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 Federal  Communications  Commission  FCC  06-  19 
 1 
 Before  the  Federal  Communications  Commission 
 Washington,  D.  C.  20554 
 In  the  Matter  of  )  ) 
 COMPLAINTS  AGAINST  VARIOUS  )  File  No.  EB-  04-  IH-  0011  TELEVISION  LICENSEES  ) 
 CONCERNING  THEIR  FEBRUARY  )  NAL/  Acct.  No.  200432080212  1,  2004  BROADCAST  OF  THE  SUPER  ) 
 BOWL  XXXVIII  HALFTIME  SHOW  ) 

 FORFEITURE  ORDER 
 Adopted:  February  21,  2006  Released:  March  15,  2006 
 By  the  Commission:  Chairman  Martin,  Commissioners  Copps  and  Tate  issuing  separate  statements;  Commissioner  Adelstein  concurring  and  issuing  a  statement. 

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

 1  47  U.  S.  C.    503(  b);  47  C.  F.  R.    1.80. 
 2  The  Appendix  is  an  updated  version  of  Appendix  A  from  the  Notice  of  Apparent  Liability  in  this  proceeding.  See 
 Complaints  Against  Various  Television  Licensees  Concerning  Their  February  1,  2004,  Broadcast  of  the  Super  Bowl  XXXVIII  Halftime  Show,  Notice  of  Apparent  Liability,  19  FCC  Rcd  19230  (2004)  (the  NAL).  The  NAL  was 

 directed  to  Viacom,  Inc.,  which  was  the  ultimate  corporate  parent  company  of  the  licensees  in  question  at  that  time.  As  of  December  31,  2005,  Viacom,  Inc.  effected  a  corporate  reorganization  in  which  the  name  of  the  ultimate  parent 
 company  of  the  licensees  of  the  CBS  Stations  was  changed  to  CBS  Corporation.  Accordingly,  we  generally  refer  to  the  company  herein  as  CBS  even  for  periods  preceding  the  reorganization.  As  part  of  the  reorganization,  certain 
 non-  broadcast  businesses,  including  MTV  Networks,  were  transferred  to  a  new  company  named  Viacom  Inc.  At  the  time  of  the  violations,  however,  the  CBS  Stations  and  MTV  Networks  were  corporate  affiliates  under  common 
 control.  3 
 47  C.  F.  R.    73.  3999.  4 
 We  note  that  viewers  in  markets  served  by  each  of  the  CBS  Stations  filed  complaints  with  the  Commission  concerning  the  February  1,  2004  broadcast  of  the  Super  Bowl  XXXVIII  halftime  show. 
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 II.  BACKGROUND 
 2.  The  halftime  show  in  question  was  a  live  broadcast  of  music  and  choreography  produced  by  MTV  Networks  (  MTV),  which  was  then  a  Viacom,  Inc.  subsidiary.  The  halftime  show  lasted 
 approximately  fifteen  minutes  and  aired  over  the  CBS  Stations  and  other  television  stations  affiliated  with  the  CBS  Television  Network.  The  show  received  considerable  notoriety  due  to  an  incident  at  the  end  of 
 its  musical  finale,  in  which  Justin  Timberlake  pulled  off  part  of  Janet  Jacksons  bustier,  exposing  one  of  her  breasts  to  the  television  audience. 

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

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

 All  my  girls  at  the  party  Look  at  that  body 
 Shakin  that  thing  Like  I  never  did  see 
 Got  a  nice  package  alright 

 5  See  Letter  from  William  D.  Freedman,  Deputy  Chief,  Investigations  and  Hearings  Division,  Enforcement  Bureau, 
 Federal  Communications  Commission,  to  Howard  Jaeckel,  Vice  President  and  Associate  General  Counsel,  CBS,  dated  February  2,  2004;  Letter  from  William  D.  Freedman,  Deputy  Chief,  Investigations  and  Hearings  Division, 

