halftime Show*, Order on
    Reconsideration, 21 FCC Rcd 6653, 6657-58 ¶ 12 (2006) ("*Super Bowl
    Order on Reconsideration*"), *pet. for review pending*, *CBS Corp.
    v. FCC*, No. 06-3575 (3d Cir. filed July 28, 2006).

[^44]: For example, Fox does not argue that Ms. Richie's remarks had any
    artistic merit or were necessary to convey any message.

[^45]: *See Pacifica*, 438 U.S. at 749-51.

[^46]: *See* *Action for Children's Television v. FCC*, 58 F.3d 654, 665
    (D.C. Cir. 1995) (en banc) ("*ACT III*") (holding that the
    Commission could rely on bright-line time channeling rule and
    rejecting contention that it was required to use "station-specific
    and program-specific data in assessing whether children are at risk
    of being exposed to broadcast indecency"), *cert. denied*, 516 U.S.
    1072 (1996).

[^47]: Fox notes that its policy is to rate any programming containing
    the "F-Word" TV-MA. *See* Letter from John C. Quale to Marlene H.
    Dortch, Secretary, FCC, in FCC File Nos. EB-03-IH-0460,
    EB-03-IH-0617, EB-04-IH-0295, EB-04-IH-0091 at 4 (filed Sept. 29,
    2006) ("Fox Response to 9/18/2006 LOI"). The TV-MA rating (mature
    audience only) signifies that the program is specifically designed
    to be viewed by adults and therefore may be unsuitable for children
    under 17. In the context of a TV-MA rated program, an "L" would
    signify "crude indecent language." The TV-PG rating (parental
    guidance suggested), by contrast, merely signifies that the program
    contains material that parents may find unsuitable for younger
    children, and that parents may want to watch the program with their
    younger children. TV-PG is the most common rating, covering a
    majority of the programs that are rated. *See* Nancy Signorielli,
    *Age-Based Ratings, Content Designations, and Television Content: Is
    There a Problem?*, 8 Mass Comm. & Soc'y 277, 293 (2005) (six in ten
    rated programs are rated TV-PG). The "D" signifies that the program
    may contain some suggestive dialogue, and the "L" signifies that the
    program may contain some infrequent coarse language. Moreover, we
    note that the TV-PG(DL) rating appeared only at the beginning and
    once in the middle of the program; thus, a viewer tuning into this
    2-hour broadcast at another time may not even have been aware that
    it was rated TV-PG(DL). *See* *Pacifica*, 438 U.S. at 748 ("Because
    the broadcast audience is constantly tuning in and out, prior
    warnings cannot completely protect the listener or viewer from
    unexpected program content.").

[^48]: *See, e.g.,* e-mail complaint from individual to Fox station
    KMSP(TV), Minneapolis, dated December 10, 2003 ("I would appreciate
    it if you would pass on my intense opinion of the Billboard Awards
    and Nicole Ritchie (sic). We teach our kids that people like her
    have a potty mouth. My children were watching part of this program
    and happened to catch her vulgarity. We will not finish watching the
    awards nor will we continue to watch fox network in this
    household."); e-mail complaint from individual to Fox station
    WTVT(TV), Tampa, dated January 21, 2004 ("Fox insults my ears and
    those of my wife and children with the "f' word, etc. and we leave
    you for good . . ."); e-mail complaint from individual to Fox
    station KMSP(TV), Minneapolis, dated December 10, 2003 ("Why are you
    allowing that kind of language at 8:00 p.m. for all ages of people
    to hear? . . . It was disgusting and very disturbing. . . "); e-mail
    complaint from individual to Fox station KMSP(TV), Minneapolis,
    dated December 13, 2003 ("I was watching the event with my 12 and 13
    y/o daughters. . . the amount of swearing that was done and the
    severity of some of the words was horrible. . . Watching TV has
    become very unpredictable these days . . . I do not feel it is a
    safe source of entertainment for our children. . . ."); complaint
    from individual to David Solomon, Chief of Enforcement Bureau, dated
    December 12, 2003 ("I was horrified to learn that some of the young
    children in the school that I teach in viewed the program. Several
    of these children are among those children who have social problems
    and are often in trouble. Is this what our children have to look
    toward for example on how to live? Would you want your children or
    grandchildren to mimic these entertainers ?????") All of these
    complaints except for the last one to the FCC's Enforcement Bureau
    are attached to Fox's January 30, 2004 *Response*.

[^49]: *Response* at 12, 13.

[^50]: *Pacifica Foundation, Inc.,*2 FCC Rcd at 2699. *See also* *New
    Indecency Enforcement Standards To Be Applied to All Broadcast and
    Amateur Radio Licensees*, Public Notice, 2 FCC Rcd 2726 (1987).

[^51]: *See Pacifica Foundation, Inc.*, 2 FCC Rcd at 2699 (emphasis
    added).

[^52]: *Id*.

[^53]: *See, e.g.*, *Golden Globe Awards Order*, 19 FCC Rcd at 4981 ¶ 12
    n. 32 (listing Bureau-level decisions).

[^54]: *Indecency Policy Statement*, 16 FCC Rcd at 8008-09 ¶¶ 17-19.

[^55]: *Id*. at 8008 ¶ 17.

[^56]: *Id*. at 8009 ¶ 19.

[^57]: In this respect, our decision differs from our suggestion in
    Section III.B of the *Omnibus Order*, now vacated, that prior to the
    Commission's decision in *Golden Globe* this broadcast would not
    have warranted enforcement action because it involved an "isolated
    use of expletives." *See Omnibus Order*, 21 FCC Rcd at 2695 ¶ 124.
    For the reasons discussed above, we do not believe that our prior
    suggestion accurately reflected the context of this broadcast or
    Commission precedent.

[^58]: *Pacifica Foundation, Inc.*, 2 FCC Rcd at 2699.

[^59]: *See* *id.* (discussing "deliberate" use of expletives).

[^60]: For these reasons, Ms. Richie's comments differ significantly
    from the language involved in the two Bureau-level decisions finding
    fleeting expletives not to be indecent that were cited in the
    *Indecency Policy Statement*. *See Indecency Policy Statement*, 16
    FCC Rcd at 8008-09 ¶ 18. Rather, they are more similar to the
    material in the *LBJS Broadcasting Company* Notice of Apparent
    Liability cited in the *Indecency Policy Statement* because they
    combine a graphic and vulgar description of sexual or excretory
    material with an expletive. *Id*. at 8009 ¶ 19, *citing* *LBJS
    Broadcasting Company*, 13 FCC Rcd 20956 (Mass Media Bur. 1998)
    (forfeiture paid) (finding broadcast apparently indecent for use of
    phrase "\[s\]uck my dick you fucking cunt").

[^61]: *See Golden Globe Awards Order*, 19 FCC Rcd at 4980 ¶ 12.

