**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

In the Matter of )

)

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

**TELEVISION LICENSEES** )

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

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

**BOWL XXXVIII HALFTIME SHOW** )

**ORDER ON RECONSIDERATION**

**Adopted: May 4, 2006 Released: May 31, 2006**

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

a statement.

**I. INTRODUCTION**

1.  In this *Order on Reconsideration*, issued pursuant to section
    405(a) of the Communications Act of 1934, as amended (the "Act"),
    and section 1.106(j) of the Commission's rules,[^1] we deny the
    Petition for Reconsideration of Forfeiture Order ("*Petition*")
    filed by CBS Broadcasting Inc. ("CBS") in this forfeiture
    proceeding.[^2] The CBS *Petition* seeks reconsideration of our
    decision to impose a forfeiture of \$550,000 against CBS
    Corporation, as the ultimate parent company of the licensees of the
    television stations involved in this proceeding, for the violation
    of 18 U.S.C. § 1464 and the Commission's rule regulating the
    broadcast of indecent material.[^3] We find that CBS has failed to
    present any argument warranting reconsideration of our *Forfeiture
    Order*.

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II. **BACKGROUND**

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2.  This proceeding involves the broadcast of the halftime show of the
    National Football League's Super Bowl XXXVIII over the CBS
    owned-and-operated television stations in the CBS Network (the "CBS
    Stations") on February 1, 2004, at approximately 8:30 p.m. Eastern
    Standard Time.[^4] Super Bowl XXXVII was the most-watched program of
    the 2003-2004 television season and had an average of audience of
    89.8 million viewers.[^5] At the end of the musical finale of the
    halftime show, Justin Timberlake pulled off part of Janet Jackson's
    bustier, exposing one of her breasts to the television audience.
    After conducting an investigation, the Commission issued a Notice of
    Apparent Liability (the "*NAL*") finding the ultimate parent company
    of the licensees of the CBS Stations[^6] apparently liable for
    violating 18 U.S.C. § 1464 and section 73.3999, the Commission's
    rule regulating the broadcast of indecent material.[^7] The *NAL*
    proposed a forfeiture in the amount of \$27,500, the statutory
    maximum forfeiture amount, against each of the CBS Stations, for a
    total forfeiture amount of \$550,000.[^8]

3.  CBS submitted its *Opposition* to the *NAL* on November 5, 2004.[^9]
    CBS argued that the material broadcast was not actionably indecent
    under the Commission's existing case law.[^10] CBS further argued
    that the broadcast of Jackson's breast was accidental, and therefore
    not "willful" under section 503(b)(1)(B) of the Act.[^11] CBS
    further argued that the Commission's indecency framework is
    unconstitutionally vague and overbroad, both on its face and as
    applied to the halftime show.[^12]

4.  In the *Forfeiture Order*, released on March 15, 2006, the
    Commission rejected CBS's arguments and imposed the \$550,000
    forfeiture proposed in the *NAL*. The *Forfeiture Order* held that,
    under the Commission's contextual analysis, the broadcast of the
    halftime show was patently offensive as measured by contemporary
    community standards for the broadcast medium. With respect to the
    first principal factor in the Commission's contextual analysis, the
    Commission rejected CBS's arguments relating to whether the
    broadcast of partial nudity was premeditated or planned by the
    broadcaster. Rather, the Commission held that the focus of the first
    factor of the analysis is whether the broadcast was graphic and
    explicit from the viewer's or listener's point of view. The
    Commission found that the video broadcast of an image of a woman's
    breast is graphic and explicit if it is clear and recognizable to
    the average viewer, as was the case here.[^13] With respect to the
    second principal factor in the Commission's contextual analysis, the
    Commission agreed with CBS that the image in the halftime show was
    fleeting, but the Commission held that the brevity of the partial
    nudity was not dispositive.[^14] The third principal factor is
    whether the material is pandering, titillating or shocking. The
    Commission clarified that the broadcaster's or performer's state of
    mind is not relevant here. Rather, this factor focuses on the
    material that was broadcast and its manner of presentation.[^15] The
    Commission rejected CBS's claim that the segment in question merely
    involved an accidental, fleeting glimpse of a woman's breast.
    Rather, the segment was part of a halftime show that featured
    "performances, song lyrics, and choreography \[that\] discussed or
    simulated sexual activities."[^16] These sexually suggestive
    performances culminated in the spectacle of Timberlake tearing off a
    portion of Jackson's clothing to reveal her naked breast during a
    highly sexualized performance while he sang "gonna have you naked by
    the end of this song."[^17] The Commission stated: "Clearly, the
    nudity in this context was pandering, titillating and shocking to
    the viewing audience."[^18] The Commission therefore held that, on
    balance, the graphic, explicit, pandering, titillating and shocking
    nature of the material outweighed its brevity in the contextual
    analysis.[^19]

5.  The *Forfeiture Order* also rejected CBS's claim that the violation
    was accidental rather than willful under section 503(b)(1) of the
    Act. The Commission dismissed CBS's attempts to define "willful" in
    accordance with criminal law and copyright law cases, holding that
    the definition of the word appearing in section 312 of the Act
    applies to this case.[^20] Specifically, the Commission held that
    CBS Corporation acted willfully because it consciously and
    deliberately broadcast the halftime show, whether or not it intended
    to broadcast nudity, and because it consciously and deliberately
    failed to take reasonable precautions to ensure that no actionably
    indecent material was broadcast.[^21] The Commission further held
    that CBS Corporation was vicariously liable under the doctrine of
    *respondeat superior* for the willful actions of the performers and
    choreographer that it selected and over whose performance it
    exercised extensive control.[^22]

6.  The *Forfeiture Order* also rejected CBS's constitutional arguments,
    concluding that the Commission's indecency standard has been upheld
    in a series of decisions and has not been invalidated by subsequent
    developments in the legal or technological landscape.[^23] The
    *Forfeiture Order* further held that the upward adjustment of the
    forfeiture amount to the statutory maximum was supported by the
    factors enumerated in section 503(b)(2)(D) of the Act, particularly
    the circumstances involving the preparation, execution and promotion
    of the halftime show by CBS Corporation, the gravity of the
    violation in light of the nationwide audience for the indecent
    broadcast, CBS Corporation's ability to pay the forfeiture, and the
    need for strong financial disincentives to violate the Act and the
    indecency rule.[^24] The *Forfeiture Order* also rejected CBS's
    claim that it lacked prior notice that a brief scene of partial
    nudity might result in a forfeiture. The Commission noted that in
    *Young Broadcasting*,[^25] the Commission released a Notice of
    Apparent Liability proposing the statutory maximum forfeiture amount
    in a case involving a brief display of male frontal nudity shortly
    before the subject Super Bowl broadcast.[^26]

    **III. DISCUSSION**

7.  *Indecency Analysis*. We reject CBS's contention that the Commission
    misapplied the test for broadcast indecency in the *Forfeiture
    Order*. In doing so, we note that CBS does not contest the
    Commission's determination that the material at issue here falls
    within the subject matter scope of our indecency definition because
    it "describe\[d\] or depict\[ed\] sexual or excretory organs or
    activities."[^27] Rather, CBS takes issue with our conclusion that
    the Super Bowl halftime show was patently offensive as measured by
    contemporary community standards for the broadcast medium. While
    many of the arguments raised by CBS are repetitive of those set
    forth in its Opposition to the *NAL* and rejected by the Commission
    in the *Forfeiture Order*, we do address two new objections raised
    in the *Petition*.

8.  First, CBS disputes the Commission's conclusion that "a video
    broadcast image of \[Justin\] Timberlake pulling off part of
    \[Janet\] Jackson's bustier and exposing her bare breast, where the
    image of the nude breast is clear and recognizable to the average
    viewer, is graphic and explicit,"[^28] arguing that this conclusion
    is inconsistent with determinations reached by the Commission in the
    *Omnibus Order*.[^29] No such inconsistency exists; rather, a
    comparison of the Super Bowl halftime show to the material addressed
    in the *Omnibus Order* highlights the critical importance that the
    Commission places on the particular content and context in
    evaluating indecency complaints.

