**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

In the Matter of )

)

**COMPLAINTS AGAINST VARIOUS** ) File No. EB-04-IH-0011

**TELEVISION LICENSEES** )

**CONCERNING THEIR FEBRUARY** ) NAL/Acct. No. 200432080212

**1, 2004 BROADCAST OF THE SUPER** )

**BOWL XXXVIII HALFTIME SHOW** )

**FORFEITURE ORDER**

**Adopted: February 21, 2006 Released: March 15, 2006**

By the Commission: Chairman Martin, Commissioners Copps and Tate issuing
separate statements; Commissioner Adelstein concurring and issuing a
statement.

**I. INTRODUCTION**

1.  In this *Forfeiture Order* ("*Order*"), issued pursuant to section
    503(b) of the Communications Act of 1934, as amended (the "Act"),
    and section 1.80 of the Commission's rules,[^1] we impose a monetary
    forfeiture in the amount of \$550,000 against CBS Corporation
    ("CBS"), as the licensee or the ultimate parent company of the
    licensees of the television stations listed in the Appendix ("CBS
    Stations").[^2] We find that CBS violated 18 U.S.C. § 1464 and the
    Commission's rule regulating the broadcast of indecent material[^3]
    in its broadcast of the halftime show of the National Football
    League's Super Bowl XXXVIII over the CBS Stations on February 1,
    2004, at approximately 8:30 p.m. Eastern Standard Time.[^4]

**II.** **BACKGROUND**

2.  The halftime show in question was a live broadcast of music and
    choreography produced by MTV Networks ("MTV"), which was then a
    Viacom, Inc. subsidiary. The halftime show lasted approximately
    fifteen minutes and aired over the CBS Stations and other television
    stations affiliated with the CBS Television Network. The show
    received considerable notoriety due to an incident at the end of its
    musical finale, in which Justin Timberlake pulled off part of Janet
    Jackson's bustier, exposing one of her breasts to the television
    audience.

3.  Following the Super Bowl broadcast and the receipt of complaints,
    the Enforcement Bureau ("Bureau") issued a letter of inquiry ("LOI")
    to CBS, seeking information about the halftime show, followed by a
    letter requesting videotapes of the complete Super Bowl programming
    broadcast over the CBS Television Network stations on February 1,
    2004, including the halftime show (collectively, the "Broadcast
    Videotape").[^5] In response, CBS provided a videotape of the
    broadcast of the halftime show to the Bureau on February 3,
    2004,[^6] an "interim response" to the Bureau's inquiries on
    February 10, 2004,[^7] the Broadcast Videotape on February 14,
    2004,[^8] and a complete response to the LOI on March 16, 2004.[^9]

4.  The script and Broadcast Videotape of the halftime show provided by
    CBS confirm that the show contained repeated sexual references,
    particularly in its opening and closing performances. The first
    song, "All For You," performed by Janet Jackson, began with the
    following lines, referring to a man at a party:

> All my girls at the party
>
> Look at that body
>
> Shakin' that thing
>
> Like I never did see
>
> Got a nice package alright
>
> Guess I'm gonna have to ride it tonight.[^10]

These lyrics use slang terms to refer to a man's sexual organs and
sexual intercourse and were repeated two more times during the song.
Following that performance, P. Diddy and Nelly presented a medley of
songs containing occasional references to sexual activities, emphasized
by Nelly's crotch-grabbing gestures.[^11] Then, after a medley by
performer Kid Rock, Jackson reappeared for a performance of "Rhythm
Nation" and then the closing song, "Rock Your Body," a duet in which she
was joined by Justin Timberlake. During the finale, Timberlake urged her
to allow him to "rock your body" and "just let me rock you 'til the
break of day" while following her around the stage and, on several
occasions, grabbing and rubbing up against her in a manner simulating
sexual activity.[^12] At the close of the song, while singing the
lyrics, "gonna have you naked by the end of this song," Timberlake
pulled off the right portion of Jackson's bustier, exposing her breast
to the television audience.[^13]

5.  The Commission released its *NAL* on September 22, 2004, pursuant to
    section 503(b) of the Act and section 1.80 of the Commission's
    rules, finding that CBS apparently violated the federal restrictions
    regarding the broadcast of indecent material.[^14] We noted that our
    indecency analysis involves two basic determinations. The first
    determination is whether the material in question depicts or
    describes sexual or excretory organs or activities.[^15] We found
    that the broadcast material contained, *inter alia*, a performance
    by Jackson and Timberlake that culminated in the on-camera exposure
    of one of Jackson's breasts, thereby meeting the first
    standard.[^16] The second determination is whether the material is
    patently offensive as measured by contemporary community standards
    for the broadcast medium.[^17] We observed that, in our assessment
    of whether broadcast material is patently offensive, "the *full
    context* in which the material appeared is critically
    important."[^18] Three principal factors are significant to this
    contextual analysis: (1) the explicitness or graphic nature of the
    description or depiction of sexual or excretory organs or
    activities; (2) whether the material dwells on or repeats at length
    descriptions or depictions of sexual or excretory organs or
    activities; and (3) whether the material appears to pander or is
    used to titillate or shock.[^19] In examining these three factors,
    we stated that we must weigh and balance them on a case-by-case
    basis to determine whether the broadcast material is patently
    offensive because "\[e\]ach indecency case presents its own
    particular mix of these, and possibly, other factors."[^20] We noted
    that, in particular cases, one or two factors may outweigh the
    others, either rendering the broadcast material patently offensive
    and consequently indecent[^21] or, alternatively, removing the
    broadcast from the realm of indecency.[^22]

6.  The Commission examined all three factors in the NAL and determined
    that, in context and on balance, the halftime show is patently
    offensive as measured by contemporary community standards for the
    broadcast medium. The Commission determined that the broadcast of
    partial nudity in this instance was explicit and graphic and
    appeared to pander to, titillate and shock the viewing audience.
    Therefore, the Commission determined that the material was patently
    offensive as measured by contemporary community standards for the
    broadcast medium, even though the nudity was brief.[^23]

7.  The Commission concluded, based upon its review of the facts and
    circumstances of this case, that CBS was apparently liable for a
    monetary forfeiture in the amount of \$550,000, calculated by
    applying the maximum forfeiture of \$27,500 to each CBS Station, for
    broadcasting indecent material in apparent violation of 18 U.S.C. §
    1464 and section 73.3999 of the Commission's rules.[^24] In
    contrast, the Commission proposed no forfeiture against any licensee
    other than CBS. It did so based on its finding that no licensee of a
    non-CBS-owned CBS affiliate was involved in the selection, planning
    or approval of the material for the halftime show, nor could any
    such licensee reasonably have anticipated that Viacom's production
    of the show would contain indecent material.[^25] On November 5,
    2004, CBS submitted its *Opposition* to the *NAL*.[^26]

**III**. **DISCUSSION**

8.  CBS does not dispute that the halftime show included a segment in
    which Justin Timberlake pulls off a portion of Jackson's bustier to
    reveal her breast at the end of the performance of a song containing
    the lyrics quoted above.[^27] CBS nonetheless argues that the
    material broadcast was not actionably indecent.[^28] CBS also
    maintains that the broadcast of Jackson's breast was accidental, and
    therefore was not "willful" under section 503(b)(1)(B) of the
    Act.[^29] CBS further argues that the Commission's indecency
    framework is unconstitutionally vague and overbroad, both on its
    face and as applied to the halftime show.[^30] As discussed below,
    we reject CBS's arguments and find the broadcast indecent for the
    reasons set forth herein*.* We reject CBS's assertion that the
    material at issue is not indecent because it is not patently
    offensive. In addition, we reject CBS's interpretation of the term
    "willful" and also address specific circumstances indicating
    that: (1) CBS consciously omitted the actions necessary to ensure
    that actionably indecent material would not be aired; and (2) the
    performers' willful actions here were attributable to CBS under
    established principles of agency and respondeat superior. Finally,
    we reject CBS's constitutional arguments, as the courts have
    repeatedly upheld the constitutionality of the Commission's
    indecency framework and our analysis of the halftime show is
    consistent with that framework. We therefore conclude that the
    broadcast of this material by the Viacom Stations violated 18 U.S.C.
    § 1464 and our rule against indecent broadcasts between 6 a.m. and
    10 p.m., and that the maximum statutory forfeiture is warranted.

9.  *Indecency Analysis.* The indecency analysis undertaken in the *NAL*
    followed the approach that the Commission has consistently applied.
    First, the material alleged to be indecent must fall within the
    subject matter scope of our indecency definition, *i.e.,* "the
    material must describe or depict sexual or excretory organs or
    activities."[^31] The *NAL* properly concluded that the broadcast of
    an exposed female breast met this definition.[^32] The halftime show
    broadcast therefore warrants further scrutiny to determine whether
    or not it was patently offensive as measured by contemporary
    community standards for the broadcast medium.

10. As discussed above, in our assessment of whether broadcast material
    is patently offensive, "the *full context* in which the material
    appeared is critically important."[^33] In cases involving televised
    nudity, the contextual analysis necessarily involves an assessment
    of the entire segment or program, and not just the particular scene
    in which the nudity occurs.[^34] Accordingly, in this case, our
    contextual analysis considers the entire halftime show, not just the
    final segment during which Jackson's breast is uncovered. We find
    that, in context and on balance, the complained-of material is
    patently offensive as measured by contemporary community standards
    for the broadcast medium.

11. Turning to the first principal factor of our contextual analysis, we
    conclude that a video broadcast image of Timberlake pulling off part
    of Jackson's bustier and exposing her bare breast, where the image
    of the nude breast is clear and recognizable to the average viewer,
    is graphic and explicit.[^35] CBS maintains that none of the cases
    cited in the *NAL* to support the conclusion that the partial nudity
    in the halftime show was explicit and graphic involved a televised
    broadcast of a woman's breast.[^36] We reject CBS's argument that
    our conclusion regarding this factor is flawed. The *NAL* correctly
    relied on *Young Broadcasting,* which supports the proposition that
    a scene showing nude sexual organs is graphic and explicit if the
    nudity is readily discernible.[^37] In this case, although the
    camera shot is not a close-up, the nudity is readily discernible.
    Furthermore, Jackson and Timberlake, as the headline performers, are
    in the center of the screen, and Timberlake's hand motion ripping
    off Jackson's bustier draws the viewer's attention to her exposed
    breast. CBS suggests that the fact that this nudity was not "planned
    and approved by \[CBS\]" is somehow relevant to whether it is
    explicit and graphic in nature.[^38] However, CBS's suggestion that
    planning or premeditation should be a factor in deciding whether a
    televised image is explicit or graphic lacks any basis in logic or
    law.[^39] Rather, the first factor in our contextual analysis
    focuses on the explicitness of the broadcast from the viewer's or
    listener's standpoint. Notwithstanding CBS's claimed befuddlement at
    how the televised image of a man tearing off a woman's clothing to
    reveal her bare breast could be deemed explicit, we believe that
    conclusion is clearly warranted by the facts here and fully
    consistent with the case law.[^40]

12. The second principal factor in our contextual analysis is whether
    the material dwells on or repeats at length descriptions or
    depictions of sexual or excretory organs or activities. The *NAL*
    appropriately recognizes that the image of Jackson's uncovered
    breast during the halftime show is fleeting.[^41] However, "even
    relatively fleeting references may be found indecent where other
    factors contribute to a finding of patent offensiveness."[^42] In
    this case, even though we find that the partial nudity was fleeting,
    the brevity of the partial nudity is outweighed by the first and
    third factors of our contextual analysis.

13. Under the third principal factor of our analysis -- whether the
    material appears to pander or is titillating or shocking -- we
    examine how the material is presented in context.[^43] The *NAL*
    found that "the manner of presentation of the complained-of material
    over each \[CBS Station\], for which Viacom failed to take adequate
    precautions, was pandering, titillating and shocking."[^44] The
    *NAL* noted that the exposure of Jackson's breast followed
    "performances, song lyrics and choreography \[that\] discussed or
    simulated sexual activities."[^45] Jackson's opening song contained
    repeated references to a man's "nice package" that she was "gonna
    have to ride . . . tonight" -- slang references to male sexual
    organs and sexual intercourse. The P. Diddy/Nelly performance also
    contained sexual references, emphasized by Nelly's crotch-grabbing
    gestures. Likewise, the duet by Jackson and Timberlake of "Rock Your
    Body" contained repeated references to sexual activities[^46] and
    choreography in which Timberlake grabbed Jackson, slapped her
    buttocks, and rubbed up against her in a manner simulating sexual
    activity. These sexually suggestive performances culminated in the
    spectacle of Timberlake ripping off a portion of Jackson's bustier
    and exposing her breast while he sang "gonna have you naked by the
    end of this song." Clearly, the nudity in this context was
    pandering, titillating and shocking to the viewing audience,
    particularly during a prime time broadcast of a sporting event that
    was marketed as family entertainment and contained no warning that
    it would include nudity.[^47] Contrary to CBS's contention, we do
    evaluate the nudity in context. The offensive segment in question
    did not merely show a fleeting glimpse of a woman's breast, as CBS
    presents it. Rather, it showed a man tearing off a portion of a
    woman's clothing to reveal her naked breast during a highly
    sexualized performance and while he sang "gonna have you naked by
    the end of this song." From the viewer's standpoint, this nudity
    hardly seems "accidental," nor was it.[^48] This broadcast thus
    presents a much different case than would, for example, a broadcast
    in which a woman's dress strap breaks, accidentally revealing her
    breast for a fraction of a second.