[^62]: *Id*.

[^63]: *See supra* para. 16.

[^64]: *Pacifica*, 438 U.S. at 742.

[^65]: *Indecency Policy Statement*, 16 FCC Rcd at 8002-03 ¶ 9.

[^66]: *Id.* at ¶¶ 9-10.

[^67]: *Pacifica*, 438 U.S. at 748-49.

[^68]: Joint Comments of Fox, CBS, NBC Universal, Inc. and NBC Telemundo
    License Co. in DA 06-1739 at 3 (filed Sept. 21, 2006) ("*Joint
    Comments*").

[^69]: *Pacifica*, 438 U.S. at 742, 750.

[^70]: *Id.* at 750.

[^71]: *Id.* at 748-49.

[^72]: Such words could include grossly offensive sexual terms such as
    "cunt."

[^73]: *See* complaints listed in note Error: Reference source not found
    *supra*. Like the broadcast in *Pacifica*, Ms. Richie's statements
    "could have enlarged a child's vocabulary in an instant."
    *Pacifica*, 438 U.S. at 749.

[^74]: *Indecency Policy Statement*, 16 FCC Rcd at 8009 ¶ 19.

[^75]: *See id.* (listing examples of isolated utterances found to be
    actionably indecent).

[^76]: *Joint Comments* at 10-11.

[^77]: *Infinity Radio License, Inc.*, Memorandum Opinion and Order, 19
    FCC Rcd 5022, 5026 ¶ 12 (2004).

[^78]: Fox Response to 9/18/2006 LOI at 4 (emphasis added).

[^79]: Letter from F. William LeBeau to Marlene H. Dortch, Secretary,
    FCC, File Nos. EB-03-IH-0355, EB-03-IH-0460, EB-03-IH-0617,
    EB-04-IH-0295, EB-04-IH-0091, EB-05-IH-0007 at 4-5 (Sept. 29, 2006)
    ("NBC Response to 9/18/2006 LOI").

[^80]: Letter from John W. Zucker, Senior Vice President, ABC, Inc. to
    Marlene H. Dortch, Secretary, FCC, File No. EB-03-IH-0355 at 2
    (Sept. 29, 2006) ("ABC Response to 9/18/2006 LOI").

[^81]: "Nightline," Sept. 29, 2006.

[^82]: Letter from Anne Lucey, Senior Vice President, CBS Corp. to
    Marlene H. Dortch, Secretary, FCC, File No. EB-05-IH-0007 at 2
    (Sept. 29, 2006) ("CBS Response to 9/18/2006 LOI") (emphasis added).

[^83]: Response of Hearst-Argyle Television, Inc., File No.
    EB-03-IH-0355 at 3 (Sept. 29, 2006) ("Hearst Response to 9/18/2006
    LOI") (emphasis added).

[^84]: *See* ABC Response to 9/18/2006 LOI at 2; CBS Response to
    9/18/2006 LOI at 2-3; Hearst Response to 9/18/2006 LOI at 4-5; NBC
    Response to 9/18/2006 LOI at 3-4; Fox Response to 9/18/2006 LOI at
    4.

[^85]: H.R. 3717, the 'Broadcast Decency Enforcement Act of 2004':
    Hearing Before the Subcommittee on Telecommunications and the
    Internet of the House Comm. On Energy & Commerce, 107^th^ Congress,
    (Feb. 26, 2004) (statement of Gail Berman).

[^86]: The Networks also complain about the Commission's analysis of
    contemporary community standards in other pending proceedings, such
    as *The Blues: Godfathers and Sons*. *See* *Joint Comments* at 10.
    In the case of *The Blues*, the Commission has issued only a Notice
    of Apparent Liability for Forfeiture, *see Omnibus Order* at 2683-87
    ¶¶ 72-85, and we will address such issues in further proceedings in
    that case.

[^87]: *See Response* at 13.

[^88]: *Id.* at 6.

[^89]: *Id.* at 8-9. Following this broadcast, Fox implemented a longer
    delay mechanism and a second delay button for all live broadcasts to
    serve as a back-up. *Id*. at 9. In its recent response to a LOI
    relating to the broadcast of "The 2002 Billboard Music Awards," Fox
    states that it now uses a total of four delay buttons for all live
    broadcasts of entertainment programming. In addition, it "recognizes
    that certain performers may present more risk of spontaneous
    objectionable content during live performances than others" and thus
    "has begun to tape in advance certain performances to air during
    otherwise 'live' broadcasts." *See* Letter from John C. Quale to
    Marlene H. Dortch, Secretary, FCC, File No. EB-03-IH-0460 at 6
    (Sept. 21, 2006) ("Fox Response to 9/7/06 LOI").

[^90]: *Pacifica*, 438 U.S. at 733 n. 7, *quoting Pacifica Foundation*,
    59 FCC 2d at 893 n. 1. *See* *Response* at 12.

[^91]: *Pacifica Foundation, Inc.*, 2 FCC Rcd at 2700 ¶ 18. *See
    Liability of San Francisco Century Broadcasting, L.P.*, Memorandum
    Opinion and Order, 8 FCC Rcd 498, 499 ¶ 7 (1993) ("the mere fact
    that a show is live does not excuse a station from exercising its
    editorial responsibilities, especially where commonly available
    screening techniques can eliminate the element of surprise."),
    *citing* *Sound Broadcasting Corp.*, Notice of Apparent Liability, 6
    FCC Rcd 2174 (Mass Media Bur. 1991); *Radio Station KFMH-FM,
    Muscatine, Iowa*, Notice of Apparent Liability, 9 FCC Rcd 1681,
    1681-82 (Mass Media Bur. 1994) (rejecting contention that licensee
    should not be held responsible for broadcasting live and unscripted
    offensive material from an outside source where the broadcaster
    suspected "that the caller involved was the same person who had told
    the objectionable joke only eight minutes earlier" but "chose to
    place the call on the air rather than to discontinue the broadcast
    or to use precautions such as a delay device."); *L.M.
    Communications*, Notice of Apparent Liability, 7 FCC Rcd 1595 (Mass
    Media Bur. 1992) (rejecting argument that broadcaster should not be
    sanctioned for airing indecent material within live and unscripted
    programming where "the scatological material as broadcast involved a
    deliberate and repetitive use of the word 'crap' to heighten the
    audience's awareness of and attention to the subsequent use of the
    term 'shit' by the announcer.").

[^92]: *See* *Response* at 6; *see also Complaints Against Various
    Television Licensees Concerning Their February 1, 2004 Broadcast of
    the Super Bowl XXXVIII Halftime Show*, Forfeiture Order, 21 FCC Rcd
    2760, 2769 ¶ 19 (2006) (citing evidence that "there is always a risk
    that performers will ad-lib remarks or take unscripted actions, and
    that the risk level varies according to the nature of the
    performance.") (subsequent history omitted).