9.  CBS's attempt to compare Ms. Jackson's "wardrobe malfunction" to the
    material addressed in the *Omnibus Order* from *The Today Show* and
    *The Amazing Race 6* is unavailing. In both of those cases, the
    complained-of material did not constitute the focus of the scene in
    question. During *The Today Show*, a man's penis was briefly exposed
    at a considerable distance while he was shown being pulled from
    raging floodwaters in news footage. As the Commission indicated,
    "the overall focus of the scene \[was\] on the rescue attempt, not
    on the man's sexual organ."[^30] As a result, many viewers may not
    have even noticed the briefly exposed penis. Similarly, during *The
    Amazing Race 6,* while two contestants were leaving a train in
    Budapest, the camera shot briefly showed the phrase "Fuck Cops!"
    spray-painted in small white letters on the side of a train. Again,
    the graffiti was in the background, did not constitute the focus of
    the scene, and would not likely have been noticed by the average
    viewer.[^31] Under these circumstances, we found that the material
    at issue was not graphic or explicit.

10. In the Super Bowl halftime show, by contrast, the exposure of Ms.
    Jackson's breast was the central focus of the scene in
    question.[^32] As we stated in the *Forfeiture Order*, "Jackson and
    Timberlake, as the headline performers, are in the center of the
    screen, and Timberlake's hand motion ripping off Jackson's bustier
    draws the viewer's attention to her exposed breast."[^33]
    Furthermore, even though CBS claims that "this action occurred only
    [after]{.underline} the shot moved away from a close-up to a long
    shot," Jackson's breast is nonetheless "readily discernable" and the
    natural focus of viewers' attention.[^34] As Jackson and Timberlake
    were the headline performers on stage at that time, it would have
    been hard for someone looking at the television screen not to notice
    that he ripped off her clothing to expose her breast. We therefore
    reject CBS's theory that most viewers did not notice the exposure of
    Jackson's breast.[^35] We also reject CBS's repeated attempt to
    conflate the first and second factors of the Commission's contextual
    analysis. While we acknowledge that the exposure of Jackson's breast
    was relatively brief, this does not alter the fact that it was
    explicit.[^36] For all of these reasons, we reaffirm our conclusion
    that the televised image of Timberlake tearing off Jackson's
    clothing to reveal her bare breast was explicit.[^37]

11. Second, CBS maintains that the Commission misconstrued the third
    prong of our contextual analysis. Tellingly, CBS does not directly
    dispute the Commission's conclusion that the material was presented
    in a pandering, titillating and shocking manner. At the conclusion
    of a halftime show filled with sexual references, Timberlake and
    Jackson performed a duet of the song "Rock Your Body" in which
    Timberlake repeatedly grabbed Jackson, slapped her buttocks, and
    rubbed up against her in a manner simulating sexual activity, all
    the while proclaiming, among other things: "I wanna rock your body."
    Then, as the Commission stated in the *Forfeiture Order*, the
    performance "culminated in the spectacle of Timberlake ripping off a
    portion of Jackson's bustier and exposing her breast while he sang
    'gonna have you naked by the end of this song.'"[^38]

12. Understandably, given these facts, CBS does not make any effort to
    argue that the material was not presented in a pandering,
    titillating, and shocking manner. Instead, CBS argues that the
    Commission should have examined whether CBS *intended* to pander,
    titillate, or shock the audience, rather than the manner in which
    the material was actually presented. CBS fundamentally
    misunderstands the contextual analysis employed by the Commission.
    In evaluating whether material is indecent, we examine the material
    itself and the manner in which it is presented, not the subjective
    state of mind of the broadcaster.[^39] Indeed, under the test
    proposed by CBS, the same material presented in the same manner and
    context could be indecent on one occasion but not indecent on
    another if the broadcasters in question had differing intents in
    airing the material. CBS suggests no legal or public policy reason
    why the Commission should be compelled to undertake such a fruitless
    analysis.

13. In this instance, it is clear that the material was presented in a
    pandering, titillating, and shocking manner. In this regard, we
    strongly dispute CBS's assertion that the exposure of Jackson's
    breast was "exactly" the same as a broadcast where a woman's dress
    strap breaks and accidentally reveals her breast.[^40] In this case,
    at the conclusion of a highly sexualized performance in which
    Timberlake, among other things, rubbed up against Jackson in a
    manner simulating sexual intercourse and implored her to "do that
    ass-shakin' thing you do," Timberlake ripped off a portion of
    Jackson's clothing, thus exposing her breast, while singing "gonna
    have you naked by the end of this song." To claim that this material
    is no more pandering or titillating than an incident where a woman's
    dress strap accidentally breaks, thus revealing her breast for a
    second, utterly ignores the far different contexts of each
    situation.

14. We also once again reject CBS's general argument that the imposition
    of a forfeiture here "would be contrary to contemporary community
    standards for the broadcast medium" because "available information
    shows that the community at large was not upset about the Super Bowl
    broadcast."[^41] In light of the public uproar following the Super
    Bowl halftime show, we believe that it is CBS, and not the
    Commission, that is out of touch with the standards of the American
    people. Moreover, while we continue to reject the use of third-party
    polls as determinative in our assessment of contemporary community
    standards for the broadcast medium and our analysis in this order
    does not rely upon any third-party polls, we do not accept CBS's
    argument that "available information shows that the community at
    large was not upset about the Super Bowl broadcast."[^42] The polls
    cited by CBS do not indicate whether the Super Bowl broadcast was
    patently offensive under contemporary community standards for the
    broadcast medium.[^43] Moreover, we note that other survey
    information suggests that most Americans were indeed offended by the
    Super Bowl halftime incident and did not believe that it was
    appropriate broadcast material.[^44] Further, we note that while CBS
    now claims that the exposure of Jackson's breast was not patently
    offensive, it conceded otherwise shortly after the incident. For
    example, testifying before the House Energy and Commerce Committee,
    Viacom's President and Chief Operating Officer stated that "everyone
    at CBS and everyone at MTV was shocked and appalled . . . by what
    transpired" and maintained that the material "went far beyond what
    is acceptable standards for our broadcast network."[^45] Similarly,
    at the same hearing, the Commissioner of the NFL said that he was
    "deeply disappointed and offended by the inappropriate content of
    the show."[^46] Finally, we reject CBS's argument that the
    Commission generally does not evaluate material using contemporary
    community standards for the broadcast medium. As we have stated
    before, "We rely on our collective experience and knowledge,
    developed through constant interaction with lawmakers, courts,
    broadcasters, public interest groups and ordinary citizens, to keep
    abreast of contemporary community standards for the broadcast
    medium."[^47]

15. In sum, we reaffirm our conclusion in the *Forfeiture Order* that
    "the Super Bowl XXXVIII halftime show contained material that was
    graphic, explicit, pandering, titillating, and shocking and, in
    context and on balance, was patently offensive under contemporary
    community standards for the broadcast medium and thus
    indecent."[^48] As we found in the *Forfeiture Order*, "\[a\]lthough
    the patently offensive material was brief, its brevity is outweighed
    in this case by the first and third factors in our contextual
    analysis."[^49]

16. *Whether Violation Was "Willful."* Seeking to absolve itself of
    responsibility for the Super Bowl halftime show broadcast, CBS
    challenges the Commission's finding that the indecency violation was
    willful because of both CBS's own conduct and its vicarious
    liability for the willful actions of the performers under the
    doctrine of respondeat superior. We conclude that there is no basis
    to reconsider our decision on either ground.

17. CBS contends that the "only question" in determining whether it is
    legally responsible for "willfully" violating the Act and the
    Commission's rules is whether it "intended for Ms. Jackson to bare
    her breast as part of a broadcast that CBS aired."[^50] The
    Commission disagrees. Not only is that not the "only question," it
    is not the question at all. CBS acted willfully because it
    consciously and deliberately broadcast the halftime show and
    consciously and deliberately failed to take reasonable precautions
    to ensure that no actionably indecent material was broadcast.[^51]
    The record shows that CBS was acutely aware of the risk of
    unscripted indecent material in this production, but failed to take
    adequate precautions that were available to it to prevent that risk
    from materializing.[^52] Under these circumstances, the Commission
    was justified in finding CBS responsible for the indecent broadcast
    based on its conscious and deliberate omissions even if it did not
    intend for Ms. Jackson to bare her breast.[^53]

