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 Federal  Communications  Commission  FCC  04-  209 
 1 
 Before  the  Federal  Communications  Commission 
 Washington,  D.  C.  20554 


 In  the  Matter  of 
 COMPLAINTS  AGAINST  VARIOUS  TELEVISION  LICENSEES  1  CONCERNING 
 THEIR  FEBRUARY  1,  2004,  BROADCAST  OF  THE  SUPER  BOWL  XXXVIII 
 HALFTIME  SHOW 


 )  ) 
 )  ) 
 )  ) 
 )  ) 


 File  No.  EB-  04-  IH-  0011 
 NAL/  Acct.  No.  200432080212 


 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  Commissions  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  Leagues  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 


 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). 
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 Viacom  Stations  of  indecent  material,  in  apparent  violation  of  18  U.  S.  C.    1464  and  section  73.3999  of  the  Commissions  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.  Timberlakes  removal  of  a  portion  of  Ms.  Jacksons  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 


 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  Rocks  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  Commissions 
 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. 
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 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.  Jacksons  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.  Jacksons  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.  Jacksons  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 
 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  CBSs  responses  to  the  LOIs  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. 
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 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.  Jacksons  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  Commissions  rules  and 


 applicable  statutory  provisions  concerning  the  operation  of  those  stations.  The  Commissions  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  Commissions  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 


 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). 
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 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  Commissions  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  Congresss  authority  to  regulate  the  broadcast  of  indecent  material,  as  well  as  the  Commissions  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 
 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.,  amend.  I;  See  Action  for  Childrens  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  Childrens  Television  v.  FCC,  932  F.  2d  1504,  1508  (D.  C.  Cir.  1991),  cert.  denied,  503  U.  S.  914  (1992)  (  ACT  II);  Action  for  Childrens  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  FCCs  generic  definition  of  indecency  will  be  tempered  by  the 
 Commissions  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),  affd  sub  nom.  FCC  v.  Pacifica  Foundation,  438  U.  S.  726  (1978)).  33 
 Industry  Guidance  on  the  Commissions  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). 
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 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.  Jacksons  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.  Jacksons  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.  Jacksons  bustier  and  exposing  her  bare  breast.  CBS  admits  that  the  CBS  Network  Stations  broadcast  this  material, 
 including  the  image  of  Ms.  Jacksons  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 
 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). 
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 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.  Jacksons  breast.  In  particular,  we  note  that  Mr.  Timberlake  pulled  off  part  of  Ms.  Jacksons  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.  Jacksons  breast  was  brief  is 
 thus  not  dispositive.  45 
 15.  Based  upon  the  preceding  analysis,  we  find,  in  context,  that  the  exposure  of  Ms.  Jacksons  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  Commissions  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  Commissions 


 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 


 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  Schindlers  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  materials  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  Commissions  rules. 


 45  See  Young  Broadcasting,  19  FCC  Rcd  1751. 
 46  See  ACT  III,  58  F.  3d  at  660-  63. 
 47  The  Commissions  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  Commissions  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  Commissions  Rules  and  Adjustment  of  Forfeiture  Maxima  to  Reflect  Inflation,  Order,  FCC  04-  139  (rel.  Jun.  18,  2004). 
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 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.  Jacksons  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 


 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  licensees  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  Minogues  famous  bottom.  The 
 article  goes  on  to  relate,  Justin  later  told  a  reporter:  Ive  heard  people  in  Britain  are  obsessed  with  Kylies  bottom  and  I  can  totally  see  why.  Im  pretty  obsessed  with  it,  too.  I  didnt  just  touch  Kylies  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. 
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 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.  Jacksons  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  Jacksons  Super  Bowl  Show  Promises  Shocking 
 Moments.    59  The  item  states,  As  the  big  game  approaches,  one  of  the  top  questions  along  with  Whos  going  to  win?    is  What  will  Janet  Jackson  be  doing  at  the  halftime  show?    It  quotes 
 Jackson  choreographer  Gil  Dulduleo  as  saying,  I  dont  think  the  Super  Bowl  has  ever  seen  a 


 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;  see  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  (  MTVs  preparations  for  this  years  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. 
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 performance  like  this.  The  dancing  is  great.  Shes  more  stylized,  shes  more  feminine,  shes  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  were  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  Timberlakes  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 
 editors  note  designed  to  prevent  readers  from  misinterpreting  the  article.  63 
 22.  Even  if  we  accepted  CBSs  explanation  that  it  was  Mr.  Timberlakes  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 


 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  editors  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  Janets  performance.  Janet 