[^93]: *See supra* note 27. As discussed above, Fox advertised Ms.
    Hilton and Ms. Richie as being "totally-out-of-control" on the cover
    of the Simple Life DVD. Additionally, *The Los Angeles Times* review
    of the first episode of "The Simple Life" describes Ms. Hilton and
    Ms. Richie as "out-of-control." Carina Chocano, *Work for a Living?
    What a Concept*, L.A. Times, Dec. 2, 2003, at 1 (Calendar Section).

[^94]: "*The Simple Life*," Season 1, Episodes 1-3. In addition, Ms.
    Richie's penchant for cursing is highlighted in a scene during the
    first episode in which their host, reviewing the house rules with
    them, states "no cussing or bad language," at which point the camera
    focuses on Ms. Richie giggling helplessly at Ms. Hilton. Their
    penchant for vulgarity is also illustrated during the third episode
    in two scenes at a local fast food franchise where Ms. Richie and
    Ms. Hilton are working for the day. Directed to change the letters
    of a sign out front to read "Half Price Burgers All Day," they
    instead arrange the letters to read "1/2 Price Anal Salty Weiner
    Bugers." Later, standing on the curb in costumes of the restaurant's
    mascot, an animated milkshake, they stick up their respective middle
    fingers (which are pixilated) to passersby.

[^95]: *See infra* para. 56.

[^96]: *See* Fox Response to 9/7/06 LOI at 5.

[^97]: *See Response* at 5.

[^98]: *See, e.g.,* *id.* at 8-9.

[^99]: Fox Response to 9/18/2006 LOI at 10 n. 21.

[^100]: *Id.* By contrast, Fox states that its current time delay and
    editing system "relies upon technology to ensure that once an edit
    button is pressed, the potentially objectionable content is edited
    at the right time during the delayed feed." *Id*. As stated above,
    Fox's current system also utilizes more than one employee "to
    provide redundancy." *Id*. at 10.

[^101]: *See Joint Comments* at 12-16.

[^102]: Since this case does not involve breaking news or sports
    programming, we do not address issues involving such programming
    here. But as we recognize elsewhere in this Order, "in light of the
    important First Amendment interests at stake as well as the crucial
    role that context plays in our indecency determinations, it is
    imperative that we proceed with the utmost restraint when it comes
    to news programming." *See infra*, § C.

[^103]: See *Joint Comments*, Appendix X (Declaration of Peter Ligouri)
    at ¶ 2.

[^104]: Of the 32 awards shows that were broadcast by the major networks
    and are discussed in the record, only the Academy Awards aired live
    in all time zones. *See* ABC Response to 9/18/2006 LOI at 2; NBC
    Response to 9/18/2006 LOI at 4 and Exh. C.; Fox Response to
    9/18/2006 LOI at 3-4; CBS Response to 9/18/2006 LOI at 7.

[^105]: Fox Response to 9/18/2006 LOI at 11.

[^106]: *Id.*

[^107]: *Id.* *See* ABC Response to 9/18/2006 LOI at 7-8 (reporting that
    transmitting signals from ABC's New York Broadcast Center to
    affiliates results in less than a two second delay, that feeding
    live material from remote locations to ABC's New York Broadcast
    Center may cause an additional delay of up to a second, and that
    distribution of the signals to the consumers through cable and
    satellite systems may cause an additional delay).

[^108]: *See Response* at 8; *see also* Fox Response to 9/7/06 LOI at 5.
    In addition, Fox uses delays for live entertainment broadcasts even
    after 10 p.m. *See* *id.* at 5-7. The Commission's indecency
    regulation does not apply at that time, *see* 47 C.F.R. §
    73.3999(b), so Fox obviously has reasons apart from regulatory
    compulsion for using a delay**.**

[^109]: *Joint Comments* at 15.

[^110]: *Action for Children's Television v. FCC*, 59 F.3d 1249, 1261
    (D.C. Cir. 1995), *cert. denied*, 516 U.S. 1072 (1996) (*ACT IV*),
    *citing Pacifica*, 438 U.S. at 743. *See ACT III*, 58 F.3d at 666
    ("Whatever chilling effects may be said to inhere in the regulation
    of indecent speech, these have existed ever since the Supreme Court
    first upheld the FCC's enforcement of section 1464 of the Radio
    Act.").

[^111]: 18 U.S.C. § 1464.

[^112]: *Golden Globe Awards Order*, 19 FCC Rcd at 4981 ¶ 13, *quoting
    Tallman v. United States*, 465 F.2d 282, 286 (7th Cir. 1972).

[^113]: *Omnibus Order*, 21 FCC Rcd at 2686 ¶ 81 ("Like the 'F-Word,'
    \[the 'S-Word'\] is one of the most offensive words in the English
    language, the broadcast of which is likely to shock the viewer and
    disturb the peace and quiet of the home.").

[^114]: *Id.* at 2669 ¶ 19, *citing Complaints Against Various
    Television Licensees Regarding Their Broadcast on November 11, 2004
    of the ABC Television Network's Presentation of the Film "Saving
    Private Ryan,"* Memorandum Opinion and Order, 20 FCC Rcd 4507,
    4512-14 ¶¶ 13-18 (2005).

[^115]: *Response* at 8.

[^116]: *See Omnibus Order*, 21 FCC Rcd at 2666 ¶ 8.

[^117]: *See supra* para. 18 (noting that, according to Nielsen ratings
    data, 23.4% of the people watching an average minute of "The 2003
    Billboard Music Awards" broadcast were under 18, and 11% were
    between the ages of 2 and 11).

[^118]: *See Joint Comments* at 28-32; Thomas Jefferson Center For the
    Protection of Free Expression Comments at 11-15 (Sept. 21, 2006).

[^119]: The 1891 edition of the Century Dictionary includes this
    definition of profane: "2. To put to a wrong use; employ basely or
    unworthily." Century Dictionary 4754 (1891 ed.). In an appendix to
    his concurring opinion in *Burstyn v. Wilson*, 343 U.S. 495, 533-40
    (1952), Justice Frankfurter collected definitions of "sacrilege,"
    "blasphemy," and "profane" dating to 1651. The earliest of these
    definitions of profane is "to apply any thing sacred to common use.
    To be irreverent to sacred persons or things. To put to a wrong
    use." *Id.* at 536, *quoting* Rider, A New Universal English
    Dictionary (London, 1759). The next is "To violate; to pollute.---To
    put to wrong use." *Id.* at 537, *quoting* Kenrick, A New Dictionary
    of the English Language (London, 1773). Frankfurter's concurring
    opinion also notes that Funk & Wagnalls' New Standard Dictionary of
    the English Language, first copyrighted in 1913, includes a
    definition of "to profane" as "3. To vulgarize; give over to the
    crowd." *Id.* at 527 n. 48. Thus, we disagree that Congress clearly
    would have understood the term in 1927 to mean only blasphemous or
    sacrilegious. *Joint Comments* at 28.