18. While defending its "meticulous efforts to ensure the performance
    adhered to broadcast standards and that no unforeseen incidents or
    departures from script occurred,"[^54] and dismissing the record
    evidence on which the Commission relied, CBS fails to address
    several important facts cited by the Commission. For example, CBS
    does not explain in its *Petition* why it was not alarmed by, and
    did not investigate, the news item posted on MTV's website before
    the show in which Jackson's choreographer predicted that Jackson's
    performance would include some "shocking moments."[^55] By CBS's own
    account, the management of both MTV and Viacom were aware of the
    claims but apparently did nothing to investigate them, preferring
    instead to remain in the dark based on implausible assumptions
    regarding their meaning.[^56] We found unconvincing CBS's previous
    assertions that MTV management believed that the "shocking moments"
    quote referred to Timberlake's "surprise" appearance, and that
    Viacom personnel who reviewed the story dismissed it as hyperbole
    common in the music industry. As we explained in the *Forfeiture
    Order*, it seems dubious that Timberlake's appearance would be
    described as "shocking" when MTV included his name in the on-screen
    credits before the show.[^57] Similarly, CBS says nothing about the
    fact that a question posed by another halftime performer to MTV
    staff about the length of the broadcast delay was recognized as
    having "scary" implications -- presumably because it signaled that a
    performer might be contemplating a script departure and was
    wondering what he might be able to get away with.[^58] And CBS does
    not dispute that the show's sponsor, the NFL, raised specific
    concerns about Timberlake's scripted line "gonna have you naked by
    the end of this song," which anticipated the stunt resulting in the
    broadcast nudity.[^59]

19. CBS dismisses as irrelevant the fact that it learned the morning of
    the show of plans to use tearaway cheerleading outfits for dancers
    in another halftime performance in connection with a scripted line
    ("I wanna take my clothes off") that is markedly similar to
    Timberlake's line that immediately preceded the tearaway of
    Jackson's bustier (and had, incidentally, worried the NFL). CBS
    claims that this "reveals that, in carefully examining the costumes
    before the show, CBS reinforced its prohibition on reveals or other
    stunts that could go wrong and implicate indecency concerns."[^60]
    But CBS does not say whether in "carefully examining the costumes
    before the show" it noticed that Jackson's bustier was constructed
    so that the cups could easily be torn away.[^61] Nor does it address
    whether the parallel lyrics noted by the Commission ("I wanna take
    my clothes off"/"gonna have you naked by the end of this song")
    caused it any concern. In fact, CBS does not explain at all how it
    "reinforced its prohibition on reveals or other stunts that could go
    wrong and implicate indecency concerns."[^62]

20. These should have served as warnings signs of the risk of visual as
    well as audio departures from script, yet CBS does not explain why
    its "meticulous efforts" did not include further investigation or an
    adequate delay mechanism.[^63] It also fails to explain why it did
    not take the simple measure at the outset of requiring that MTV's
    agreements with the performers obligate them to conform to the
    script and to CBS's broadcast standards and practices.[^64]

21. Regarding the evidence that it does address, CBS complains that the
    Commission has taken evidence out of context or inflated its
    significance, but the record suggests otherwise. For example, it
    takes issue with the Commission's characterization that MTV was
    seeking to "push the envelope" in its halftime production, but
    counters only with the argument that MTV did not use that term to
    mean pushing the bounds of propriety in terms of sexually
    provocative content.[^65] But the Commission's characterization is
    its own, and is well-founded based on the entirety of the record.
    MTV clearly intended for the show to be sexually provocative and
    repeatedly made decisions in an effort to push the show in that
    direction. Moreover, the fact that the NFL had to rein in MTV when
    it felt the show was heading in too risqué a direction suggests that
    MTV was in fact trying to push the envelope of propriety, without
    regard to whether MTV chose to use that term.[^66]

22. CBS also disputes our conclusion that it made a calculated decision
    to rely on a five-second audio delay even though it was aware of the
    risk of visual deviations from the script that could not be blocked
    with a five-second delay. It asserts that this did not reflect a
    "calculated risk" but rather simply conformance with standard
    industry practice, and that a video delay was "entirely
    unprecedented, and the technique had to be specially engineered
    after the Super Bowl incident."[^67] It also claims that the NFL was
    concerned only about audio, not visual, departures from the
    script.[^68] Contrary to CBS's contention, however, the record
    indicates that the NFL's expressed concerns were not limited to
    audio deviation,[^69] and, perhaps even more importantly, that
    CBS/MTV understood that the risks were not limited to audio
    deviations as well.[^70] Furthermore, if the standard industry delay
    practice was inadequate to alleviate the concerns under the
    circumstances, then CBS was obligated to do more.[^71] We note that
    this was not a typical broadcast; it was the most-watched television
    program of the year and millions of families and children were
    expected to be in the audience.

23. Holding CBS responsible for the indecent broadcast under these
    circumstances is not tantamount to imposing strict liability, as CBS
    contends, because the finding of willfulness is based on CBS's
    knowledge of the risks and its conscious and deliberate omissions of
    the acts necessary to address them. As we stated in the *Forfeiture
    Order*, this approach is consistent with the statutory definition of
    willfulness,[^72] and it is particularly appropriate here given the
    nondelegable nature of broadcast licensees' responsibility for their
    programming.

24. We find CBS's arguments concerning our application of the doctrine
    of respondeat superior equally unpersuasive. CBS's assertion that
    the Commission applied "unusually strict rules" of vicarious
    liability in the Forfeiture Order is inaccurate.[^73] The Commission
    applied traditional agency principles, which "ordinarily make
    principals or employers vicariously liable for acts of their agents
    or employees in the scope of their authority or employment."[^74]
    Under these principles, the FCC concluded that Jackson, Timberlake
    and Jackson's choreographer were Viacom/CBS employees for purposes
    of determining whether CBS is vicariously liable for their conduct
    here, and that their actions were within the scope of their
    employment.[^75] CBS's assertion that the Commission "seeks to
    impose nontraditional vicarious liability" appears to be founded on
    the three's alleged status "as independent contractors, not
    employees."[^76] The factors on which CBS relies, however, are not
    strongly indicative of independent contractor status in the
    circumstances before us, and CBS does not dispute the Commission's
    finding on the decisive control factor.

25. The Commission properly treated CBS's right to control the halftime
    show as the most significant test of its relationship with the
    performers. Courts look to numerous factors in determining a hired
    party's status under common law agency principles.[^77] "Though no
    single factor is dispositive, the greatest emphasis should be placed
    on the first factor---that is, on the extent to which the hiring
    party controls the manner and means by which the worker completes
    his or her assigned tasks."[^78] In addition, the relative weight of
    common law factors also varies according to the legal context in
    which the agency issue arises,[^79] and the control factor is
    particularly important in the vicarious liability context because
    the root issue is where responsibility lies for preventing the risk
    of harm to third parties.[^80]

26. CBS does not dispute the Commission's finding that the halftime show
    performance was subject to exacting control by Viacom/CBS. However,
    its suggestion that it exercised no more control than necessary "to
    ensure a proper result or end-product of the work"[^81] belies the
    evidence that every aspect of the performance, including the exact
    time, length, location, material, set, script, staging, and
    wardrobe, was subject to the control of Viacom/CBS through its
    corporate affiliate MTV.[^82] Viacom/CBS was not commissioning a
    sculpture for its lobby or hiring workers to install a floor
    covering, as were the hired parties in the cases it cites.[^83]
    Rather, it was producing the Super Bowl halftime show in order to
    attract a large nationwide audience to a CBS network program and
    promote the brand of its corporate affiliate MTV.[^84] Viacom/CBS
    developed the creative concepts for the show, scripted every word
    uttered on stage, and reviewed every article of clothing worn by the
    performers.[^85] CBS's reliance on *Community for Creative
    Non-Violence v. Reid* and *Chaiken v. VV Publishing Corp.* is
    misplaced because the extent of control exercised by the hiring
    parties in those cases was not remotely comparable to this
    situation.[^86] *Reid* is also a work-for-hire copyright case in
    which factors related to compensation and benefits are generally
    accorded more weight than they are entitled to in other legal
    contexts.[^87]

27. In this context, the contractual terms related to compensation and
    benefits cited by CBS are not strongly indicative of independent
    contractor status.[^88] CBS was obligated to ensure that its
    broadcast programming served the public interest, and was not free
    to confer this obligation on another by contract.[^89] Likewise,
    CBS's contention that the performers were "highly skilled" does not
    meaningfully cut in its favor. Courts applying common law agency
    principles have not hesitated to hold entertainers and artists to be
    employees of the parties that hire them.[^90] We recognize that some
    of the common law factors are not indicative of agency. Again,
    however, the relative weight of common law factors varies according
    to the legal context in which the agency issue arises. The central
    issue here is the parties' relationship for the specific purpose of
    imposing vicarious liability for the performers' actions in that
    performance that were harmful to the public (rather than for
    copyright, workers' compensation, anti-discrimination or other
    purposes). In this context, the Commission properly concluded that
    the evidence clearly demonstrating Viacom/CBS's right to control the
    halftime show performance was decisive.[^91]

28. CBS's assertion that the performers' actions were outside the scope
    of authority conferred by its agreements with them also lacks
    merit.[^92] As the Commission explained, their conduct is fully
    attributable to CBS if it was "incident to the performance rather
    than 'an independent course of conduct intended to serve no purpose
    of the employer.'"[^93] Here, the actions at issue were part of the
    performance for which Jackson and Timberlake were hired.
    Furthermore, examination of the record reflects that the costume
    reveal was intended to serve Viacom/CBS's overarching entertainment
    goal of providing a spectacular finale.[^94] Accordingly, the
    Commission correctly concluded that Jackson and Timberlake were
    within the scope of their authority under common law agency
    principles.