14. Accordingly, we conclude that the Super Bowl XXXVIII halftime show
    contained material that was graphic, explicit, pandering,
    titillating and shocking and, in context and on balance, was
    patently offensive under contemporary community standards for the
    broadcast medium and thus indecent. Although the patently offensive
    material was brief, its brevity is outweighed in this case by the
    first and third factors in our contextual analysis. The
    complained-of material was broadcast within the 6 a.m. to 10 p.m.
    time frame relevant to an indecency determination under Section
    73.3999 of the Commission's rules,[^49] and is therefore legally
    actionable.

15. *Whether Violation was "Willful."* CBS argues that, if it did air
    indecent programming, its violation was "accidental" rather than
    "willful" and therefore cannot be sanctioned under section 503(b)(1)
    of the Act. In support of this argument, CBS cites definitions of
    "willful" from criminal and copyright law cases.[^50] These
    definitions, however, are inapposite. Rather than borrowing
    definitions from unrelated areas of law, the Commission
    appropriately applies the definition of "willful" that appears in
    the Communications Act. Section 312(f)(1) of the Act defines
    "willful" as "the conscious and deliberate commission or omission of
    \[any\] act, irrespective of any intent to violate" the law.[^51] As
    discussed in detail below, CBS acted willfully because it
    consciously and deliberately broadcast the halftime show, whether or
    not it intended to broadcast nudity, and because it consciously and
    deliberately failed to take reasonable precautions to ensure that no
    actionably indecent material was broadcast.[^52] CBS also is
    vicariously liable for the willful actions of the performers under
    the doctrine of respondeat superior.

16. The Commission's forfeiture authority was enacted "to impel
    broadcast licensees to become familiar with the terms of their
    licenses and the applicable Rules, and to adopt procedures,
    including periodic review of operations, which will insure that
    stations are operated in substantial compliance with their licenses
    and the Commission's Rules."[^53] The obligation of licensees to
    adopt measures to ensure compliance with the Act and the
    Commission's rules has particular force when it comes to
    broadcasters' responsibility for the programming that they broadcast
    to the public. Under well-established principles of broadcast
    regulation, "\[b\]roadcast licensees must assume responsibility for
    all material which is broadcast through their facilities," and that
    "duty is personal to the licensee and may not be delegated."[^54]

17. CBS claims that it had no advance knowledge that Timberlake planned
    to tear off part of Jackson's clothing to reveal her breast. Even
    assuming that this claim is true, however, we do not believe that
    this relieves CBS from responsibility for the indecent material that
    it broadcast. Rather, the record reveals that CBS was acutely aware
    of the risk of unscripted indecent material in this production, but
    failed to take adequate precautions that were available to it to
    prevent that risk from materializing.

18. It is disingenuous for CBS to argue that "the 'costume reveal' was
    as much a shock to Viacom as to everyone else."[^55] CBS clearly
    recognized that the live broadcast of the Super Bowl halftime show
    posed a significant risk that indecent material would be aired. The
    extensive planning and preparation for the show highlighted this
    risk. CBS knew that MTV, the corporate affiliate that was producing
    the show, was seeking to push the envelope by, among other things,
    including sexually provocative performers and material.[^56] In
    fact, the NFL expressed concerns about whether the planned halftime
    show might be heading in too risqué a direction and rebuffed MTV's
    desire to feature one performer because of a prior incident in which
    the performer unexpectedly removed her clothes during a national
    telecast of an NFL event.[^57] MTV sought to overcome the NFL's
    objections to another performer by offering assurances that it would
    exercise control over her wardrobe and actions, despite its own
    doubts about its ability to do so.[^58]

19. CBS maintains that it selected Jackson and Timberlake "to minimize
    the possibility of the unexpected,"[^59] but CBS was well aware that
    their selection did not obviate this risk. The NFL specifically
    expressed concerns to CBS about the costume that Jackson would wear
    during the halftime show.[^60] Moreover, the NFL raised concerns
    about Timberlake's scripted line "gonna have you naked by the end of
    this song" that anticipated the stunt resulting in the broadcast
    nudity.[^61] There were other warning signs as well. In a January
    28, 2004 news item posted on MTV's website, Jackson's choreographer
    predicted that Jackson's performance would include "some shocking
    moments" and said "I don't think the Super Bowl has ever seen a
    performance like this . . ."[^62] Shortly before the game, one
    halftime show performer asked about the length of the audio delay, a
    question that MTV employees evidently recognized implied an
    intention to depart from the script.[^63] Further, MTV learned the
    morning of the Super Bowl telecast of plans to use tearaway
    cheerleading outfits for dancers in another halftime performance in
    connection with a scripted line ("I wanna take my clothes off") that
    is quite similar to Timberlake's line ("gonna have you naked by the
    end of this song").[^64] The record reflects CBS's awareness 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.[^65] In sum, there was a significant and
    foreseeable risk in a halftime show seeking to push the envelope and
    replete with sexual content that performers might depart from script
    and staging, and this is particularly true of Jackson and Timberlake
    given the sexually-provocative nature of their performance, the fact
    that it was promoted as "shocking," and the fact that it culminated
    with the scripted line "gonna have you naked by the end of this
    song."[^66] Based on examination of the record, we conclude that CBS
    recognized the high risk that this broadcast raised of airing
    indecent material.[^67]

20. Examination of the record also reveals that CBS failed to take
    adequate precautions to prevent the airing of unscripted indecent
    material. Aware of the risk of visual and spoken deviations from the
    script and staging \-- that something spontaneous might occur or be
    said \-- CBS made a calculated decision. It chose to rely on a
    five-second audio delay that would enable it to bleep offensive
    language but would not enable it to block unscripted visual moments.
    Thus, it could not cut off Jackson's "costume reveal" when it
    occurred -- and it had no expectation that it would be able to block
    any indecent images.[^68] Only *after* the Super Bowl halftime show
    -- for the broadcast of the 2004 Grammy Awards -- did CBS institute
    an audio *and* video delay "to ensure that no unexpected or
    unplanned video images would be broadcast."[^69] CBS asserts that
    the delay used for the 2004 Grammy Awards was "unprecedented."[^70]
    But CBS does not argue that use of a delay mechanism capable of
    editing video images during the Super Bowl halftime show would not
    have been feasible. The fact that use of such a delay mechanism
    would have been "far more technically complex and involved more
    broadcast standards staff to implement" than the delay that CBS
    actually used hardly excuses its omission under these
    circumstances.[^71] Furthermore, CBS also failed to adopt other
    precautions available to it. For example, MTV's agreements with the
    performers did not require them to conform to the script or to CBS's
    broadcast standards and practices, notwithstanding the fact that
    MTV's agreement with the NFL contained provisions to this
    effect.[^72] In addition, the record contains no evidence that MTV
    or CBS communicated CBS's broadcast standards and practices to
    Jackson, Timberlake, or Jackson's choreographer before the show,
    despite the highly sexualized nature of the performances and the
    fact that MTV's contract with the NFL required MTV to communicate
    those standards and practices to all performers.[^73]

21. CBS also overstates the level of care it exercised in overseeing the
    halftime production. Critically, it failed to investigate Jackson's
    choreographer's "shocking moments" prediction, which was posted on
    MTV's website, despite CBS's concern about unscripted remarks or
    actions.[^74] In addition, contrary to its contention,[^75] each
    aspect of the halftime show was not reviewed in advance by CBS's
    Program Practices Department. As stated above, MTV learned for the
    first time on the morning of the Super Bowl telecast of plans for
    dancers to use tearaway cheerleading outfits to act out the line "I
    wanna take my clothes off."[^76] It does not appear that these plans
    were reviewed by CBS's Program Practices Department because the
    rehearsals that CBS, MTV and NFL representatives reviewed occurred
    several days before the Super Bowl telecast, and the dancers were
    not in costume during the scene in question.[^77]

22. Under these circumstances, we believe that CBS can and should be
    held responsible for the patently offensive material that it
    broadcast to a nationwide audience. A contrary result would permit a
    broadcast licensee to stage a show that "pushes the envelope," send
    that show out over the air waves, knowingly taking the risk that
    performers will engage in offensive unscripted acts or use offensive
    unscripted language, and then disavow responsibility -- leaving no
    one legally responsible for the result. We believe that these are
    fully appropriate circumstances for application of the "conscious
    and deliberate . . . omission" basis for finding "willfulness"
    incorporated by Congress into Section 503(b) of the Act.[^78]
    Indeed, given the nondelegable nature of broadcast licensees'
    responsibility for programming and the means available to but
    declined by CBS to reduce the risk of the broadcast of indecent
    programming, it is difficult to conceive of a more appropriate
    context in which to apply that standard.

23. Further, CBS is legally responsible here for another reason; it is
    fully responsible for the actions of Jackson, Timberlake, and
    Jackson's choreographer under the doctrine of respondeat superior.
    "It is well established that traditional vicarious liability rules
    ordinarily make principals or employers vicariously liable for acts
    of their agents or employees in the scope of their authority or
    employment."[^79] The Commission has long held licensees responsible
    for the unauthorized acts of their agents under this doctrine.[^80]
    Respondeat superior subjects a principal to vicarious liability when
    its agent-employee commits a tort while acting within the scope of
    employment.[^81] Whether an agent is an employee for purposes of
    respondeat superior depends on whether the agent is subject to the
    principal's control or right to control the performance of the
    work.[^82] An agent-employee acts within the scope of employment
    when performing work assigned by the employer or engaging in a
    course of conduct subject to the employer's control.[^83]

24. It is appropriate to impose vicarious responsibility on CBS for the
    willful actions of Jackson, Timberlake, and Jackson's choreographer
    under the doctrine of respondeat superior. Even assuming arguendo
    that the corporate officers and other corporate employees of CBS and
    MTV did not act willfully within the meaning of section 503(b)(1),
    there is no question that the performers did. Timberlake's
    declaration acknowledges a premeditated plan for him to tear off
    part of Jackson's clothing during the performance.[^84] Jackson,
    Timberlake, and Jackson's choreographer were CBS agents for the
    halftime show performance; Jackson and Timberlake entered into
    agreements with MTV (MTV and CBS at the time were both Viacom
    subsidiaries) to perform during the halftime show, and Gil Duldulao
    contractually agreed to choreograph the dance.[^85] Based on
    examination of the record, we also believe that the three were CBS
    employees for purposes of applying the principle of respondeat
    superior. CBS had the right to control, and in fact exercised
    considerable control over, the halftime show:

> Each aspect of the halftime show was scripted in advance and a script
> of the halftime show was reviewed by the CBS Program Practices
> Department. In addition, employees of CBS, MTV, and the NFL attended
> two full run-throughs of the halftime show on Thursday, January 29 to
> review the production. The run-throughs were videotaped, and reviewed
> by representatives of CBS and the NFL. MTV producers then used the
> tape to individually review the rehearsal performances with the talent
> to instruct them on changes to be made in the actual performance on
> Super Bowl Sunday. Based on these procedures, certain changes were
> made to the show. For example, the costume worn by one of the dancers
> during the run-throughs was considered to be too revealing, and she
> was instructed to change it before the final show. There was also
> concern about some of the language, and changes were suggested. . . .
> Because Ms. Jackson was not in costume during the run-throughs, an
> executive producer subsequently checked to make sure that Ms.
> Jackson's wardrobe would conform to broadcast standards during the
> actual performance.[^86]

25. Thus, CBS exercised control over all aspects of the performers'
    conduct in the performance of the halftime show, including the
    script, staging and wardrobe used during the Jackson-Timberlake
    performance. Other factual indicia of control are present as well.
    CBS (through MTV) provided the set and set elements for the
    performance and dictated its time and place, as well as the time and
    place of production and press-related activities.[^87] Many courts
    have held entertainers to be employees for respondeat superior and
    other purposes under similar circumstances.[^88] Finally, the
    performers' actions were clearly within the scope of their
    employment. In this regard, the determining factor is not whether
    their actions were authorized by CBS but whether the performance was
    subject to CBS's control.[^89] Put differently, their conduct was
    incident to the performance rather than "an independent course of
    conduct intended to serve no purpose of the employer."[^90]
    Accordingly, the performers' willful actions are fully attributable
    to CBS under the doctrine of respondeat superior irrespective of
    whether the performers' actions were authorized by CBS.

