**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | *  | File No. EB-04-IH-0011       |
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| **COMPLAINTS AGAINST VARIOUS     | ** | NAL/Acct. No. 200432080212   |
| TELEVISION LICENSEES**[^1]       |    |                              |
| **CONCERNING THEIR FEBRUARY 1,   | *  |                              |
| 2004, BROADCAST OF THE SUPER     | *) |                              |
| BOWL XXXVIII**                   | ** |                              |
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| **HALFTIME SHOW**                | *  |                              |
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**NOTICE OF APPARENT LIABILITY FOR FORFEITURE**

**Adopted: August 31, 2004 Released: September 22, 2004**

By the Commission: Chairman Powell issuing a statement; Commissioners
Copps and Martin approving in part, concurring in part and
issuing separate statements; and Commissioner Adelstein approving in
part, dissenting in part and issuing a statement.

# I. INTRODUCTION

1.  In this *Notice of Apparent Liability for Forfeiture* ("*NAL*"),
    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,[^2] we find that the licensees of the CBS Network Stations,
    as defined herein,[^3] aired program material on February 1, 2004,
    at approximately 8:30 p.m. Eastern Standard Time, during the
    halftime entertainment show of the National Football League's Super
    Bowl XXXVIII, that apparently violates the federal restrictions
    regarding the broadcast of indecent material.[^4] Based upon our
    review of the facts and circumstances of this case, Viacom Inc.
    ("Viacom"), as the licensee or ultimate parent of the licensees of
    the Viacom Stations, is apparently liable for a monetary forfeiture
    in the aggregate amount of Five Hundred Fifty Thousand Dollars
    (\$550,000.00), which represents the statutory maximum of \$27,500
    for each Viacom Station that broadcast the material. We propose the
    forfeiture for the broadcast over the Viacom Stations of indecent
    material, in apparent violation of 18 U.S.C. § 1464 and section
    73.3999 of the Commission's rules.[^5] Although we conclude that the
    non-Viacom-owned CBS Affiliate stations also aired this programming,
    for the reasons discussed herein, we decline to propose a monetary
    forfeiture or other sanction against the licensees of those
    stations.

    **II. BACKGROUND**

2.  During the days and weeks that followed the February 1, 2004, Super
    Bowl broadcast, the Commission received an unprecedented number of
    complaints alleging that the CBS Network Stations aired indecent
    material during the program.[^6] Specifically, the complaints state
    that the halftime segment, which featured musical performances by
    Janet Jackson, P. Diddy, Nelly, Kid Rock and Justin Timberlake,
    contained indecent material, including "crude," "inappropriate,"
    "lewd" and "sexually explicit" dancing and song lyrics, culminating
    in a performance by Ms. Jackson and Mr. Timberlake that concluded
    with Mr. Timberlake's removal of a portion of Ms. Jackson's bustier,
    exposing her breast to the camera.[^7]

3.  On February 2, 2004, the Enforcement Bureau (the "Bureau") sent a
    letter of inquiry to CBS Broadcasting, Inc. ("CBS"), also a
    subsidiary of Viacom and a Commission licensee,[^8] concerning the
    material described above allegedly broadcast over the CBS Network
    Stations.[^9] By letter dated February 3, and in response to a
    request in the *LOI*, CBS provided a videotape of the broadcast of
    the halftime performance[^10] and, by letter dated February 10,
    submitted an "interim response" to the *LOI*.[^11] CBS provided, as
    Exhibit 9 to the *CBS Interim Response*, a videotape of January 29,
    2004, rehearsals of the halftime show (the "Rehearsal Videotape").
    On February 14, also at the request of the Bureau,[^12] CBS supplied
    videotapes of its complete February 1, 2004, Super Bowl programming
    broadcast over the CBS Network Stations, including all of the
    commercials aired therein and the halftime segment (collectively,
    the "Broadcast Videotape").[^13]

4.  On March 16, CBS submitted its response to the *LOI*, certified to
    by Susanna M. Lowy, Vice President and Associate General Counsel of
    Viacom and CBS. [^14] Therein, CBS admits that the material in
    question was aired live over each of the CBS Network Stations.[^15]
    Acknowledging that the broadcast included the exposure of Ms.
    Jackson's breast, CBS states:

    no officer, employee or agent of Viacom Inc.. . . CBS, or MTV
    Networks. . . had any advance notice or warning that the Super Bowl
    halftime performance involving Janet Jackson and Justin Timberlake
    would include the exposure of Ms. Jackson's breast. The exposure
    resulted from a poorly-executed stunt that was planned by the
    performers without any involvement from Viacom, CBS, or MTV, all of
    whom would have forbidden the stunt if there had been any indication
    that it was planned. While CBS regrets the incident, the Commission
    should acknowledge that it was unplanned, unanticipated, and
    contrary to what we intended.

    *CBS Response* at 1.

5.  CBS claims to have taken "advance precautions to ensure that the
    telecast would not contain any material inconsistent with CBS
    standards and practices or in violation of the FCC rules. Such
    measures included, for example, implementation of a five-second
    audio delay to allow editing out of any unacceptable utterances in
    the audio of the live entertainment portions of the Super Bowl
    broadcast . . . ."[^16] CBS states further that the exposure of Ms.
    Jackson's breast was "unexpected," that Viacom subsidiaries, the CBS
    Television Network and MTV, "issued prompt apologies" and that "CBS
    also acted quickly to prevent any similar situation on future
    telecasts" by "instituting a five-minute audio and video delay to
    ensure that no unexpected or unplanned video images would be
    broadcast" during its televising of the Grammy Awards on February 8,
    2004.[^17] CBS has also provided the declarations of Ms. Jackson and
    Mr. Timberlake. Ms. Jackson states, "I did not tell anyone who was a
    representative, officer, director or agent of Viacom, CBS, MTV or
    the NFL of any possible costume reveal in my performance. . .
    Further, there was no costume reveal during any rehearsal for the
    Halftime Show."[^18] Mr. Timberlake similarly indicates "I did not
    communicate the plan to do the costume reveal to any officers,
    employees or representatives of Viacom, CBS, MTV or the NFL."[^19]

6.  The *CBS Response* also includes the script of the halftime
    segment,[^20] which was approximately 15 minutes in duration and was
    produced by MTV Networks ("MTV"), also a Viacom subsidiary.[^21] Our
    review of the Broadcast Videotape and the script, which CBS
    represents to depict the content of the actual broadcast,[^22]
    reveals that the halftime segment consisted of a series of musical
    performances on a stage situated on the playing field. Included was
    a performance by Janet Jackson, in which she wore a black leather
    and studded outfit, similar to those worn by the male and female
    dancers who participated in her performance. She was soon joined by
    Justin Timberlake for a duet of "Rock Your Body," during which he
    urged her in the song 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. At the close of the song, immediately after singing the lyrics,
    "gonna have you naked by the end of this song," Mr. Timberlake
    pulled off the right portion of Ms. Jackson's bustier, exposing her
    breast.[^23]

### III. DISCUSSION

7.  The Federal Communications Commission is authorized to license radio
    and television broadcast stations and is responsible for enforcing
    the Commission's rules and applicable statutory provisions
    concerning the operation of those stations. The Commission's role in
    overseeing program content is very limited. The First Amendment to
    the United States Constitution and section 326 of the Act prohibit
    the Commission from censoring program material and from interfering
    with broadcasters' freedom of expression.[^24] The Commission does,
    however, have the authority to enforce statutory and regulatory
    provisions restricting indecency. Specifically, it is a violation of
    federal law to broadcast obscene, indecent or profane programming.
    Title 18 of the United States Code, Section 1464 prohibits the
    utterance of "any obscene, indecent or profane language by means of
    radio communication."[^25] In addition, section 73.3999 of the
    Commission's rules, which was promulgated for the civil enforcement
    of that statute and section 16(a) of the Public Telecommunications
    Act of 1992,[^26] provides that radio and television stations shall
    not broadcast obscene material at any time, and shall not broadcast
    indecent material during the period 6 a.m. through 10 p.m.

8.  Under section 503(b)(1) of the Act, any person who is determined by
    the Commission to have willfully or repeatedly 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 forfeiture
    penalty. In order to impose such a 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.[^27] 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.[^28] As set forth in greater
    detail below, we conclude under this standard that Viacom, as the
    licensee or the ultimate parent of the licensees of the Viacom
    Stations, is apparently liable for a forfeiture for its apparent
    willful violation of 18 U.S.C. § 1464 and section 73.3999 of the
    Commission's rules.

    **A. Indecency Analysis**

9.  Any consideration of government action against allegedly indecent
    programming must take into account the fact that such speech is
    protected under the First Amendment.[^29] The federal courts
    consistently have upheld Congress's authority to regulate the
    broadcast of indecent material, as well as the Commission's
    interpretation and implementation of the governing statute.[^30]
    Nevertheless, the First Amendment is a critical constitutional
    limitation that demands, in indecency determinations, that we
    proceed cautiously and with appropriate restraint.[^31]

10. The Commission defines indecent speech as language that, in context,
    depicts or describes sexual or excretory activities or organs in
    terms patently offensive as measured by contemporary community
    standards for the broadcast medium.[^32]

> Indecency findings involve at least two fundamental determinations.
> First, the material alleged to be indecent must fall within the
> subject matter scope of our indecency definition---that is, the
> material must describe or depict sexual or excretory organs or
> activities. . . . Second, the broadcast must be *patently offensive*
> as measured by contemporary community standards for the broadcast
> medium.[^33]

11. As an initial matter, CBS does not dispute that the CBS Network
    Stations, the Viacom Stations listed in Appendix A and the CBS
    Affiliates listed in Appendix B, each aired the material described
    in paragraph 2, *supra,* during the February 1, 2004, telecast,
    during the period between 6 a.m. and 10 p.m.[^34] Because the
    broadcast material contained, *inter alia,* a performance by Ms.
    Jackson and Mr. Timberlake that culminated in on-camera partial
    nudity, Ms. Jackson's exposed breast, the material warrants further
    scrutiny to determine whether or not it was patently offensive as
    measured by contemporary community standards for the broadcast
    medium.[^35]

12. In our assessment of whether broadcast material is patently
    offensive, "the *full context* in which the material appeared is
    critically important."[^36] Three principal factors are significant
    to this contextual analysis: (1) the explicitness or graphic nature
    of the description; (2) whether the material dwells on or repeats at
    length descriptions of sexual or excretory organs or activities;
    and (3) whether the material appears to pander or is used to
    titillate or shock.[^37] In examining these three factors, we must
    weigh and balance them to determine whether the broadcast material
    is patently offensive because "\[e\]ach indecency case presents its
    own particular mix of these, and possibly, other factors."[^38] In
    particular cases, one or two of the factors may outweigh the others,
    either rendering the broadcast material patently offensive and
    consequently indecent,[^39] or, alternatively, removing the
    broadcast material from the realm of indecency.[^40] Here, we
    examine all three factors and determine that, in context and on
    balance, the on-camera exposure of Ms. Jackson's breast is patently
    offensive as measured by contemporary community standards for the
    broadcast medium.