29. *Amount of Forfeiture*. In its *Petition*, CBS asks the Commission
    to reduce the amount of the forfeiture imposed on it for three
    reasons. We find each of these arguments to be unpersuasive.

30. First, CBS maintains that "\[t\]o the extent that any O&O station
    was not the subject \[of\] a complaint about the halftime show, its
    fine should be rescinded and the total forfeiture reduced
    proportionately."[^95] However, as we stated in the *Forfeiture
    Order*, "viewers in markets served by each of the CBS Stations filed
    complaints with the Commission concerning the February 1, 2004
    broadcast of the Super Bowl XXXVIII halftime show."[^96]
    Accordingly, it was appropriate for the Commission to impose a
    forfeiture on all stations owned by CBS. To the extent that CBS is
    suggesting that the Commission will only impose a forfeiture in
    response to complaints that specifically mention a station's call
    letters, it misunderstands the enforcement policy announced by the
    Commission in the *Omnibus Order*. Under that policy, it is
    sufficient that viewers in markets served by each of the CBS
    Stations filed complaints with the Commission identifying the
    allegedly indecent program broadcast by the CBS Stations.

31. Second, CBS claims that the Commission has not provided a "logically
    consistent explanation" for why forfeitures were imposed on those
    stations owned by CBS but not on affiliates owned by others.[^97]
    However, as we explained in the *Forfeiture Order*, CBS's
    culpability for the broadcast of indecent material in this case was
    far greater than that of other owners of CBS stations.[^98] "CBS
    admits that it was closely involved in the production of the
    halftime show, and that its MTV affiliate produced it."[^99] Under
    these circumstances, it was within the Commission's enforcement
    discretion to impose fines on the stations owned by CBS but not on
    affiliates owned by others. While CBS attempts to distance its
    wholly-owned television stations from its wholly-owned affiliate
    supervising the halftime production, it does not dispute that both
    entities were part of the same corporate structure, responsible to
    the same corporate parent.

32. Third, CBS argues that the forfeiture should be reduced because of
    its "long record of compliance with broadcast standards" and because
    it did not "intentionally flout\[\] FCC rules."[^100] We disagree.
    Looking at all of the relevant factors enumerated in section
    503(b)(2)(D) of the Act, we continue to believe that the maximum
    statutory forfeiture is warranted given the particular circumstances
    of this case. In particular, given CBS's size and resources, we
    stand by our belief that a lesser forfeiture "would not serve as a
    significant penalty or deterrent."[^101] Indeed, we note that the
    amount of the forfeiture in this case is less than one-quarter of
    the \$2.3 million that CBS charged for a single 30-second
    advertisement aired during its broadcast of Super Bowl
    XXXVIII.[^102] While CBS observes that indecency findings may also
    have a deterrent effect because of the potential negative
    consequences on a company's licenses, it remains the case that
    monetary forfeitures are a central tool used by the Commission to
    insure compliance with our rules.[^103] Moreover, as we noted in the
    *Forfeiture Order*, the gravity of this violation is heightened
    because the indecent material was broadcast to "an enormous
    nationwide audience,"[^104] a fact that CBS does not dispute.
    Indeed, the material in question was part of the most-watched
    program of the entire 2003-2004 television season by far,[^105] and
    this fact heightens the gravity of the violation in this case. CBS's
    broadcast of Super Bowl XXXVIII was viewed by an average of 89.8
    million people.[^106] By contrast, the second most-watched program
    of the 2003-2004 television season, the series finale of *Friends*,
    only drew an average of 52.5 million viewers.[^107] In addition,
    according to Nielsen Media Research, Super Bowl XXXVIII was the
    top-ranked program of the 2003-2004 television season among children
    of all age groups: 2 to 5; 6 to 11; and 12 to 17.[^108] Finally, we
    continue to believe that the particular nature of this violation
    weighs in favor of the statutory maximum forfeiture. In this case,
    unsuspecting viewers were confronted during the Super Bowl halftime
    show, which was not rated as content inappropriate for
    children,[^109] by a highly sexualized performance in which
    Timberlake tore off a piece of clothing to reveal Jackson's breast
    while singing "gonna have you naked by the end of this song." While
    CBS now argues that this conduct was not patently offensive, we
    disagree.

33. *Constitutional Issues*. We also adhere to our rejection of CBS's
    facial and as-applied constitutional challenges to the imposition of
    a forfeiture in this case.

34. The Commission's authority to enforce the statutory restrictions
    against the broadcast of indecent programming during times of day in
    which children are likely to be in the audience was upheld against
    constitutional challenge by the Supreme Court in *Pacifica* more
    than a quarter-century ago, and has been reaffirmed since
    then.[^110] Under our standards implementing this settled precedent,
    as we have explained, CBS's broadcast was actionably indecent.

35. We reject CBS's contention that the *Forfeiture Order* abandons the
    policy of restraint upon which *Pacifica* was based.[^111] The Order
    does no such thing. On the contrary, the Commission remains
    "sensitive to the impact of our decisions on speech."[^112] In this
    case, however, CBS broadcast "the offensive spectacle of a man
    tearing off a woman's clothing on stage in the middle of a sexually
    charged performance" during the halftime show of one of the nation's
    most heavily-watched sporting events, to a vast nationwide audience
    that included numerous children.[^113] As we have found, the
    broadcast was "planned by CBS and its affiliates under circumstances
    where they had the means to exercise control and good reason to take
    precautionary measures."[^114] Under the circumstances, we fail to
    see how the decision in *Pacifica* -- or any other consideration --
    requires us to refrain from exercising our indecency enforcement
    powers to impose a forfeiture in this case.

36. We also reject CBS's argument that *Pacifica* limits the
    Commission's authority "to penalize isolated and fleeting
    transmissions of indecent material."[^115] On the contrary, in
    upholding the Commission's power to proceed against material that
    involved the repeated use of expletives, the Court in *Pacifica*
    expressly left open the issue of whether an isolated expletive might
    also be held indecent, and did not even address a brief display of
    televised nudity.[^116] In addition, the Commission has never itself
    held, as CBS suggests,[^117] that a brief display of televised
    nudity could not be found actionably indecent. To the contrary, in
    *Young Broadcasting* (released shortly before the Super Bowl
    halftime show was broadcast), we made clear that a televised display
    of male frontal nudity, though comparably brief, constituted an
    apparent violation of our indecency rules.[^118]

37. Finally, we reiterate our rejection of CBS's contention that changes
    in law and technology have undermined *Pacifica* and its
    progeny.[^119] CBS asserts that "*every* court decision that applies
    to *every* medium that allows targeted blocking of content has
    struck down broadcast-type indecency regulation."[^120] But those
    same decisions recognize that there remain "special justifications"
    that allow for more extensive government regulation of broadcast
    speech.[^121] Among them is that broadcasting continues to have "a
    uniquely pervasive presence in the lives of all Americans,"[^122] a
    presence that is particularly evident
    where highly-anticipated annual national programming events \--
    epitomized by the Super Bowl \-- are concerned.  As for
    technological changes, while the V-chip provides a technological
    tool not available when *Pacifica* was decided, older televisions do
    not contain a V-chip,[^123] and on newer sets the evidence shows
    that most parents are unaware of the V-chip's existence or the
    manner of its operation.[^124] The V-chip also depends on accurate
    program ratings,[^125] but as the Commission explained in the
    *Forfeiture Order*, sporting events are not included in the V-chip
    ratings system,[^126] and neither the Super Bowl nor its halftime
    show were given V-chip ratings in this case. Nor does CBS provide
    any basis for concluding that had it rated the Super Bowl halftime
    show, it would have rated the show as inappropriate for children.
    Thus, CBS's constitutional argument based on the availability of
    blocking technology is completely irrelevant to this case.

38. *Conclusion*. For all of these reasons, we deny CBS's *Petition*.
    Based on our careful consideration of the law and the record in this
    case, we continue to believe that the \$550,000 forfeiture imposed
    on CBS here is appropriate.