[^120]: *See Tallman v. United States*, 465 F.2d at 286; *State v.
    Richards*, 896 P.2d 357, 364 (Id. App. 1995) (in rejecting a
    vagueness challenge to state statute proscribing telephone
    harassment through, *inter alia*, "obscene, lewd or profane
    language," construing "profane" to mean "characterized by abusive
    language . . . cursing or vituperation . . ."); *see also United
    States v. Hicks*, 980 F.2d 963, 970 n. 9 (5th Cir. 1992) (angry
    reference to flight attendant as a "bitch" and angry admonition that
    she should get her "ass" to the plane's kitchen qualified as
    "profane"). We disagree with the Networks that *Tallman* addressed
    the word's meaning in *dicta*, and that the case actually refutes
    the Commission's interpretation because the Court cited with
    approval *Duncan v. United States*, 48 F.2d 128 (9th Cir.), *cert.
    denied*, 383 U.S. 863 (1931), and *Gagliardo v. United States*, 366
    F.2d 720 (9th Cir. 1966). *See* *Joint Comments* at 31. *Tallman*
    held that the word "profane" in Section 1464 must be interpreted
    narrowly as, *inter alia*, "denoting language which under
    contemporary community standards is so grossly offensive to members
    of the public who actually hear it as to amount to a nuisance" to
    preserve its validity in response to a facial constitutional
    challenge. *Tallman*, 465 F.2d at 286. The Court cited *Duncan* and
    *Gagliardo* solely as examples of prior judicial interpretations
    available to the trial judge had jury instructions on the word's
    meaning been necessary, without approving or even identifying such
    interpretations. *Id.* We also reject the Networks' argument that
    the rule of lenity counsels against the Commission's interpretation
    of "profane." *See* *Joint Comments* at 30, n. 34. Among other
    things, the Networks make no showing that their preferred
    construction of the term is any narrower than the Commission's.
    Indeed, we think it likely that more broadcast speech would be
    considered "profane" under the Networks' interpretation of the term
    than under ours. *See also infra* para. 54 (explaining that the
    *Pacifica* Court squarely rejected the argument that the FCC's civil
    authority to enforce Section 1464 must be interpreted in accordance
    with rules that apply to criminal statutes, such as the rule of
    lenity).

[^121]: *See State v. Richards*, 896 P.2d at 364 ("when words appear in
    a list or are otherwise associated, they should be given related
    meanings."), *citing Schreiber v. Burlington Northern, Inc.*, 472
    U.S. 1 (1985), *Jarecki v. G.D. Searle & Co.*, 367 U.S. 303 (1961),
    2A Norman J. Singer, Southerland's Statutes and Statutory
    Construction § 47.16 at 183 (5th ed. 1992); *United States v.
    Hicks*, 980 F.2d at 970 n. 9 ("By 'profanity' or 'vulgarity,' we
    refer to words that, while not obscene, nevertheless are considered
    generally offensive by contemporary community standards."). The fact
    that the words "indecent" and "profane" in Section 1464 have
    "separate" meanings does not render our interpretation of profane
    "implausible." *See Joint Comments* at 31, *quoting* *Pacifica*, 438
    U.S. at 739-40. We recognize that the two words have separate
    meanings, and the Commission interprets the two words differently.
    Our enforcement policy limiting the regulation of profane language
    to words that are sexual or excretory in nature or are derived from
    such terms stems from First Amendment considerations rather than the
    meaning of the word. *See Omnibus Order*, 21 FCC Rcd at 2669 ¶ 18.

[^122]: *Duncan*, 48 F.2d at 133-34 (the phrase "God damn it" uttered in
    anger was not profane under Section 1464).

[^123]: *Id.* at 134. *Duncan* was decided before constitutional law
    evolved to the point that such language could not be proscribed.
    *See Burstyn v. Wilson*, 343 U.S. 495 (1952) (holding
    unconstitutional a New York statute authorizing state officials to
    license films for public exhibition unless the films are
    "sacrilegious").

[^124]: *Gagliardo*, 366 F.2d at 725 ("God damn it" uttered in anger not
    legally profane). The FCC did not address whether "profane" could be
    interpreted in a non-religious sense in *Raycom America, Inc.*,
    Memorandum Opinion and Order, 18 FCC Rcd 4186 (2003) (portions of
    "The West Wing" in which a character "'scream\[ed\] at God,' and
    made irreverent references toward the deity---'\[y\]ou're a
    sonofabitch, you know that?,' and 'have I displeased you, you
    feckless thug?'" not actionably profane), and *Warren B. Appleton*,
    28 FCC 2d 36 (Broadcast Bur. 1971) ("damn" not actionably profane),
    because those cases involved language with religious connotations.

[^125]: 47 C.F.R. § 73.3999.

[^126]: 47 U.S.C. § 1464; 47 U.S.C. § 503(b)(1)(D). *See Joint Comments*
    at 32.

[^127]: *See*, *e.g.*, *Joint Comments* at 7-8.

[^128]: *Pacifica*, 438 U.S. at 732.

[^129]: *See id.* at 739, 741.

[^130]: *Action for Children's Television v. FCC*, 852 F.2d 1332, 1339
    (D.C. Cir. 1988) ("*ACT I*"); *accord* *ACT III*, 58 F.3d at 659.

[^131]: 521 U.S. 844 (1997).

[^132]: *Joint Comments* at 7.

[^133]: *See* 47 U.S.C. § 223(d) (1994 Supp. II).

[^134]: *Reno*, 521 U.S. at 870.

[^135]: *Id.* at 867.

[^136]: *Id.*

[^137]: *See id.* at 867, 872; *see also* *Pacifica*, 438 U.S. at 750
    (declining to decide whether an indecent broadcast "would justify a
    criminal prosecution").

[^138]: *Reno*, 521 U.S. at 867 (quoting *Pacifica*, 438 U.S. at 748).

[^139]: *Joint Comments* at 22.

[^140]: In any event, the Commission has no authority to overrule
    *Pacifica*. *Cf.* *Rodriguez de Quijas v. Shearson/American Express,
    Inc.*, 490 U.S. 477, 484 (1989).

[^141]: *Pacifica*, 438 U.S. at 748.

[^142]: *Id*.

[^143]: *Id.* at 749.

[^144]: *Turner Broadcasting Sys., Inc. v. FCC*, 512 U.S. 622, 637
    (1994); *see also Reno*, 521 U.S. at 868 (recognizing "special
    justifications for regulation of the broadcast media").

[^145]: *ACT III*, 58 F.3d at 660. *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 the rise of "non-broadcast media").

[^146]: *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)).