 Enforcement  Bureau,  Federal  Communications  Commission,  to  Robert  Corn-  Revere,  Esquire,  dated  February  10,  2004. 
 6  See  Letter  from  Robert  Corn-  Revere,  Esquire  to  William  D.  Freedman,  Deputy  Chief,  Investigations  and  Hearings 
 Division,  Enforcement  Bureau,  Federal  Communications  Commission,  dated  February  3,  2004.  7 
 Letter  from  Robert  Corn-  Revere,  Esquire  to  William  D.  Freedman,  Deputy  Chief,  Investigations  and  Hearings  Division,  Enforcement  Bureau,  Federal  Communications  Commission,  dated  February  10,  2004  (the  CBS  Interim 

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

 9  Letter  from  Susanna  M.  Lowy,  Esquire  to  William  D.  Freedman,  Deputy  Chief,  Investigations  and  Hearings 
 Division,  Enforcement  Bureau,  Federal  Communications  Commission,  dated  March  16,  2004  (the  CBS  Response).  Although  many  of  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.  CBS  requested  confidential  treatment  of  the  bulk  of  the  materials  attached  to  its  Response,  including  electronic  mail  and 
 other  documents  relevant  to  the  planning  of  the  halftime  show.  We  do  not  rule  on  CBSs  request  at  this  time  because  it  is  unnecessary  to  do  so  for  purposes  of  this  Order.  Consistent  with  the  request,  however,  we  limit 
 ourselves  to  describing  or  characterizing  the  substance  of  the  materials  and  providing  record  citations  herein,  rather  than  actually  quoting  the  materials  or  otherwise  incorporating  them  into  the  Order.  The  Confidential  Appendix, 
 however,  contains  quotations  to  various  documents  in  the  record. 
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 Guess  Im  gonna  have  to  ride  it  tonight.  10 
 These  lyrics  use  slang  terms  to  refer  to  a  mans  sexual  organs  and  sexual  intercourse  and  were  repeated  two  more  times  during  the  song.  Following  that  performance,  P.  Diddy  and  Nelly  presented  a  medley  of 
 songs  containing  occasional  references  to  sexual  activities,  emphasized  by  Nellys  crotch-  grabbing  gestures.  11  Then,  after  a  medley  by  performer  Kid  Rock,  Jackson  reappeared  for  a  performance  of 
 Rhythm  Nation  and  then  the  closing  song,  Rock  Your  Body,  a  duet  in  which  she  was  joined  by  Justin  Timberlake.  During  the  finale,  Timberlake  urged  her  to  allow  him  to  rock  your  body  and  just  let  me 
 rock  you  til  the  break  of  day  while  following  her  around  the  stage  and,  on  several  occasions,  grabbing  and  rubbing  up  against  her  in  a  manner  simulating  sexual  activity.  12  At  the  close  of  the  song,  while 
 singing  the  lyrics,  gonna  have  you  naked  by  the  end  of  this  song,  Timberlake  pulled  off  the  right  portion  of  Jacksons  bustier,  exposing  her  breast  to  the  television  audience.  13 

 5.  The  Commission  released  its  NAL  on  September  22,  2004,  pursuant  to  section  503(  b)  of  the  Act  and  section  1.80  of  the  Commissions  rules,  finding  that  CBS  apparently  violated  the  federal 
 restrictions  regarding  the  broadcast  of  indecent  material.  14  We  noted  that  our  indecency  analysis  involves  two  basic  determinations.  The  first  determination  is  whether  the  material  in  question  depicts  or  describes 
 sexual  or  excretory  organs  or  activities.  15  We  found  that  the  broadcast  material  contained,  inter  alia,  a  performance  by  Jackson  and  Timberlake  that  culminated  in  the  on-  camera  exposure  of  one  of  Jacksons 
 breasts,  thereby  meeting  the  first  standard.  16  The  second  determination  is  whether  the  material  is  patently  offensive  as  measured  by  contemporary  community  standards  for  the  broadcast  medium.  17  We  observed 
 that,  in  our  assessment  of  whether  broadcast  material  is  patently  offensive,  the  full  context  in  which  the  material  appeared  is  critically  important.  18  Three  principal  factors  are  significant  to  this  contextual 
 analysis:  (1)  the  explicitness  or  graphic  nature  of  the  description  or  depiction  of  sexual  or  excretory  organs  or  activities;  (2)  whether  the  material  dwells  on  or  repeats  at  length  descriptions  or  depictions  of 
 sexual  or  excretory  organs  or  activities;  and  (3)  whether  the  material  appears  to  pander  or  is  used  to 