    **IV. ORDERING CLAUSES**

39. Accordingly, IT IS ORDERED, pursuant to section 405(a) of the Act,
    and section 1.106(j) of the Commission's rules,[^127] that the
    Petition for Reconsideration of Forfeiture Order filed by CBS on
    April 14, 2006 is DENIED.

40. IT IS FURTHER ORDERED that a copy of this Order on Reconsideration
    be sent by Certified Mail, Return Receipt Requested, to Anne Lucey,
    Esq., Senior Vice President for Regulatory Policy, CBS Corporation,
    1750 K Street, N.W., 6^th^ Floor, Washington, D.C. 20005 and Robert
    Corn-Revere, Esq., Davis Wright Tremaine LLP, 1500 K Street, N.W.,
    Suite 450, Washington, D.C.\
    20005-1272.

FEDERAL COMMUNICATIONS COMMISSION

Marlene H. Dortch

Secretary

**STATEMENT OF**

**Commissioner Jonathan S. Adelstein**

**Concurring in Part, Dissenting in Part**

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

The Super Bowl XXXVIII halftime show was arguably one of the most
shocking incidents in the history of live broadcast television. Indeed,
the Super Bowl was the most-watched program of the entire 2003-04
television season and American viewers, collectively, expressed their
disappointment and disapproval. The Commission, entrusted with the
responsibility to execute faithfully broadcast indecency laws, responded
swiftly and appropriately.

While I agree with the ultimate outcome of today's Order on
Reconsideration, I concur in part because the Commission again has not
provided much-needed clarity and guidance to our decision-making process
in indecency enforcement. In addition, I dissent in part because I
continue to believe the Commission has erred in fining only CBS owned
and operated stations, not all stations that broadcasted the indecent
material.

Considering the substantial public confusion that pervades the
Commission's indecency enforcement, we should, whenever possible, opt
for clear statements of Commission policy. Until today, Commission
policy has been to refrain from considering third-party polls or opinion
surveys in assessing whether a program is indecent as measured by
contemporary community standards. Regardless whether the poll or survey
attempts to reflect the views of the national or local audience, the
Commission simply does not consider opinion polls in indecency cases and
polls are not a factor in determining the contemporary community
standards. To suggest otherwise, as the instant Order does, is contrary
to long standing Commission policy.[^128]

I also have grave concerns with the failure of this Order to provide
clear guidance on the nature of the Commission's new fine imposition
policy announced in the March 15^th^, 2006, Omnibus TV Order. Rather
than stating what the new policy is *not*, as today's Order does,[^129]
the Commission should state affirmatively the key features of our new
"more limited approach towards the imposition of forfeiture
penalties."[^130] After all, it is still unclear how the Commission
determines the sufficiency of a viewer's complaint in light of this new
enforcement policy.[^131]

Finally, I dissented in part in our initial Super Bowl decision (the
September 22^nd^, 2004, *Notice of Apparent Liability*), [^132] and I do
so again today. I continue to believe the Commission has decided
erroneously to fine only CBS owned and operated stations, not all
stations that broadcasted the indecent material. Notwithstanding the
fact that this Commission has always purported to apply a national
indecency standard on the broadcast medium, the Commission has failed to
penalize the vast majority of stations that actually broadcasted the
offending halftime performance.

I believe now, as I believed then, that this is not the restrained
enforcement policy the Supreme Court advised in *Pacifica*. Consistent
with the values of First Amendment, this Commission should exercise
restraint and caution in its determination of the type of expression
that is indecent. But once the indecency determination is made, the
Commission should apply a uniform fine imposition policy across the
broadcast medium.

The Commission has an obligation to provide clarity and guidance
whenever possible. Equally, the Commission is obligated to enforce a
consistent fine imposition policy across the broadcast medium. Sadly,
today's Order fails to meet our obligation on both counts. Accordingly,
I concur in part and dissent in part to this Order on Reconsideration.

[^1]: 47 U.S.C. § 405(a); 47 C.F.R. § 1.106(j).

[^2]: Petition for Reconsideration of Forfeiture Order by CBS, dated
    April 14, 2006 ("*Petition*").

[^3]: *See Complaints Against Various Television Licensees Concerning
    Their February 1, 2004 Broadcast of the Super Bowl XXXVIII Halftime
    Show*, Forfeiture Order, FCC 06-19 at 1 ¶ 1 & n. 2, 2006 FCC LEXIS
    1267 (rel. March 15, 2006) ("*Forfeiture Order*") (citing 18 U.S.C.
    § 1464 and 47 C.F.R. § 73.3999).

[^4]: The CBS Stations were identified in the Appendix to the
    *Forfeiture Order*. The *Forfeiture Order* noted that viewers in
    markets served by each of the CBS Stations filed complaints with the
    Commission concerning the February 1, 2004 broadcast of the Super
    Bowl XXXVIII halftime show. *See Forfeiture Order* at 1 ¶ 1, n. 4
    and Appendix.

[^5]: VNU Media and Marketing Guide for Super Bowl,
    (http://www.nielsenmedia.com/newsreleases/2005/2005SuperBowl.pdf).

[^6]: The *NAL* was directed to Viacom, Inc., which was the ultimate
    corporate parent company of the licensees in question at that time.
    As of December 31, 2005, Viacom, Inc. effected a corporate
    reorganization in which the name of the ultimate parent company of
    the licensees of the CBS Stations was changed to CBS Corporation.
    For the sake of clarity, we generally refer to the petitioner herein
    as CBS and to its corporate parent company as CBS Corporation, even
    for periods preceding the reorganization. As part of the
    reorganization, certain non-broadcast businesses, including MTV
    Networks, were transferred to a new company named Viacom Inc. At the
    time of the violations, however, the CBS Stations and MTV Networks
    were corporate affiliates under common control.

[^7]: *See Complaints Against Various Television Licensees Concerning
    Their February 1, 2004, Broadcast of the Super Bowl XXXVIII Halftime
    Show*, Notice of Apparent Liability, 19 FCC Rcd 19230, n. 4 (2004)
    ("*NAL"*) (citing 18 U.S.C. § 1464 and 47 C.F.R. § 73.3999). The
    *NAL* found that there was no evidence that any licensee of any
    non-CBS-owned television station was involved in the selection,
    planning or approval of the apparently indecent material and that
    such licensees could not have reasonably anticipated that the CBS
    Network's 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. *Id*., 19 FCC Rcd at 19240 ¶ 25.
    Accordingly, the *NAL* did not propose a forfeiture by any such
    licensee.

[^8]: *Id*., 19 FCC Rcd at 19240 ¶ 24.

[^9]: Opposition to Notice of Apparent Liability for Forfeiture by CBS,
    dated November 5, 2004 ("*Opposition*").

[^10]: *Opposition* at 13-34.

[^11]: *Id*. at 35-38.

[^12]: *Id*. at 44-77.

[^13]: *Forfeiture Order* at 6-7 ¶ 11.

[^14]: *Id*. at 7 ¶ 12.

[^15]: *Id*. at 7 n. 44.

[^16]: *NAL*, 19 FCC Rcd at 19236 ¶ 14.

[^17]: *Forfeiture Order* at 8 ¶ 13.

[^18]: *Id*.

[^19]: *Id*. at 8 ¶ 14.

[^20]: *Id*. at 8-9 ¶ 15.

[^21]: *Id*. at 8-13 ¶¶ 15-22.

[^22]: *Id*. at 13-15 ¶¶ 23-25.

[^23]: *Id*. at 17-19 ¶¶ 30-35.

[^24]: *Id*. at 15-16 ¶¶ 26-28.

[^25]: *Young Broadcasting of San Francisco, Inc*., Notice of Apparent
    Liability for Forfeiture, 19 FCC Rcd 1751 (2004) ("*Young
    Broadcasting*") (response pending).

[^26]: *Id*. at 16-17 ¶ 29.

[^27]: *Forfeiture Order* at 5 ¶ 9.

[^28]: *Id*. at 6 ¶ 11.

[^29]: Complaints Regarding Various Television Broadcasts Between
    February 2, 2002 and March 8, 2005, FCC 06-17, 2006 FCC LEXIS 1265,
    released March 15, 2006 ("*Omnibus Order*").

[^30]: *Omnibus Order* at ¶ 215.

[^31]: *See Omnibus Order* at ¶¶ 189-92.

[^32]: As such, we note that the Commission's treatment of the Super
    Bowl halftime show is consistent with our evaluation of the brief
    exposure of a penis in *Young Broadcasting*.