26. *Amount of Forfeiture*. CBS offers a variety of arguments that the
    forfeiture proposed in the *NAL* is excessive or unfair. First, it
    contends that it is unfair to impose a forfeiture on it, when no
    forfeiture was imposed on those affiliates of the CBS Television
    Network that are not owned by CBS.[^91] Second, CBS argues that the
    *NAL* improperly cites "the history of recent indecent broadcasts by
    CBS owned radio stations" with a footnote to cases that are not
    completely adjudicated.[^92] Third, CBS maintains that the
    forfeiture is excessive in relation to the duration of the nude
    scene and in light of CBS's precautionary measures.[^93] Fourth, CBS
    argues that it had no prior notice that a brief scene of partial
    nudity constituted actionable indecency and thus should not be
    subject to any forfeiture.[^94]

27. We conclude that CBS's arguments do not justify a reduction in the
    amount of the proposed forfeiture. The *NAL* proposed no forfeiture
    against CBS Television Network affiliate stations that are not owned
    by Viacom because there is no evidence that the licensees of any of
    those stations played any role in the selection, planning or
    approval of the halftime show or that they could have reasonably
    anticipated that CBS's production of the halftime show would include
    partial nudity. CBS has not provided any contrary evidence. In
    contrast, CBS admits that it was closely involved in the production
    of the halftime show, and that its MTV affiliate produced it.

28. With respect to the *NAL*'s reference to the history of indecent
    broadcasts by CBS's radio stations, we note that those cases have
    been resolved by a Consent Decree in which CBS admitted to certain
    violations, and the Commission agreed not to use that admission
    against CBS in any other proceeding, including this one.[^95]
    Accordingly, we no longer rely on that history of indecent
    broadcasts in reaching our determination here. Nevertheless, we
    remain convinced that the upward adjustment to the statutory maximum
    is appropriate in light of all of the factors enumerated in section
    503(b)(2)(D) of the Act, particularly the circumstances involving
    the preparation, execution and promotion of the halftime show by
    CBS, the gravity of the violation in light of the nationwide
    audience for the indecent broadcast, and CBS's ability to pay.[^96]
    The crux of CBS's defense is that the blame lies with the performers
    who planned and carried out the costume reveal that resulted in the
    exposure of Jackson's breast. However, CBS's attempt to place blame
    on the performers in question is unavailing; as discussed above, the
    performers were acting as CBS's agents and CBS is responsible for
    their actions within the scope of their employment. In addition, CBS
    planned almost every element of the halftime show. In the course of
    doing so, it brushed off warning signs of the potential for
    actionably indecent behavior and failed to take adequate precautions
    to prevent the airing of indecent material. As a result of its
    decisions, an enormous nationwide audience,[^97] including numerous
    children, was subjected without warning to the offensive spectacle
    of a man tearing off a woman's clothing on stage in the midst of a
    sexually charged performance. Finally, regarding the element of
    ability to pay and financial disincentives to violate the Act and
    rules,[^98] we find that CBS's size and resources, without question,
    support an upward adjustment to the maximum statutory forfeiture of
    \$550,000 because a lesser amount would not serve as a significant
    penalty or deterrent to a company of its size and resources.[^99]

29. We also reject CBS's claim that it lacked prior notice that a brief
    scene of partial nudity might result in a forfeiture. Our rule
    against the broadcast of indecent material outside of the safe
    harbor hours has been in effect since 1993,[^100] and our criteria
    for determining whether material is indecent were clearly spelled
    out in the *Policy Statement* issued in 2001. Furthermore, the
    *Young Broadcasting* decision, holding that a brief display of male
    frontal nudity was an apparent violation of that rule, was released
    shortly before the subject Super Bowl broadcast.[^101] Thus, CBS was
    on notice that the broadcast of partial nudity could violate the
    indecency rule and statute. CBS tries to liken its situation to that
    of NBC in the *Golden Globe* *Order*, where we declined to impose a
    forfeiture because we overruled precedent that had specifically held
    that isolated expletives were not actionably indecent.[^102] We have
    never held, however, that fleeting nudity is not actionably
    indecent. On the contrary, as discussed above, we held that fleeting
    nudity was indecent in *Young Broadcasting* before the Super Bowl
    broadcast at issue here. The fact that this case is not identical to
    *Young Broadcasting* (or, indeed, any other case) certainly does not
    preclude us from imposing a forfeiture. The facts of most indecency
    cases are not identical to any that precede them. For example, the
    Commission has not been confronted before this case with a broadcast
    where a male performer ripped off the clothing of a female performer
    to reveal her breast in the midst of a song containing repeated
    sexual references and a dance containing simulated sexual
    activities. But any argument that CBS lacked adequate notice that
    such a performance would run afoul of the Commission's indecency
    regulations is groundless. The Commission is applying an established
    standard to the facts of a new case and is not overruling precedent.
    Thus, it is entirely lawful and appropriate to impose a forfeiture
    when we determine that the licensee has violated that standard.
    [^103]

30. *Constitutional Issues.* CBS offers a number of arguments attacking
    the constitutional underpinnings of the Commission's indecency
    framework. We find no merit in those arguments.

31. We reject CBS's arguments that the Commission's indecency standard
    is vague, overbroad, and vests the Commission with excessive
    discretion.[^104] Courts have upheld the indecency standard applied
    in the *NAL* and in this *Order* against facial vagueness and
    overbreadth challenges.[^105] The D.C. Circuit also has rejected the
    argument that the Commission's indecency standard is overbroad
    because it may encompass material with serious merit.[^106] We do
    not believe that requiring broadcasters to exercise care to prevent
    a televised depiction of naked sexual organs prior to 10 p.m. unduly
    "chills" exercise of their First Amendment rights. As the D.C.
    Circuit observed, "some degree of self-censorship is inevitable and
    not necessarily undesirable so long as proper standards are
    available."[^107]

32. We also disagree with CBS that the *NAL* is inconsistent with the
    Supreme Court's *Pacifica* decision.[^108] *Pacifica* stressed the
    importance of contextual analysis such as that reflected in this
    *Order*.[^109] Accordingly, we do not read *Pacifica* as precluding
    an indecency finding based on a brief depiction of partial nudity.
    The Supreme Court specifically stated that it had not decided
    whether an occasional expletive in a different setting (*e.g*., a
    two-way radio conversation between a cab driver and a dispatcher, or
    a telecast of an Elizabethan comedy) would justify any
    sanction.[^110] The Court's emphasis on the narrowness of its
    holding was meant to highlight the "all-important" role of context,
    not to deprive the Commission of power to regulate broadcast
    indecency except in situations involving extended or repetitious
    expletives or depictions of sexual or excretory organs or
    activities.[^111]

33. CBS also claims that the constitutional validity of our indecency
    enforcement practice has been undermined by a changed legal and
    technological landscape, citing the Supreme Court's decisions in
    *United States v. Playboy Entertainment Group, Inc.*,[^112] *Reno v.
    ACLU*,[^113] and *Denver Area Educational Telecommunications
    Consortium v. FCC*,[^114] and pointing to the pervasiveness of cable
    and satellite television, and the development of online media and
    media recording technology (*e.g.*, videocassette recorders, DVD
    recorders and personal video recorders featuring time-shifting
    technology) and the V-chip.[^115] Again, we disagree. In striking
    down as unconstitutional an Internet indecency standard, the Supreme
    Court expressly recognized in *Reno* the "special justifications for
    regulation of the broadcast media," citing *Red Lion* and
    *Pacifica*.[^116] Moreover, in *Denver Area*, the Court addressed
    the constitutionality of a Commission order implementing provisions
    of the 1992 Cable Television Consumer Protection and Competition Act
    that concerned indecent and obscene cable programming, not
    over-the-air broadcasting. We find nothing in that opinion that
    undermines the constitutionality of our framework for enforcing our
    rule against the broadcast of indecent material outside the safe
    harbor hours.

34. Furthermore, CBS's arguments about new technologies have no apparent
    application to this case. The V-chip technology cannot be utilized
    to block sporting events such as the Super Bowl because sporting
    events are not rated.[^117] Nevertheless, even if the V-chip could
    be used to block sporting events, based on CBS's representations it
    appears that CBS would not have rated the Super Bowl halftime show
    as inappropriate for children.

35. Finally, we address CBS's dire warnings that imposing sanctions in
    this case will have a chilling effect on live coverage of public
    events, such as national political conventions and presidential
    scandals, and "violates the Commission's own pledge" to "take no
    action which would inhibit broadcast journalism."[^118] While we are
    sensitive to the impact of our decisions on speech and, in
    particular, on live news coverage, we do not believe that CBS's
    fears about the chilling effect of our decision here are
    well-founded. As discussed in detail above, this case involves a
    staged show planned by CBS and its affiliates, under circumstances
    where they had the means to exercise control and good reasons to
    take precautionary measures. These circumstances are obviously
    completely different from live coverage of breaking news events,
    which are not controlled by broadcasters, and this decision in no
    way suggests that we are imposing strict liability for such coverage
    or, indeed, any other programming.

36. *Conclusion*. Under section 503(b)(1)(B) of the Act, any person who
    is determined by the Commission to have willfully failed to comply
    with any provision of the Act or any rule, regulation, or order
    issued by the Commission shall be liable to the United States for a
    monetary forfeiture penalty.[^119] In order to impose such a
    forfeiture penalty, the Commission must issue a notice of apparent
    liability, the notice must be received, and the person against whom
    the notice has been issued must have an opportunity to show, in
    writing, why no such forfeiture penalty should be imposed.[^120] The
    Commission will then issue a forfeiture if it finds by a
    preponderance of the evidence that the person has violated the Act
    or a Commission rule. For the reasons set forth above, we conclude
    under this standard that CBS is liable for a forfeiture for its
    willful violation of 18 U.S.C. § 1464 and section 73.3999 of the
    Commission's rules.

37. The Commission's *Forfeiture Policy Statement* sets a base
    forfeiture amount of \$7,000 for transmission of indecent
    materials.[^121] The *Forfeiture Policy Statement* also specifies
    that the Commission shall adjust a forfeiture based upon
    consideration of the factors enumerated in section 503(b)(2)(D) of
    the Act, 47 U.S.C. § 503(b)(2)(D), such as "the nature,
    circumstances, extent and gravity of the violation, and, with
    respect to the violator, the degree of culpability, any history of
    prior offenses, ability to pay, and such other matters as justice
    may require."[^122] In this case, taking all of these factors into
    consideration, for the reasons set forth above, we find that the
    *NAL* properly proposed the statutory maximum forfeiture of
    \$550,000 against CBS.

**IV. ORDERING CLAUSES**

38. Accordingly, IT IS ORDERED THAT, pursuant to section 503(b) of the
    Act[^123], and sections 0.311 and 1.80(f)(4) of the Commission\'s
    Rules[^124], CBS Corporation IS LIABLE FOR A MONETARY FORFEITURE in
    the amount of \$550,000 for willfully violating 18 U.S.C. § 1464 and
    section 73.3999 of the Commission\'s rules.

39. Payment of the forfeiture shall be made in the manner provided for
    in section 1.80 of the Commission's rules within 30 days of the
    release of this *Order*. If the forfeiture is not paid within the
    period specified, the case may be referred to the Department of
    Justice for collection pursuant to section 504(a) of the Act.[^125]
    Payment of the forfeiture must be made by check or similar
    instrument, payable to the order of the Federal Communications
    Commission. The payment must include the NAL/Acct. No. referenced
    above and the FRN(s) referenced in the Appendix. Payment by check or
    money order may be mailed to Federal Communications Commission, P.O.
    Box 358340, Pittsburgh, PA 15251-8340. Payment by overnight mail may
    be sent to Mellon Bank/LB 358340, 500 Ross Street, Room 1540670,
    Pittsburgh, PA 15251. Payment by wire transfer may be made to ABA
    Number 043000261, receiving bank Mellon Bank, and account number
    911-6106.

40. Requests for payment under an installment plan should be sent to:
    Associate Managing Director - Financial Operations, 445 12th Street,
    S.W., Room 1-A625, Washington, D.C. 20554.[^126]

41. IT IS FURTHER ORDERED THAT a copy of this FORFEITURE ORDER shall be
    sent by Certified Mail, Return Receipt Requested to CBS Corporation,
    2000 K Street, N.W., Suite 725, Washington, DC 20006, and to its
    counsel, Robert Corn-Revere, Esquire, Davis Wright Tremaine LLP,
    1500 K Street, N.W., Washington, DC 20005.