13. At the outset, review of the Broadcast Videotape leaves no doubt
    that the Jackson/Timberlake segment is both explicit and graphic.
    The joint performance by Ms. Jackson and Mr. Timberlake culminated
    in Mr. Timberlake pulling off part of Ms. Jackson's bustier and
    exposing her bare breast. CBS admits that the CBS Network Stations
    broadcast this material, including the image of Ms. Jackson's bared
    breast, but argues that the exposure of her breast was unexpected
    and the duration of the exposure was for only 19/32 of a
    second.[^41] Although the exposure was brief, it was clearly
    graphic.[^42] Assertions that the exposure was fleeting and
    unintentional are more appropriate to the analysis under the second
    and third factors, as discussed below.

14. As to those factors, throughout the Jackson/Timberlake segment, the
    performances, song lyrics and choreography discussed or simulated
    sexual activities, concluding with the exposure of Ms. Jackson's
    breast. In particular, we note that Mr. Timberlake pulled off part
    of Ms. Jackson's clothing to reveal her breast after he sang, "gonna
    have you naked by the end of this song."[^43] Therefore, we find the
    nudity here was designed to pander to, titillate and shock the
    viewing audience. [^44] The fact that the exposure of Ms. Jackson's
    breast was brief is thus not dispositive.[^45]

15. Based upon the preceding analysis, we find, in context, that the
    exposure of Ms. Jackson's breast was apparently indecent, and,
    therefore, is legally actionable.[^46] By airing this material, the
    licensee of each of the CBS Network Stations apparently violated the
    prohibitions in 18 U.S.C. § 1464 and section 73.3999 of the
    Commission's rules, the rule against broadcast indecency.

    **B. Proposed Forfeiture**

16. Based upon our review of the record in this case, we conclude that
    the licensee of each Viacom Station is apparently liable for the
    willful violation of our rules. The Commission's *Forfeiture Policy
    Statement* establishes a base forfeiture amount of \$7,000 for
    transmission of indecent or obscene materials.[^47] 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."[^48]

17. Significant to our consideration of these statutory factors are the
    respective roles of CBS and MTV in the preparation, execution and
    promotion of the halftime segment. We note that, in the wake of the
    uproar precipitated by this broadcast, in the *CBS Response* and
    elsewhere, officials of CBS and MTV have each expressed their
    surprise at and regret over their Super Bowl broadcast of this
    material.[^49] For her part, Ms. Jackson has assumed personal
    responsibility, representing that she did not advise Viacom, CBS or
    MTV "of any possible costume reveal," although notably failing to
    represent that the costume reveal was inadvertent.[^50] Similarly,
    Mr. Timberlake has stated, "I did not communicate the plan to do the
    costume reveal to any officers, employees or representatives of
    Viacom, CBS, MTV or the NFL."[^51] However, whether or not officials
    of these companies had advance knowledge of Ms. Jackson's
    breast-baring finale to the halftime program is not dispositive. The
    materials provided in the *CBS Response*, including the final
    broadcast script,[^52] the Rehearsal Videotape and the Broadcast
    Videotape, establish that officials of both CBS and MTV were well
    aware of the overall sexual nature of the Jackson/Timberlake
    segment, and fully sanctioned it---indeed, touted it as "shocking"
    to attract potential viewers.[^53] The record here demonstrates that
    CBS failed to take reasonable precautions to ensure that no
    actionably indecent material was broadcast.[^54]

18. In this regard, CBS acknowledges that its officials and those of MTV
    conducted substantial review of the content of the halftime show
    before the broadcast, including the Jackson/Timberlake finale.[^55]
    The January 29 Rehearsal Videotape confirms that, three days before
    the Sunday national broadcast, officials of CBS and MTV, as well as
    members of the CBS Broadcast Standards Department and Program
    Practices Department, had full advance notice of the sexually
    provocative nature of the segment, including the choreography, the
    songs and their lyrics (albeit apparently not the exposure of Ms.
    Jackson's breast).[^56] According to the *CBS Response*, these
    officials sought only to: (i) instruct a dancer to change her
    costume to one that was not as "revealing;" and (ii) have Kid Rock
    remove his reference in his performance to "bastards from the
    IRS,"[^57] a line that he, in fact, delivered during the
    broadcast.[^58]

19. Furthermore, materials provided by CBS from the MTV website
    establish that MTV aggressively promoted the program in such a light
    for days before the telecast. In response to a question in the
    *LOI*, CBS provided a copy of a news item with its *Response* that
    MTV posted on January 28 on its website, entitled "Janet Jackson's
    Super Bowl Show Promises 'Shocking Moments.'"[^59] The item states,
    "As the big game approaches, one of the top questions along with
    'Who's going to win?' is 'What will Janet Jackson be doing at the
    halftime show?'" It quotes Jackson choreographer Gil Dulduleo as
    saying, "I don't think the Super Bowl has ever seen a performance
    like this. The dancing is great. She's more stylized, she's more
    feminine, she's more a woman as she dances this time around. There
    are some shocking moments in there too**.**"[^60]

20. An hour after CBS broadcast the halftime show, its MTV corporate
    affiliate posted an item on its website entitled "Janet Gets Nasty,"
    promoting its planned replay of the halftime segment. [^61] One hour
    later, it revised the item to include the following language:

    Jaws across the country hit the carpet at exactly the same time. You
    know what we're talking about...Janet Jackson, Justin Timberlake and
    a kinky finale that rocked the Super Bowl to its core. P. Diddy, Kid
    Rock, & Nelly rounded out the halftime show in the midst of the
    greatest game on earth. MTV was Super Bowl central, so armchair
    quarterbacks, fair weather fanatics and fans of Janet Jackson and
    her pasties were definitely in the right place. So strap on those
    pads, keep your head down and get the full recap of The AOL Super
    Bowl XXXVIII Halftime Show produced by MTV*.*[^62]

21. In its *Response* to the *LOI*, CBS states that the January 28 item
    "was based on an interview with Mr. Duldulao by an MTV news reporter
    who flew to Houston to cover the Super Bowl week (including both
    MTV-sponsored events and those sponsored by others). Both the
    Executive Vice President of MTV News and the Managing Editor of
    online news for MTV Networks reviewed the article before it was
    posted. They and the reporter believed that the 'shocking moment'
    quote referred to. . . Justin Timberlake's appearance, especially
    since other media outlets were playing up the 'surprise guest'
    angle, and reporters had been asking about it repeatedly throughout
    the week." CBS goes on to explain, "On Monday morning following the
    Super Bowl, MTV executives decided to remove the 'shocking moments'
    article from the website because, in the wake of the halftime
    performance, it was being taken out of context. However, because MTV
    News and its online complement are news outlets, the removal of
    newsworthy content is generally disfavored, and MTV reposted the
    article later on February 2, 2004 with an editor's note designed to
    prevent readers from misinterpreting the article."[^63]

22. Even if we accepted CBS's explanation that it was Mr. Timberlake's
    surprise appearance to which MTV was referring in its continual
    pre-broadcast promotion of the "shocking nature" of the halftime
    show, an assertion that reasonably could be called into
    question,[^64] the fact that MTV executives reviewed the January 28
    item before it was placed on the site and apparently did not think
    to inquire further of Mr. Duldulao, at a minimum, portrayed an
    attitude of willful indifference to the content and tone of what was
    ultimately broadcast. Under the circumstances, we do not believe
    that CBS exercised sufficient control to ensure that actionably
    indecent material would not be aired, and we hold it responsible for
    the indecent programming broadcast to an average of over 90 million
    people,[^65] including the millions of children watching, whom CBS
    could reasonably expect to be included in the viewing audience.
    [^66]

23. In sum, even assuming that neither CBS nor MTV had advance knowledge
    that Ms. Jackson's breast would be exposed during her broadcast
    performance, the record clearly establishes that officials of CBS
    and MTV did have prior knowledge of, indeed were intricately
    involved in the planning process for, and tacitly approved, the
    sexually provocative nature of the Jackson/Timberlake segment.
    Moreover, they extensively promoted this aspect of the broadcast in
    a manner designed to pander, titillate and shock. Viacom made a
    calculated and deliberate decision to air the Jackson/Timberlake
    segment containing material that would shock Super Bowl viewers, and
    to accurately promote it as such.[^67]

24. In this case, taking into account all of the factors enumerated in
    section 503(b)(2)(D) of the Act, because of the particular
    culpability here of Viacom, through its subsidiaries the CBS
    Television Network and MTV, and the history of recent indecent
    broadcasts by Viacom-owned radio stations,[^68] we find that the
    licensee of each of the Viacom Stations is apparently liable for a
    forfeiture of \$27,500, the statutory maximum, per station that
    broadcast the subject material, for a total forfeiture to Viacom, as
    licensee or ultimate parent of each of those licensees, of \$550,000
    (\$27,500 times 20 stations). Based upon our review of the entire
    record, we believe that this upward adjustment to the statutory
    maximum is warranted.

25. In contrast, we have no evidence that the licensee of any of the
    non-Viacom-owned CBS Affiliate was involved in the selection,
    planning or approval of the apparently indecent material. Moreover,
    we find that the licensee of each such station could not have
    reasonably anticipated that the CBS Network production of a
    prestigious national event such as the Super Bowl would contain
    material that included the on-camera exposure of Ms. Jackson's
    breast. Nevertheless, we urge each such licensee to take reasonable
    precautions in the future, such as employing such delay technology
    to independently prescreen the network feed to prevent the broadcast
    of indecent programming over its licensed station.