[^33]: *Forfeiture Order* at 6 ¶ 11.

[^34]: *See id*.

[^35]: In support of its claim that "the event became recognizable as
    nudity to most people only because they actively searched for images
    after the fact," CBS cites the facts that Janet Jackson was the most
    searched term on Google in February 2004 and that the end of the
    Super Bowl halftime show became the most TiVoed moment in the
    history of digital video recorders, *Petition* at 5, n.7. This
    evidence, however, does not provide support for CBS's theory. Given
    the widespread media coverage of the Super Bowl halftime show, it
    should come as no surprise that public interest in Jackson
    skyrocketed in the aftermath of the incident, thus causing many
    people to search for information about her using Google. While some
    of these searches may have been conducted by individuals wishing to
    see images from the halftime show, it is entirely speculative to
    suggest that many of these individuals: (1) had watched the halftime
    show; but (2) did not realize at the time that Jackson had exposed
    her breast. Similarly, the fact that the end of the Super Bowl
    halftime show was the most TiVoed moment in the history of digital
    video recorders lends no support to CBS's theory. There are many
    reasons why viewers might have replayed the exposure of Jackson's
    breast -- not the least of which is that viewers clearly saw the
    image and were truly shocked. For CBS to suggest that the fact that
    the Super Bowl halftime show was the most TiVoed moment in history
    demonstrates that people watching the broadcast at the time were
    confused about what had happened has no basis in the evidence. For
    example, before Super Bowl XXXVIII, the most replayed moment in TiVo
    history had been the kiss shared by Britney Spears and Madonna
    during the 2003 MTV Video Music Awards, and it was not unclear at
    the time whether those two singers had actually kissed. *See* Ben
    Charny, "Janet Jackson Still Holds TiVo Title," September 29, 2004
    (http://news.com.com/Janet+Jackson+still+holds+TiVo+title/2100-1041_3-5388626.html).

[^36]: *See* *Young Broadcasting*.

[^37]: To the extent that CBS attempts to compare, for purposes of
    explicitness, the exposure of Jackson's breast during the Super Bowl
    halftime show to the brief exposure of an infant's naked buttocks on
    *America's Funniest Home Videos*, *see* *Petition* at 5, we
    seriously question CBS's grasp of contemporary community standards.
    We also note that the Commission found the footage from *America's
    Funniest Home Videos* "somewhat explicit" but that factor was
    outweighed in that case by the scene's brevity and the absence of
    any shocking, pandering, or titillating effect on the audience.
    *Omnibus Order* at ¶ 226. Moreover, CBS's comparison of the Super
    Bowl halftime show to the display of a "portion of the side of \[a\]
    maid's breast" in material previously considered by the Commission
    is obviously inapposite as far more than a portion of the side of
    Jackson's breast was displayed during her duet with Timberlake.
    *See* *Petition* at 3, n.3.

[^38]: *Forfeiture Order* at 8 ¶ 13.

[^39]: Contrary to CBS's assertion, *see Petition* at 7, n. 10, the
    Commission in *Young Broadcasting* used the same approach that we
    have employed in this case. In *Young Broadcasting*, the Commission
    concluded that "the *manner of presentation* of the complained-of
    material . . . was pandering, titillating, and shocking." *Young
    Broadcasting*, 19 FCC Rcd at 1757 (2004) (emphasis added). Among
    other things, the Commission pointed to the fact that the broadcast
    included comments made by off-camera station employees urging
    performers from "Puppetry of the Penis" to conduct a nude
    demonstration.

[^40]: *See* *Petition* at 7.

[^41]: *Petition* at 9.

[^42]: *Petition* at 9.

[^43]: The surveys cited by CBS in its *Petition* highlight the
    difficulties associated with relying on third-party public opinion
    polls in assessing whether material is patently offensive as
    measured by contemporary community standards for the broadcast
    medium. Most significantly, the questions asked by pollsters are
    often not aligned with the issues we must resolve in determining
    whether broadcast material is indecent under the statute and our
    rule. For example, the Kaiser Family Foundation survey cited by CBS
    did not ask respondents whether or not they found the broadcast of
    the Super Bowl halftime show finale to be offensive. Rather, they
    were asked about a quite different matter: how concerned they were
    about the effect of the "Janet Jackson incident" on their own
    children. Indeed, the fact that 17% of respondents answered that
    they were "very concerned" about the impact that the Janet Jackson
    Super Bowl incident had on their own children and that another 14%
    of respondents were "somewhat concerned" shows an astoundingly high
    level of concern about the impact of a single program on their own
    families, especially given that not all of the respondents even had
    children who watched the Super Bowl halftime show. Contrary to the
    suggestion of CBS, it certainly does not show that the community at
    large was "not upset about the Super Bowl broadcast." *Petition* at
    9. Similarly, the Associated Press/Ipsos poll cited by CBS does not
    appear to have asked respondents whether or not they found the
    broadcast of the finale of the Super Bowl halftime show to have been
    offensive. Rather, the survey appears to have asked the conclusory
    question of whether the Timberlake/Jackson stunt was an illegal act,
    even though there is no evidence that poll respondents were informed
    before answering the question of the legal standard for broadcast
    indecency. *See* Poll: Janet's Revelation No Crime, February 21,
    2004,
    www.cbsnews.conm/stories/2004/02/02/entertainment/printable597184.shtml.
    (We note that the poll is proprietary, and CBS does not provide any
    information concerning precisely what was asked to elicit the poll
    responses.) In sum, we view the results of polls and surveys in the
    indecency context with care and a measure of skepticism because
    survey results in this area can easily be skewed by the phraseology
    of the questions, and those questions are often not on point with
    the issues we must resolve in determining whether broadcast material
    is indecent under the statute and our rule.

[^44]: For example, when specifically asked by survey researchers
    whether the \$550,000 forfeiture proposed by the FCC against CBS was
    appropriate in this case, a majority of Americans responded either
    that the FCC had handled the case appropriately or that the
    Commission's proposed sanction was not harsh enough. *See*
    "Americans Geared Up for 'Ad Bowl' 2005", February 4, 2005,
    (http://www.comscore.com/press/release.asp?press=554) (44 percent of
    Americans agree that the FCC handled the Super Bowl halftime
    incident appropriately while another 12 percent felt that the
    Commission should have done more to punish CBS and the NFL).
    Moreover, a survey conducted by Opinion Dynamics Corporation also
    reveals that the majority of the American people think that CBS and
    MTV showed a lack of respect for the American people in airing the
    Super Bowl halftime show. *See* "Could Election 2004 Be as Close as
    2000?" (February 5, 2004)
    (http://www.foxnews.com/story/0,2933,110675,00.html) (56 percent of
    Americans agree that CBS and MTV demonstrated a lack of respect for
    the American people with the Janet Jackson-Justin Timberlake
    halftime show during the Super Bowl).

[^45]: *Hearings Before the Subcommittee on Telecommunications and the
    Internet of the Committee on Energy and Commerce of the House of
    Representatives on H.R. 3717*, Serial No. 108-68 (February 11, 2004)
    at 37 (statement of Mel Karmazin).

[^46]: *Id*. at 30 (statement of Paul Tagliabue).

[^47]: *Infinity Radio License, Inc.*, Memorandum Opinion and Order, 19
    FCC Rcd 5022, 5026 (2004).

[^48]: *Forfeiture Order* at 8 ¶ 14.

[^49]: *Id*.

[^50]: *Petition* at 12.

[^51]: *Forfeiture Order* at 8-13 ¶¶ 15-22.

[^52]: *Id*.

[^53]: *See* 47 U.S.C. § 312(f)(1).

[^54]: *Petition* at 14.

[^55]: *Forfeiture Order* at 10 ¶ 19.

[^56]: *See Opposition* at 7-8.

[^57]: *See Forfeiture Order* at 12 n.74.

[^58]: *Forfeiture Order* at 10 ¶ 19; Con. App. 6.

[^59]: *Forfeiture Order* at 10 ¶ 19; Con. App. at 5.

[^60]: *Petition* at 15-16.

[^61]: *Id. See also id*. at 14 ("CBS double-checked with Ms. Jackson's
    staff there would be no alterations in her performance as scripted,
    including any involving wardrobe"). *See also* "Jackson's halftime
    stunt fuels indecency debate," USAToday.com, February 2, 2004,
    <http://www.usatoday.com/sports/football/super/2004-02-02-jackson-halftime-incident_x.htm>
    ("Close-ups of the costume, posted on the Internet, appear to reveal
    snaps around that part of the bustier.").