[^147]: *Id.* at 194.

[^148]: U.S. Census Bureau, *Statistical Abstract of the United States*
    737 (2006).

[^149]: *Joint Comments* at 21 (citing *Annual Assessment of the Status
    of Competition in the Market for the Delivery of Video Programming*,
    Twelfth Annual Report, 21 FCC Rcd 2503, ¶ 8 (2006) ("*Annual
    Assessment*")).

[^150]: *Annual Assessment*, 21 FCC Rcd at 2508 ¶ 15; *see also*
    Comments of the Walt Disney Co. in MB Docket No. 04-210 at 2 (filed
    Aug. 11, 2004) ("Disney/ABC stresses that these customers \[relying
    on broadcast only\] represent a significant portion of our potential
    viewing audience.").

[^151]: *Media Bureau* *Staff Report Concerning Over-the-Air Broadcast
    Television Viewers*, No. 04-210, ¶ 9 (MB Feb. 28, 2005), *available
    at* 2005 WL 473322, at \*2.

[^152]: *Annual Assessment*, 21 FCC Rcd at 2508 ¶ 15.

[^153]: *Id.* at 2552 ¶ 97. The NAB has properly characterized this
    number as "enormous." Reply Comments of the National Association of
    Broadcasters and the Association for Maximum Service Television,
    Inc. in MB Docket No. 04-210 at i (filed Sept. 7, 2004).

[^154]: *See* Kaiser Family Foundation, *Generation M: Media in the
    Lives of 8-18 Year-olds* 77 (2005).

[^155]: *See* Nielsen Media Research, "Top 10 Broadcast TV Programs for
    the Week of September 18, 2006;" Nielsen Media Research, "Top 10
    Cable TV Programs for the Week of September 18, 2006."

[^156]: *See* Television Bureau of Advertising, "Season-to-Date
    Broadcast vs. Subscription TV Primetime Ratings: 2004-2005,"
    *available at*
    http://www.tvb.org/rcentral/ViewerTrack/FullSeason/fs-b-c.asp?ms=2004-2005.asp.

[^157]: 47 U.S.C. § 560 (2000); *see also* *United States v. Playboy
    Entertainment Group, Inc.*, 529 U.S. 803 (2000).

[^158]: *ACT III*, 58 F.3d at 660.

[^159]: *See Super Bowl Order on Reconsideration*, 21 FCC Rcd at 6667 ¶
    37. In Congressional testimony shortly after the 2003 Billboard
    Music Awards, Fox's President of Entertainment acknowledged that the
    V-chip and television ratings were "underutilized." H.R. 3717, the
    'Broadcast Decency Enforcement Act of 2004': Hearing Before the
    Subcommittee on Telecommunications and the Internet of the House
    Comm. On Energy & Commerce, 107^th^ Congress, (Feb. 26, 2004)
    (statement of Gail Berman). According to a 2003 study, parents' low
    level of V-chip use is explained in part by parents' unawareness 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.

[^160]: *See supra* para. 18, n. 46; *Super Bowl Order on
    Reconsideration*, 21 FCC Rcd at 6667-68 ¶ 37.

[^161]: *See supra* para. 18, n. 46.

[^162]: Henry J. Kaiser Family Foundation, *Parents, Media and Public
    Policy: A Kaiser Family Foundation Survey* 5 (2004) ("Kaiser
    Survey"). Likewise in a study published in the journal *Pediatrics*,
    parents concluded that half of television shows the industry had
    rated as appropriate for teenagers were in fact inappropriate, a
    finding the study authors called "a signal that the ratings are
    misleading." David A. Walsh & Douglas A. Gentile, *A Validity Test
    of Movie, Television, and Video-Game Ratings*, 107 Pediatrics 1302,
    1306 (2001).

    Academics who have studied the television rating system share
    parents' assessment that the ratings are often inaccurate. A 2002
    study found that many shows that should carry content descriptors do
    not, therefore leaving parents unaware of potentially objectionable
    material. *See* Dale Kunkel, *et al.*, *Deciphering the V-Chip: An
    Examination of the Television Industry's Program Rating Judgments*,
    52 Journal of Communications 112 (2002). For example, the study
    found that 68 percent of prime-time network shows without an "L"
    descriptor contained "adult language," averaging nearly three scenes
    with such language per show. *See id.* at 132; *see also id.* at 131
    (finding that 20 percent of shows rated TV-G -- supposedly
    appropriate for all ages -- included objectionable language,
    including "bastard," "bitch," "shit," and "whore"). In fact, "in all
    four areas of sensitive material -- violence, sexual behavior,
    sexual dialogue, and adult language -- the large majority of
    programs that contain such depictions are not identified by a
    content descriptor." *Id.* at 136. The study's authors concluded
    that "\[p\]arents who might rely solely on the content-based
    categories to block their children's exposure to objectionable
    portrayals would be making a serious miscalculation, as the content
    descriptors actually identify only a small minority of the full
    range of violence, sex, and adult language found on television."
    *Id.*

    A 2004 study also raised serious questions about the accuracy of
    television ratings. It found 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. 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); *see also* Parents Television Council, *The Ratings Sham: TV
    Executives Hiding Behind A System That Doesn\'t Work* (April 2005)
    (study of 528 hours of television programming concluding that
    numerous shows were inaccurately and inconsistently rated);
    *Effectiveness of Media Rating Systems: Subcommittee of Science,
    Technology, and Space of the Senate Comm. On Commerce, Science &
    Transp.*, 107^th^ Congress (2004) (statement of Ms. Patti Miller,
    director, Children and the Media Program for Children Now) ("Can
    parents depend on the accuracy of the ratings systems? Sadly, the
    answer is no.").

    An economist studying the question of why broadcasters consistently
    "underlabel" their programs concluded that they are likely
    responding to economic incentives. *See* James T. Hamilton, *Who
    Will Rate the Ratings?*, *in* *The V-Chip Debate: Content Filtering
    from Television to the Internet* 133, 143, 149 (Monroe E. Price, ed.
    1998). He found that programs with more restrictive ratings command
    lower advertising revenues. *See id.* at 143. The desire to charge
    more for commercials and fear of "advertiser backlash" over shows
    with more restrictive ratings "means that networks have incentives
    to resist the provision of content-based information." *Id.* at 149;
    *see also* Kunkel, 52 Journal of Communications at 114 ("\[T\]he
    prospect that applying 'higher' ratings to a program could reduce
    audience size raises a self-interest concern regarding the accuracy
    with which judgments about program ratings are determined.").

    Finally, even assuming *arguendo* that the content descriptors were
    accurately applied, they would not assist the majority of parents
    because they are not sufficiently understood. The Kaiser Survey
    found that only 51% of parents understand that "V" stands for
    violence; only 40% understand "L" stands for language; only 37%
    understand "S" stands for sex; and only 4% understand that "D"
    stands for suggestive or sexual dialogue. Kaiser Survey at 6.