 Jacksons  subsequent  performance  was  not  what  had  been  rehearsed,  discussed  or  agreed  to  with  MTV.  To  read  Janets  statement  and  apology,  see  Janet  Apologizes,  Says  Super 
 Bowl  Stunt  Went  Too  Far.  To  see  MTVs  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 
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 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.  Jacksons  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.  Jacksons 


 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). 
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 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  Commissions  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  individuals  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  governments  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  Commissions  broadcast  indecency  definition  against  constitutional  challenges,  the  United  States  Court  of  Appeals  for  the  District  of  Columbia 
 Circuit  also  stressed  the  importance  of  the  Commissions  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  Governments  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  Governments  own 
 interest  in  shielding  minors  from  being  exposed  to  indecent  speech  by  persons  other  than  a  parent.  74 


 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. 
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 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  Commissions  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  Commissions  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  Commissions  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  Commissions  rules. 
 31.  IT  IS  FURTHER  ORDERED,  pursuant  to  section  1.80  of  the  Commissions  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 


 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. 
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 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  respondents  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  FCCs  Office  of 
 Communications  Business  Opportunities  (  OCBO)  set  forth  in  Appendix  C  to  this  NAL.  This  information  will  be  used  for  tracking  purposes  only.  A  respondents  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 


 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. 
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 APPENDIX  A 
 VIACOM  OWNED  CBS  TELEVISION  NETWORK  AFFILIATES 


 Licensee  FCC  Registration 
 Number 
 Call  Sign  Community  of  License  Facility  ID  No. 


 CBS  Stations  Group  of  Texas  L.  P.  0001767078  KEYE-  TV  Austin,  TX  33691 
 Viacom  Inc.  0003612447  WJZ-  TV  Baltimore,  MD  25455 
 Viacom  Inc.  0003612447  WBZ-  TV  Boston,  MA  25456 
 CBS  Broadcasting  Inc.  0003482189  WBBM-  TV  Chicago,  IL  9617 
 CBS  Stations  Group  of  Texas  L.  P.  0001767078  KTVT  Ft.  Worth,  TX  23422 


 CBS  Television  Stations  Inc.  0003482189  KCNC-  TV  Denver,  CO  47903 
 CBS  Broadcasting  Inc.  0003482189  WFRV-  TV  Green  Bay,  WI  9635 
 CBS  Broadcasting  Inc.  0003482189  WJMN-  TV  Escanaba,  MI  9630 
 CBS  Broadcasting  Inc.  0003482189  WWJ-  TV  Detroit,  MI  72123 
 CBS  Broadcasting  Inc.  0003482189  KCBS-  TV  Los  Angeles,  CA  9628 
 CBS  Television  Stations  Inc.  0003482189  WFOR-  TV  Miami,  FL  47902 


 CBS  Broadcasting  Inc.  0003482189  WCCO-  TV  Minneapolis,  MN  9629 
 CBS  Broadcasting  Inc.  0003482189  KCCO-  TV  Alexandria,  MN  9632 
 CBS  Broadcasting  Inc.  0003482189  KCCW-  TV  Walker,  MN  9640 
 CBS  Broadcasting  Inc.  0003482189  KDKA-  TV  Pittsburgh,  PA  25454 
 CBS  Broadcasting  Inc.  0003482189  KYW-  TV  Philadelphia,  PA  25453 
 CBS  Broadcasting  Inc.  0003482189  WCBS-  TV  New  York,  NY  9610 
 KUTV  Holdings,  Inc.  0004499273  KUTV  Salt  Lake  City,  UT  35823 
 KUTV  Holdings,  Inc.  0004499273  KUSG  St.  George,  UT  35822 
 CBS  Broadcasting  Inc.  0003482189  KPIX-  TV  San  Francisco,  CA  25452 
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 APPENDIX  B 
 NON-  VIACOM  OWNED  CBS  TELEVISION  NETWORK  AFFILIATES 