FEDERAL COMMUNICATIONS COMMISSION

Marlene H. Dortch

Secretary

**[APPENDIX]{.smallcaps}**

**[CBS-OWNED]{.smallcaps}**

**[CBS TELEVISION NETWORK AFFILIATES]{.smallcaps}**

  -----------------------------------------------------------------------------
  **Licensee**       **FCC          **Call Sign**  **Community of  **Facility
                     Registration                  License**       ID No.**
                     Number**                                      
  ------------------ -------------- -------------- --------------- ------------
  CBS Stations Group 0001767078     KEYE-TV        Austin, TX      33691
  of Texas L.P.                                                    

  Viacom Inc.        0003612447     WJZ-TV         Baltimore, MD   25455

  Viacom Inc.        0003612447     WBZ-TV         Boston, MA      25456

  CBS Broadcasting   0003482189     WBBM-TV        Chicago, IL     9617
  Inc.                                                             

  CBS Stations Group 0001767078     KTVT           Ft. Worth, TX   23422
  of Texas L.P.                                                    

  CBS Television     0003482189     KCNC-TV        Denver, CO      47903
  Stations Inc.                                                    

  CBS Broadcasting   0003482189     WFRV-TV        Green Bay, WI   9635
  Inc.                                                             

  CBS Broadcasting   0003482189     WJMN-TV        Escanaba, MI    9630
  Inc.                                                             

  CBS Broadcasting   0003482189     WWJ-TV         Detroit, MI     72123
  Inc.                                                             

  CBS Broadcasting   0003482189     KCBS-TV        Los Angeles, CA 9628
  Inc.                                                             

  CBS Television     0003482189     WFOR-TV        Miami, FL       47902
  Stations Inc.                                                    

  CBS Broadcasting   0003482189     WCCO-TV        Minneapolis, MN 9629
  Inc.                                                             

  CBS Broadcasting   0003482189     KCCO-TV        Alexandria, MN  9632
  Inc.                                                             

  CBS Broadcasting   0003482189     KCCW-TV        Walker, MN      9640
  Inc.                                                             

  CBS Broadcasting   0003482189     KDKA-TV        Pittsburgh, PA  25454
  Inc.                                                             

  CBS Broadcasting   0003482189     KYW-TV         Philadelphia,   25453
  Inc.                                             PA              

  CBS Broadcasting   0003482189     WCBS-TV        New York, NY    9610
  Inc.                                                             

  KUTV Holdings,     0004499273     KUTV           Salt Lake City, 35823
  Inc.                                             UT              

  KUTV Holdings,     0004499273     KUSG           St. George, UT  35822
  Inc.                                                             

  CBS Broadcasting   0003482189     KPIX-TV        San Francisco,  25452
  Inc.                                             CA              
  -----------------------------------------------------------------------------

**STATEMENT OF**

**CHAIRMAN KEVIN J. MARTIN**

*Re: Complaints Against Various Television Licensees Concerning Their
February 1, 2004 Broadcast of the Super Bowl XXXVIII Halftime Show;
Complaints Regarding Various Television Broadcasts Between February 2,
2002 and March 8, 2005; Complaints Against Various Television Licensees
Concerning Their December 31, 2004 Broadcast of the Program "Without A
Trace"*

Congress has long prohibited the broadcasting of indecent and profane
material and the courts have upheld challenges to these standards. But
the number of complaints received by the Commission has risen year after
year. They have grown from hundreds, to hundreds of thousands. And the
number of programs that trigger these complaints continues to increase
as well. I share the concerns of the public - and of parents, in
particular - that are voiced in these complaints.

I believe the Commission has a legal responsibility to respond to them
and resolve them in a consistent and effective manner. So I am pleased
that with the decisions released today the Commission is resolving
hundreds of thousands of complaints against various broadcast licensees
related to their televising of 49 different programs. These decisions,
taken both individually and as a whole, demonstrate the Commission's
continued commitment to enforcing the law prohibiting the airing of
obscene, indecent and profane material.

Additionally, the Commission today affirms its initial finding that the
broadcast of the Super Bowl XXXVIII Halftime Show was actionably
indecent. We appropriately reject the argument that CBS continues to
make that this material is not indecent. That argument runs counter to
Commission precedent and common sense.

**STATEMENT OF**

**COMMISSIONER MICHAEL J. COPPS**

 

*Re:      Complaints Regarding Various Television Broadcasts Between
January 1, 2002 and March 12, 2005,* Notices of Apparent Liability and
Memorandum Opinion and Order

*Complaints Against Various Television Licensees Concerning Their
December 31, 2004 Broadcast of the Program "Without A Trace",* Notice of
Apparent Liability

*Complaints Against Various Television Licensees Concerning Their
February 1, 2004 Broadcast Of The Super Bowl XXXVII Halftime Show,*
Forfeiture Order

* *

In the past, the Commission too often addressed indecency complaints
with little discussion or analysis, relying instead on generalized
pronouncements.  Such an approach served neither aggrieved citizens nor
the broadcast industry.  Today, the Commission not only moves forward to
address a number of pending complaints, but does so in a manner that
better analyzes each broadcast and explains how the Commission
determines whether a particular broadcast is indecent.  Although it may
never be possible to provide 100 percent certain guidance because we
must always take into account specific and often-differing contexts, the
approach in today's orders can help to develop such guidance and to
establish precedents.  This measured process, common in jurisprudence,
may not satisfy those who clamor for immediate certainty in an uncertain
world, but it may just be the best way to develop workable rules of the
road.   

 

Today's Orders highlight two additional issues with which the Commission
must come to terms.  First, it is time for the Commission to look at
indecency in the broader context of its decisions on media
consolidation.  In 2003 the FCC sought to weaken its remaining media
concentration safeguards without even considering whether there is a
link between increasing media consolidation and increasing indecency. 
Such links have been shown in studies and testified to by a variety of
expert witnesses.  The record clearly demonstrates that an overwhelming
number of the Commission's indecency citations have gone to a few huge
media conglomerates.  One recent study showed that the four largest
radio station groups which controlled just under half the radio audience
were responsible for a whopping 96 percent of the indecency fines levied
by the FCC from 2000 to 2003. 

 

One of the reasons for the huge volume of complaints about excessive sex
and graphic violence in the programming we are fed may be that people
feel increasingly divorced from their "local" media.  They believe the
media no longer respond to their local communities.  As media
conglomerates grow ever larger and station control moves farther away
from the local community, community standards seem to count for less
when programming decisions are made.  Years ago we had independent
programming created from a diversity of sources.  Networks would then
decide which programming to distribute.  Then local affiliates would
independently decide whether to air that programming.  This provided
some real checks and balances.  Nowadays so many of these decisions are
made by vertically-integrated conglomerates headquartered far away from
the communities they are supposed to be serving---entities that all too
often control both the distribution ***and*** the production content of
the programming. 

 

If heightened media consolidation is indeed a source for the violence
and indecency that upset so many parents, shouldn't the Commission be
cranking that into its decisions on further loosening of the ownership
rules?  I hope the Commission, before voting again on loosening its
media concentration protections, will finally take a serious look at
this link and amass a credible body of evidence and not act again
without the facts, as it did in 2003.

Second, a number of these complaints concern graphic broadcast
violence.  The Commission states that it has taken comment on this issue
in another docket.  It is time for us to step up to the plate and tackle
the issue of violence in the media.  The U.S. Surgeon General, the
American Academy of Pediatrics, the American Psychological Association,
the American Medical Association, and countless other medical and
scientific organizations that have studied this issue have reached the
same conclusion: exposure to graphic and excessive media violence has
harmful effects on the physical and mental health of our children.  We
need to complete this proceeding.

**STATEMENT OF**

**Commissioner Jonathan S. Adelstein**

**Concurring**

*Re:* *Complaints Against Various Television Licensees Concerning Their
February 1, 2004 Broadcast of the Super Bowl XXXVIII Halftime Show,*
Forfeiture Order

I have sworn an oath to uphold the Constitution[^127] and to carry out
the laws adopted by Congress.[^128] Trying to find a balance between
these obligations has been challenging in many of the indecency cases
that I have decided. I believe it is our duty to regulate the broadcast
of indecent material to the fullest extent permissible by the
Constitution because safeguarding the well-being of our children is a
compelling national interest.[^129] I therefore have supported efforts
to step up our enforcement of indecency laws since I joined the
Commission.

The Commission's authority to regulate indecency over the public
airwaves was narrowly upheld by the Supreme Court with the admonition
that we should exercise that authority with the utmost restraint, lest
we inhibit constitutional rights and transgress constitutional
limitations on government regulation of protected speech.[^130] Given
the Court's guidance in *Pacifica,* the Commission has repeatedly stated
that we would judiciously walk a "tightrope" in exercising our
regulatory authority.[^131] Hence, within this legal context, a rational
and principled "restrained enforcement policy" is not a matter of mere
regulatory convenience. It is a constitutional requirement. [^132]

Accordingly, I concur with today's Super Bowl Order, but concur in part
and dissent in part with the companion Omnibus Order[^133] because,
while in some ways today's Omnibus decision goes too far, in other ways
it does not go far enough. Significantly, it abruptly departs from our
precedents by adopting a new, weaker enforcement mechanism that
arbitrarily fails to assess fines against broadcasters who have aired
indecent material. Additionally, while today's Omnibus decision
appropriately identifies violations of our indecency laws, not every
instance determined to be indecent meets that standard.

We have previously sought to identify all broadcasters who have aired
indecent material, and hold them accountable. In the Omnibus Order,
however, the Commission inexplicably fines only the licensee whose
broadcast of indecent material was the subject of a viewer's complaint,
even though we know millions of other Americans were exposed to the
offending broadcast. I cannot find anywhere in the law that Congress
told us to apply indecency regulations only to those stations against
which a complaint was specifically lodged. The law requires us to
prohibit the broadcast of indecent material, period. This means that we
must enforce the law anywhere we determine it has been violated. It is
willful blindness to decide, with respect to network broadcasts we know
aired nationwide, that we will only enforce the law against the local
station that happens to be the target of viewer complaints. How can we
impose a fine solely on certain local broadcasters, despite having
repeatedly said that the Commission applies a national indecency
standard -- not a local one?[^134]

The failure to enforce the rules against some stations but not others is
not what the courts had in mind when they counseled restraint. In fact,
the Supreme Court's decision in *Pacifica* was based on the uniquely
pervasive characteristics of broadcast media.[^135] It is patently
arbitrary to hold some stations but not others accountable for the same
broadcast. We recognized this just two years ago in *Married By
America*.[^136] The Commission simply inquired who aired the indecent
broadcast and fined all of those stations that did so.

In the *Super Bowl XXXVIII Halftime Show* decision, we held only those
stations owned and operated by the CBS network responsible, under the
theory that the affiliates did not expect the incident and it was
primarily the network's fault.[^137] I dissented in part to that case
because I believed we needed to apply the same sanction to every station
that aired the offending material. I raise similar concerns today, in
the context of the Omnibus Order.

The Commission is constitutionally obligated to decide broadcast
indecency and profanity cases based on the "contemporary community
standard," which is "that of the average broadcast viewer or listener."
The Commission has explained the "contemporary community standard," as
follows:

> We rely on our collective experience and knowledge, developed through
> constant interaction with lawmakers, courts, broadcasters, public
> interest groups and ordinary citizens, to keep abreast of contemporary
> community standards for the broadcast medium.[^138]

I am concerned that the Omnibus Order overreaches with its expansion of
the scope of indecency and profanity law, without first doing what is
necessary to determine the appropriate contemporary community standard.

The Omnibus Order builds on one of the most difficult cases we have ever
decided, the *Golden Globe Awards* case, [^139] and stretches it beyond
the limits of our precedents and constitutional authority. The precedent
set in that case has been contested by numerous broadcasters,
constitutional scholars and public interest groups who have asked us to
revisit and clarify our reasoning and decision. Rather than reexamining
that case, the majority uses the decision as a springboard to add new
words to the pantheon of those deemed to be inherently sexual or
excretory, and consequently indecent and profane, irrespective of their
common meaning or of a fleeting and isolated use. By failing to address
the many serious concerns raised in the reconsideration petitions filed
in the *Golden Globe Awards* proceeding, before prohibiting the use of
additional words, the Commission falls short of meeting the
constitutional standard and walking the tightrope of a restrained
enforcement policy.

This approach endangers the very authority we so delicately retain to
enforce broadcast decency rules. If the Commission in its zeal oversteps
and finds our authority circumscribed by the courts, we may forever lose
the ability to protect children from the airing of indecent material,
barring an unlikely constitutional amendment setting limitations on the
First Amendment freedoms.

The perilous course taken today is evident in the approach to the
acclaimed Martin Scorsese documentary, "The Blues: Godfathers and Sons."
It is clear from a common sense viewing of the program that coarse
language is a part of the culture of the individuals being portrayed. To
accurately reflect their viewpoint and emotions about blues music
requires airing of certain material that, if prohibited, would undercut
the ability of the filmmaker to convey the reality of the subject of the
documentary. This contextual reasoning is consistent with our decisions
in *Saving Private Ryan*[^140]and *Schindler's List*.[^141]

The Commission has repeatedly reaffirmed, and the courts have
consistently underscored, the importance of content *and* context. The
majority's decision today dangerously departs from those precedents. It
is certain to strike fear in the hearts of news and documentary makers,
and broadcasters that air them, which could chill the future expression
of constitutionally protected speech.

We should be mindful of Justice Harlan's observation in *Cohen v.
California*.[^142] Writing for the Court, he observed:

> \[W\]ords are often chosen as much for their emotive as their
> cognitive force. We cannot sanction the view that the Constitution,
> while solicitous of the cognitive content of individual speech, has
> little or no regard for that emotive function which, practically
> speaking, may often be the more important element of the overall
> message sought to be communicated.[^143]

Given all of these considerations, I find that the Omnibus Order, while
reaching some appropriate conclusions both in identifying indecent
material and in dismissing complaints, is in some ways dangerously off
the mark. I cannot agree that it offers a coherent, principled long-term
framework that is rooted in common sense. In fact, it may put at risk
the very authority to protect children that it exercises so vigorously.