[^163]: *Pacifica*, 438 U.S. at 749. *See, e.g., Youth, Pornography, and
    the Internet,* ed. by Dick Thornburgh and Herbert S. Lin, p. 115
    (National Academy Press 2002) ("As a general rule, young children do
    not have the cognitive skills needed to navigate the Internet
    independently. Knowledge of search strategies is limited if not
    nonexistent, and typing skills are undeveloped.").

[^164]: *See Reno*, 521 U.S. at 877. Filtering software, for example,
    can block access to a website based on the software\'s evaluation of
    the site\'s content. The V-chip, in contrast, does not evaluate
    television programs itself and therefore is only effective if the
    programs have been given accurate ratings. However, to the extent
    that filtering software is ineffective and children are still able
    to access indecent material on the Internet, we note that Congress
    has sought to address this problem through the Child Online
    Protection Act, a statute whose validity is still being litigated.
    *See Ashcroft v. ACLU*, 542 U.S. 656 (2004) (affirming preliminary
    injunction). We note that the Networks also refer to the
    availability of video game consoles as another medium that, in their
    view, is as pervasive as television. *See* *Joint Comments* at
    21-22. Video games differ from broadcast television in that games
    must be purchased individually, so a parent who purchases a video
    game console for a child retains the ability to determine which
    games the child will play.

[^165]: *See supra* para. 51 and nn. 159-162.

[^166]: *Remand Order* at 2. *See* 47 U.S.C. § 503(b)(4)(C); *ACT IV*,
    59 F.3d at 1254, *citing Pleasant Broadcasting Co. v. FCC*, 564 F.2d
    496 (D.C. Cir. 1977).

[^167]: In light of recent legislation, the Networks raise the prospect
    of future fines in excess of \$65 million for "a single, fleeting
    instance of indecent speech." *Joint Comments* at 16. We do not
    believe, however, that a case similar to "The 2003 Billboard Music
    Awards" arising in the future would merit the maximum fine permitted
    under the Broadcast Decency Enforcement Act. *See* Pub. L. 109-235,
    102 Stat. 491 (June 15, 2006), *to be codified* at 47 U.S.C. §
    503(b)(2)(C)(ii). While that Act, once we adopt implementing
    regulations, will provide the Commission with the flexibility to
    impose appropriate fines in egregious cases, the Commission will
    continue to follow a restrained enforcement policy in imposing
    forfeitures in this area.

[^168]: *See* 47 U.S.C. §§ 503(b)(1)(B) & (D). We also need not address
    whether responsibility would lie with independent Fox affiliates in
    addition to the licensees owned by Fox. *Cf. 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, 19240-41 ¶ 25
    (2004).

[^169]: *Joint Comments* at 24-26. We also reject, as contrary to the
    plain meaning of the Act, the Networks' contention that we may not
    impose forfeitures for violations of our indecency rule under
    section 503(b)(1)(B). While the Networks suggest that the
    Commission's indecency rule, 47 C.F.R. § 73.3999, merely represents
    a decision by the Commission to restate 18 U.S.C. § 1464, the
    indecency rule was adopted by the Commission pursuant to the
    direction of Congress. *See* Public Telecommunications Act of 1992,
    Pub. L. No. 102-356, 106 Stat. 949, Section 16 (1992).

[^170]: *Pacifica*, 438 U.S. at 739 n.13.

[^171]: The Networks' reliance on *FCC v. ABC*, 347 U.S. 284, 296
    (1954), for the proposition that "'\[t\]here cannot be one
    construction for the Federal Communications Commission and another
    for the Department of Justice'" is misplaced. *Joint Comments* at
    24. In that case, the Court rejected the broad construction urged by
    the Commission of a statutory prohibition against a "lottery, gift
    enterprise, or similar scheme" in part because "the same
    construction would likewise apply in criminal cases." *FCC v. ABC*,
    347 U.S. at 296. In contrast, the intent required to impose civil
    penalties for Section 1464 violations has no impact on its possible
    application as a criminal statute. *See Pacifica*, 438 U.S. at 739
    n. 13.

[^172]: FCC File No. EB-03-IH-0460. *See* Letter from Lara Mahaney,
    Director of Corporate and Entertainment Affairs, PTC to David
    Solomon, Chief, Enforcement Bureau, Federal Communications
    Commission (August 22, 2003). As noted in the *Golden Globe Awards
    Order,* the Commission's Enforcement Bureau had dismissed an earlier
    complaint concerning the same broadcast on the same station eight
    months earlier. *See* Letter from Charles Kelley, Chief,
    Investigations and Hearings Division, Enforcement Bureau, FCC to
    [RadioEsq@aol.com](mailto:RadioEsq@aol.com.), EB-02-IH-0861-MT
    (December 18, 2002), *cited in Golden Globe Awards Order*, 19 FCC
    Rcd at 4980 ¶ 12 n.32 (noting Bureau dismissal of complaint).
    However, Fox has raised no claim of administrative res judicata, and
    thus, because that defense has been waived, we need not consider it.
    *Cf*. *Kern Oil & Ref. Co. v. Tenneco Oil Co.*, [840 F.2d 730, 735
    (9th Cir.
    1988)](http://web2.westlaw.com/find/default.wl?tf=-1&rs=WLW6.09&referencepositiontype=S&serialnum=1988032564&fn=_top&sv=Split&tc=-1&findtype=Y&referenceposition=735&db=350&vr=2.0&rp=%2Ffind%2Fdefault.wl&mt=Westlaw).

[^173]: *See* Letter from Lara Mahaney, Director of Corporate and
    Entertainment Affairs, PTC to David Solomon, Chief, Enforcement
    Bureau, Federal Communications Commission (August 22, 2003).

[^174]: *See* Press Release, "Cher to Receive the Artist Achievement
    Award on the 2002 Billboard Music Awards Monday, Dec. 9 on Fox"
    (Nov. 14, 2002), attached to Letter from John C. Quale, Counsel of
    Fox, to Benigno E. Bartolome, Deputy Chief, Investigations and
    Hearings Division, Enforcement Bureau, File No. EB-03-IH-0460
    (September 21, 2006) ("Fox Response to 9/7/2006 LOI"). 

[^175]: *See* Letter from Benigno E. Bartolome, Deputy Chief,
    Investigations and Hearings Division, Enforcement Bureau, to Fox
    Television Stations, Inc., File No. EB-03-IH-0460 (September 7,
    2006).

[^176]: *See* Fox Response to 9/7/2006 LOI.

[^177]: *Id.* at 2.

[^178]: *Id.* at 10.