 10  Broadcast  Videotape.  See  also  CBS  Response,  Ex.  9  at  7-  10; 
 www.  azlyrics.  com/  lyrics/  janetjackson/  allforyou.  html.  11 
 These  sexual  references  include  the  lyrics  I  was  like  good  gracious  ass  bodacious  .  .  .  Im  waiting  for  the  right  time  to  shoot  my  steam  (you  know)  and  [  i]  ts  gettin  hot  in  here  (so  hot),  so  take  off  all  your  clothes  (I  am  gettin 

 so  hot)  in  the  Nelly  song  Hot  in  Herre.  Broadcast  Videotape.  See  also  CBS  Response,  Ex.  9  at  16,  18;  www.  lyricsstyle.  com/  n/  nelly/  hotinherre.  html. 
 12  Broadcast  Videotape.  See  also  CBS  Response,  Ex.  9  at  36-  37; 
 www.  lyricsondemand.  com/  j/  justintimberlakelyrics/  rockyourbodylyrics.  html.  13 
 Broadcast  Videotape.  14 
 See  18  U.  S.  C.    1464;  47  C.  F.  R.    73.  3999;  and  47  U.  S.  C.    503(  b).  15 
 See  Industry  Guidance  on  the  Commissions  Case  Law  Interpreting  18  U.  S.  C.    1464  and  Enforcement  Policies  Regarding  Broadcast  Indecency,  Policy  Statement,  16  FCC  Rcd  7999,  8002,    7  (2001)  (  Indecency  Policy 

 Statement).  16 
 NAL,  19  FCC  Rcd  at  19235,    11.  17 
 The  contemporary  standards  for  the  broadcast  medium  criterion  is  that  of  an  average  broadcast  listener  and  does  not  encompass  any  particular  geographic  area.  Indecency  Policy  Statement,  16  FCC  Rcd  at  8002,    8  and  n.  15. 

 CBS  suggests  that  we  should  rely  on  third-  party  public  opinion  polls  to  determine  whether  the  material  is  patently  offensive  as  measured  by  contemporary  community  standards  for  the  broadcast  medium.  Opposition  at  33-  34.  In 
 determining  whether  material  is  patently  offensive,  we  do  not  rely  on  polls,  but  instead  apply  the  three-  pronged  contextual  analysis  described  in  the  text.  CBS  provides  no  legal  support  for  a  departure  from  that  approach. 
 18  NAL,  19  FCC  Rcd  at  19235,    12,  quoting  Indecency  Policy  Statement,  16  FCC  Rcd  at  8002,    9  (emphasis  in 
 original). 
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 titillate  or  shock.  19  In  examining  these  three  factors,  we  stated  that  we  must  weigh  and  balance  them  on  a  case-  by-  case  basis  to  determine  whether  the  broadcast  material  is  patently  offensive  because  [  e]  ach 
 indecency  case  presents  its  own  particular  mix  of  these,  and  possibly,  other  factors.  20  We  noted  that,  in  particular  cases,  one  or  two  factors  may  outweigh  the  others,  either  rendering  the  broadcast  material 
 patently  offensive  and  consequently  indecent  21  or,  alternatively,  removing  the  broadcast  from  the  realm  of  indecency.  22 