 Licensee  Call  Sign  Community  of  License 
 Nexstar  Broadcasting,  Inc.  KTAB-  TV  Abilene,  TX 
 Pacific  Telestations,  Inc.  K20EU  Dededo,  Guam 
 Freedom  Broadcasting  Of  New  York  Licensee,  L.  L.  C.  WRGB  Schenectady,  NY 
 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  Subsidiary,  L.  L.  C.  WTAJ-  TV  Altoona,  PA 
 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,  L.  L.  C.  KFDM-  TV  Beaumont,  TX 
 KTVQ  Communications,  Inc.  KTVQ  Billings,  MT 
 Television  Station  Group  License  Subsidiary,  L.  L.  C.  WBNG-  TV  Binghamton,  NY 
 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 
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 Federal  Communications  Commission  FCC  04-  209 
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 Licensee  Call  Sign  Community  of  License 
 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,  L.  L.  C.  KGWC-  TV  Casper,  WY 
 Chelsey  Broadcasting  Company  Of  Casper,  L.  L.  C.  KGWR-  TV  Rock  Springs,  WY 
 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/  Northern  Colorado,  L.  L.  C.  KGWN-  TV  Cheyenne,  WY 
 Sagamorehill  Broadcasting  Of  Wyoming/  Northern  Colorado,  L.  L.  C.  KSTF  Scottsbluff,  NE 
 Catamount  Broadcasting  Of  Chico-  Redding,  Inc.  KHSL-  TV  Chico,  CA 
 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  Holdings,  Inc.  WRBL  Columbus,  GA 
 WCBI-  TV,  L.  L.  C.  WCBI-  TV  Columbus,  MS 
 WBNS-  TV,  Inc.  WBNS-  TV  Columbus,  OH 
 Eagle  Creek  Broadcasting  Of  Corpus  Christi,  L.  L.  C.  KZTV  Corpus  Christi,  TX 
 Eagle  Creek  Broadcasting  Of  Laredo,  L.  L.  C.  KVTV  Laredo,  TX 
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 Federal  Communications  Commission  FCC  04-  209 
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 Licensee  Call  Sign  Community  of  License 
 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  License  Subsidiary,  L.  L.  C.  WSEE-  TV  Erie,  PA 
 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  Holdings,  Inc.  WBTW  Florence,  SC 
 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 
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 Federal  Communications  Commission  FCC  04-  209 
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 Licensee  Call  Sign  Community  of  License 
 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,  L.  L.  C.  WWMT  Kalamazoo,  MI 
 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 
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 Federal  Communications  Commission  FCC  04-  209 
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 Licensee  Call  Sign  Community  of  License 
 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  Holdings,  Inc.  KIMT  Mason  City,  IA 
 Freedom  Broadcasting  of  Oregon  Licensee,  L.  L.  C.  KTVL  Medford,  OR 
 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  Carolina  Holdings,  Inc.  WKRG-  TV  Mobile,  AL 
 Noe  Corporation,  L.  L.  C.  KNOE-  TV  Monroe,  LA 
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 Federal  Communications  Commission  FCC  04-  209 
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 Licensee  Call  Sign  Community  of  License 
 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 
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 Federal  Communications  Commission  FCC  04-  209 
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 Licensee  Call  Sign  Community  of  License 
 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  Holdings,  Inc.  WSPA-  TV  Spartanburg,  SC 
 Media  General  Broadcasting  Of  So.  Carolina  Holdings,  Inc.  WNEG-  TV  Toccoa,  GA 
 King  Broadcasting  Company  KREM-  TV  Spokane,  WA 
 Meredith  Corporation  WSHM-  LP  Springfield,  MA 
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 Federal  Communications  Commission  FCC  04-  209 
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 Licensee  Call  Sign  Community  of  License 
 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,  Inc.  WPEC  West  Palm  Beach,  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  Holdings,  Inc.  KWCH-  TV  Hutchinson,  KS 
 Media  General  Broadcasting  of  So.  Carolina  Holdings,  Inc.  KBSD-  TV  Ensign,  KS 
 Media  General  Broadcasting  of  So.  Carolina  Holdings,  Inc.  KBSH-  TV  Hays,  KS 
 Media  General  Broadcasting  of  So.  Carolina  Holdings,  Inc.  KBSL-  TV  Goodland,  KS 
 WILM,  Inc.  WILM-  LP  Wilmington,  NC 
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 Federal  Communications  Commission  FCC  04-  209 
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 Licensee  Call  Sign  Community  of  License 
 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  L.  L.  C.  WKBN-  TV  Youngstown,  OH 
 Pappas  Arizona  License  L.  L.  C.  KSWT  Yuma,  AZ 
24
 Federal  Communications  Commission  FCC  04-  209 
 25 
 APPENDIX  C 
 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  Distribution  Open  Video  Systems  $12.5  Million  in  Annual  Receipts  or  Less 


 Common  Carrier  Services  and  Related  Entities  Wireline  Carriers  and  Service  providers 
 Local  Exchange  Carriers,  Competitive  Access  Providers,  Interexchange  Carriers, 
 Operator  Service  Providers,  Payphone  Providers,  and  Resellers  1,500  Employees  or  Fewer 


 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. 
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 Federal  Communications  Commission  FCC  04-  209 
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 International  Services  International  Broadcast  Stations 
 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 