**STATEMENT OF**

**COMMISSIONER DEBORAH TAYLOR TATE**

*Re: Complaints Against Various Television Licensees Concerning Their
February 1, 2004 Broadcast of the Super Bowl XXXVIII Halftime Show*,
Forfeiture Order; *Complaints Regarding Various Television Broadcasts
Between February 2, 2002 and March 8, 2005*, Notices of Apparent
Liability and Memorandum Opinion and Order; *Complaints Against Various
Television Licensees Concerning Their December 31, 2004 Broadcast of the
Program "Without A Trace"*, Notice of Apparent Liability for Forfeiture

Today marks my first opportunity as a member of the Federal
Communications Commission to uphold our responsibility to enforce the
federal statute prohibiting the airing of obscene, indecent or profane
language.[^144] To be clear -- I take this responsibility very
seriously. Not only is this the law, but it also is the right thing to
do.

One of the bedrock principles of the Communications Act of 1934, as
amended, is that the airwaves belong to the public. Much like public
spaces and national landmarks, these are scarce and finite resources
that must be preserved for the benefit of all Americans. If numbers are
any indication, many Americans are not happy about the way that their
airwaves are being utilized. The number of complaints filed with the FCC
reached over one million in 2004. Indeed, since taking office in January
2006, I have received hundreds of personal e-mails from people all over
this country who are unhappy with the content to which they -- and, in
particular, their families -- are subjected.

I have applauded those cable and DBS providers for the tools they have
provided to help parents and other concerned citizens filter out
objectionable content. Parental controls incorporated into cable and DBS
set-top boxes, along with the V-Chip, make it possible to block
programming based upon its content rating. However, these tools, even
when used properly, are not a complete solution. One of the main reasons
for that is because much of the content broadcast, including live
sporting events and commercials, are not rated under the two systems
currently in use.

I also believe that consumers have an important role to play as well.
Caregivers -- parents, in particular -- need to take an active role in
monitoring the content to which children are exposed. Even the most
diligent parent, however, cannot be expected to protect their children
from indecent material broadcast during live sporting events or in
commercials that appear during what is marketed to be "appropriate"
programming.

Today, we are making significant strides toward addressing the backlog
of indecency complaints before this agency. The rules are simple -- you
break them and we will enforce the law, just as we are doing today. Both
the public and the broadcasters deserve prompt and timely resolution of
complaints as they are filed, and I am glad to see us act to resolve
these complaints. At the same time, however, I would like to raise a few
concerns regarding the complaints we address in these decisions.

First, I would like to discuss the complaint regarding the 6:30 p.m.
Eastern Daylight Time airing of an episode of *The Simpsons*. The
*Order* concludes that this segment is not indecent, in part because of
the fact that *The Simpsons* is a cartoon. Generally speaking, cartoons
appeal to children, though some may cater to both children and adults
simultaneously. Nevertheless, the fact remains that children were
extremely likely to have been in the viewing audience when this scene
was broadcast. Indeed, the marketing is aimed at children. If the scene
had involved real actors in living color, at 5:30 p.m. Central Standard
Time, I wonder if our decision would have been different? One might
argue that the cartoon medium may be a more insidious means of exposing
young people to such content. By their very nature, cartoons do not
accurately portray reality, and in this instance the use of animation
may well serve to present that material in a more flattering light than
it would if it were depicted through live video. I stop short of
disagreeing with our decision in this case, but note that the animated
nature of the broadcast, in my opinion, may be cause for taking an even
closer look in the context of our indecency analysis.

Second, our conclusion regarding the 9:00 p.m. Central Standard Time
airing of an episode of *Medium* in which a woman is shot at point-blank
range in the face by her husband gives me pause. While I agree with the
result in this case, I question our conclusion that the sequence
constitutes violence *per se* and therefore falls outside the scope of
the Commission's definition of indecency. Without question, this scene
is violent, graphically so. Moreover, it is presented in a way that
appears clearly designed to maximize its shock value. And therein lies
my concern. One of the primary ways that this scene shocks is that it
leads the viewer to believe that the action is headed in one direction
-- through dialogue and actions which suggest that interaction of a
sexual nature is about to occur -- and then abruptly erupts in another
-- the brutally violent shooting of a wife by her husband, in the head,
at point-blank range. Even though the Commission's authority under
Section 1464 is limited to indecent, obscene, and profane content, and
thus does not extend to violent matter, the use of violence as the
"punch line" of titillating sexual innuendo should not insulate
broadcast licensees from our authority. To the contrary, the use of
sexual innuendo may, depending on the specific case, subject a licensee
to potential forfeiture, regardless of the overall violent nature of the
sequence in which such sexual innuendo is used.

\* \* \*

Finally, I would like to express my hope and belief that the problem of
indecent material is one that can be solved. Programmers, artists,
writers, broadcasters, networks, advertisers, parents, public interest
groups, and, yes, even Commissioners can protect two of our country's
most valuable resources: the public airwaves and our children's minds.
We must take a stand against programming that robs our children of their
innocence and constitutes an unwarranted intrusion into our homes. By
working together, we should promote the creation of programming that is
not just entertaining, but also positive, educational, healthful, and,
perhaps, even inspiring.

[^1]: 47 U.S.C. § 503(b); 47 C.F.R. § 1.80.

[^2]: The Appendix is an updated version of Appendix A from the Notice
    of Apparent Liability in this proceeding. *See Complaints Against
    Various Television Licensees Concerning Their February 1, 2004,
    Broadcast of the Super Bowl XXXVIII Halftime Show*, Notice of
    Apparent Liability, 19 FCC Rcd 19230 (2004) (the "*NAL"*). The *NAL*
    was directed to Viacom, Inc., which was the ultimate corporate
    parent company of the licensees in question at that time. As of
    December 31, 2005, Viacom, Inc. effected a corporate reorganization
    in which the name of the ultimate parent company of the licensees of
    the CBS Stations was changed to CBS Corporation. Accordingly, we
    generally refer to the company herein as CBS even for periods
    preceding the reorganization. As part of the reorganization, certain
    non-broadcast businesses, including MTV Networks, were transferred
    to a new company named Viacom Inc. At the time of the violations,
    however, the CBS Stations and MTV Networks were corporate affiliates
    under common control.

[^3]: 47 C.F.R. § 73.3999.

[^4]: We note that viewers in markets served by each of the CBS Stations
    filed complaints with the Commission concerning the February 1, 2004
    broadcast of the Super Bowl XXXVIII halftime show.

[^5]: *See* Letter from William D. Freedman, Deputy Chief,
    Investigations and Hearings Division, Enforcement Bureau, Federal
    Communications Commission, to Howard Jaeckel, Vice President and
    Associate General Counsel, CBS, dated February 2, 2004; Letter from
    William D. Freedman, Deputy Chief, Investigations and Hearings
    Division, Enforcement Bureau, Federal Communications Commission, to
    Robert Corn-Revere, Esquire, dated February 10, 2004.

[^6]: *See* Letter from Robert Corn-Revere, Esquire to William D.
    Freedman, Deputy Chief, Investigations and Hearings Division,
    Enforcement Bureau, Federal Communications Commission, dated
    February 3, 2004.

[^7]: Letter from Robert Corn-Revere, Esquire to William D. Freedman,
    Deputy Chief, Investigations and Hearings Division, Enforcement
    Bureau, Federal Communications Commission, dated February 10, 2004
    (the "*CBS Interim Response*").

[^8]: Letter from James S. Blitz, Esquire to William D. Freedman, Deputy
    Chief, Investigations and Hearings Division, Enforcement Bureau,
    Federal Communications Commission, dated February 14, 2004.

[^9]: Letter from Susanna M. Lowy, Esquire to William D. Freedman,
    Deputy Chief, Investigations and Hearings Division, Enforcement
    Bureau, Federal Communications Commission, dated March 16, 2004 (the
    "*CBS Response*"). Although many of CBS's responses to the LOI's
    inquiries are contained in both the *CBS Interim Response* and the
    *CBS Response*, for purposes of simplicity, unless otherwise noted,
    references herein will be to the latter. CBS requested confidential
    treatment of the bulk of the materials attached to its Response,
    including electronic mail and other documents relevant to the
    planning of the halftime show. We do not rule on CBS's request at
    this time because it is unnecessary to do so for purposes of this
    Order. Consistent with the request, however, we limit ourselves to
    describing or characterizing the substance of the materials and
    providing record citations herein, rather than actually quoting the
    materials or otherwise incorporating them into the Order. The
    Confidential Appendix, however, contains quotations to various
    documents in the record.

[^10]: Broadcast Videotape. *See* *also* *CBS Response*, Ex. 9 at 7-10;
    www.azlyrics.com/lyrics/janetjackson/allforyou.html.

[^11]: These sexual references include the lyrics "I was like good
    gracious ass bodacious . . . I'm waiting for the right time to shoot
    my steam (you know)" and "\[i\]t's gettin' hot in here (so hot), so
    take off all your clothes (I am gettin' so hot)" in the Nelly song
    "Hot in Herre." Broadcast Videotape. *See* *also CBS Response*, Ex.
    9 at 16, 18; www.lyricsstyle.com/n/nelly/hotinherre.html.

[^12]: Broadcast Videotape. *See* *also* *CBS Response*, Ex. 9 at 36-37;
    www.lyricsondemand.com/j/justintimberlakelyrics/rockyourbodylyrics.html.

[^13]: Broadcast Videotape.

[^14]: *See* 18 U.S.C. § 1464; 47 C.F.R. § 73.3999; and 47 U.S.C. §
    503(b).

[^15]: *See Industry Guidance on the Commission's Case Law Interpreting
    18 U.S.C. § 1464 and Enforcement Policies Regarding Broadcast
    Indecency,* Policy Statement, 16 FCC Rcd 7999, 8002, ¶ 7 (2001)
    *("Indecency Policy Statement")*.

[^16]: *NAL*, 19 FCC Rcd at 19235, ¶ 11.

[^17]: The "contemporary standards for the broadcast medium" criterion
    is that of an average broadcast listener and does not encompass any
    particular geographic area. *Indecency Policy Statement*, 16 FCC Rcd
    at 8002, ¶ 8 and n. 15. CBS suggests that we should rely on
    third-party public opinion polls to determine whether the material
    is patently offensive as measured by contemporary community
    standards for the broadcast medium. *Opposition* at 33-34. In
    determining whether material is patently offensive, we do not rely
    on polls, but instead apply the three-pronged contextual analysis
    described in the text. CBS provides no legal support for a departure
    from that approach.

[^18]: *NAL,* 19 FCC Rcd at 19235, ¶ 12, *quoting* *Indecency Policy
    Statement*, 16 FCC Rcd at 8002, ¶ 9 (emphasis in original).

[^19]: *Indecency Policy Statement,* 16 FCC Rcd at 8002-15, ¶¶ 8-23.

[^20]: *NAL,* 19 FCC Rcd at 19235, ¶ 12, *quoting* *Indecency Policy
    Statement*, 16 FCC Rcd at 8003, ¶ 10.

[^21]: *NAL,* 19 FCC Rcd at 19235, ¶ 12; *Indecency Policy Statement*,
    16 FCC Rcd at 8009, ¶ 19 (citing *Tempe Radio, Inc. (KUPD-FM*), 12
    FCC Rcd 21828 (Mass Media Bur. 1997) (forfeiture paid), and *EZ New
    Orleans, Inc. (WEZB(FM))*, 12 FCC Rcd 4147 (Mass Media Bur. 1997)
    (forfeiture paid), which found that the extremely graphic or
    explicit nature of references to sex with children outweighed the
    fleeting nature of the references.

[^22]: *NAL,* 19 FCC Rcd at 19235, ¶ 12; *Indecency Policy Statement*,
    16 FCC Rcd at 8010, ¶ 20 (noting that "the manner and purpose of a
    presentation may well preclude an indecency determination even
    though other factors, such as explicitness, might weigh in favor of
    an indecency finding.")

[^23]: *NAL*, 19 FCC Rcd at 19235-36, ¶¶ 12-14.

[^24]: *Id*. at 19236-40, ¶¶ 16-24. The Commission recently amended its
    rules to increase the maximum penalties to account for inflation
    since the last adjustment of the penalty rates. However, the new
    rates apply to violations that occur or continue after September 7,
    2004, and therefore do not apply here. *See Amendment of* *Section
    1.80(b) of the Commission's Rules, Adjustment of Forfeiture Maxima
    to Reflect Inflation*, Order, 19 FCC Rcd 10945, 10946, ¶ 6 (2004).

[^25]: *Id*., 19 FCC Rcd at 19240-41, ¶ 25.