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

 7.  The  Commission  concluded,  based  upon  its  review  of  the  facts  and  circumstances  of  this  case,  that  CBS  was  apparently  liable  for  a  monetary  forfeiture  in  the  amount  of  $550,000,  calculated  by 
 applying  the  maximum  forfeiture  of  $27,500  to  each  CBS  Station,  for  broadcasting  indecent  material  in  apparent  violation  of  18  U.  S.  C.    1464  and  section  73.  3999  of  the  Commissions  rules.  24  In  contrast,  the 
 Commission  proposed  no  forfeiture  against  any  licensee  other  than  CBS.  It  did  so  based  on  its  finding  that  no  licensee  of  a  non-  CBS-  owned  CBS  affiliate  was  involved  in  the  selection,  planning  or  approval  of 
 the  material  for  the  halftime  show,  nor  could  any  such  licensee  reasonably  have  anticipated  that  Viacoms  production  of  the  show  would  contain  indecent  material.  25  On  November  5,  2004,  CBS  submitted  its 
 Opposition  to  the  NAL.  26 

 19  Indecency  Policy  Statement,  16  FCC  Rcd  at  8002-  15,    8-  23. 
 20  NAL,  19  FCC  Rcd  at  19235,    12,  quoting  Indecency  Policy  Statement,  16  FCC  Rcd  at  8003,    10. 
 21  NAL,  19  FCC  Rcd  at  19235,    12;  Indecency  Policy  Statement,  16  FCC  Rcd  at  8009,    19  (citing  Tempe  Radio, 
 Inc.  (KUPD-  FM),  12  FCC  Rcd  21828  (Mass  Media  Bur.  1997)  (forfeiture  paid),  and  EZ  New  Orleans,  Inc.  (WEZB(  FM)),  12  FCC  Rcd  4147  (Mass  Media  Bur.  1997)  (forfeiture  paid),  which  found  that  the  extremely  graphic 

 or  explicit  nature  of  references  to  sex  with  children  outweighed  the  fleeting  nature  of  the  references.  22 
 NAL,  19  FCC  Rcd  at  19235,    12;  Indecency  Policy  Statement,  16  FCC  Rcd  at  8010,    20  (noting  that  the  manner  and  purpose  of  a  presentation  may  well  preclude  an  indecency  determination  even  though  other  factors,  such  as 

 explicitness,  might  weigh  in  favor  of  an  indecency  finding.)  23 
 NAL,  19  FCC  Rcd  at  19235-  36,    12-  14.  24 
 Id.  at  19236-  40,    16-  24.  The  Commission  recently  amended  its  rules  to  increase  the  maximum  penalties  to  account  for  inflation  since  the  last  adjustment  of  the  penalty  rates.  However,  the  new  rates  apply  to  violations  that 

 occur  or  continue  after  September  7,  2004,  and  therefore  do  not  apply  here.  See  Amendment  of  Section  1.80(  b)  of  the  Commissions  Rules,  Adjustment  of  Forfeiture  Maxima  to  Reflect  Inflation,  Order,  19  FCC  Rcd  10945,  10946,   
 6  (2004).  25 
 Id.,  19  FCC  Rcd  at  19240-  41,    25.  26 
 Opposition  to  Notice  of  Apparent  Liability  for  Forfeiture  by  CBS,  dated  November  5,  2004  (  Opposition).  In  addition  to  CBSs  Opposition,  we  also  received  filings  from  non-  parties  to  this  proceeding  that  we  are  treating  as 