 $12.5  Million  in  Annual  Receipts  or  Less 


 Mass  Media  Services  Television  Services 
 Low  Power  Television  Services  and  Television  Translator  Stations 
 TV  Auxiliary,  Special  Broadcast  and  Other  Program  Distribution  Services  $12  Million  in  Annual  Receipts  or  Less 
 Radio  Services  Radio  Auxiliary,  Special  Broadcast  and 
 Other  Program  Distribution  Services  $6  Million  in  Annual  Receipts  or  Less  Multipoint  Distribution  Service  Auction  Special  Size  Standard   
 Small  Business  is  less  than  $40M  in  annual  gross  revenues  for  three  preceding  years 
 Wireless  and  Commercial  Mobile  Services  Cellular  Licensees 


 220  MHz  Radio  Service    Phase  I  Licensees  1,500  Employees  or  Fewer  220  MHz  Radio  Service    Phase  II 
 Licensees  700  MHZ  Guard  Band  Licensees 


 Private  and  Common  Carrier  Paging 


 Auction  special  size  standard  -  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) 
 Broadband  Personal  Communications  Services  (Blocks  A,  B,  D,  and  E)  1,500  Employees  or  Fewer 


 Broadband  Personal  Communications  Services  (Block  C) 
 Broadband  Personal  Communications  Services  (Block  F) 
 Narrowband  Personal  Communications  Services 


 Auction  special  size  standard  -  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) 


 Rural  Radiotelephone  Service  Air-  Ground  Radiotelephone  Service  1,500  Employees  or  Fewer 
 800  MHz  Specialized  Mobile  Radio  900  MHz  Specialized  Mobile  Radio  Auction  special  size  standard  -  Small  Business  is  $15M  or  less  average  annual  gross 
 revenues  for  three  preceding  calendar  years 
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 Federal  Communications  Commission  FCC  04-  209 
 27 
 Private  Land  Mobile  Radio  1,500  Employees  or  Fewer  Amateur  Radio  Service  N/  A 
 Aviation  and  Marine  Radio  Service  Fixed  Microwave  Services  1,500  Employees  or  Fewer 


 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  and  Messaging  1,500  Employees  or  Fewer 


 Personal  Radio  Services  N/  A  Offshore  Radiotelephone  Service  1,500  Employees  or  Fewer 


 Wireless  Communications  Services 
 39  GHz  Service 


 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 


 Multipoint  Distribution  Service 
 Auction  special  size  standard  (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  Distribution  Service 


 Instructional  Television  Fixed  Service  $12.5  Million  in  Annual  Receipts  or  Less 


 Local  Multipoint  Distribution  Service 
 Auction  special  size  standard  (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  Television  Systems  $12.5  Million  in  Annual  Receipts  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 
27
 Federal  Communications  Commission  FCC  04-  209 
 28 
 Radio  and  Television  Broadcasting  and  Wireless  Communications  Equipment 
 Manufacturers  Audio  and  Video  Equipment  Manufacturers  750  Employees  or  Fewer 
 Telephone  Apparatus  Manufacturers  (Except  Cellular)  1,000  Employees  or  Fewer 
 Medical  Implant  Device  Manufacturers  500  Employees  or  Fewer  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  Lessees  Type  of  Business) 
28
 Federal  Communications  Commission  FCC  04-  209 
 29 
 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  Nations  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 
 publics  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  risqu  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  donts,  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  songs  lyrics  leave  little  doubt  where  the  show  was  going:  Hurry  up  cause  youre  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 
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 family  event  with  as  many  as  one  in  five  children  watching  this  years  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. 
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 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  years  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,  lets  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. 
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 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.  1 


 Second,  as  I  have  said  before,  we  need  to  affirm  local  broadcasters  ability    and  responsibility    to  reject  inappropriate  programming.  2  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. 


 1  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. 


 2  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). 
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 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  todays  remedy  totally  inadequate.  After  all  the  bold  talk,  its  a  slap  on  the  wrist  that  can  be  paid  with  just  7  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, 
 todays  enforcement  action  goes  out  of  its  way  to  focus  narrowly  on  the  exposure  of  Janet  Jacksons  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  todays  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  nations  children 
 who  were  ambushed  by  the  Super  Bowl  halftime  show  deserve  better  protection.  A  fine  of  7  seconds  of  ad  time  is  scarcely  any  deterrent.  The  shockwaves  are  still  being  felt  by  this  shameful 
 episode.  I  fear  that  today  were  responding  to  a  wardrobe  malfunction  with  a  regulatory  malfunction. 
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