    **C. Conclusion**

26. Over twenty-five years ago, in *Pacifica*,[^69] the Supreme Court
    concluded that, notwithstanding the dictates of the First Amendment
    and the statutory prohibition imposed by section 326 of the Act on
    Commission censorship of broadcast content or interference with the
    right of free speech by means of radio communication, the
    Commission's regulation of broadcast indecency is constitutional. In
    so holding, the Court observed that "the broadcast media have
    established a uniquely pervasive presence in the lives of all
    Americans. Patently offensive, indecent material presented over the
    airwaves confronts the citizen, not only in public, but also in the
    privacy of the home, where the individual's right to be left alone
    plainly outweighs the First Amendment rights of an intruder."[^70]
    The Court also noted that "broadcasting is uniquely accessible to
    children, even those too young to read." Citing the government's
    interest in the "well-being of its youth" and in supporting
    "parents' claim to authority in their own household," the Court
    concluded that "the ease with which children may obtain access to
    broadcast material, coupled with concerns \[as to the well-being of
    youth\]. . .amply justify special treatment of indecent
    broadcasting."[^71]

27. In subsequently upholding the Commission's broadcast indecency
    definition against constitutional challenges, the United States
    Court of Appeals for the District of Columbia Circuit also stressed
    the importance of the Commission's indecency enforcement to the
    significant societal objective of empowering parents to control what
    broadcast material to which their children would be exposed. Thus,
    the Court concluded that "the Government's own interest in the
    well-being of minors provides an independent justification for the
    regulation of broadcast indecency, noting that "\[a\] democratic
    society rests, for its continuance, upon the healthy, well-rounded
    growth of young people into full maturity as citizens."[^72] The
    Court cited *Pacifica* for the proposition that "\[s\]ociety may
    prevent the general dissemination of \[indecent\] speech to
    children, leaving to parents the decision as to what speech of this
    kind their children shall hear and repeat."[^73] It observed
    further:

    \[P\]arents who wish to expose their children to the most graphic
    depictions of sexual acts will have no difficulty in doing so
    through the use of subscription and pay-per-view cable channels,
    delayed-access viewing using VCR equipment, and the rental or
    purchase of readily available audio and video cassettes. Thus the
    goal of supporting "parents' claim to authority in their own
    household to direct the rearing of their children," is fully
    consistent with the Government's own interest in shielding minors
    from being exposed to indecent speech by persons other than a
    parent.[^74]

    The Court concluded, "\[i\]t is fanciful to believe that the vast
    majority of parents who wish to shield their children from indecent
    material can effectively do so without meaningful restrictions on
    the airing of broadcast indecency."[^75]

28. Through the federally granted authorizations, issued for its owned
    stations and those of its other network affiliates, with its Super
    Bowl broadcast, CBS obtained access to the households of, by its own
    "preliminary"count, over 140 million people. Throughout the country,
    the game started in the late afternoon or early evening, at a time
    when parents and their children gathered in homes across the nation
    to enjoy the broadcast. [^76]

29. As the ultimate controlling entity of numerous television licensees,
    Viacom betrayed its trust, not only to the FCC arising from its
    obligation to operate its stations in the public interest and in a
    manner consistent with the Commission's rules, but to each parent
    who reasonably assumed that the national network broadcast of a
    major sporting event on a Sunday evening would not contain offensive
    sexual material unsuitable for children, the very class of viewers
    that the Commission's indecency rule was designed to protect. With
    its delivery into those homes of the Jackson/Timberlake duet, Viacom
    wrenched away from parents the ability to control the exposure of
    their children to the type of objectionable sexual material in which
    that performance culminated.

    **IV. ORDERING CLAUSES**

30. ACCORDINGLY, IT IS ORDERED, pursuant to section 503(b) of the
    Communications Act of 1934, as amended, and section 1.80 of the
    Commission's rules,[^77] that Viacom Inc. is hereby NOTIFIED of its
    APPARENT LIABILITY FOR FORFEITURE in the amount of Five Hundred
    Fifty Thousand Dollars (\$550,000.00) for willfully violating 18
    U.S.C. § 1464 and section 73.3999 of the Commission's rules.

31. IT IS FURTHER ORDERED, pursuant to section 1.80 of the Commission's
    rules, that within thirty (30) days of the release of this *NAL*,
    Viacom Inc. each SHALL PAY the full amount of the proposed
    forfeiture or SHALL FILE a written statement seeking reduction or
    cancellation of the proposed forfeiture.

32. Payment of the forfeiture must be made by check or similar
    instrument, payable to the order of the Federal Communications
    Commission. Payment by check or money order may be mailed to
    Forfeiture Collection Section, Finance Branch, Federal
    Communications Commission, P.O. Box 73482, Chicago, Illinois
    60673-7482. Payment by overnight mail may be sent to Bank One/LB
    73482, 525 West Monroe, 8th Floor Mailroom, Chicago, IL 60661.
    Payment by wire transfer may be made to ABA Number 071000013,
    receiving bank Bank One, and account number 1165259. The payment
    MUST INCLUDE the FCC Registration Number ("FRN") and also should
    note the NAL/Acct. Number referenced above.

33. The response, if any, must be mailed to William H. Davenport, Chief,
    Investigations and Hearings Division, Enforcement Bureau, Federal
    Communications Commission, 445 12^th^ Street, S.W, Room 4-C330,
    Washington D.C. 20554, and MUST INCLUDE the NAL/Acct. Number
    referenced above.

34. The Commission will not consider reducing or canceling a forfeiture
    in response to a claim of inability to pay unless the respondent
    submits: (1) federal tax returns for the most recent three-year
    period; (2) financial statements prepared according to generally
    accepted accounting practices ("GAAP"); or (3) some other reliable
    and objective documentation that accurately reflects the
    respondent's current financial status. Any claim of inability to pay
    must specifically identify the basis for the claim by reference to
    the financial documentation submitted.

35. Requests by a respondent for payment of the full amount of the
    forfeiture proposed against it in this *NAL* under an installment
    plan should be sent to: Chief, Revenue and Receivables Operations
    Group, 445 12th Street, S.W., Washington, D.C. 20554.[^78]

36. Under the Small Business Paperwork Relief Act of 2002, Pub L. No.
    107-198, 116 Stat. 729 (June 28, 2002), the FCC is engaged in a
    two-year tracking process regarding the size of entities involved in
    forfeitures. If a respondent against which a forfeiture has been
    proposed herein qualifies as a small entity and if it wishes to be
    treated as a small entity for tracking purposes, it should so
    certify to us within thirty (30) days of this *NAL*, either in its
    response to the *NAL* or in a separate filing to be sent to the
    Investigations and Hearings Division. The certification should
    indicate whether the respondent, including its parent entity and its
    subsidiaries, meets one of the definitions set forth in the list
    provided by the FCC's Office of Communications Business
    Opportunities ("OCBO") set forth in Appendix C to this *NAL*. This
    information will be used for tracking purposes only. A respondent's
    response or failure to respond to this question will have no effect
    on its rights and responsibilities pursuant to Section 503(b) of the
    Communications Act. If a respondent has questions regarding any of
    the information contained in Appendix C, it should contact OCBO
    at (202) 418-0990.

37. Accordingly, IT IS ORDERED, that the complaints filed against the
    licensees listed in Appendices A and B regarding their broadcasts on
    February 1, 2004, ARE GRANTED to the extent indicated herein, AND
    ARE OTHERWISE DENIED, and the complaint proceeding IS HEREBY
    TERMINATED.[^79]

38. IT IS FURTHER ORDERED, that copies of this *NAL* shall be sent by
    Certified Mail Return Receipt Requested to Viacom Inc., 2000 K
    Street, N.W., Suite 725, Washington, D.C. 20006, and to its counsel,
    Robert Corn-Revere, Esquire, Davis Wright Tremaine LLP, 1500 K
    Street, N.W., Washington, D.C. 20005.

> FEDERAL COMMUNICATIONS COMMISSION

Marlene H. Dortch

Secretary

**[[APPENDIX A]{.underline}]{.smallcaps}**

**[VIACOM 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              
  -----------------------------------------------------------------------------

**[[APPENDIX B]{.underline}]{.smallcaps}**

**[NON-VIACOM OWNED]{.smallcaps}**

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

  -----------------------------------------------------------------------
  **Licensee**                                **Call     **Community of
                                              Sign**     License**
  ------------------------------------------- ---------- ----------------
  Nexstar Broadcasting, Inc.                  KTAB-TV    Abilene, TX

  Pacific Telestations, Inc.                  K20EU      Dededo, Guam

  Freedom Broadcasting Of New York Licensee,  WRGB       Schenectady, NY
  L.L.C.                                                 

  Emmis Television License Corporation        KRQE       Albuquerque, NM

  Emmis Television License Corporation        KREZ-TV    Durango, CO

  Emmis Television License Corporation        KBIM-TV    Roswell, NM

  Thunder Bay Broadcasting Corporation        WBKB-TV    Alpena, MI

  Television Station Group License            WTAJ-TV    Altoona, PA
  Subsidiary, L.L.C.                                     

  Panhandle Telecasting Company               KFDA-TV    Amarillo, TX

  Alaska Broadcasting Company, Inc.           KTVA       Anchorage, AK

  Meredith Corporation                        WGCL-TV    Atlanta, GA

  Gray Television Licensee, Inc.              WRDW-TV    Augusta, GA

  Westwind Communications L.L.C.              KBAK-TV    Bakersfield, CA

  Community Broadcasting Service              WABI-TV    Bangor, ME

  WAFB, L.L.C.                                WAFB       Baton Rouge, LA

  Freedom Broadcasting Of Texas Licensee,     KFDM-TV    Beaumont, TX
  L.L.C.                                                 

  KTVQ Communications, Inc.                   KTVQ       Billings, MT

  Television Station Group License            WBNG-TV    Binghamton, NY
  Subsidiary, L.L.C.                                     

  Media General Communications, Inc.          WIAT       Birmingham, AL

  Reiten Television Inc.                      KXMB-TV    Bismarck, ND

  Fisher Broadcasting-Idaho TV, L.L.C.        KBCI-TV    Boise, ID

  Gray Television Licensee, Inc.              KBTX-TV    Bryan, TX

  WIVB Broadcasting, L.L.C.                   WIVB-TV    Buffalo, NY

  Mt. Mansfield Television, Inc.              WCAX-TV    Burlington, VT

  KXLF Communications, Inc.                   KXLF-TV    Butte, MT

  KCTZ Communications, Inc.                   KBZK       Bozeman, MT

  Heritage Broadcasting Company Of Michigan   WWTV       Cadillac, MI

  Heritage Broadcasting Company Of Michigan   WWUP-TV    Sault Ste Marie,
                                                         MI

  Raycom America, Inc.                        KFVS-TV    Cape Girardeau,
                                                         MO

  Chelsey Broadcasting Company Of Casper,     KGWC-TV    Casper, WY
  L.L.C.                                                 

  Chelsey Broadcasting Company Of Casper,     KGWR-TV    Rock Springs, WY
  L.L.C.                                                 

  KGAN Licensee, L.L.C.                       KGAN       Cedar Rapids, IA

  Nexstar Broadcasting, Inc.                  WCIA       Champaign, IL

  WCSC, Inc.                                  WCSC-TV    Charleston, SC

  Jefferson-Pilot Communications/WBTV, Inc.   WBTV       Charlotte, NC

  Media General Communications, Inc.          WDEF-TV    Chattanooga, TN

  Sagamorehill Broadcasting Of Wyoming/       KGWN-TV    Cheyenne, WY
  Northern Colorado, L.L.C.                              

  Sagamorehill Broadcasting Of Wyoming/       KSTF       Scottsbluff, NE
  Northern Colorado, L.L.C.                              

  Catamount Broadcasting Of Chico-Redding,    KHSL-TV    Chico, CA
  Inc.                                                   

  Citicasters Co.                             WKRC-TV    Cincinnati, OH

  Raycom National Inc.                        WOIO       Shaker Heights,
                                                         OH

  Gray Television Licensee, Inc.              KKTV       Colorado
                                                         Springs, CO

  Pacific And Southern Company, Inc.          WLTX       Columbia, SC

  Media General Broadcasting Of So. Carolina  WRBL       Columbus, GA
  Holdings, Inc.                                         

  WCBI-TV, L.L.C.                             WCBI-TV    Columbus, MS

  WBNS-TV, Inc.                               WBNS-TV    Columbus, OH

  Eagle Creek Broadcasting Of Corpus Christi, KZTV       Corpus Christi,
  L.L.C.                                                 TX

  Eagle Creek Broadcasting Of Laredo, L.L.C.  KVTV       Laredo, TX

  WHIO-TV Holdings, Inc.                      WHIO-TV    Dayton, OH

  Des Moines Hearst-Argyle TV, Inc.           KCCI       Des Moines, IA

  Gray Television Licensee, Inc.              WTVY       Dothan, AL

  NVG-Duluth II, L.L.C.                       KDLH       Duluth, MN

  KDBC License, L.L.C.                        KDBC-TV    El Paso, TX

  Initial Broadcasting Of Pennsylvania        WSEE-TV    Erie, PA
  License Subsidiary, L.L.C.                             