[^179]: *Id.*

[^180]: Fox also suggests that the complaint should be dismissed because
    it fails to specifically allege that the complainant viewed "The
    2002 Billboard Music Awards." *See id.* at 2. We disagree. Our
    practice has never been to require such an allegation in order for a
    complaint to be considered. It is sufficient that the complaint
    originated from within the market of the station against which the
    complaint is filed. *See Indecency Policy Statement*, 16 FCC Rcd at
    8015 ¶ 24; *see also Super Bowl Order on Reconsideration*, 21 FCC
    Rcd at 6665 ¶ 30.

[^181]: *See supra* note 38.

[^182]: *See supra* para. 16.

[^183]: *See supra* note 40.

[^184]: *See* Andrew Koppelman, *Why Discrimination Against Lesbians and
    Gay Men Is Sex Discrimination*, 69 N.Y.U. L. Rev. 197, 224 (1994)
    (explaining the sexual meaning of the metaphorical use of the
    "F-Word" as a verb).

[^185]: *See* *Golden Globe Awards Order*, 19 FCC Rcd at 4979 ¶ 8.

[^186]: *See id.*

[^187]: *See Pacifica*, 438 U.S. at 749-51 (identifying as relevant
    contextual factors the time of day of the broadcast, program content
    as it affects "the composition of the audience," and the nature of
    the medium). *See also* *supra* para. 18.

[^188]: *See supra* para. 18

[^189]: Fox Response to 9/7/2006 LOI at 6.

[^190]: *See supra* n. 47. In the context of a broadcast rated "TV-PG,"
    an "L" content description warning would not have alerted parents to
    the use of the "F-word." *See id.* Nonetheless, the "2002 Billboard
    Music Award," unlike the 2003 version of the same show, did not
    include even that inadequate "L" content descriptor. So parents
    relying on the ratings would not have expected even mild "coarse"
    language, much less the "F-Word."

[^191]: For instance, Fox does not contend that Cher's comment had any
    artistic merit or was necessary to convey any message.

[^192]: Fox's argument that it did not present Cher's comment for "shock
    value" misunderstands the contextual analysis employed by the
    Commission, under which "we examine the material itself and the
    manner in which it is presented, not the subjective state of mind of
    the broadcaster." *Super Bowl Order on Reconsideration*, 21 FCC Rcd
    at 6657-58 ¶ 12.

[^193]: *See Golden Globe Awards Order*, 19 FCC Rcd at 4980 ¶ 12.

[^194]: *Id*.

[^195]: *See supra* para. 59.

[^196]: *Pacifica*, 438 U.S. at 748-49.

[^197]: *See supra* para. 29.

[^198]: *See* Fox Response to 9/7/06 LOI at 4-6, 10.

[^199]: *See supra* para. 60; *see also* *Golden Globe Awards Order*, 19
    FCC Rcd at 4982 ¶ 15.

[^200]: 18 U.S.C. § 1464.

[^201]: *Golden Globe Awards Order*, 19 FCC Rcd at 4981 ¶ 13, *quoting
    Tallman*, 465 F.2d at 286.

[^202]: *Omnibus Order* at 2669 ¶ 19, *citing Complaints Against Various
    Television Licensees Regarding Their Broadcast on November 11, 2004
    of the ABC Television Network's Presentation of the Film "Saving
    Private Ryan,"* Memorandum Opinion and Order, 20 FCC Rcd 4507,
    4512-14 ¶¶ 13-18 (2005).

[^203]: Fox Response to 9/7/2006 LOI at 10.

[^204]: *See Omnibus Order*, 21 FCC Rcd at 2666 ¶ 8.

[^205]: *See supra* para. 59 (noting that, according to Nielsen ratings
    data, 27.9% of the people watching an average minute of "The 2002
    Billboard Music Awards" broadcast were under 18, and 12.7% were
    between the ages of 2 and 11); *see also* *Pacifica*, 438 U.S. at
    749-50 (discussing government's interest in protecting children from
    "offensive expression")

[^206]: *See supra* para. 64. In light of our decision not to impose a
    forfeiture, we need not address whether the violations of Section
    1464 and our rule were willful within the meaning of Section 503(b).

[^207]: The constitutional arguments raised by the Networks relating to
    the application of our indecency framework to "The 2002 Billboard
    Music Awards" are the same as the constitutional arguments that we
    have already addressed with respect to the "2003 Billboard Music
    Awards" broadcast. We reject those arguments for the same reasons
    given above. *See supra* para. 42-52.

[^208]: FCC File No. EB-05-IH-0007.

[^209]: *See* Letter From Robert Corn-Revere, Counsel to CBS, to Marlene
    H. Dortch, Secretary, FCC, File No. EB-05-IH-0007 (Sept. 21, 2006),
    at 1 ("CBS Response to 9/7/2006 LOI").

[^210]: *See id.* at 4.

[^211]: *Omnibus Order*, 21 FCC Rcd at 2668 ¶ 15.

[^212]: *Id.* at 2717 ¶ 218.

[^213]: *Peter Branton,* 6 FCC Rcd at 610. *See* *Infinity Broadcasting
    Corp. of Pennsylvania,* Memorandum Opinion and Order, 3 FCC Rcd 930,
    937 n. 31 (1987), *vacated on other grounds sub nom. ACT I*, (noting
    that "context will always be critical to an indecency determination
    and . . . the context of a bona fide news program will obviously be
    different from the contexts of the three broadcasts now before us,
    and, therefore, would probably be of less concern."); *Indecency
    Policy Statement,* 16 FCC Rcd at 8002-03 (stating that "\[e\]xplicit
    language in the context of a bona fide newscast might not be
    patently offensive." ).

[^214]: *Peter Branton*, 6 FCC Rcd at 610.

[^215]: *See, e.g., Evergreen Media Corporation of Chicago AM*,
    Memorandum Opinion and Order, 6 FCC Rcd 5950, 5951 (Mass Media Bur.
    1991) (finding talk show segment discussing pornographic photographs
    of Vanessa Williams to be indecent and concluding that "\[e\]ven if
    it had been argued that the \[show\] in question was comparable to a
    news program, the Vanessa Williams segment contained vulgar material
    presented in a pandering and titillating manner unlike anything
    found in the *Branton* case."); *Pacific and Southern Company Inc.*
    *(KSD-FM)*, Notice of Apparent Liability, 6 FCC Rcd 3689 (Mass Media
    Bur. 1990) (forfeiture paid) (finding that "exceptionally explicit
    and vulgar" material that was "presented in a pandering manner" was
    indecent even though it "arguably concerned an incident that was at
    the time 'in the news.'").

[^216]: *See, e.g.*, Howard Rosenberg, *The Fact Is, the Joke is the
    News*, Broadcasting & Cable, Nov. 1, 2004, at 32 ("Even more common
    is the venerable, widespread practice of cross-promotion, as on The
    Early Show, a production of CBS News, which each Friday devotes a
    lengthy segment to 'covering' the previous night\'s Survivor episode
    on the network, as if who got bumped off was an actual news story.
    As a bonus, The Early Show folds itself into this fantasy from a
    special set outfitted to resemble Survivor.").