 filings  by  amici  curiae.  One  such  filing  is  a  Petition  for  Partial  Reconsideration  of  Notice  of  Apparent  Liability  for  Forfeiture  submitted  by  Saga  Quad  States  Communications,  LLC,  and  Saga  Broadcasting,  LLC,  which  argues  that 
 the  NAL  improperly  imposes  a  new  requirement  on  network  affiliate  stations  to  employ  delay  technology  to  prescreen  network  feeds.  The  NAL  urges  such  licensees  to  take  reasonable  precautions  to  prevent  the  broadcast  of 
 indecent  programming  over  their  stations,  but  this  is  not  a  new  requirement.  See  NAL,  19  FCC  Rcd  at  19241,    25.  See  also  Complaints  Against  Various  Licensees  Regarding  Their  Broadcast  of  the  Fox  Network  Program  Married 
 by  America  on  April  7,  2003,  Notice  of  Apparent  Liability  for  Forfeiture,  19  FCC  Rcd  20191  (2004)  (  Married  by  America)  (response  pending);  47  C.  F.  R.    73.  658(  e)(  1)  (prohibiting  television  stations  from  entering  into 
 (continued....) 
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 III.  DISCUSSION 
 8.  CBS  does  not  dispute  that  the  halftime  show  included  a  segment  in  which  Justin  Timberlake  pulls  off  a  portion  of  Jacksons  bustier  to  reveal  her  breast  at  the  end  of  the  performance  of  a 

 song  containing  the  lyrics  quoted  above.  27  CBS  nonetheless  argues  that  the  material  broadcast  was  not  actionably  indecent.  28  CBS  also  maintains  that  the  broadcast  of  Jacksons  breast  was  accidental,  and 
 therefore  was  not  willful  under  section  503(  b)(  1)(  B)  of  the  Act.  29  CBS  further  argues  that  the  Commissions  indecency  framework  is  unconstitutionally  vague  and  overbroad,  both  on  its  face  and  as 
 applied  to  the  halftime  show.  30  As  discussed  below,  we  reject  CBSs  arguments  and  find  the  broadcast  indecent  for  the  reasons  set  forth  herein.  We  reject  CBSs  assertion  that  the  material  at  issue  is  not 
 indecent  because  it  is  not  patently  offensive.  In  addition,  we  reject  CBSs  interpretation  of  the  term  willful  and  also  address  specific  circumstances  indicating  that:  (1)  CBS  consciously  omitted  the  actions 
 necessary  to  ensure  that  actionably  indecent  material  would  not  be  aired;  and  (2)  the  performers  willful  actions  here  were  attributable  to  CBS  under  established  principles  of  agency  and  respondeat  superior. 
 Finally,  we  reject  CBSs  constitutional  arguments,  as  the  courts  have  repeatedly  upheld  the  constitutionality  of  the  Commissions  indecency  framework  and  our  analysis  of  the  halftime  show  is 
 consistent  with  that  framework.  We  therefore  conclude  that  the  broadcast  of  this  material  by  the  Viacom  Stations  violated  18  U.  S.  C.    1464  and  our  rule  against  indecent  broadcasts  between  6  a.  m.  and  10  p.  m., 
 and  that  the  maximum  statutory  forfeiture  is  warranted. 
 9.  Indecency  Analysis.  The  indecency  analysis  undertaken  in  the  NAL  followed  the  approach  that  the  Commission  has  consistently  applied.  First,  the  material  alleged  to  be  indecent  must  fall  within 

 the  subject  matter  scope  of  our  indecency  definition,  i.  e.,  the  material  must  describe  or  depict  sexual  or  excretory  organs  or  activities.  31  The  NAL  properly  concluded  that  the  broadcast  of  an  exposed  female 
 breast  met  this  definition.  32  The  halftime  show  broadcast  therefore  warrants  further  scrutiny  to  determine 