  Fisher Broadcasting-Oregon TV, L.L.C.       KVAL-TV    Eugene, OR

  Fisher Broadcasting-Oregon TV, L.L.C.       KCBY-TV    Coos Bay, OR

  South West Oregon TV Broadcasting Corp.     KPIC       Roseburg, OR

  Ackerley Media Group, Inc.                  KVIQ       Eureka, CA

  Comcorp Of Indiana License Corp.            WEVV       Evansville, IN

  Tanana Valley Television Company            K13XD      Fairbanks, AK

  Catamount Broadcasting Of Fargo L.L.C.      KXJB-TV    Valley City, ND

  Meredith Corporation                        WNEM-TV    Bay City, MI

  Media General Broadcasting Of So. Carolina  WBTW       Florence, SC
  Holdings, Inc.                                         

  Fort Myers Broadcasting Company             WINK-TV    Fort Myers, FL

  New York Times Management Services          KFSM-TV    Fort Smith, AR

  Indiana Broadcasting, L.L.C.                WANE-TV    Fort Wayne, IN

  Ackerley Broadcasting -- Fresno, L.L.C.     KGPE       Fresno, CA

  WGFL License Corporation                    WGFL       High Springs, FL

  Glendive Broadcasting Corporation           KXGN-TV    Glendive, MT

  Hoak Media Of Colorado, L.L.C.              KREX-TV    Grand Junction,
                                                         CO

  Hoak Media Of Colorado, L.L.C.              KREG-TV    Glenwood
                                                         Springs, CO

  Hoak Media Of Colorado, L.L.C.              KREY-TV    Montrose, CO

  KRTV Communications, Inc.                   KRTV       Great Falls, MT

  WFMY Television Corporation                 WFMY-TV    Greensboro, NC

  Saga Broadcasting, L.L.C.                   WXVT       Greenville, MS

  Media General Communications, Inc.          WNCT-TV    Greenville, NC

  Libco, Inc.                                 KGBT-TV    Harlingen, TX

  Clear Channel Broadcasting Licenses, Inc.   WHP-TV     Harrisburg, PA

  Meredith Corporation                        WFSB       Hartford, CT

  Media General Communications, Inc.          WHLT       Hattiesburg, MS

  Emmis Television License Corporation        KGMB       Honolulu, HI

  Emmis Television License Corporation        KGMD-TV    Hilo, HI

  Emmis Television License Corporation        KGMV       Wailuku, HI

  KHOU-TV, L.P.                               KHOU-TV    Houston, TX

  West Virginia Media Holdings, L.L.C.        WOWK-TV    Huntington, WV

  New York Times Management Services          WHNT-TV    Huntsville, AL

  Fisher Broadcasting-S.E. Idaho TV, L.L.C.   KIDK       Idaho Falls, ID

  Indiana Broadcasting, L.L.C.                WISH-TV    Indianapolis, IN

  Media General Communications, Inc.          WJTV       Jackson, MS

  Clear Channel Broadcasting Licenses, Inc.   WTEV-TV    Jacksonville, FL

  Mel Wheeler, Inc.                           KRCG       Jefferson City,
                                                         MO

  Media General Communications, Inc.          WJHL-TV    Johnson City, TN

  Freedom Broadcasting Of Michigan Licensee,  WWMT       Kalamazoo, MI
  L.L.C.                                                 

  Meredith Corporation                        KCTV       Kansas City, MO

  Gray Television Licensee, Inc.              WVLT-TV    Knoxville, TN

  QueenB Television, LLC                      WKBT       La Crosse, WI

  Primeland Television, Inc.                  WLFI-TV    Lafayette, IN

  KLFY, L.P.                                  KLFY-TV    Lafayette, LA

  Young Broadcasting Of Lansing, Inc.         WLNS-TV    Lansing, MI

  KLAS Inc.,(A Nevada Corp.)                  KLAS-TV    Las Vegas, NV

  West Virginia Media Holdings, L.L.C.        WVNS-TV    Lewisburg, WV

  Gray Television Licensee, Inc.              WKYT-TV    Lexington, KY

  Metro Video Productions, Inc.               WLMO-LP    Lima, OH

  Gray Television Licensee, Inc.              WYMT-TV    Hazard, KY

  Gray Television Licensee, Inc.              KOLN       Lincoln, NE

  Gray Television Licensee, Inc.              KGIN       Grand Island, NE

  Arkansas Television Company                 KTHV       Little Rock, AR

  WLKY Hearst-Argyle Television, Inc.         WLKY-TV    Louisville, KY

  Nexstar Broadcasting, Inc.                  KLBK-TV    Lubbock, TX

  Gannett Georgia, L.P.                       WMAZ-TV    Macon, GA

  Television Wisconsin, Inc.                  WISC-TV    Madison, WI

  United Communications Corporation           KEYC-TV    Mankato, MN

  Media General Broadcasting Of So. Carolina  KIMT       Mason City, IA
  Holdings, Inc.                                         

  Freedom Broadcasting of Oregon Licensee,    KTVL       Medford, OR
  L.L.C.                                                 

  New York Times Management Services          WREG-TV    Memphis, TN

  WMDN, Inc.                                  WMDN       Meridian, MS

  WDJT-TV Limited Partnership                 WDJT-TV    Milwaukee, WI

  Reiten Television Inc.                      KXMC-TV    Minot, ND

  Reiten Television Inc.                      KXMA-TV    Dickinson, ND

  Reiten Television Inc.                      KXMD-TV    Williston, ND

  KPAX Communications, Inc.                   KPAX-TV    Missoula, MT

  Media General Broadcasting Of South         WKRG-TV    Mobile, AL
  Carolina Holdings, Inc.                                

  Noe Corporation, L.L.C.                     KNOE-TV    Monroe, LA

  Ackerley Media Group, Inc.                  KION-TV    Monterey, CA

  Alabama Broadcasting Partners               WAKA       Selma, AL

  MMT License, L.L.C.                         KLSB-TV    Nacogdoches, TX

  Newschannel 5 Network, L.P.                 WTVF       Nashville, TN

  WWL-TV, Inc.                                WWL-TV     New Orleans, LA

  New York Times Management Services          WTKR       Norfolk, VA

  ICA Broadcasting I, Ltd.                    KOSA-TV    Odessa, TX

  Griffin Entities, L.L.C.                    KWTV       Oklahoma City,
                                                         OK

  Emmis Television License Corporation        KMTV       Omaha, NE

  Post-Newsweek Stations Orlando, Inc.        WKMG-TV    Orlando, FL

  Desert Television L.L.C.                    KPSP-LP    Cathedral City,
                                                         CA

  Nexstar Broadcasting, Inc.                  WMBD-TV    Peoria, IL

  Meredith Corporation                        KPHO-TV    Phoenix, AZ

  Saga Quad States Communications, L.L.C.     KOAM-TV    Pittsburg, KS

  WGME Licensee, L.L.C.                       WGME-TV    Portland, ME,

  Emmis Television License Corporation        KOIN       Portland, OR

  Nepsk, Inc.                                 WAGM-TV    Presque Isle, ME

  TVL Broadcasting Of Rhode Island, L.L.C.    WPRI-TV    Providence, RI

  Barrington Broadcasting Quincy Corporation  KHQA-TV    Hannibal, MO

  Capitol Broadcasting Company, Inc.          WRAL-TV    Raleigh, NC

  Sarkes Tarzian, Inc.                        KTVN       Reno, NV

  Elcom Of Virginia, Inc.                     WTVR-TV    Richmond, VA

  WDBJ Television, Inc.                       WDBJ       Roanoke, VA 

  Nexstar Broadcasting, Inc.                  WROC-TV    Rochester, NY

  Coronet Communications Company              WHBF-TV    Rock Island, IL

  Gray Television Licensee, Inc.              WIFR       Freeport, IL

  SCI -- Sacramento Licensee, L.L.C.          KOVR       Stockton, CA

  WBOC, Inc.                                  WBOC-TV    Salisbury, MD

  Jewell Television Corporation               KLST       San Angelo, TX

  Kens-TV, Inc.                               KENS-TV    San Antonio, TX

  Midwest Television, Inc.                    KFMB-TV    San Diego, CA

  Ackerley Media Group, Inc.                  KCOY-TV    Santa Maria, CA

  Raycom America, Inc.                        WTOC-TV    Savannah, GA

  Mission Broadcasting, Inc.                  WYOU       Scranton, PA

  KIRO-TV Holdings, Inc.                      KIRO-TV    Seattle, WA

  Gray Television Licensee, Inc.              KXII       Sherman, TX

  KSLA, L.L.C.                                KSLA-TV    Shreveport, LA

  Waitt Broadcasting, Inc.                    KMEG       Sioux City, IA

  Young Broadcasting Of Sioux Falls, Inc.     KELO-TV    Sioux Falls, SD

  Young Broadcasting Of Sioux Falls, Inc.     KDLO-TV    Florence, SD

  Young Broadcasting Of Rapid City, Inc.      KCLO-TV    Rapid City, SD

  Young Broadcasting Of Sioux Falls, Inc.     KPLO-TV    Reliance, SD

  Ketchikan TV, L.L.C.                        KTNL       Sitka, AK

  Ketchikan TV, L.L.C.                        KUBD       Ketchikan, AK

  Ketchikan TV, L.L.C.                        KUBD-LP    Kodiak, AK

  WSBT, Inc.                                  WSBT-TV    South Bend, IN

  Media General Broadcasting Of So. Carolina  WSPA-TV    Spartanburg, SC
  Holdings, Inc.                                         

  Media General Broadcasting Of So. Carolina  WNEG-TV    Toccoa, GA
  Holdings, Inc.                                         

  King Broadcasting Company                   KREM-TV    Spokane, WA

  Meredith Corporation                        WSHM-LP    Springfield, MA

  Mission Broadcasting, Inc.                  KOLR       Springfield, MO

  KMOV-TV, Inc.                               KMOV       St. Louis, MO

  Atlantic Properties                         WVXF       Charlotte
                                                         Amalie, VI

  WTVH License, Inc.                          WTVH       Syracuse, NY

  Gray Television Licensee, Inc.              WCTV       Thomasville, GA

  Pacific And Southern Company, Inc.          WTSP       St. Petersburg,
                                                         FL