[^26]: "*Opposition to Notice of Apparent Liability for Forfeiture*" by
    CBS, dated November 5, 2004 ("*Opposition*"). In addition to CBS's
    Opposition, we also received filings from non-parties to this
    proceeding that we are treating as filings by amici curiae. One such
    filing is a "*Petition for Partial Reconsideration of Notice of
    Apparent Liability for Forfeiture*" submitted by Saga Quad States
    Communications, LLC, and Saga Broadcasting, LLC, which argues that
    the *NAL* improperly imposes a new requirement on network affiliate
    stations to employ delay technology to prescreen network feeds. The
    *NAL* urges such licensees to take reasonable precautions to prevent
    the broadcast of indecent programming over their stations, but this
    is not a new requirement. *See NAL*, 19 FCC Rcd at 19241, ¶ 25. *See
    also Complaints Against Various Licensees Regarding Their Broadcast
    of the Fox Network Program "Married by America*" on April 7, 2003,
    *Notice of Apparent Liability for Forfeiture*, 19 FCC Rcd 20191
    (2004) ("*Married by America*") (response pending); 47 C.F.R. §
    73.658(e)(1) (prohibiting television stations from entering into
    arrangements with networks that restrict their right to reject
    programming that the stations reasonably believe to be
    unsatisfactory or unsuitable or contrary to the public interest).
    Another such filing by Litigation Recovery Trust ("LRT") is styled a
    "Petition for Reconsideration" but fails to meet the requirements of
    Section 1.106(b)(1) of our rules for petitions for reconsideration
    by non-parties. First, a petition for reconsideration of a Notice of
    Apparent Liability is not appropriate under Section 1.106(b)(1)
    because such action is only a notice, not a Commission decision that
    is subject to reconsideration. Furthermore, even if a petition for
    reconsideration were appropriate here, LRT does not make the
    showings required under that rule that a non-party "state with
    particularity the manner in which the person's interest are
    adversely affected by the action taken, and show good reason why it
    was not possible for him to participate in the earlier stages of the
    proceeding." 47 C.F.R. § 1.106(b)(1). In substance, LRT's filing is
    a supplement to a prior request for rulemaking on a matter that is
    outside the scope of, and is not affected by, this decision.

[^27]: *Opposition* at 11. CBS does take issue with the *NAL*'s
    statement that the nudity lasted for 19/32 of a second, stating that
    the actual time was 9/16 of a second. *Id*. at 11 n. 7. We accept
    CBS's determination as to the duration, but we find no practical
    difference here. We also note that the brevity of the image is
    considered in connection with just one of three contextual factors,
    and no single factor is dispositive. *See Indecency Policy
    Statement*, 16 FCC Rcd at 8003, ¶ 10 ("Each indecency case presents
    its own particular mix of these \[three\], and possibly other,
    factors, which must be balanced to ultimately determine whether the
    material is patently offensive and therefore indecent. No single
    factor generally provides the basis for an indecency finding.").

[^28]: *Opposition* at 13-34.

[^29]: *Id*. at 35-38.

[^30]: *Id*. at 44-77.

[^31]: *Indecency Policy Statement*, 16 FCC Rcd at 8002, ¶ 7.

[^32]: *NAL,* 19 FCC Rcd at 19235, ¶ 11.

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

[^34]: *See, e.g., Young Broadcasting of San Francisco, Inc.*, Notice of
    Apparent Liability for Forfeiture, 19 FCC Rcd 1751, 1755-57 (2004)
    ("*Young Broadcasting*") (response pending) (Commission makes an
    assessment of the entire segment of a morning news program involving
    an interview of and demonstration by cast members from a "Puppetry
    of the Penis" stage production in which adult male nudity was aired
    for less than a second (¶¶ 11-13); and distinguishes an earlier case
    involving non-fleeting adult frontal nudity in a broadcast of
    *Schindler's List* based on "the full context of its presentation,
    including the subject matter of the film \[World War II and wartime
    atrocities\], the manner of presentation, and the warnings that
    accompanied the broadcast of the film" (¶ 14)).

[^35]: We note that, although Jackson wore a piece of jewelry on her
    nipple, it only partially covered her nipple and did not cover her
    breast.

[^36]: *Opposition* at 21.

[^37]: *NAL*, 19 FCC Rcd at 19235, ¶ 13 and n. 42. CBS attempts to
    distinguish *Young Broadcasting* from this case. *See* *Opposition*
    at 19-20. However, CBS's analysis focuses on the foreseeability of
    the nudity in that case as compared to this case. As discussed
    below, foreseeability and premeditation relate to whether the
    broadcast of indecent matter was willful, and not to whether the
    material is graphic and explicit.

[^38]: *See Opposition* at 25 n.35. *See also id*. at 22. We agree that
    the exposure of Jackson's breast was not in the official script
    submitted by CBS, but CBS has not shown that it was unplanned.
    Clearly, the "costume reveal" that led to the exposure of the breast
    was at least planned by the performers (Jackson and Timberlake) and
    their choreographer, Gil Duldulao, who were hired by CBS for the
    halftime show. Timberlake's Declaration disavows any knowledge on
    his part that the costume reveal would lead to exposure of Jackson's
    breast, but Jackson's statement does not address her knowledge or
    intentions, and Duldulao did not provide a statement. *See* *CBS
    Response*, Ex. 7 and Ex. 8.

[^39]: CBS compares this case to a decision that it claims involves
    programming that is "considerably more explicit and clearly
    premeditated," in which the Commission imposed a base forfeiture
    rather than the maximum forfeiture imposed in this case. *See*
    *Opposition* at 22-23, citing *Married by America*. The appropriate
    level of the forfeiture is best addressed in a subsequent section,
    but at this point we note that the case cited involved a program in
    which certain body parts were digitally obscured by pixilation to
    avoid a display of partial nudity such as that aired by CBS to a
    national audience in this case. Thus, that case is not a
    particularly useful precedent in determining whether the material at
    issue here is graphic and explicit.

[^40]: CBS argues that our recent dismissals of complaints about
    programming that we found not to be graphic or explicit requires a
    similar decision here. *Opposition* at 23-25, citing *KSAZ Licensee,
    Inc.*, Memorandum Opinion and Order, 19 FCC Rcd 15999 (2004), and
    *Complaints Against Various Broadcast Licensees Regarding Their
    Airing of the UPN Network Program "Buffy the Vampire Slayer" on
    November 20, 2001*, Memorandum Opinion and Order, 19 FCC Rcd 15995
    (2004). Neither case is apposite here because neither program
    included nudity. The other cases cited by CBS are inapposite for the
    same reason*. See Opposition* at 23-24.

[^41]: *See NAL,* 19 FCC Rcd at 19236, ¶ 14.

[^42]: *Indecency Policy Statement,* 16 FCC Rcd at 8009, ¶ 19. *See also
    Young Broadcasting; Tempe Radio,* Notice of Apparent Liability, 12
    FCC Rcd 21828 (Mass Media Bur. 1997) (paid); *LBJS Broadcasting,*
    Notice of Apparent Liability, 13 FCC Rcd. 20956 (Mass Media Bur.
    1998) (paid).

[^43]: *Indecency Policy Statement,* 16 FCC Rcd at 8010, ¶20.

[^44]: *NAL,* 19 FCC Rcd at 19236 n. 44. The *NAL* stated that "the
    nudity here was designed to pander to, titillate and shock the
    viewing audience." *Id*. at ¶ 14. To the extent that the language in
    the *NAL* could be interpreted to suggest that the broadcaster's
    state of mind is a decisional factor, we wish to clarify that this
    is not the case. Our *Indecency Policy Statement* frames this factor
    as "*whether the material appears to pander or is used to
    titillate*, or *whether the material appears to have been presented
    for its shock value*." *Indecency Policy Statement*, 19 FCC Rcd at
    8003, ¶ 10 (emphasis in original). In making this determination, we
    focus on the material that was broadcast and its manner of
    presentation, not on the state of mind of the broadcaster or
    performer. *See Young Broadcasting*, 19 FCC Rcd at 1755-57, ¶¶
    13-14.

[^45]: *NAL*, 19 FCC Rcd at 19236, ¶ 14.

[^46]: Timberlake sang the lyrics: "I've been watching you, I like the
    way you move, so go 'head and girl just do that ass-shakin' thing
    you do . . . I wanna rock your body, let me rock your body."
    Broadcast Videotape. *See also* *CBS Response*, Ex. 9 at 36-37;
    http://www.lyricsondemand.com/j/justintimberlakelyrics/rockyourbodylyrics.html.

[^47]: Indeed, CBS appears to concede that it was shocking, but
    maintains that "the 'costume reveal' was as much a shock to Viacom
    as to everyone else." *Opposition* at iii.

[^48]: *See CBS Response* at Ex. 7 and Ex. 8. Whether this nudity was
    planned or foreseeable by CBS and the stations that broadcast it is
    a distinct issue that is addressed below in the discussion of the
    "willfulness" factor.

[^49]: 47 C.F.R. § 73.3999.

[^50]: *See Opposition* at 37-38.

[^51]: The Conference Report to the 1982 amendment to the Act that added
    this definition stated: "Willful means that the licensee knew he was
    doing the act in question, regardless of whether there was an intent
    to violate the law." H.R. Rep. No. 97-765, 97^th^ Cong. 2d Sess. 51
    (1982). The Conference Report also makes it clear that this
    definition applies to section 503(b) of the Act as well as section
    312. *See Southern California Broadcasting Co.*, Memorandum Opinion
    and Order, 6 FCC Rcd 4387, 4388 (1991). CBS initially acknowledges
    that "the Commission has held that in order to satisfy the
    willfulness requirement, the purported offender need not intend to
    violate the Act or an FCC rule, or even be aware the action in
    question constitutes a violation." *Opposition* at 36. Yet on the
    next page of its Opposition it urges us to apply criminal cases in
    which the scienter requirement has been held to require "an act done
    with a bad purpose" or an "evil motive." *Id.* at 37. Clearly, those
    cases have no application in interpreting the willfulness
    requirement in a regulatory statute authorizing the imposition of
    administrative sanctions. We disagree with CBS's contention that
    criminal law definitions of "willful" are apt because 18 U.S.C. §
    1464 is a criminal statute. *Id.* In *Pacifica*, the Supreme Court
    declined to consider questions relating to possible application of
    section 1464 as a criminal statute in upholding a broadcast
    indecency forfeiture imposed by the Commission. *FCC v. Pacifica
    Foundation*, 438 U.S. 726, 739 n.13 (1978) ("the validity of the
    civil sanctions \[authorized under the Act\] is not linked to the
    validity of the criminal penalty."). Likewise, we reject CBS's
    suggestion that the First Amendment requires statutes imposing civil
    penalties on speech to be interpreted to include the same scienter
    requirement as those imposing criminal penalties. *Opposition* at
    38, citing *United States v. X-Citement Video, Inc.,* 513 U.S. 64,
    77-78 (1994), *Smith v. California,* 361 U.S. 147 (1959), and
    *United States v. Reilly,* 2002 WL 31307170 (S.D.N.Y. 2002).

[^52]: We note that application of this standard to CBS does not "impose
    a strict liability requirement on protected speech." *Opposition* at
    38, *citing* *Gertz v. Robert Welch, Inc.*, 418 U.S. 323 (1974). The
    Supreme Court held in *Gertz* that "the States should retain
    substantial latitude in their efforts to enforce a legal remedy for
    defamatory falsehood injurious to the reputation of a private
    individual," so long as they do not impose liability without fault.
    *Id.* at 345-46. As discussed *infra*, CBS clearly is at fault for
    broadcasting actionably indecent material during the Super Bowl
    telecast. We also note that CBS's reliance on *Saxe v. State
    College*, 240 F.3d 200, 206 (3d Cir. 2001), as holding that willful
    indifference is a legally insufficient basis for punishing speech,
    is misplaced. *See Opposition* at 38. *Saxe* held that a school
    district policy prohibiting "harassing" speech was
    unconstitutionally overbroad because it was not limited to vulgar or
    lewd speech or school-sponsored speech, and was not necessary to
    prevent substantial disruption or interference with the rights of
    students or the conduct of the school. The court did not address the
    intent required to impose liability for expressive speech or conduct
    under the First Amendment.

[^53]: *Crowell-Collier Broadcasting Corp.*, Memorandum Opinion and
    Order, 44 FCC 2444, 2449 (1961) (violation due to erroneous advice
    from the station's competent engineering consultant warrants a
    forfeiture).

[^54]: *Report and Statement of Policy re: Commission en banc
    Programming Inquiry*, 44 FCC Rcd 2303, 2313 (1960). *See also Yale
    Broadcasting Co. v. FCC*, 478 F.2d 594 (D.C. Cir. ), *cert. denied*,
    414 U.S. 914 (1973) (affirmed action of Commission reminding
    broadcast licensees of their duty to have knowledge of the content
    of their programming and on the basis of this knowledge to evaluate
    the desirability of broadcasting music dealing with drug use);
    *Gaffney Broadcasting, Inc.,* 23 FCC 2d 912, 913 (1970) ("licensees
    are responsible for the selection and presentation of program
    material over their stations, including . . . acts or omissions of
    their employees"); *Alabama Educational Television Commission,* 50
    FCC 2d 461, 464 (1975) (AETC lost its license in part because it
    failed to maintain exclusive authority over all of its programming
    decisions); *WCHS-AM-TV Corp.,* 8 FCC 2d 608, 609 (1967)
    (maintenance of control over programming is a most fundamental
    obligation of the licensee).

[^55]: *Opposition* at iii.