[^62]: *Petition* at 15-16.

[^63]: *See* para. 22 *infra* regarding CBS's decision to implement a
    5-second delay.

[^64]: *Forfeiture Order* at ¶ 20.

[^65]: *See* *Petition* at 14-15.

[^66]: *See Forfeiture Order*. at 10 ¶ 18. *See also* Con. App. 1, 5.

[^67]: *Petition* at 15.

[^68]: *Id*. at n.24.

[^69]: The NFL's concern about the lyrics "I am going to get you naked
    by the end of this song" can most reasonably be understood as a
    concern that the performers might act out the lyrics. There did not
    appear to be any particular cause for concern that the performers
    might insert profanity into that line any more than any other line.

[^70]: *See* Con. App. 5, 8.

[^71]: Notwithstanding CBS's protestations to the contrary, delaying a
    live broadcast long enough to block visual indecency does not appear
    to pose major technical challenges to a company such as CBS.

[^72]: 47 U.S.C. §§ 312(f)(1), 503(b)(1).

[^73]: *Petition* at 16 (internal quotes omitted).

[^74]: *Forfeiture Order* at 13 ¶ 23, quoting *Meyer v. Holley*, 537
    U.S. 280, 285 (2003) (citation omitted).

[^75]: *Id.* at 13-15 ¶¶ 24-25. This decision was consistent with
    *Holley*. In that case, the Supreme Court held that, absent a
    statutory basis, vicarious liability could not be imposed based
    solely on the right to control. Rather, evidence was also needed
    that the employee acted in the scope of employment. *See Meyer v.
    Holley*, 537 U.S. at 286. Here, the Commission determined that the
    performers were both subject to CBS's control and acting in the
    scope of their authority.

[^76]: *Petition* at 17.

[^77]: *Community for Creative Non-Violence v. Reid*, 490 U.S. 730,
    751-52 (1989), citing Restatement (Second) of Agency § 220(2) (1957)
    (Restatement).

[^78]: *Eisenberg v. Advance Relocation & Storage, Inc.*, 237 F.3d 111,
    114 (2^nd^ Cir. 2000) ("The first factor is entitled to this added
    weight because, under the common law of agency, an employer-employee
    relationship exists if the purported employer controls or has the
    right to control both the result to be accomplished and the manner
    and means by which the purported employee brings about that
    result.") (internal quotes and citations omitted). *See id.* at
    114-15 (listing authorities). *See also* Restatement § 220(1) cmt. D
    ("control or right to control the physical conduct of the person
    giving service is important and in many situations is determinative"
    of whether that person is an employee or independent contractor).

[^79]: *See, e.g., id.* at 116.

[^80]: *See* Restatement § 219(1) cmt. a ("Bearing in mind the purpose
    for fixing the categories, it may be said that a servant is an agent
    standing in such close relation to the principal that it is just to
    make the latter respond for some of his physical acts resulting from
    the performance of the principal\'s business.").

[^81]: *Petition* at 17.

[^82]: *Forfeiture Order* at 13-14 ¶ 24. *See Lorenz Schneider Co. v.
    NLRB*, 517 F.2d 445, 451 (2^nd^ Cir. 1975) ("the more detailed the
    supervision and the stricter the enforcement standards, the greater
    the likelihood of an employer-employee relationship").

[^83]: *See Petition* at 18, n. 31 and accompanying text (relying on
    *Community for Creative Nonviolence v. Reid*, 490 U.S. 730, 752-53
    (1989) (sculptor was an independent contractor under the
    work-for-hire doctrine) and *Carpet Exch. Of Denver, Inc. v. Indus.
    Claim Appeals Office*, 859 P.2d 278, 281 (Colo. App. 1993) (workers
    who installed floor covering purchased by company's customers were
    not employees for purposes of state worker's compensation law)). CBS
    cites the *Carpet Exch. Of Denver, Inc.* case for the proposition
    that "independent contractors, though 'subject to control sufficient
    to ensure that the end resulted contracted for is reached, are not
    subject to control over the\[ir\] means and methods." As discussed
    herein, however, in this case the performers were subject to
    extensive control over their means and methods.

[^84]: *See* CBS Response, App. C at Bates stamped pgs. 312, 355-57,
    370.

[^85]: *Forfeiture Order* at 13-14 ¶ 24. *See* CBS Response, App. C. at
    Bates stamped pgs. 318, 452, 459-69, 518-19.

[^86]: *See Reid*, 490 U.S. at 753 ("Apart from the deadline for
    completing the sculpture, Reid had absolute freedom to decide when
    and how long to work."); *Chaiken v. VV Publishing Corp.*, 907
    F.Supp. 689, 699 (S.D.N.Y. 1995) ("As an experienced reporter,
    Friedman controlled the manner in which the article was
    written---including the selection of a topic, research plan, and
    sources---without any guidance from the *Voice*. *Voice* editors
    reviewed the article only after Friedman completed a draft, and the
    editors subsequently made few substantive changes.").

[^87]: As the Second Circuit has explained, special consideration of
    such factors "may make sense in the copyright work-for-hire context
    because, under the copyright statute, workers and employees are free
    to allocate intellectual property rights by contract." *Eisenberg*,
    237 F.3d at 117. If *Reid*'s weighing of factors applied in the
    vicarious liability context, however, firms could devise
    compensation packages to opt out of tort liability. *Compare id.*
    (declining to accord presumptive significance to benefits and tax
    treatment in determining whether a female warehouse worker was an
    employee under anti-discrimination laws; "\[w\]hile the rights to
    intellectual property can depend on contractual terms, the right to
    be treated in a non-discriminatory manner does not depend on the
    terms of any particular contract.").

[^88]: *Petition* at 17.

[^89]: *See Forfeiture Order* at ¶ 16. *Cf. Eisenberg*, 237 F.3d at 117
    (placing special weight on the extent to which the hiring party
    controlled the "manner and means" by which the worker completes her
    assigned tasks, rather than benefits and tax treatment factors, in
    anti-discrimination context because special consideration of
    benefits and tax treatment factors "would allow workers and firms to
    use individual employment contracts to opt out of the
    anti-discrimination statutes.").

[^90]: *See Carter v. Helmsley-Spear, Inc.*, 71 F.3d 77, 87 (2^nd^ Cir.
    1995) (sculptors held to be employees despite their "artistic
    freedom and skill"); *Jack Hammer Assoc., Inc. v. Delmy Productions,
    Inc.*, 499 N.Y.S.2d 418, 419-20 (1^st^ Dep't 1986) (actor in musical
    play); *Challis v. National Producing Co.*, 88 N.Y.S.2d 731 (3d
    Dep't 1949) (circus clown); *Berman v. Barone*, 88 N.Y.S.2d 327, 328
    (3d Dep't 1949) (ballet dancer and variety artist). *See also
    Landman Fabrics, a div. of Blocks Fashion Fabrics, Inc.*, 160 F.3d
    106, 113 (2nd Cir. 1998) (evidence would support a holding that
    artist who developed a fabric design was an employee in copyright
    context where, *inter alia*, artist was highly skilled but hiring
    party controlled the artist's work to the smallest detail). As the
    Commission noted, the contracts contain choice-of-law provisions
    specifying New York law. *Forfeiture Order* at 14 ¶ 25 n.87.

[^91]: CBS notes that Jackson's, Timberlake's, and Duldalao's contracts
    "were with a production company, not CBS or MTV," but fails to point
    out the significance of this fact. Examination of the record
    reflects that Jackson's and Timberlake's contracts were with "FRB
    Productions, Inc.," and Duldalao's contract was with "Remote
    Productions, Inc." Neither FRB nor Remote is identified in CBS's
    Response, but they appear to be creatures of MTV. MTV executives
    generated, reviewed, and signed the contracts on behalf of FRB and
    Remote. *See, e.g.,* CBS Response, App. C at Bates stamped pgs.
    154-71, 257-61, 359-63, 2160-61, 2341. At least one document in the
    record specifies that Remote is "a wholly owned subsidiary of MTV
    Networks," *id.* at Bates stamped p.2352, and another document
    suggests that MTV executives treated FRB as interchangeable with
    Remote. *See id.* at Bates stamped p.2148.

[^92]: *Petition* at 19.

[^93]: *Forfeiture Order* at 14-15 ¶ 25, quoting Restatement (Third) of
    Agency § 7.07 (T.D. No.5 2004).

[^94]: *See Forfeiture Order* at 10 ¶¶ 18-19; CBS Response, App. B at
    Bates stamped pgs. 130, 135.