  Emmis Television License Corporation        WTHI-TV    Terre Haute, IN

  Libco, Inc.                                 WTOL       Toledo, OH

  Gray Television Licensee, Inc.              WIBW-TV    Topeka, KS

  Raycom America, Inc.                        KOLD-TV    Tucson, AZ

  Griffin Licensing, L.L.C.                   KOTV       Tulsa, OK

  Catamount -- Idaho License L.L.C.           KMVT       Twin Falls, ID

  Gray Television Licensee, Inc.              KWTX-TV    Waco, TX

  The Detroit News, Inc.                      WUSA       Washington, DC

  United Communications Corporation           WWNY-TV    Carthage, NY

  Gray Television Licensee, Inc               WSAW-TV    Wausau, WI

  Withers Broadcasting Company                WDTV       Weston, WV

  Freedom Broadcasting Of Florida Licensee,   WPEC       West Palm Beach,
  Inc.                                                   FL

  West Virginia Media Holdings, L.L.C.        WTRF-TV    Wheeling, WV

  Hoak Media Of Wichita Falls, L.P.           KAUZ-TV    Wichita Falls,
                                                         TX

  Media General Broadcasting of So. Carolina  KWCH-TV    Hutchinson, KS
  Holdings, Inc.                                         

  Media General Broadcasting of So. Carolina  KBSD-TV    Ensign, KS
  Holdings, Inc.                                         

  Media General Broadcasting of So. Carolina  KBSH-TV    Hays, KS
  Holdings, Inc.                                         

  Media General Broadcasting of So. Carolina  KBSL-TV    Goodland, KS
  Holdings, Inc.                                         

  WILM, Inc.                                  WILM-LP    Wilmington, NC

  Fisher Broadcasting-Washington TV, L.L.C.   KIMA-TV    Yakima, WA

  Fisher Broadcasting-Washington TV, L.L.C.   KLEW-TV    Lewiston, ID

  Fisher Broadcasting-Washington TV, L.L.C.   KEPR-TV    Pasco, WA

  Piedmont Television Of Youngstown License   WKBN-TV    Youngstown, OH
  L.L.C.                                                 

  Pappas Arizona License L.L.C.               KSWT       Yuma, AZ
  -----------------------------------------------------------------------

**[APPENDIX C]{.underline}**

+--------------------------------+-------------------------------------+
| **FCC List of Small Entities** |                                     |
|                                |                                     |
| **As described below, a "small |                                     |
| entity" may be a small         |                                     |
| organization,**                |                                     |
|                                |                                     |
| **a small governmental         |                                     |
| jurisdiction, or a small       |                                     |
| business.**                    |                                     |
+--------------------------------+-------------------------------------+
| **(1) Small Organization**     |                                     |
+--------------------------------+-------------------------------------+
| **Any not-for-profit           |                                     |
| enterprise that is             |                                     |
| independently owned and        |                                     |
| operated and**                 |                                     |
|                                |                                     |
| **is not dominant in its       |                                     |
| field.**                       |                                     |
+--------------------------------+-------------------------------------+
| **(2) Small Governmental       |                                     |
| Jurisdiction**                 |                                     |
+--------------------------------+-------------------------------------+
| **Governments of cities,       |                                     |
| counties, towns, townships,    |                                     |
| villages, school districts,    |                                     |
| or**                           |                                     |
|                                |                                     |
| **special districts, with a    |                                     |
| population of less than fifty  |                                     |
| thousand.**                    |                                     |
+--------------------------------+-------------------------------------+
| **(3) Small Business**         |                                     |
+--------------------------------+-------------------------------------+
| **Any business concern that is |                                     |
| independently owned and        |                                     |
| operated and**                 |                                     |
|                                |                                     |
| **is not dominant in its       |                                     |
| field, *and* meets the         |                                     |
| pertinent size criterion       |                                     |
| described below.**             |                                     |
+--------------------------------+-------------------------------------+
| **Industry Type**              | **Description of Small Business     |
|                                | Size Standards**                    |
+--------------------------------+-------------------------------------+
| ***Cable Services or           |                                     |
| Systems***                     |                                     |
+--------------------------------+-------------------------------------+
| Cable Systems                  | Special Size Standard --            |
|                                |                                     |
|                                | **Small Cable Company** has 400,000 |
|                                | Subscribers Nationwide or Fewer     |
+--------------------------------+-------------------------------------+
| Cable and Other Program        | \$12.5 Million in Annual Receipts   |
| Distribution                   | or Less                             |
+--------------------------------+-------------------------------------+
| Open Video Systems             |                                     |
+--------------------------------+-------------------------------------+
| ***Common Carrier Services and |                                     |
| Related Entities***            |                                     |
+--------------------------------+-------------------------------------+
| Wireline Carriers and Service  | 1,500 Employees or Fewer            |
| providers                      |                                     |
+--------------------------------+-------------------------------------+
| Local Exchange Carriers,       |                                     |
| Competitive Access Providers,  |                                     |
| Interexchange Carriers,        |                                     |
| Operator Service Providers,    |                                     |
| Payphone Providers, and        |                                     |
| Resellers                      |                                     |
+--------------------------------+-------------------------------------+
| **Note:** With the exception   |                                     |
| of Cable Systems, all size     |                                     |
| standards are expressed in     |                                     |
| either millions of dollars or  |                                     |
| number of employees and are    |                                     |
| generally the average annual   |                                     |
| receipts or the average        |                                     |
| employment of a firm.          |                                     |
| Directions for calculating     |                                     |
| average annual receipts and    |                                     |
| average employment of a firm   |                                     |
| can be found in                |                                     |
|                                |                                     |
| 13 CFR 121.104 and 13 CFR      |                                     |
| 121.106, respectively.         |                                     |
+--------------------------------+-------------------------------------+
| ***International Services***   |                                     |
+--------------------------------+-------------------------------------+
| International Broadcast        | \$12.5 Million in Annual Receipts   |
| Stations                       | or Less                             |
+--------------------------------+-------------------------------------+
| International Public Fixed     |                                     |
| Radio (Public and Control      |                                     |
| Stations)                      |                                     |
+--------------------------------+-------------------------------------+
| Fixed Satellite                |                                     |
| Transmit/Receive Earth         |                                     |
| Stations                       |                                     |
+--------------------------------+-------------------------------------+
| Fixed Satellite Very Small     |                                     |
| Aperture Terminal Systems      |                                     |
+--------------------------------+-------------------------------------+
| Mobile Satellite Earth         |                                     |
| Stations                       |                                     |
+--------------------------------+-------------------------------------+
| Radio Determination Satellite  |                                     |
| Earth Stations                 |                                     |
+--------------------------------+-------------------------------------+
| Geostationary Space Stations   |                                     |
+--------------------------------+-------------------------------------+
| Non-Geostationary Space        |                                     |
| Stations                       |                                     |
+--------------------------------+-------------------------------------+
| Direct Broadcast Satellites    |                                     |
+--------------------------------+-------------------------------------+
| Home Satellite Dish Service    |                                     |
+--------------------------------+-------------------------------------+
| ***Mass Media Services***      |                                     |
+--------------------------------+-------------------------------------+
| Television Services            | \$12 Million in Annual Receipts or  |
|                                | Less                                |
+--------------------------------+-------------------------------------+
| Low Power Television Services  |                                     |
| and Television Translator      |                                     |
| Stations                       |                                     |
+--------------------------------+-------------------------------------+
| TV Auxiliary, Special          |                                     |
| Broadcast and Other Program    |                                     |
| Distribution Services          |                                     |
+--------------------------------+-------------------------------------+
| Radio Services                 | \$6 Million in Annual Receipts or   |
|                                | Less                                |
+--------------------------------+-------------------------------------+
| Radio Auxiliary, Special       |                                     |
| Broadcast and Other Program    |                                     |
| Distribution Services          |                                     |
+--------------------------------+-------------------------------------+
| Multipoint Distribution        | Auction Special Size Standard --    |
| Service                        |                                     |
|                                | **Small Business** is less than     |
|                                | \$40M in annual gross revenues for  |
|                                | three preceding years               |
+--------------------------------+-------------------------------------+
| ***Wireless and Commercial     |                                     |
| Mobile Services***             |                                     |
+--------------------------------+-------------------------------------+
| Cellular Licensees             | 1,500 Employees or Fewer            |
+--------------------------------+-------------------------------------+
| 220 MHz Radio Service -- Phase |                                     |
| I Licensees                    |                                     |
+--------------------------------+-------------------------------------+
| 220 MHz Radio Service -- Phase | Auction special size standard -     |
| II Licensees                   |                                     |
|                                | **Small Business** is average gross |
|                                | revenues of \$15M or less for the   |
|                                | preceding three years (includes     |
|                                | affiliates and controlling          |
|                                | principals)                         |
|                                |                                     |
|                                | **Very Small Business** is average  |
|                                | gross revenues of \$3M or less for  |
|                                | the preceding three years (includes |
|                                | affiliates and controlling          |
|                                | principals)                         |
+--------------------------------+-------------------------------------+
| 700 MHZ Guard Band Licensees   |                                     |
+--------------------------------+-------------------------------------+
| Private and Common Carrier     |                                     |
| Paging                         |                                     |
+--------------------------------+-------------------------------------+
| Broadband Personal             | 1,500 Employees or Fewer            |
| Communications Services        |                                     |
| (Blocks A, B, D, and E)        |                                     |
+--------------------------------+-------------------------------------+
| Broadband Personal             | Auction special size standard -     |
| Communications Services (Block |                                     |
| C)                             | **Small Business** is \$40M or less |
|                                | in annual gross revenues for three  |
|                                | previous calendar years             |
|                                |                                     |
|                                | **Very Small Business** is average  |
|                                | gross revenues of \$15M or less for |
|                                | the preceding three calendar years  |
|                                | (includes affiliates and persons or |
|                                | entities that hold interest in such |
|                                | entity and their affiliates)        |
+--------------------------------+-------------------------------------+
| Broadband Personal             |                                     |
| Communications Services (Block |                                     |
| F)                             |                                     |
+--------------------------------+-------------------------------------+
| Narrowband Personal            |                                     |
| Communications Services        |                                     |
+--------------------------------+-------------------------------------+
| Rural Radiotelephone Service   | 1,500 Employees or Fewer            |
+--------------------------------+-------------------------------------+
| Air-Ground Radiotelephone      |                                     |
| Service                        |                                     |
+--------------------------------+-------------------------------------+
| 800 MHz Specialized Mobile     | Auction special size standard -     |
| Radio                          |                                     |
|                                | **Small Business** is \$15M or less |
|                                | average annual gross revenues for   |
|                                | three preceding calendar years      |
+--------------------------------+-------------------------------------+
| 900 MHz Specialized Mobile     |                                     |
| Radio                          |                                     |
+--------------------------------+-------------------------------------+
| Private Land Mobile Radio      | 1,500 Employees or Fewer            |
+--------------------------------+-------------------------------------+
| Amateur Radio Service          | N/A                                 |
+--------------------------------+-------------------------------------+
| Aviation and Marine Radio      | 1,500 Employees or Fewer            |
| Service                        |                                     |
+--------------------------------+-------------------------------------+
| Fixed Microwave Services       |                                     |
+--------------------------------+-------------------------------------+
| Public Safety Radio Services   | **Small Business** is 1,500         |
|                                | employees or less                   |
|                                |                                     |
|                                | **Small Government Entities** has   |
|                                | population of less than 50,000      |
|                                | persons                             |
+--------------------------------+-------------------------------------+
| Wireless Telephony and Paging  | 1,500 Employees or Fewer            |
| and Messaging                  |                                     |
+--------------------------------+-------------------------------------+
| Personal Radio Services        | N/A                                 |
+--------------------------------+-------------------------------------+
| Offshore Radiotelephone        | 1,500 Employees or Fewer            |
| Service                        |                                     |
+--------------------------------+-------------------------------------+
| Wireless Communications        | **Small Business** is \$40M or less |
| Services                       | average annual gross revenues for   |
|                                | three preceding years               |
|                                |                                     |
|                                | **Very Small Business** is average  |
|                                | gross revenues of \$15M or less for |
|                                | the preceding three years           |
+--------------------------------+-------------------------------------+
| 39 GHz Service                 |                                     |
+--------------------------------+-------------------------------------+
| Multipoint Distribution        | Auction special size standard       |
| Service                        | (1996) --                           |
|                                |                                     |
|                                | **Small Business** is \$40M or less |
|                                | average annual gross revenues for   |
|                                | three preceding calendar years      |
|                                |                                     |
|                                | Prior to Auction --                 |
|                                |                                     |
|                                | **Small Business** has annual       |
|                                | revenue of \$12.5M or less          |
+--------------------------------+-------------------------------------+
| Multichannel Multipoint        | \$12.5 Million in Annual Receipts   |
| Distribution Service           | or Less                             |
+--------------------------------+-------------------------------------+
| Instructional Television Fixed |                                     |
| Service                        |                                     |
+--------------------------------+-------------------------------------+
| Local Multipoint Distribution  | Auction special size standard       |
| Service                        | (1998) --                           |
|                                |                                     |
|                                | **Small Business** is \$40M or less |
|                                | average annual gross revenues for   |
|                                | three preceding years               |
|                                |                                     |
|                                | **Very Small Business** is average  |
|                                | gross revenues of \$15M or less for |
|                                | the preceding three years           |
+--------------------------------+-------------------------------------+
| 218-219 MHZ Service            | First Auction special size standard |
|                                | (1994) --                           |
|                                |                                     |
|                                | **Small Business** is an entity     |
|                                | that, together with its affiliates, |
|                                | has no more than a \$6M net worth   |
|                                | and, after federal income taxes     |
|                                | (excluding carryover losses) has no |
|                                | more than \$2M in annual profits    |
|                                | each year for the previous two      |
|                                | years                               |
|                                |                                     |
|                                | New Standard --                     |
|                                |                                     |
|                                | **Small Business** is average gross |
|                                | revenues of \$15M or less for the   |
|                                | preceding three years (includes     |
|                                | affiliates and persons or entities  |
|                                | that hold interest in such entity   |
|                                | and their affiliates)               |
|                                |                                     |
|                                | **Very Small Business** is average  |
|                                | gross revenues of \$3M or less for  |
|                                | the preceding three years (includes |
|                                | affiliates and persons or entities  |
|                                | that hold interest in such entity   |
|                                | and their affiliates)               |
+--------------------------------+-------------------------------------+
| Satellite Master Antenna       | \$12.5 Million in Annual Receipts   |
| Television Systems             | or Less                             |
+--------------------------------+-------------------------------------+
| 24 GHz -- Incumbent Licensees  | 1,500 Employees or Fewer            |
+--------------------------------+-------------------------------------+
| 24 GHz -- Future Licensees     | **Small Business** is average gross |
|                                | revenues of \$15M or less for the   |
|                                | preceding three years (includes     |
|                                | affiliates and persons or entities  |
|                                | that hold interest in such entity   |
|                                | and their affiliates)               |
|                                |                                     |
|                                | **Very Small Business** is average  |
|                                | gross revenues of \$3M or less for  |
|                                | the preceding three years (includes |
|                                | affiliates and persons or entities  |
|                                | that hold interest in such entity   |
|                                | and their affiliates)               |
+--------------------------------+-------------------------------------+
| ***Miscellaneous***            |                                     |
+--------------------------------+-------------------------------------+
| On-Line Information Services   | \$18 Million in Annual Receipts or  |
|                                | Less                                |
+--------------------------------+-------------------------------------+
| Radio and Television           | 750 Employees or Fewer              |
| Broadcasting and Wireless      |                                     |
| Communications Equipment       |                                     |
| Manufacturers                  |                                     |
+--------------------------------+-------------------------------------+
| Audio and Video Equipment      |                                     |
| Manufacturers                  |                                     |
+--------------------------------+-------------------------------------+
| Telephone Apparatus            | 1,000 Employees or Fewer            |
| Manufacturers (Except          |                                     |
| Cellular)                      |                                     |
+--------------------------------+-------------------------------------+
| Medical Implant Device         | 500 Employees or Fewer              |
| Manufacturers                  |                                     |
+--------------------------------+-------------------------------------+
| Hospitals                      | \$29 Million in Annual Receipts or  |
|                                | Less                                |
+--------------------------------+-------------------------------------+
| Nursing Homes                  | \$11.5 Million in Annual Receipts   |
|                                | or Less                             |
+--------------------------------+-------------------------------------+
| Hotels and Motels              | \$6 Million in Annual Receipts or   |
|                                | Less                                |
+--------------------------------+-------------------------------------+
| Tower Owners                   | (See Lessee's Type of Business)     |
+--------------------------------+-------------------------------------+

