**Dissenting Statement of Commissioner Gloria Tristani**

[In the Matter of Industry Guidance on the Commission's Case Law
Interpreting]{.smallcaps}

[18 U.S.C. §1464 and Enforcement Policies Regarding Broadcast Indecency,
EB]{.smallcaps}

[File No. 00-IH-0089]{.smallcaps}

I dissent from the issuance of this "Policy Statement" (hereinafter
"Statement") for three reasons. First, the Statement creates a false
impression that it satisfies an obligation assumed by the Commission in
1994. Second, the Statement perpetuates the myth that broadcast
indecency standards are too vague and compliance so difficult that a
Policy Statement is necessary to provide further guidance. Most
importantly, this Statement diverts this Agency's attention and
resources away from the ongoing problem of lax enforcement, which is a
pressing concern of America's citizens.

The Statement notes that on February 22, 1994 the Commission entered
into a Settlement Agreement with Evergreen Media Corporation
(hereinafter "Agreement").[^1] At fn 23 the Statement cites the terms of
the Agreement as the source of our obligation to produce this Statement:

> Specifically, in paragraph 2(b) of the settlement agreement, the
> Commission agreed to \"publish industry guidance relating to its
> caselaw interpreting 18 U.S.C. § 1464 and the FCCs enforcement
> policies with respect to broadcast indecency."[^2]

The Agreement actually imposed a significantly more restricted
obligation.

> *Within nine months of the date of this Agreement*, the FCC shall
> publish industry guidance relating to its caselaw interpreting 18
> U.S.C. § 1464 and the FCCs enforcement policies with respect to
> broadcast indecency.[^3]

Six and one half years later, it is clear the FCC did not observe the
terms of the Agreement. While I cannot support the FCC's failure to
comply with the timeline set forth in the original Agreement, the record
does not disclose a single effort by Evergreen to seek specific
performance under the Agreement. It is well settled that "equity aids
the vigilant, not those who slumber on their rights," and doctrines such
as laches are designed to promote diligence and prevent enforcement of
stale claims.[^4] The public interest is not served by permitting
Evergreen to sit silently on the sidelines while Commission after
Commission failed to act. Even if the FCC shirked its duty under the
Agreement, as long as Evergreen retained the benefit of dismissal of
indecency cases against it as set out in the Agreement, a strong case
exists that Evergreen ratified this agency's inaction for almost 7
years.[^5] If Evergreen Media Corporation had an enforceable interest in
the Agreement, it has long since been waived.

Moreover, the obligation to issue the Statement was subject to several
conditions precedent that bound Evergreen Media.[^6] The Statement
itself does not disclose whether Evergreen complied with its
obligations, and with the exception of noting payment of \$10,000
forfeiture, the record on file at the Commission is silent on the same
point. FCC Mass Media Bureau records disclose that Evergreen Media no
longer owns the license to which the Agreement's terms attached.
Finally, the Agreement does not bind the Commission to provide to
Evergreen's assigns the relief set forth in the Agreement.[^7] In the
absence of the party executing the Agreement, and no successor to accede
to those interests, it appears there is no extant legal duty or
enforceable right upon which the issuance of the Statement can be based.

I turn next to the underpinnings of the need for this statement. The
Statement provides:

> The Commission issues this Policy Statement to provide guidance to the
> broadcast industry regarding our case law interpreting 18 U.S.C. §
> 1464 and our enforcement policies with respect to broadcast
> indecency.[^8]

First, settlement of a case involving a single licensee should not
compel the FCC to adopt our most significant industry-wide Policy
Statement on this subject, particularly when doing so does not serve the
public interest. Second, there is nothing in the record demonstrating
that Evergreen Media failed to understand the FCC's, or the U.S. Supreme
Court's, cases on broadcast indecency. In fact Evergreen agreed to issue
to its employees a "policy statement" that was to be based upon "the
FCC's definition of broadcast indecency."[^9] It his difficult to
understand how Evergreen could both issue a policy statement containing
the FCC's definition of indecency to its employees *and* simultaneously
be unable to understand the FCC's definition. But leaving that quirk
aside, there is simply no proof that broadcast licensees are in need of
this Policy Statement. No factual basis exists for concluding that
confusion about the standards or overreaching enforcement by the FCC
requires this Statement.

Moreover, I am aware of no rush of inquiries by broadcast licensees
seeking to learn whether their programs comply with our indecency
caselaw. In the absence of such requests, this Policy Statement will
likely become instead a "how-to" manual for those licensees who wish to
tread the line drawn by our cases. It likely may lead to responses to
future enforcement actions that cite the Statement as establishing false
safe harbors. In the absence of proof that the Statement addresses
concerns supported by the FCC's history of enforcement, or the record of
the Evergreen case, the Statement is nothing more than a remedy in
search of a problem. It would better serve the public if the FCC got
serious about enforcing the broadcast indecency standards. For these
reasons, I dissent.

[^1]:
    > *See United States v. Evergreen Media Corp*., Civ. No. 92 C 5600
    > (N.D. Ill., E. Div. 1994).

[^2]:
    > *See Policy Statement* at p. 17-18, n.23.

[^3]:
    > *See Settlement Agreement* at p. 3.

[^4]: *See e.g. Powell v. Zuckert*, 366 F.2d 634, 636 (D.C.Cir.1966).

[^5]:
    > *See e.g., Buffum v. Peter Barceloux Co*., 289 U.S. 227, 234
    > (1933).

[^6]:
    > The Agreement provides the parties exchanged "consideration and
    > mutual promises hereinafter stated." *See Settlement Agreement* at
    > p. 2 The Agreement describes, at Para. 3, several actions to be
    > undertaken by Evergreen. The Agreement is a form of an executory
    > contract the terms of which require timely satisfaction to
    > constitute compliance. Failure by either party to perform would
    > make the Agreement voidable or unenforceable.

[^7]:
    > *See Settlement Agreement* at p. 4.

[^8]:
    > *See Statement* at p.1.

[^9]:
    > *See Settlement Agreement,* at p. 3.