 (...  continued  from  previous  page)  arrangements  with  networks  that  restrict  their  right  to  reject  programming  that  the  stations  reasonably  believe  to  be 
 unsatisfactory  or  unsuitable  or  contrary  to  the  public  interest).  Another  such  filing  by  Litigation  Recovery  Trust  (  LRT)  is  styled  a  Petition  for  Reconsideration  but  fails  to  meet  the  requirements  of  Section  1.  106(  b)(  1)  of  our 
 rules  for  petitions  for  reconsideration  by  non-  parties.  First,  a  petition  for  reconsideration  of  a  Notice  of  Apparent  Liability  is  not  appropriate  under  Section  1.106(  b)(  1)  because  such  action  is  only  a  notice,  not  a  Commission 
 decision  that  is  subject  to  reconsideration.  Furthermore,  even  if  a  petition  for  reconsideration  were  appropriate  here,  LRT  does  not  make  the  showings  required  under  that  rule  that  a  non-  party  state  with  particularity  the  manner  in 
 which  the  persons  interest  are  adversely  affected  by  the  action  taken,  and  show  good  reason  why  it  was  not  possible  for  him  to  participate  in  the  earlier  stages  of  the  proceeding.  47  C.  F.  R.    1.  106(  b)(  1).  In  substance,  LRTs  filing  is 
 a  supplement  to  a  prior  request  for  rulemaking  on  a  matter  that  is  outside  the  scope  of,  and  is  not  affected  by,  this  decision. 
 27  Opposition  at  11.  CBS  does  take  issue  with  the  NALs  statement  that  the  nudity  lasted  for  19/  32  of  a  second, 
 stating  that  the  actual  time  was  9/  16  of  a  second.  Id.  at  11  n.  7.  We  accept  CBSs  determination  as  to  the  duration,  but  we  find  no  practical  difference  here.  We  also  note  that  the  brevity  of  the  image  is  considered  in  connection  with 

 just  one  of  three  contextual  factors,  and  no  single  factor  is  dispositive.  See  Indecency  Policy  Statement,  16  FCC  Rcd  at  8003,    10  (  Each  indecency  case  presents  its  own  particular  mix  of  these  [three],  and  possibly  other,  factors, 
 which  must  be  balanced  to  ultimately  determine  whether  the  material  is  patently  offensive  and  therefore  indecent.  No  single  factor  generally  provides  the  basis  for  an  indecency  finding.). 
 28  Opposition  at  13-  34. 
 29  Id.  at  35-  38. 
 30  Id.  at  44-  77. 
 31  Indecency  Policy  Statement,  16  FCC  Rcd  at  8002,    7. 
 32  NAL,  19  FCC  Rcd  at  19235,    11. 
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 whether  or  not  it  was  patently  offensive  as  measured  by  contemporary  community  standards  for  the  broadcast  medium. 
 10.  As  discussed  above,  in  our  assessment  of  whether  broadcast  material  is  patently  offensive,  the  full  context  in  which  the  material  appeared  is  critically  important.  33  In  cases  involving  televised 
 nudity,  the  contextual  analysis  necessarily  involves  an  assessment  of  the  entire  segment  or  program,  and  not  just  the  particular  scene  in  which  the  nudity  occurs.  34  Accordingly,  in  this  case,  our  contextual 
 analysis  considers  the  entire  halftime  show,  not  just  the  final  segment  during  which  Jacksons  breast  is  uncovered.  We  find  that,  in  context  and  on  balance,  the  complained-  of  material  is  patently  offensive  as 
 measured  by  contemporary  community  standards  for  the  broadcast  medium. 
 11.  Turning  to  the  first  principal  factor  of  our  contextual  analysis,  we  conclude  that  a  video  broadcast  image  of  Timberlake  pulling  off  part  of  Jacksons  bustier  and  exposing  her  bare  breast,  where 