**STATEMENT OF**

**CHAIRMAN MICHAEL K. POWELL**

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

No television event has ever received as many complaints from the
American public---over 540,000---as the Super Bowl XXXVIII halftime show
produced by CBS. As countless families gathered around the television to
watch one of our Nation's most celebrated events, they were rudely
greeted with a halftime show stunt more fitting of a burlesque show. The
show, clearly intended to push the limits of prime time television,
ultimately violated federal law that restricts indecent programming to
times when children are less likely to be watching. The U.S.
Constitution is generous in its protection of free expression, but it is
not a license to thrill. "Anything goes," is not an acceptable mantra
for those that elect to earn their profit using the public's airwaves.

Indecency determinations, however, must be made cautiously and with
appropriate restraint. There is always a substantial danger that a
regulatory authority buoyed by an outraged public will overstep and fail
to heel to the commands of the First Amendment. Our decision stays in
bounds, but I am troubled at the suggestion of some on the Commission
that we should reach further and drop the hammer for the musical
performances themselves---divorced from the infamous wardrobe
malfunction---or for the commercials. I agree that some of the
performances were risqué and that commercials were frequently crass and
sophomoric, but they were hardly indecent within the bounds of federal
law. To let loose governmental sanction on such a thin premise is to
stray from our limited role in enforcing the indecency laws, into the
role of national nanny---arbiter of taste, values and propriety.

One critical way in which we exercise restraint is by analyzing the
alleged indecent material in the context in which it is presented to the
viewer or listener. Broadcasters plead frequently that there should be
clear prescriptions to guide their choices. While the desire for such
comfort is understandable, it is not possible to write a "red book" of
dos and don'ts, nor is it wise. There are simply too many subtleties and
too many contexts in which a given form of speech might occur to
generalize a set of rules. The individual facts and the context are
critical to separating protected speech from unlawful speech.

Nonetheless, the Commission should explain the central elements of its
decision in order to permit broadcasters to make reasonable assessments
in their programming choices, based on analogous precedents. Nudity,
while not necessarily indecent in itself, certainly should raise a red
flag for a broadcaster contemplating its airing during the hours in
which the law restricts indecency because children are likely in the
audience. If a programmer opts to air nude content, he places great
weight in the hope that its purpose and context will keep the program
from running afoul of the law. In this case, the context of the half
time show leads us to conclude that the breast-baring finale was
intended (in the vernacular of the indecency law) "to pander, titillate
and shock" those watching. The song's lyrics leave little doubt where
the show was going: "Hurry up cause you're taking too long. . . better
have you naked by the end of this song." Well, he certainly did and
judging by the complaints it had its intended shocking effect---and drew
a penalty flag in the process.

Finally, although individual licensees are indeed responsible for what
is broadcast over the airwaves to their individual communities,
fundamental fairness dictates that in this instance we not sanction
those affiliates not owned by Viacom. The Super Bowl is widely regarded
as a family event with as many as one in five children watching this
year's edition. Past half time productions have generally reflected the
family-friendly character of the event. While affiliates certainly are
not exempt from their responsibility to guard against the airing of
indecent material, I do not believe it is warranted under the
circumstances before us, where one would not have reasonably anticipated
the dramatic departure.

In contrast, Viacom was not so passively involved. Viacom is the parent
company of not only the CBS network, which aired the program, but also
of MTV, which developed, rehearsed and produced the program. The Viacom
organization knew, or surely should have known, what was to come. The
fact that Viacom promoted the half time show before it aired as one that
would be shocking, gives credence to their culpability. Unquestionably,
Viacom consciously took the risk and, thus, now bears the
responsibility.

Enforcing the indecency laws is no easy task, but it is one that falls
to the FCC. We must respond to public complaints and give meaning to the
indecency prohibitions on the public airwaves. Just as importantly,
however, we must exercise great care not to overstep our own
Constitutional limits and smother the free expression that is the
central tenet of our democracy.

**STATEMENT OF**

**COMMISSIONER MICHAEL J. COPPS,**

**APPROVING IN PART, CONCURRING IN PART**

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

Few incidents have focused such widespread attention on the issue of
indecency on the airwaves or garnered more complaints than last year's
Super Bowl. Millions of Americans watched what should have been an
all-American evening for the entire family. Instead, we got something
far different -- an outrageous stunt and over 540,000 complaints from
people all across the country.

I agree that the Super Bowl halftime show violated the indecency statute
and am pleased that we are taking this step to address a deplorable
incident. I remain troubled, however, by certain aspects of the decision
and therefore do not approve it in its entirety.

First, I am concerned by the precedent we establish in failing to assess
a penalty against non-Viacom-owned affiliates that aired the Super Bowl.
I recognize that the affiliates likely did not expect that this national
event would include such indecency. Yet, many stations air programming
that they do not produce themselves. The Commission must be careful not
to signal that we would excuse indecent broadcasts merely because a
station did not control the production of the content. Some level of
fine would have been appropriate for these stations. The primary focus
of our indecency enforcement under the statute must remain those who are
licensed to use the public airwaves and we look to their vigilance to
protect our children from indecent broadcasts.

Second, the Commission received complaints about other aspects of the
halftime show and some of the commercials. Yet, the Order dismisses
these complaints in a footnote with hardly any analysis or explanation.
The FCC relies on viewers and listeners to file complaints about
indecent broadcasts and places a heavy burden on complaining citizens.
The citizens that filed these complaints have a right to expect more of
a Commission follow-through on their complaints.