[^95]: *Petition* at 19-20.

[^96]: *Forfeiture Order* at 1 ¶ 1, n.4.

[^97]: *Petition* at 20.

[^98]: *Forfeiture Order* at 15 ¶ 27.

[^99]: *Id*.

[^100]: *Petition* at 21.

[^101]: *Forfeiture Order* at 16 ¶ 28.

[^102]: "Television Keeps NFL On Top," *Fort Worth Star Telegram* at 1A
    (January 30, 2004) ("The cost for a 30-second advertisement is \$2.3
    million, or roughly the cost of a \$77,000 luxury car each
    second.").

[^103]: Contrary to CBS's suggestion in its *Petition*, this does not
    mean, of course, that the Commission will always impose a maximum
    forfeiture anytime that a large company violates our rules. However,
    consistent with section 503(b)(2)(D) of the Act, a company's
    "ability to pay" is a factor that weighs in our analysis.

[^104]: *Forfeiture Order* at 16 ¶ 28.

[^105]: *See* "Viewer Track: Top-rated programs of 2003-04"
    (www.tvb.org/rcentral/viewertrack/trends/top2003.asp).

[^106]: *See* VNU Media and Marketing Guide for Super Bowl,
    (http://www.nielsenmedia.com/newsreleases/2005/2005SuperBowl.pdf).

[^107]: *See* Joal Ryan, "52 Million Friends See Off 'Friends'" (May 7,
    2004) (http://att.eonline.com/News/Items/0,1,14056,00.html).

[^108]: *See* Nielsen Media Research, TV National People Meter Data
    9/22/2003 - 5/26/2004.

[^109]: Indeed, the program was not rated at all.

[^110]: *See*, *e.g*., *FCC v.* *Pacifica Foundation*, 438 U.S. 726,
    748-51 (1978); *Action for Children's Television v. FCC*, 58 F.3d
    654, 669-70 (D.C. Cir. 1995) (en banc) (*ACT III*), *cert. denied*,
    516 U.S. 1043 (1996).

[^111]: *Petition* at 23.

[^112]: *Forfeiture Order* at 19 ¶ 35.

[^113]: *Id*. at ¶ 28.

[^114]: *Id*. at 19 ¶ 35.

[^115]: *Petition* at 23 n.42.

[^116]: *Pacifica*, 438 U.S. at 750: *see* *Golden Globes*, 19 FCC Rcd
    4975, 4982 ¶ 16 (2004).

[^117]: *Petition* at 24.

[^118]: 19 FCC Rcd 1751, 1755 ¶ 12 (2004). In *WGBH Educ. Found*., 68
    FCC 2d 1250 (1978), we granted the renewal of a public television
    station license renewal in the face of complaints based on the
    station's broadcast of programs -- including "Monty Python's Flying
    Circus" -- that allegedly contained "nudity and/or sexually-oriented
    material." 69 FCC2d at 1250-51 ¶ 2. In holding that the complaints
    did not make out a case that the station's continued operation would
    be inconsistent with the public interest, *id*. at 1255, ¶ 13, we
    nowhere suggested that the televised broadcast of nudity could never
    be actionably indecent.

[^119]: *Petition* at 25.

[^120]: *Id*. (emphasis in original). (citing *United States v. Playboy
    Entmt. Group, Inc. v. FCC*, 529 U.S. 803 (2000); *Reno v. ACLU*, 521
    U.S. 844 (1997); and *Denver Area Educ. Telecomms. Consortium v.
    FCC*, 518 U.S. 727 (1996)).

[^121]: *Reno*, 521 U.S. at 868. *See Playboy*, 529 U.S. at 815*. See
    also ACT III*, 58 F.3d at 660 (recognizing that "radio and
    television broadcasts may properly be subject to different -- and
    often more restrictive -- regulation than is permissible for other
    media under the First Amendment").

[^122]: *See* *ACT III,* 58 F.3d at 659 (quoting *Pacifica*, 438 U.S. at
    748).

[^123]: As of January 1, 2000, all television sets manufactured in the
    United States or shipped in interstate commerce with a picture
    screen of thirteen inches or larger must be equipped with a "V-chip"
    system that can be programmed to block violent, sexual, or other
    programming that parents do not wish their children to view.
    *Technical Requirements to Enable Blocking of Video Programming
    Based on Program Ratings*, 13 FCC Rcd 11248 (1998); 47 C.F.R. §
    15.120(b). Out of a total universe of 280 million sets in U.S.
    households, *see* Nielsen Media Research U.S. TV Household
    Estimates, 2003-04, about 119 million sets in use are equipped with
    V-chips. Broadcasting & Cable TVFAX, *TV Watch "Exposes" V-chip
    Critics,* July 8, 2005, at 2.

[^124]: *See* *Forfeiture Order* at ¶ 34 n.117 (citing broadcaster's
    statements in 2004 that "less than 10 percent of all parents are
    using the V-chip and 80 percent of all parents who currently own a
    television set with a V-chip are not aware that they have it"). *See
    also* *Parents, Media and Public Policy: A Kaiser Family Foundation
    Survey* (Fall 2004), at 7 (telephone survey of 1,001 parents of
    children ages 2-17 showing that (1) only 15 percent of all parents
    have used the V-chip; (2) 26 percent of all parents have not bought
    a new television set since January 2000 (when the V-chip was first
    required in all sets); (3) 39 percent of parents have bought a new
    television set since January 2000, but do not think it includes a
    V-chip; and (4) 20 percent know they have a V-chip, but have not
    used it).

[^125]: In the Kaiser Family Foundation survey, nearly 4 in 10 parents
    of children aged 2-17 stated that most television programs are not
    rated accurately. *Id*. at 5. *See also* Parents Television Council,
    *The Ratings Sham: TV Executives Hiding Behind A System That
    Doesn\'t Work* (April 2005) (study of 528 hours of television
    programming concluding that numerous shows were inaccurately and
    inconsistently rated).

[^126]: *Implementation of Section 551 of the Telecommunications Act of
    1996*, Report and Order, 13 FCC Rcd 8232, 8242-43, ¶ 21 (1998).

[^127]: 47 U.S.C. § 405(a); 47 C.F.R. § 1.106(j).

[^128]: While the Commission, in today's Order, maintains that it
    rejects the use of third-party polls as "determinative" and that it
    does not "rely" upon any third-party polls, we should provide clear
    guidance as to whether the Commission, as a matter of policy, even
    "considers" polls in its indecency analysis. The answer to that
    inquiry should be an unequivocal "no." Rather than making this point
    clear, the Commission engages in a gratuitous discussion about the
    adequacy of the polls cited by CBS. The Commission argues that the
    opinion polls cited by CBS were unavailing because the polls did not
    answer the central legal question -- namely, "whether the Super Bowl
    broadcast was patently offensive under contemporary community
    standards." Order at ¶ 14. This discussion is misleading because the
    Commission does not consider polling data, notwithstanding the
    artfulness of the questions asked by pollsters.

[^129]: Order at ¶ 30.

[^130]: Complaints Regarding Various Television Programs Broadcast
    Between February 2, 2002 and March 8, 2005, FCC 06-17 (released
    March 15, 2006) (Omnibus TV Order) at ¶ 71.

[^131]: In a failed attempt to address this significant concern, the
    instant Order states that "it is sufficient that viewers in markets
    served by each of the CBS Stations filed complaints with the
    Commission identifying the allegedly indecent program broadcast by
    the CBS Stations." This is a mere restatement of fact, not a policy
    statement of the essential components of a sufficient and adequate
    complaint.

    In the Omnibus TV Order, the sole guidance the Commission provided
    was that it would propose forfeiture against only the licensee whose
    broadcast of the material was actually the subject of a viewer
    complaint. Omnibus TV Order at ¶ 71. Yet in the same order, based on
    a California viewer's complaint of indecent material against a local
    Washington, D.C. affiliate *and* the entire network, the Commission
    proposed forfeiture only against the local D.C. affiliate. The
    California viewer did not even assert that she viewed the program in
    Washington, D.C. Further, in the same case, it was completely
    unclear whether the complainant even watched the program on
    over-the-air broadcasting or on cable. The Commission is obligated
    to resolve or clarify these legitimate concerns.

[^132]: *See* Complaints Against Various Television Licensees Concerning
    Their February 1, 2004, Broadcast of the Super Bowl XXXVIII Halftime
    Show, Notice of Apparent Liability for Forfeiture, FCC 04-209
    (released September 22, 2004) (Commr. Jonathan S. Adelstein,
    approving in part and dissenting in part).