[^56]: *See, e.g.*, *CBS Response*, App. B-C at Bates stamped pgs. 18,
    176, 219, 314, 1175, 1229, 1456. *See also Super Bowl NAL*, 19 FCC
    Rcd at 19238-39 ¶ 19 (discussing MTV's promotion of the
    sexually-provocative nature of the halftime show by, *inter alia*,
    posting on its website a news item entitled "Janet Jackson's Super
    Bowl Show Promises 'Shocking Moments,'" which quoted her
    choreographer Gil Dulduleo's prediction that her performance would
    include "some shocking moments."). Confidential Appendix 1.

[^57]: *See CBS Response*, App. B at Bates stamped pgs. 72, 96, 195,
    218-19. Confidential Appendix 2.

[^58]: *See CBS Response*, App. B at Bates stamped pgs. 123, 355, 447.
    Confidential Appendix 3.

[^59]: *Opposition* at 18. *See* *CBS Response* at 9 (stating that
    Jackson and Timberlake were "proven, experienced talent").

[^60]: *See CBS Response*, App. B at Bates stamped p. 72. Confidential
    Appendix 4.

[^61]: *See CBS Response*, App. B at Bates stamped pgs. 39, 452-54.
    Confidential Appendix 5. *Cf. CBS Radio License, Inc. (WLLD(FM))*,
    Notice of Apparent Liability for Monetary Forfeiture, 15 FCC Rcd
    23881, 23883, ¶ 8 (Enf. Bur. 2000) (given licensee's awareness of
    the actual language used in performers' recordings, it should have
    taken precautions to avoid airing actionably indecent material
    during a live, unscripted broadcast).

[^62]: *See Super Bowl NAL*, 19 FCC Rcd at 19238-39, ¶ 19; *CBS
    Response*, App. D at Bates stamped pgs. 2659.

[^63]: *See CBS Response*, App. B at Bates stamped p. 462. Confidential
    Appendix 6.

[^64]: *See CBS Response,* App. B at Bates stamped p. 458. Confidential
    Appendix 7.

[^65]: *See CBS Response*, App. B at Bates stamped pgs. 503-04, 511,
    527. Confidential Appendix 5, 8*.* *See also supra*, ¶ 4. The risk
    of departures from the script was heightened here not only by the
    suggestive lyrics, but also by the fact that the line which
    occasioned Jackson's nudity was the culminating one in the script;
    the record reflects both the performers' and the producers' desire
    for a high-impact grand finale to the show. Confidential Appendix
    9*.*

[^66]: *See Super Bowl NAL*, 19 FCC Rcd at 19237, ¶ 17 n.54, *citing
    Complaints Against Various Broadcast Licensees Regarding Their
    Airing of the "Golden Globe Awards" Program*, 19 FCC Rcd 4975, 4979
    (2004) (network could have anticipated that a recipient at a live
    award ceremony might use profanity because similar mishaps had
    occurred in the past). CBS points out that the *Golden Globe Awards
    Order* was released after the Super Bowl telecast, *Opposition* at
    19, but the issue here is whether CBS could have anticipated an
    unscripted costume reveal, not whether it had notice of the *Golden
    Globe Awards Order*.

[^67]: *See, e.g., supra*, ¶¶ 2, 4 and n. 4.

[^68]: *See Opposition* at 5 ("Historically, a five-second delay has
    been adequate to preclude the broadcast of any spontaneous or
    unplanned audio material. With such an arrangement, an individual
    from the broadcast standards department monitors the transmission of
    a live event and manually 'hits the button' to delete any
    objectionable material before it is broadcast. Although both the
    audio and visual transmission is delayed, five seconds does not
    provide sufficient time to edit video images. Accordingly, the
    precaution of a five-second delay could not prevent the broadcast of
    the unexpected images at the end of the halftime show.") (emphasis
    added). As indicated above, CBS also had reason to believe that its
    five-second audio delay might be inadequate to edit unscripted audio
    material during the halftime show. *See* note Error: Reference
    source not found *supra* and accompanying text*.*

[^69]: *CBS Response* at 5.

[^70]: *Id.* at 5, n.13.

[^71]: *CBS Response* at 5, n.13.

[^72]: *CBS Response*, App. B-C at Bates stamped pgs. 168-72, 431-34,
    2152-2332, 2336-42, 2469. Confidential Appendix 10*.* CBS did not
    provide an executed agreement for either Jackson or Timberlake in
    response to the LOI, but none of the contract drafts provided by CBS
    refers to a script or to broadcast standards and practices. The
    executed agreement for Jackson's choreographer likewise contains no
    such references.

[^73]: See Confidential Appendix 10. Because CBS's failure to take
    reasonable precautions to prevent the broadcast of actionably
    indecent material was conscious and deliberate, its reliance on
    *Mega Communications of New Britain Licensee, L.L.C.*, 19 FCC Rcd
    11373 (Enf. Bur. 2004), is misplaced. *See Opposition* at 36, n.57
    ("The same result should apply here, where Viacom took all
    reasonable precautions based on past experience---*including
    inspecting Ms. Jackson's costume*---but an unforeseeable violation
    nevertheless occurred."). The Bureau held in *Mega* that a licensee
    did not commit a willful violation of the Commission's antenna
    structure fencing requirements because it conducted regular
    inspections in compliance with those requirements and "the problem
    occurred shortly after an inspection by Mega." As the above
    discussion indicates, however, CBS consciously failed to prevent the
    airing of indecent material. Moreover, the *Mega* case is
    distinguishable because it involved actions by a third party, not
    the licensee. *Vernon Broadcasting, Inc.*, Memorandum Opinion and
    Order, 60 RR 2d 1275 (1986), illustrates this distinction. In
    *Vernon*, the Commission rescinded a forfeiture liability for a
    tower fencing violation as not willful, while affirming a liability
    for an unintentional violation of the public file rule. The
    distinction between the two situations was that the damage to the
    fence was caused by vandals, despite the station's regular process
    of inspections and repairs, whereas the public file violation arose
    from the station's own actions.

[^74]: *See* note Error: Reference source not found *supra* and
    accompanying text. CBS maintains that it interpreted the "shocking
    moments" quote innocently, stating that it believed the quote
    referred to Timberlake's surprise guest appearance, and that it "did
    not stand out because such hyperbolic language is not uncommon in
    the music world." *Opposition* at 7-8. As the Commission has
    indicated, CBS's explanation lacks credibility. *See NAL*, 19 FCC
    Rcd at 19239, n.64 ("at the start of the halftime segment, MTV
    included an onscreen credit for Timberlake, hardly a disclosure that
    would be made ten minutes before his appearance, had his
    participation in the program been the 'shocking moments' that it had
    publicized for days on its Internet site."). CBS's explanation also
    is dubious in light of the fact that the quote referred to "moments"
    in the plural, whereas it would have been expected to refer to a
    "moment" if it only concerned Timberlake's appearance. CBS has never
    provided a statement from Jackson's choreographer to explain what he
    meant by the quote. But even accepting CBS's argument that the
    choreographer's comment may have been innocent hyperbole, it should
    at least have caused CBS to look into the matter, given the level of
    concern at CBS and the NFL about the edgy lyrics and the possibility
    of inappropriate script departures. CBS gives no indication that it
    did so.

[^75]: *Opposition* at 4. *See CBS Response* at 9-10.

[^76]: *See CBS Response*, App. B at Bates stamped p. 458.

[^77]: *See CBS Response* at 9, App. B at Videotapes 6, 8
    (Jackson/Timberlake Dress Rehearsal).

[^78]: 47 U.S.C. § 503(b)(1); 47 U.S.C. § 312(f).

[^79]: *Meyer v. Holley*, 537 U.S. 280, 285 (2003) (citations omitted).

[^80]: *See Dial-a-Page, Inc.*, 8 FCC Rcd 2767 (1993), *recon. den.,* 10
    FCC Rcd 8825 (1995) (rule violation resulting from employee error
    was fully attributable to licensee under doctrine of respondeat
    superior and "willful" within the meaning of § 503(b)(1));
    *Wagenvoord Broadcasting Co.*, 35 FCC 2d 361 (1972); *Eure Family
    Ltd. Partnership*, 17 FCC Rcd 7042, 7044 ¶ 7 (Enf. Bur. 2002) ("it
    is a basic tenet of agency law that the actions of an employee or
    contractor are imputed to the employer and 'the Commission has
    consistently refused to excuse licensees from forfeiture penalties
    where actions of employees or independent contractors have resulted
    in violations.'").

[^81]: *Restatement (Second) of Agency* § 219(1) (1957) (2^nd^
    Restatement). *See also Restatement (Third) of Agency* § 7.07 (T.D.
    No. 5 2004) (3^rd^ Restatement).

[^82]: 2^nd^ Restatement § 220. *See also* 3^rd^ Restatement § 7.07.

[^83]: 2^nd^ Restatement § 228.

[^84]: *CBS Response* at Att. 8 ("At the end of the song, I attempted to
    perform a 'costume reveal' by removing a portion of Ms. Jackson's
    costume and revealing the undergarment beneath. I had neither the
    intention nor the knowledge that the reveal could expose her right
    breast. The decision to add the 'costume reveal' to the finale was
    made by Ms. Jackson and her choreographer after final rehearsals for
    the Halftime Show. They informed me just before the performance
    began.").

[^85]: *See CBS Response*, App. B-C at Bates stamped pgs. 168-72,
    431-34, 2152-2332, 2336-42; 2^nd^ Restatement § 1 ("Agency is a
    legal concept which depends upon the existence of required factual
    elements: the manifestation by the principal that the agent shall
    act for him, the agent\'s acceptance of the undertaking and the
    understanding of the parties that the principal is to be in control
    of the undertaking."), *cited in* *Meyer v. Holley*, 537 U.S. at
    286.

[^86]: *CBS Response* at 9-10. Although CBS had the right to exercise
    control over the halftime show, and in fact exercised considerable
    control, there were, as discussed above, significant lapses in the
    level of care that it exercised in overseeing the halftime
    production. *See* para. 17-22. Those lapses in supervision do not,
    however, negate the fact that the performances were subject to CBS's
    control and that CBS was thus vicariously responsible for the
    performers' actions within the scope of their employment under the
    doctrine of respondeat superior. *See* note 87 *infra*.

[^87]: *Id.* at Bates-stamped pgs. 168-72, 431-34, 2336-42. *See* 2^nd^
    Restatement § 220; 3^rd^ Restatement § 7.07 (relevant factual
    indicia of control include "whether the agent or the principal
    supplies the tools and other instrumentalities required for the work
    and the place in which to perform it").

[^88]: *See P.T. Barnum's Nightclub v. Duhamell*, 766 N.E.2d 729
    (Ind.App. 2002) (referring to 2^nd^ Restatement factors in affirming
    denial of summary judgment as to whether male exotic dancer was an
    employee for respondeat superior purposes where "the Club exercised
    some degree of control over Ajishegiri's work, particularly with
    regard to work hours, conditions, and regulations, and was in the
    business of displaying adult entertainers (primarily female), but
    did not dictate the stylistic aspects of Ajishegiri's performance");
    *White v. Frenkel*, 615 So.2d 535, 538-40 (La. App. 3 Cir. 1993)
    (professional wrestler was employee for respondeat superior purposes
    where, *inter alia*, promoter controlled who would win and who would
    lose wrestler's matches and had total control over who, where, and
    when wrestler wrestled); *Jeffcoat v. State Dept. of Labor*, 732
    P.2d 1073, 1075-78 (Alaska 1987) (dancer was employee for purposes
    of state labor statute where, *inter alia*, club exercised some
    control over costumes and dances and total control over music and
    dancers' working hours); *Jack Hammer Assoc.* *v. Delmy Productions,
    Inc.*, 499 N.Y.S.2d 418, 419-20 (1^st^ Dept. 1986) (actor was
    employee for purposes of determining availability of workers'
    compensation benefits where actor entered into a written contract
    for a stipulated sum for a term certain, time and place for his work
    was determined by production company, actor had to perform in a
    certain number of shows at specified times, and he had to follow a
    script and was subject to supervision of play's director). New York
    state courts have consistently held entertainers to be employees of
    the producers who engage them. *See Jack Hammer Assoc.*, 499
    N.Y.S.2d at 419-20; *Challis v. Nat'l Producing Co.,* 88 N.Y.S.2d
    731 (3d Dept. 1949) (circus clown); *Berman v. Barone*, 88 N.Y.S.2d
    327, 328 (3d Dept. 1949) (ballet dancer and variety artist). *See
    also In re Sims*, 602 N.Y.S.2d 225 (3d Dept. 1993) (finding a
    sufficient degree of direction and control by a conductor who hired
    musicians for imposition of respondeat superior liability although
    supervision was not direct). Here, the performers' agreements
    contain choice-of-law provisions specifying New York law. *CBS
    Response* at Bates-stamped pgs. 168-72, 431-34, 2336-42.

[^89]: 2^nd^ Restatement § 228.