Finally, although the Commission is imposing the largest fine in history
for indecency on television, let's not kid ourselves that this fine will
serve as a disincentive to multi-billion dollar conglomerates
broadcasting indecency. This fine needs to be seen in the context of a
broadcast in which each 30-second commercial cost more than \$2 million.
In other words, this fine represents less than 10 seconds of ad time on
the Super Bowl and will be easily absorbed as a cost of doing business.
We must continue to demonstrate to citizens that their complaints will
receive prompt and vigorous attention and to the broadcast industry that
Commission involvement in these issues is not a passing fancy.

**STATEMENT OF**

**COMMISSIONER KEVIN J. MARTIN**

**APPROVING IN PART, CONCURRING IN PART**

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

I write separately to express two concerns.

First, hundreds of thousands of viewers across the country filed
complaints asking us to find various aspects of the Super Bowl halftime
show indecent. Some even complained that the whole show was indecent.
This Notice, however, analyzes only one segment of the show. We have a
duty to the public to fully analyze all of the complaints that we
receive.[^80]

Second, as I have said before, we need to affirm local broadcasters'
ability -- and responsibility -- to reject inappropriate
programming.[^81] This obligation is critical to local broadcasters'
ability to keep coarser network programming off the air in their
communities. The network affiliates asked us to clarify that this right
over three years ago. We still have not acted, and thus I concur in the
decision not to fine the affiliates in this instance.

**STATEMENT OF**

**COMMISSIONER JONATHAN S. ADELSTEIN,**

**APPROVING IN PART AND DISSENTING IN PART**

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

Based on a careful review of the record, I find today's remedy totally
inadequate. After all the bold talk, it's a slap on the wrist that can
be paid with just 7½ seconds of Super Bowl ad time. The \$550,000 fine
measures up to only about a dollar per complaint for the more than
542,000 complaints that flooded into the FCC after the broadcast.

The Commission is required by Congress to enforce federal restrictions
against the broadcast of indecent material, and I agree with the
indecency finding here. We were deluged with a record number of
complaints about the Super Bowl halftime show, and took the unusual step
of launching an investigation. But after a major announcement and months
of investigation, today's enforcement action goes out of its way to
focus narrowly on the exposure of Janet Jackson's breast on twenty
CBS-owned stations.

Most troubling, this decision sets a puzzling precedent by failing to
hold all licensees responsible for the material broadcast over their
stations. Why announce such a thorough investigation if we just let some
of the stations that broadcast this material completely off the hook? It
is true that the CBS affiliates are as much the innocent victims as the
families who were stunned to see such gratuitous nudity during a family
viewing event. In this case CBS affiliates -- like the general public --
had no idea what was coming, but this is true for most live programming.
This aspect of today's action shows the lack of a coherent long-term
framework that should form the basis of all our indecency enforcement
efforts.

Compliance with federal broadcast decency restrictions is the
responsibility of the station that chooses to air the programming, not
the performers. Less than a week before the Super Bowl, the Commission
fined a television station for a similar case of gratuitous brief
on-camera nudity. Since the Super Bowl outcry, Viacom has acted
responsibly by apologizing, by instituting measures such as time delays
to keep indecency off the airwaves, and by cooperating fully with our
investigation. Viacom should be commended for these steps. Nevertheless,
subsequent actions cannot excuse the fact that indecent material was
broadcast to 100 million viewers, including one in five American
children.

While the Commission must always proceed cautiously in broadcast decency
cases, this type of graphic and gratuitous nudity is not a close call.
The millions of our nation's children who were ambushed by the Super
Bowl halftime show deserve better protection. A fine of 7½ seconds of ad
time is scarcely any deterrent. The shockwaves are still being felt by
this shameful episode. I fear that today we're responding to a "wardrobe
malfunction" with a regulatory malfunction.

[^1]: The respective licensees, station call signs and communities of
    license that are the subject of this *NAL* are listed in Appendices
    A and B.

[^2]: 47 U.S.C. § 503(b); 47 C.F.R. § 1.80.

[^3]: For purposes of this *NAL*, the "CBS Network Stations" include:
    (i) the television stations licensed to Viacom or to entities
    ultimately controlled by Viacom that are listed in Appendix A (the
    "Viacom Stations"); and (ii) the other television stations that are
    affiliates of the CBS Television Network listed in Appendix B
    (collectively, the "CBS Affiliates" and each, a "CBS Affiliate").
    According to a recent FCC Form 323 ownership report for CBS
    Broadcasting, Inc., Viacom is the licensee or the parent of each
    licensee of the Viacom Stations listed in Appendix A. *See* FCC File
    No. BOA-20030701CWJ.

[^4]: *See* 18 U.S.C. § 1464; 47 C.F.R. § 73.3999; and 47 U.S.C. §
    503(b).

[^5]: Appendix A also includes the FCC Registration Number (FRN) and
    facility identification number for each Viacom Station.

[^6]: To date, the Commission has received over 542,000 complaints
    concerning the broadcast.

[^7]: Some of the complainants also object to other material in the
    Super Bowl broadcast, including the propriety of the costume worn by
    Kid Rock during his halftime performance, a poncho apparently made
    from a United States flag, and the content of certain commercials.
    While Kid Rock's wearing of the flag-based apparel may be troubling
    to many viewers, it does not provide us a basis for action under 18
    U.S.C. § 1464. Similarly, we have reviewed all of the commercials
    aired during the broadcast and find that, although we understand
    that several may be offensive to some viewers, none fits within the
    Commission's definition of indecent material so as to be actionable.

[^8]: *See* Appendix A.

[^9]: 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 Broadcasting, Inc., dated February 2, 2004 (the
    "*LOI*").

[^10]: 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.

[^11]: 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*"). Therein, CBS characterizes its
    *Interim Response* as "preliminary in nature and reflects only that
    investigation and research as could be accomplished in the time
    permitted. In addition to not addressing legal issues and preserving
    all legal defenses and arguments as indicated below . . . the
    answers provided herein to the questions and requests in the \[LOI\]
    may be subject to revision based on results of ongoing
    investigation, interviews, and review of potentially relevant and/or
    responsive documents." *CBS Interim Response* at 1, n. 1; *see also
    id.* at 3.

[^12]: 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.

[^13]: 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.

[^14]: 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.

[^15]: *Id.* at 5-7 (responses to *LOI* Inquiries 1, 2 and 3).

[^16]: *Id.* at 5.

[^17]: *Id.* In its statement, CBS Television states that it "deeply
    regrets the incident. . . ." MTV indicates that it "deeply regrets
    this incident occurred and we apologize to anyone who was offended
    by it." *Id.,* Exhibit 4.

[^18]: *Id.*, Exhibit 7.

[^19]: *Id*., Exhibit 8.

[^20]: *Id*., Exhibit 9.

[^21]: *Id*. at 5.

[^22]: *CBS Response at* 9, n. 22.

[^23]: *Id*., Exhibit 9 at 35-39; Broadcast Videotape.

[^24]: *See* 47 U.S.C. § 326.

[^25]: 18 U.S.C. § 1464.

[^26]: Pub. L. No. 102-356, § 16(a), 106 Stat. 949, 954 (1992).

[^27]: 47 U.S.C. § 503(b); 47 C.F.R. § 1.80(f).

[^28]: *See, e.g., SBC Communications, Inc., Apparent Liability for
    Forfeiture*, Forfeiture Order, 17 FCC Rcd 7589, 7591 ¶ 4 (2002)
    (forfeiture paid).

[^29]: U.S. [Const.]{.smallcaps}, amend. I; *See Action for Children's
    Television v. FCC*, 852 F.2d 1332, 1344 (D.C. Cir. 1988) ("*ACT
    I*").

[^30]: *FCC v. Pacifica Foundation*, 438 U.S. 726 (1978) ("*Pacifica*").
    *See also ACT I*, 852 F.2d at 1339; *Action for Children's
    Television v. FCC,* 932 F.2d 1504, 1508 (D.C. Cir. 1991)*, cert.
    denied,* 503 U.S. 914 (1992) ("*ACT II*"); *Action for Children's
    Television v. FCC,* 58 F. 3d 654 (D.C. Cir. 1995)*, cert. denied,*
    516 U.S. 1043 (1996) *("ACT III").*

[^31]: *ACT I,* 852 F.2d at 1344 ("Broadcast material that is indecent
    but not obscene is protected by the First Amendment; the FCC may
    regulate such material only with due respect for the high value our
    Constitution places on freedom and choice in what people may say and
    hear."). *See also id.* at 1340 n. 14 ("the potentially chilling
    effect of the FCC's generic definition of indecency will be tempered
    by the Commission's restrained enforcement policy.").

[^32]: *Infinity Broadcasting Corporation of Pennsylvania, Memorandum
    Opinion and Order,* 2 FCC Rcd 2705 (1987) (subsequent history
    omitted) (*citing Pacifica Foundation*, *Memorandum Opinion and
    Order,* 56 FCC 2d 94, 98 (1975), *aff'd sub nom. FCC v. Pacifica
    Foundation*, 438 U.S. 726 (1978)).

[^33]: *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, ¶¶ 7-8 (2001)
    *("Indecency Policy Statement")* (emphasis in original).

[^34]: *CBS Response* at 5-7, Exhibits 5 and 6. CBS states that it "has
    no reason to believe that any affiliate did not broadcast such
    material." *Id.*at 7. It also acknowledges that the halftime show
    aired at approximately 8:30 Eastern Standard Time.

[^35]: The "contemporary standards for the broadcast medium" criterion
    is that of an average broadcast listener and, with respect to
    Commission decisions, does not encompass any particular geographic
    area. *See Indecency Policy Statement,* 16 FCC Rcd at 8002, ¶ 8 and
    n. 15.

[^36]: *Id.,* 16 FCC Rcd at 8002, ¶ 9 (emphasis in original).

[^37]: *Id.,* 16 FCC Rcd at 8002-15, ¶¶ 8-23.

[^38]: *Id.,* 16 FCC Rcd at 8003, ¶ 10.

[^39]: *Id.,* 16 FCC Rcd at 8009, ¶ 19 (*citing Tempe Radio, Inc
    (KUPD-FM)*, Notice of Apparent Liability For Forfeiture, 12 FCC Rcd
    21828 (Mass Media Bur. 1997) (forfeiture paid) (extremely graphic or
    explicit nature of references to sex with children outweighed the
    fleeting nature of the references); *EZ New Orleans, Inc.
    (WEZB(FM))*, Notice of Apparent Liability For Forfeiture, 12 FCC Rcd
    4147 (Mass Media Bur. 1997) (forfeiture paid) (same)).

[^40]: *Indecency Policy Statement,* 16 FCC Rcd at 8010, ¶ 20 ("the
    manner and purpose of a presentation may well preclude an indecency
    determination even though other factors, such as explicitness, might
    weigh in favor of an indecency finding").

[^41]: *CBS Response* at 5, n. 12.