[^217]: FCC File No. EB-03-IH-0355.

[^218]: *Omnibus Order*, 21 FCC Rcd at 2696-98 ¶¶ 125-36.

[^219]: KMBC Hearst-Argyle Television, Inc. Response to Letter of
    Inquiry and Memorandum of Law, File No. EB-03-IH-0355 at 8 (Sept.
    21, 2006) ("Hearst Response to 9/7/2006 LOI").

[^220]: *See* Letters from Lara Mahaney, Director of Corporate and
    Entertainment Affairs, PTC, to David Solomon, Chief, Enforcement
    Bureau, dated July 1 and July 3, 2003.

[^221]: Hearst Response to 9/7/2006 LOI at 11, n.9.

[^222]: *See supra* note 217 and accompanying text*.* The letterhead of
    each complaint identified contact information for PTC's office in
    Alexandria, Virginia, as well as a PTC office in Los Angeles,
    California.

[^223]: *See id*.

[^224]: *Omnibus Order,* 21 FCC Rcd at 2673 ¶ 32, 2676 ¶ 42, 2687 ¶ 86.

[^225]: *Id.* at 2687 ¶ 86. *See Super Bowl Order on Reconsideration*,
    21 FCC Rcd at 6665 ¶ 30 (under the enforcement policy announced in
    the *Omnibus Order*, "it is sufficient that viewers in markets
    served by each of the CBS Stations filed complaints with the
    Commission identifying the allegedly indecent program broadcast by
    the CBS Stations.").

[^226]: Hearst Response to 9/7/2006 LOI at 11.

[^227]: *Complaints Regarding Various Television Broadcasts Between
    February 2, 2002 and March 8, 2005,* Notices of Apparent Liability
    and Memorandum Opinion and Order*,* 21 FCC Rcd 2664 (2006)
    *("Omnibus Order").*

[^228]: Today's decision presumes that the general statement that the
    Commission's "collective experience and knowledge, developed through
    constant interaction with lawmakers, courts, broadcasters, public
    interest groups, and ordinary citizens," *and nothing more*, is
    sufficient to inform the public and broadcasters what we believe are
    the national, contemporary community standards of the broadcast
    medium. *In re Infinity Radio License, Inc.,* Memorandum Opinion and
    Order, 19 FCC Rcd 5022, 5026 (2004); *compare*, *Reno v. ACLU*, 521
    U.S. 844 (1997) (finding the terms "indecent", "patently offensive"
    and "in context" were so vague that criminal enforcement would
    violate the fundamental constitutional principles, but while
    recognizing "the history of extensive government regulation of
    broadcasting").

[^229]: *Complaints Against Various Broadcast Licensees Regarding Their
    Airing of the "Golden Globe Awards" Program*, Memorandum Opinion and
    Order, 18 FCC Rcd 19859 (Enf. Bur. 2003), *reversed*, 19 FCC Rcd
    4975 (2004) ("*Golden Globe Awards Order*"), *petitions for stay and
    recon. pending* (since April 2004) *.*

[^230]: *Golden Globe Awards Order* at ¶¶ 9, 12 and 14 (eviscerating our
    longstanding standard for "isolated or fleeting" expletives,
    establishing that any use of the "F-word" or a variation, in any
    context, "invariably invokes a coarse sexual image," and changing
    our 30-year standard of what constitutes profanity).

[^231]: *Omnibus Order*, Statement of Commissioner Jonathan S.
    Adelstein, concurring in part, dissenting in part, 21 FCC Rcd *at*
    2726.

[^232]: The decision letter dismissing a complaint against the December
    9, 2002, broadcast of "The Billboard Music Awards" by WTTG (TV),
    Washington, D.C., was referenced in footnote 32 of the *Golden Globe
    Awards Order*, and in footnote 9 of my Statement in that *Order*.

[^233]: *United States v. Utah Constr. & Min. Co.*, 384 U.S. 394, 422
    (1966).

[^234]: In the *Omnibus Order*, with respect to "The Early Show," the
    Commission said: "In rare contexts, language that is presumptively
    profane will not be found to be profane where it is demonstrably
    essential to the nature of an artistic or educational work or
    essential to informing viewers on a matter of public importance. We
    caution, however, that we will find this to be the case only in
    unusual circumstances, and such circumstances are clearly not
    present here." *Omnibus Order*, ¶ 144.

[^235]: *See Omnibus Order,* 21 FCC Rcd at 2699 *¶* 141 \[emphasis
    added\].

[^236]: *Id.* \[emphasis added\].

[^237]: ¶ 72, *supra.*

[^238]: *Id.* \[emphasis in original\].

[^239]: Looking at this contorted reasoning one must wonder whether the
    Commission is attempting to avoid reconsideration of its policy
    enunciated in the *Omnibus Order* that, consistent with *Golden
    Globe,* any variant, of the S-word is inherently excretory. *Omnibus
    Order* at 2699 ¶ 139.

[^240]: *Peter Branton*, 6 FCC Rcd 610 (1991).

[^241]: *FCC v. Pacifica Foundation*, 438 U.S. 726, 748 (1978).

[^242]: *See id.,* citing *Rowan v. Post Office Dept.,* 397 U.S. 728
    (1970)*.*

[^243]: *Order*, ¶¶ 18, 59 and 65.

[^244]: *Pacifica*, 438 U.S. at 763, POWELL J, *concurring in part and
    concurring in judgment*.

[^245]: The Commission claims that "the sufficiency of a complaint is
    the first step rather that the last step in the Commission's
    analysis." *Order*, ¶ 77. However, in the single complaint filed
    against the "The 2002 Billboard Music Awards," for example, the
    complainant does not even aver that she watched the program. Quite
    the contrary, the complaint was filed "on behalf of the Parents
    Television Council and its over 800,000 members." The complainant
    alleges, the broadcast "was seen in homes across the country on the
    Fox network, and in Washington DC." Based on the Commission's
    reasoning in today's *Order* and the *Golden Globe Awards Order,*
    this complaint does not state a *prima facie* case to justify
    Commission action. *See Order*, ¶¶ 40 and 65 (stating that "\[i\]n
    the *Golden Globe Awards Order*, the Commission concluded that the
    F-Word was profane within the meaning of Section 1464 because, in
    context, it contained vulgar and coarse language 'so grossly
    offensive to members of the public who *actually hear* it as to
    amount to a nuisance'") (emphasis added). *See also Order*, ¶ 75
    (stating that complaints against "NYPD Blue" are justifiably
    dismissed because "none of the complaints contains any claim that
    the out-of market complainant actually viewed the complained-of
    broadcasts") (emphasis added).