[^90]: 3^rd^ Restatement § 7.07 ("an employee's conduct is outside the
    scope of employment when it occurs within an independent course of
    conduct intended to serve no purpose of the employer."). *See also
    id.* ("Alternative formulations avoid the use of motive or intention
    to determine whether an employee\'s tortious conduct falls within
    the scope of employment. These tests vary somewhat in how they
    articulate the requisite tie between the tortfeasor\'s employment
    and the tort. In general, such a tie is present only when the tort
    is a generally foreseeable consequence of the enterprise undertaken
    by the employer or is incident to it.").

[^91]: *Opposition* at 14.

[^92]: *Id*. at 39-40. CBS relies on section 504(c) of the Act, which
    provides that the Commission may not use the issuance of a notice of
    apparent liability in any other proceeding involving that person
    unless the forfeiture has been paid or there is a final court order
    for the payment of the forfeiture. CBS argues that the Commission
    not only must ignore cases in which there has been no final
    adjudication, but that it must consider CBS's long record of
    compliance with broadcast standards. *Id*. at 42.

[^93]: *Id*. at 41-43.

[^94]: *Id*. at 43.

[^95]: *See Viacom Inc.*, Order, 19 FCC Rcd 23100 (2004), *petition for
    recon. pending*. In light of that Consent Decree, entered into after
    the *NAL*, we conclude that CBS's history of past offenses is not
    relevant to our analysis. We note, however, that we disagree with,
    and have previously rejected, CBS's interpretation of section
    504(c). We have made it clear that the Commission may rely on the
    underlying facts that provide the basis for a notice of apparent
    liability in a separate case. *See Forfeiture Policy Statement and
    Amendment of Section 1.80 of the Rules to Incorporate the Forfeiture
    Guidelines*, Report and Order, 15 FCC Rcd 303, 304-05, ¶¶ 3-5 (1999)
    ("*Forfeiture Policy Statement*"), *recon. denied*, 17 FCC Rcd 303
    (1999).

[^96]: *See* 47 U.S.C. § 503(b)(2)(D) (the Commission "shall take into
    account the nature, circumstances, extent, and gravity of the
    violation and, with respect to the violator, the degree of
    culpability, any history of prior offenses, ability to pay, and such
    other matters as justice may require"); *NAL*, 19 FCC Rcd at 19237,
    ¶ 17.

[^97]: *See*
    http://www.usatoday.com/sports/football/super/2004-02-02-ratings_x.htm
    (stating that Super Bowl XXXVIII was "most-watched Super Bowl in
    history" with estimated 143.6 million viewers and 41.3 national
    rating).

[^98]: *See* 47 C.F.R. § 1.80, Note to Paragraph (b)(4), Section II,
    Upward Adjustment Criterion No. 2.

[^99]: *See* "Viacom Takes Big Write-Down, Creating a Loss," [New York
    Times]{.underline}, Feb. 25, 2005, at C1 (reporting that Viacom,
    Inc. took a non-cash charge for 2004 to write down the value of its
    assets by 27%, to \$49 billion, and that the company's revenue for
    the final quarter of 2004 was \$6.3 billion); "While Shares Fell,
    Viacom Paid Three \$160 Million," [New York Times]{.underline},
    April 16, 2005, at C1 (reporting that the company's top three
    executives received a total of \$160 million in compensation for
    2004).

[^100]: *See Enforcement of Prohibitions Against Broadcast Indecency*,
    Report and Order, 8 FCC Rcd 704 (1993), *modified*, 10 FCC Rcd 10558
    (1995). CBS, Inc. and Infinity Broadcasting Corporation, both of
    which became Viacom, Inc. subsidiaries, submitted comments in that
    rulemaking proceeding. *Id*., 8 FCC Rcd at 712.

[^101]: *Young Broadcasting*, 19 FCC Rcd at 1751 (release date of
    January 27, 2004).

[^102]: *Opposition* at 19, 27-28.

[^103]: As we find CBS legally responsible for the indecent broadcast
    based on both its own willful omission and its vicarious liability
    for the willful acts of its agents under the principle of respondeat
    superior, we need not address whether it could also be held
    responsible under Section 503(b)(1)(D) without a showing of
    willfulness.

[^104]: *Opposition* at 65-77.

[^105]: *See ACT III*, 58 F.3d at 659 (upholding the Commission's
    indecency definition against facial vagueness and overbreadth
    challenges). CBS's arguments about the Commission's discretion focus
    on the Commission's investigatory practices in cases where a
    complaint is based on a description of allegedly offensive
    programming, and not supported by a tape or a transcript.
    *Opposition* at 74-76. However, those arguments have nothing to do
    with this case, in which there was no dispute about what was
    broadcast and in which CBS issued a public apology to viewers for
    the violation of its broadcast standards. Similarly, CBS's
    contention about delay in the Commission's enforcement process
    (*Opposition* at 76-77) is irrelevant to this case. We also note
    that the D.C. Circuit has previously rejected this argument. *Action
    for Children's Television v. FCC*, 59 F.3d 1249, 1261-62 (D.C. Cir.
    1995) ("*ACT IV*"), *cert. denied*, 516 U.S. 1072 (1996).

[^106]: *Action for Children's Television v. FCC*, 852 F.2d 1332, 1339
    (D.C. Cir. 1988) ("*ACT I*") ("'serious merit' need not, in every
    instance, immunize material from FCC channeling authority").

[^107]: *ACT IV*, 59 F.3d at 1261; *see ACT III*, 58 F.3d at 666
    ("Whatever chilling effect 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.").

[^108]: *Opposition* at 44-53. In making this argument, CBS generally
    ignores the specific context of this case, preferring instead to
    opine about live television coverage of political and other events
    and even to lament "the end of live broadcasting as we know it."
    *Id*. at 48. We reiterate that our decision is limited to the
    specific context of this case, which involves a Super Bowl halftime
    entertainment show that was produced by CBS, using performers
    selected and paid by CBS. For the reasons stated in the *NAL* and in
    this *Order*, there is ample support for our conclusion that CBS
    failed to take reasonable precautions to ensure that no actionably
    indecent material was broadcast in this context.

[^109]: *Pacifica*, 438 U.S. at 742 ("indecency is largely a function of
    context -- it cannot be adequately judged in the abstract").

[^110]: *Id*., 438 at 750; *see id*. at 760-61 (Powell, J., concurring).

[^111]: *Id*. at 750. The D.C. Circuit upheld the Commission's
    interpretation of *Pacifica* as not imposing such limits. *See ACT
    I*, 852 F.2d at 1338 (upholding the Commission's decision to depart
    from its prior policy of acting only in cases involving "the
    repeated use, for shock value, of words similar to those satirized
    in the Carlin 'Filthy Words' monologue. . . . The FCC rationally
    determined that its former policy could yield anomalous, even
    arbitrary, results.").

[^112]: 529 U.S. 803 (2000).

[^113]: 521 U.S. 844 (1997).

[^114]: 518 U.S. 717 (1996).

[^115]: *Opposition* at 53-61.

[^116]: Similarly, in *Playboy*, the Court distinguished broadcast
    services from cable due to differences in the nature of those media.
    *See United States v. Playboy Entertainment Group, Inc.,* 529 U.S.
    at 815.

[^117]: *See Implementation of Section 551 of the Telecommunications Act
    of 1996*, Report and Order, 13 FCC Rcd 8232, 8242-43, ¶ 21 (1998)
    (news programming, sports programming and advertisements are not
    included in the V-chip ratings system). Outside of the context of
    exempt programming such as sports programming, we agree that the
    V-chip is an important protection, but it does not eliminate the
    need for enforcing our indecency rule or undermine the
    constitutionality of that rule. We note that last year, CBS and the
    other major networks announced their participation with the
    Advertising Council in an educational campaign designed to improve
    awareness of the V-chip. The announcement stated that less than 10
    percent of all parents are using the V-chip and 80 percent of all
    parents who currently own a television set with a V-chip are not
    aware that they have it. *See* News Release, "The Advertising
    Council and Four Major Television Networks Announce Unprecedented
    Partnership to Educate Parents About the V-Chip,"
    http://www.adcouncil.org/about/news_033004 (March 30, 2004). In
    addition, numerous television sets in U.S. households lack V-chips.

[^118]: *Opposition* at 53, *quoting Pacifica Reconsideration Order*, 59
    FCC 2d at 893. *See also Opposition* at ix, x, 46, 48-53.

[^119]: 47 U.S.C. § 503(b)(1)(B); 47 C.F.R. § 1.80(a)(1).

[^120]: 47 U.S.C. § 503(b); 47 C.F.R. § 1.80(f).

[^121]: *Forfeiture Policy Statement*, 12 FCC Rcd at 17113.

[^122]: *Id.*, 12 FCC Rcd at 17100-01, ¶ 27.

[^123]: 47 U.S.C. § 503(b).

[^124]: 47 C.F.R. §§ 0.311, 1.80(f)(4).

[^125]: 47 U.S.C. § 504(a).

[^126]: *See* 47 C.F.R. § 1.1914.

[^127]: [U.S. Const.]{.smallcaps}, amend. I.

[^128]: Congress has specifically forbidden the broadcast of obscene,
    indecent or profane language. 18 U.S.C. § 1464. It has also
    forbidden censorship. 47 U.S.C. § 326.

[^129]: *See, e.g.*, *N.Y. v. Ferber,* 458 U.S. 747, 756-57 (1982).

[^130]: *See FCC v. Pacifica Foundation*, 438 U.S. 726, 750 (1978)
    (emphasizing the "narrowness" of the Court's holding); *Action for
    Children's Television v. FCC*, 852 F.2d 1332, 1344 (D.C. Cir. 1988)
    ("*ACT I"*) ("Broadcast material that is indecent but not obscene is
    protected by the \[F\]irst \[A\]mendment.").

[^131]: *See* Brief for Petitioner, FCC, 1978 WL 206838 at \*9.

[^132]: *ACT I,* *supra* note 4, at 1344 ("the FCC may regulate
    \[indecent\] material only with due respect for the high value our
    Constitution places on freedom and choice in what the people say and
    hear."); *Id.* at 1340 n.14 ("\[T\]he potentially chilling effect of
    the FCC's generic definition of indecency will be tempered by the
    Commission's restrained enforcement policy.").

[^133]: *Complaints Regarding Various Television Broadcasts Between
    February 2, 2002 and March 8, 2005*, Notices of Apparent Liability
    and Memorandum Opinion and Order (decided March 15, 2006)
    (hereinafter "Omnibus Order").

[^134]: *See, e.g., In re Sagittarius Broadcasting Corporation,*
    Memorandum Opinion and Order, 7 FCC Rcd 6873, 6876 (1992)
    (subsequent history omitted).

[^135]: *See* *Pacifica Found.*, 438 U.S. at 748-49 (recognizing the
    "uniquely pervasive presence" of broadcast media "in the lives of
    all Americans"). In today's Order, paragraph 10, the Commission
    relies upon the same rationale.

[^136]: *See Complaints Against Various Licensees Regarding Their
    Broadcast of the Fox Television Network Program "Married by America"
    on April 7, 2003,* Notice of Apparent Liability for Forfeiture*,*19
    FCC Rcd 20191, 20196 (2004) (proposing a \$7,000 forfeiture against
    each Fox Station and Fox Affiliate station); *reconsideration
    pending*. *See also* *Clear Channel Broadcast Licenses, Inc.,* 19
    FCC Rcd 6773, 6779 (2004) (proposing a \$495,000 fine based on a
    "per utterance" calculation, and directing an investigation into
    stations owned by other licensees that broadcast the indecent
    program). In the instant Omnibus Order, however, the Commission
    inexplicably fines only the licensee whose broadcast of indecent
    material was actually the subject of a viewer's complaint to the
    Commission. *Id.* at ¶ 71.

[^137]: *See* *Complaints Against Various Television Licensees
    Concerning Their February 1, 2004, Broadcast of the Super Bowl
    XXXVIII Halftime Show,* Notice of Apparent Liability, 19 FCC Rcd
    19230 (2004).

[^138]: *In re Infinity Radio License, Inc.,* Memorandum Opinion and
    Order, 19 FCC Rcd 5022, 5026 (2004).

[^139]: *In re Complaints Against Broadcast Licensees Regarding Their
    Airing of the "Golden Globe Awards" Program*, Memorandum Opinion and
    Order, 19 FCC Rcd 4975 (2004); *petitions for stay and
    reconsideration pending*.

[^140]: *In the Matter of Complaints Against Various Television
    Licensees Regarding Their Broad. 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, 4513 (2005)
    ("Deleting all \[indecent\] language or inserting milder language or
    bleeping sounds into the film would have altered the nature of the
    artistic work and diminished the power, realism and immediacy of the
    film experience for viewers."). *See also Peter Branton*, Letter by
    Direction of the Commission, 6 FCC Rcd 610 (1991) (concluding that
    repeated use of the f-word in a recorded news interview program not
    indecent in context).

[^141]: *In the Matter of WPBN/WTOM License Subsidiary, Inc*., 15 FCC
    Rcd 1838 (2000).

[^142]: 403 U.S. 15 (1971).

[^143]: *Id.* at 26 ("We cannot indulge the facile assumption that one
    can forbid particular words without also running a substantial risk
    of suppressing ideas in the process.").

[^144]: *See* 18 U.S.C. § 1464.