[^42]: *See Young Broadcasting of San Francisco, Inc. (KRON-TV),* Notice
    of Apparent Liability for Forfeiture, 19 FCC Rcd 1751 (2004)
    (response pending) ("*Young Broadcasting*").

[^43]: *CBS Response*, Exhibit 9 at 35-39; Broadcast Videotape.

[^44]: *Compare WPBN/WTOM License Subsidiary, Inc. (WPBN-TV and
    WTOM-TV*), Order on Review, 15 FCC Rcd 1838 (2000), in which the
    Commission found not to be patently offensive and accordingly not
    indecent adult frontal nudity depicted during a broadcast of the
    film "Schindler's List." In that decision, the Commission held that
    the staff of the then-Mass Media Bureau had properly concluded that
    a broadcast of this film was not patently offensive as measured by
    contemporary community standards for the broadcast medium, based
    upon the full context of its presentation, including the subject
    matter of the film, the manner of presentation, and the warnings
    that accompanied the broadcast of the film. The staff determined,
    and the Commission agreed, that in the particular broadcast of the
    film at issue, the depiction of adult frontal nudity was incidental
    to the broadcast material's rendering of a historical view of World
    War II and wartime atrocities, which, viewed in context, was not
    presented in a pandering, titillating or vulgar manner. *Id.* at
    1839-40, ¶¶ 3, 13. In contrast, as discussed herein, the manner of
    presentation of the complained-of material over each CBS Network
    Station, for which Viacom failed to take adequate precautions, was
    pandering, titillating and shocking. Nor do we find that the
    apologies to viewers by CBS and MTV following the broadcast mitigate
    the liability of Viacom for violation of the statute and the
    Commission's rules.

[^45]: *See Young Broadcasting*, 19 FCC Rcd 1751.

[^46]: *See ACT III*, 58 F.3d at 660-63.

[^47]: *The Commission's Forfeiture Policy Statement and Amendment of
    Section 1.80 of the Rules to Incorporate the Forfeiture Guidelines*,
    Memorandum Opinion and Order, 12 FCC Rcd 17087, 17113 (1997)
    ("*Forfeiture Policy Statement"*), *recon. denied* 15 FCC Rcd 303
    (1999); 47 C.F.R. § 1.80(b). The Commission recently amended its
    rules to increase the maximum penalties to account for inflation
    since the last adjustment of the penalty rates. *See Amendment of
    Section 1.80(b) of the Commission's Rules and Adjustment of
    Forfeiture Maxima to Reflect Inflation,* Order, 15 FCC Rcd 18221
    (2000). 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 and
    Adjustment of Forfeiture Maxima to Reflect Inflation,* Order, FCC
    04-139 (rel. Jun. 18, 2004).

[^48]: *Forfeiture Policy Statement*, 12 FCC Rcd at 17100-01, ¶ 27.

[^49]: *CBS Response*, Exhibit 4.

[^50]: *Id*., Exhibit 7.

[^51]: *Id*., Exhibit 8.

[^52]: *Id*., Exhibit 9.

[^53]: *Id*., Appendix D, Tab 1 at 2658-60.

[^54]: *See Complaints Against Various Broadcast Licensees Regarding
    Their Airing of the "Golden Globe Awards" Program*, Memorandum
    Opinion and Order, 19 FCC Rcd 4975, 4979 ¶ 10 (2004) ("*Golden Globe
    Awards Order*") (petitions for reconsideration pending) (because
    licensees were on notice that an award presenter or recipient might
    use offensive language during a live program, they should have taken
    appropriate steps to ensure that such language would not be
    broadcast); *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 material meeting the indecency
    definition during a live, unscripted broadcast) (subsequent history
    omitted); *Regent Licensee of Flagstaff, Inc., (KZGL(FM))*, Notice
    of Apparent Liability for Monetary Forfeiture, 15 FCC Rcd 17286,
    17288, ¶ 9 (Enf. Bur. 2000) (forfeiture paid).

    Here, the prior conduct of Ms. Jackson and Mr. Timberlake in their
    performances and efforts to promote their recordings should have
    given CBS cause for caution regarding their joint appearance on the
    live, nationally televised Super Bowl broadcast. Mr. Timberlake
    earned considerable notoriety with his duet with Kylie Minogue on
    the Brit Awards program, which was nationally televised in England
    on February 19, 2003, conduct quite similar to that at issue here.
    According to a news account that ran shortly thereafter, while he
    performed a song with Ms. Minogue, he "grabbed Minogue's famous
    bottom." The article goes on to relate, "Justin later told a
    reporter: 'I've heard people in Britain are obsessed with Kylie's
    bottom and I can totally see why. I'm pretty obsessed with it, too.
    I didn't just touch Kylie's bum. I copped a feel. On a scale of one
    to 10, it was like a 58.'" *People in the News,"* THE MIAMI
    HERALD*,* February 22, 2003, available on LEXIS, News Library,
    Miamih File.

[^55]: Thus, according to CBS:

    > the planning and preparation for the Super Bowl halftime show
    > telecast were directed toward ensuring that the program met the
    > expectations of CBS and the NFL and conformed to broadcast
    > standards. Measures employed included careful selection of proven,
    > experienced talent, careful advance review of the script for the
    > halftime show, and active involvement of the CBS Broadcast
    > Standards Department to monitor the broadcast itself. 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 and MTV attended two
    > full run-throughs of the halftime show on Thursday, January 29 to
    > review the production. The run-throughs were videotaped, 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.

    *CBS Response* at 9-10; s*ee also* Written Testimony of Mel
    Karmazin, then-President and Chief Operating Officer, Viacom, Before
    the House Subcommittee on Telecommunications and the Internet, dated
    February 11, 2004, at 2-3 ("MTV's preparations for this year's
    half-time event included a full review, in tandem with CBS, of the
    script and lyrics and attendance at all rehearsals throughout the
    week before the Super Bowl so as to conform to broadcast
    standards.").

[^56]: *CBS Response* at 9. The language of the performers in the
    segment is also fully reflected in these pre-broadcast materials and
    the final script, each page of which is marked "1/31/04 4:00 p."
    *Id*., Exhibit 9. Moreover, review of the Broadcast Videotape
    reveals the performers did not deliver their vocals live during the
    halftime program- they lip-synched them, mouthing the words to a
    prerecording of their performances.

[^57]: CBS advises in its *Response*, "Other suggested changes involved
    commercial issues that are not relevant to this inquiry." *Id.*, at
    10, n. 26.

[^58]: *See* Broadcast Videotape.

[^59]: *CBS Response*, Appendix D, Tab 1 at 2658-60.

[^60]: *Id.*

[^61]: *Id.* at 13, Appendix F, Tab 2 at 3829.

[^62]: *Id*. at 13-14, Appendix F, Tab 2 at 3829. CBS advises that MTV
    removed this item from its website at 10 a.m. on February 2*. Id.*

[^63]: *Id.* at 11-12. The "editor's note" reads as follows:

    > At the time of this report, MTV thought that the "shock" was going
    > to be the as-yet-unannounced appearance of Justin Timberlake as
    > part of Janet's performance. Janet Jackson's subsequent
    > performance was not what had been rehearsed, discussed or agreed
    > to with MTV. To read Janet's statement and apology, see "Janet
    > Apologizes, Says Super Bowl Stunt Went Too Far." To see MTV's
    > statement, see "Janet, Justin, MTV apologize for MTV Super Bowl
    > Flash."

    *CBS Response*, Appendix D, Tab 1 at 2659.

[^64]: Indeed, at the start of the halftime segment, MTV included an
    on-screen credit for Mr. 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. *See* Broadcast Videotape.

[^65]: According to A.C. Nielsen Media Research, an average of 89.6
    million people watched the Super Bowl broadcast, with an audience of
    98.6 million during the fourth quarter and 143.6 million tuning in
    for at least some part of the game. *Super Bowl Ratings Up Slightly
    Over 2003*, SI.COM, February 2, 2004, available at
    http://sportsillustrated.cnn.com/2004/football/nfl/specials/playoffs/2003/02/02/bc.fbn.superbowl/ratings/ap.

[^66]: "Based on preliminary stats," an estimated one in five children
    between the ages of 2 to 11 years watched the halftime show. Lisa de
    Moraes, *The TV Column*, WASHINGTON POST, February 3, 2004, at C1.

[^67]: *Infinity Broadcasting Operations, Inc. (WNEW(FM))*, Notice of
    Apparent Liability for Monetary Forfeiture, 18 FCC Rcd 19954, 19962
    ¶14 (2003) (response pending) (fact that broadcast contest
    encouraging sexual activity was well-planned and extensively
    promoted, with the involvement of a large number of station and
    programming employees and managers, led to the conclusion that the
    material was aired to pander and titillate).

[^68]: *See, e.g., Infinity Broadcasting Operations, Inc. (WKRK-FM),*
    Notice of Apparent Liability for Monetary Forfeiture, FCC 04-49
    (rel. March 18, 2004) (response pending); *Infinity Broadcasting
    Operations, Inc.(WKRK-FM),* Notice of Apparent Liability for
    Monetary Forfeiture, 18 FCC Rcd 6915 (2003) (response pending);
    *Infinity Broadcasting Corporation of Los Angeles (KROQ-FM),*
    Memorandum Opinion and Order, 17 FCC Rcd 9892 (2002); *Infinity
    Broadcasting Operations, Inc.(WNEW(FM)),* Notice of Apparent
    Liability for Monetary Forfeiture, 17 FCC Rcd 10665 (Enf. Bur. 2002)
    (response pending).

[^69]: *Pacifica,* 438 U.S. 726*.*

[^70]: *Id*. at 748.

[^71]: *Id*. at 749-50.

[^72]: *ACT III*, 58 F.3d at 663.

[^73]: *Id., citing* *Pacifica*, 438 U.S. at 758 (Powell, J. concurring
    in part and concurring in the judgment).

[^74]: *Id.*

[^75]: *Id.*

[^76]: CBS Television Press Release, *CBS Sports Coverage of Super Bowl
    XXXVIII Watched by 140 Million Viewers* (February 2, 2004),
    available at http://viacom.com/press.tin?ixPressRelease=80254180.

[^77]: 47 C.F.R. § 1.80.

[^78]: *See* 47 C.F.R. § 1.1914.

[^79]: Consistent with section 503(b) of the Act and Commission
    practice, for the purposes of the forfeiture proceeding initiated by
    this *NAL*, Viacom Inc. shall be the only party to this proceeding.

[^80]: Note 6 of the Notice acknowledges that "\[s\]ome of the
    complainants also object to other material in the Super Bowl
    broadcast," but then concludes in two sentences that examples of
    such material were not indecent.

[^81]: *See* Written Statement of Commissioner Kevin J. Martin, Before
    the Committee on Commerce, Science and Transportation at 4 (February
    2004),
    <http://hraunfoss.fcc.gov/edocs_public/attachmatch/DOC-243865A2.doc>.
    *See also* Petition for Inquiry into Network Practices, filed by
    Network Affiliated Stations Alliance (March 2001); Motion for
    Declaratory Ruling, filed by Network Affiliated Stations Alliance
    (June 2001).