 the  image  of  the  nude  breast  is  clear  and  recognizable  to  the  average  viewer,  is  graphic  and  explicit.  35  CBS  maintains  that  none  of  the  cases  cited  in  the  NAL  to  support  the  conclusion  that  the  partial  nudity  in 
 the  halftime  show  was  explicit  and  graphic  involved  a  televised  broadcast  of  a  womans  breast.  36  We  reject  CBSs  argument  that  our  conclusion  regarding  this  factor  is  flawed.  The  NAL  correctly  relied  on 
 Young  Broadcasting,  which  supports  the  proposition  that  a  scene  showing  nude  sexual  organs  is  graphic  and  explicit  if  the  nudity  is  readily  discernible.  37  In  this  case,  although  the  camera  shot  is  not  a  close-  up, 
 the  nudity  is  readily  discernible.  Furthermore,  Jackson  and  Timberlake,  as  the  headline  performers,  are  in  the  center  of  the  screen,  and  Timberlakes  hand  motion  ripping  off  Jacksons  bustier  draws  the  viewers 
 attention  to  her  exposed  breast.  CBS  suggests  that  the  fact  that  this  nudity  was  not  planned  and  approved  by  [CBS]  is  somehow  relevant  to  whether  it  is  explicit  and  graphic  in  nature.  38  However, 
 CBSs  suggestion  that  planning  or  premeditation  should  be  a  factor  in  deciding  whether  a  televised  image  is  explicit  or  graphic  lacks  any  basis  in  logic  or  law.  39  Rather,  the  first  factor  in  our  contextual  analysis 

 33  Indecency  Policy  Statement,  16  FCC  Rcd  at  8002,    9  (emphasis  in  original). 
 34  See,  e.  g.,  Young  Broadcasting  of  San  Francisco,  Inc.,  Notice  of  Apparent  Liability  for  Forfeiture,  19  FCC  Rcd 
 1751,  1755-  57  (2004)  (  Young  Broadcasting)  (response  pending)  (Commission  makes  an  assessment  of  the  entire  segment  of  a  morning  news  program  involving  an  interview  of  and  demonstration  by  cast  members  from  a 

 Puppetry  of  the  Penis  stage  production  in  which  adult  male  nudity  was  aired  for  less  than  a  second  (  11-  13);  and  distinguishes  an  earlier  case  involving  non-  fleeting  adult  frontal  nudity  in  a  broadcast  of  Schindlers  List  based  on 
 the  full  context  of  its  presentation,  including  the  subject  matter  of  the  film  [World  War  II  and  wartime  atrocities],  the  manner  of  presentation,  and  the  warnings  that  accompanied  the  broadcast  of  the  film  (  14)). 
 35  We  note  that,  although  Jackson  wore  a  piece  of  jewelry  on  her  nipple,  it  only  partially  covered  her  nipple  and  did 
 not  cover  her  breast.  36 
 Opposition  at  21.  37 
 NAL,  19  FCC  Rcd  at  19235,    13  and  n.  42.  CBS  attempts  to  distinguish  Young  Broadcasting  from  this  case.  See  Opposition  at  19-  20.  However,  CBSs  analysis  focuses  on  the  foreseeability  of  the  nudity  in  that  case  as  compared 

 to  this  case.  As  discussed  below,  foreseeability  and  premeditation  relate  to  whether  the  broadcast  of  indecent  matter  was  willful,  and  not  to  whether  the  material  is  graphic  and  explicit. 
 38  See  Opposition  at  25  n.  35.  See  also  id.  at  22.  We  agree  that  the  exposure  of  Jacksons  breast  was  not  in  the 
 official  script  submitted  by  CBS,  but  CBS  has  not  shown  that  it  was  unplanned.  Clearly,  the  costume  reveal  that  led  to  the  exposure  of  the  breast  was  at  least  planned  by  the  performers  (Jackson  and  Timberlake)  and  their 

 choreographer,  Gil  Duldulao,  who  were  hired  by  CBS  for  the  halftime  show.  Timberlakes  Declaration  disavows  any  knowledge  on  his  part  that  the  costume  reveal  would  lead  to  exposure  of  Jacksons  breast,  but  Jacksons 
 statement  does  not  address  her  knowledge  or  intentions,  and  Duldulao  did  not  provide  a  statement.  See  CBS  Response,  Ex.  7  and  Ex.  8. 
 39  CBS  compares  this  case  to  a  decision  that  it  claims  involves  programming  that  is  considerably  more  explicit  and 
 clearly  premeditated,  in  which  the  Commission  imposed  a  base  forfeiture  rather  than  the  maximum  forfeiture  imposed  in  this  case.  See  Opposition  at  22-  23,  citing  Married  by  America.  The  appropriate  level  of  the  forfeiture  is 

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 focuses  on  the  explicitness  of  the  broadcast  from  the  viewers  or  listeners  standpoint.  Notwithstanding  CBSs  claimed  befuddlement  at  how  the  televised  image  of  a  man  tearing  off  a  womans  clothing  to 
 reveal  her  bare  breast  could  be  deemed  explicit,  we  believe  that  conclusion  is  clearly  warranted  by  the  facts  here  and  fully  consistent  with  the  case  law.  40 

 12.  The  second  principal  factor  in  our  contextual  analysis  is  whether  the  material  dwells  on  or  repeats  at  length  descriptions  or  depictions  of  sexual  or  excretory  organs  or  activities.  The  NAL 
 appropriately  recognizes  that  the  image  of  Jacksons  uncovered  breast  during  the  halftime  show  is  fleeting.  41  However,  even  relatively  fleeting  references  may  be  found  indecent  where  other  factors 
 contribute  to  a  finding  of  patent  offensiveness.  42  In  this  case,  even  though  we  find  that  the  partial  nudity  was  fleeting,  the  brevity  of  the  partial  nudity  is  outweighed  by  the  first  and  third  factors  of  our  contextual 
 analysis. 
 13.  Under  the  third  principal  factor  of  our  analysis    whether  the  material  appears  to  pander  or  is  titillating  or  shocking    we  examine  how  the  material  is  presented  in  context.  43  The  NAL  found  that 

 the  manner  of  presentation  of  the  complained-  of  material  over  each  [CBS  Station],  for  which  Viacom  failed  to  take  adequate  precautions,  was  pandering,  titillating  and  shocking.  44  The  NAL  noted  that  the 
 exposure  of  Jacksons  breast  followed  performances,  song  lyrics  and  choreography  [that]  discussed  or  simulated  sexual  activities.  45  Jacksons  opening  song  contained  repeated  references  to  a  mans  nice 
 package  that  she  was  gonna  have  to  ride  .  .  .  tonight    slang  references  to  male  sexual  organs  and  sexual  intercourse.  The  P.  Diddy/  Nelly  performance  also  contained  sexual  references,  emphasized  by 
 Nellys  crotch-  grabbing  gestures.  Likewise,  the  duet  by  Jackson  and  Timberlake  of  Rock  Your  Body 

 (...  continued  from  previous  page)  best  addressed  in  a  subsequent  section,  but  at  this  point  we  note  that  the  case  cited  involved  a  program  in  which 
 certain  body  parts  were  digitally  obscured  by  pixilation  to  avoid  a  display  of  partial  nudity  such  as  that  aired  by  CBS  to  a  national  audience  in  this  case.  Thus,  that  case  is  not  a  particularly  useful  precedent  in  determining  whether  the 
 material  at  issue  here  is  graphic  and  explicit.  40 
 CBS  argues  that  our  recent  dismissals  of  complaints  about  programming  that  we  found  not  to  be  graphic  or  explicit  requires  a  similar  decision  here.  Opposition  at  23-  25,  citing  KSAZ  Licensee,  Inc.,  Memorandum  Opinion 

 and  Order,  19  FCC  Rcd  15999  (2004),  and  Complaints  Against  Various  Broadcast  Licensees  Regarding  Their  Airing  of  the  UPN  Network  Program  Buffy  the  Vampire  Slayer  on  November  20,  2001,  Memorandum  Opinion 
 and  Order,  19  FCC  Rcd  15995  (2004).  Neither  case  is  apposite  here  because  neither  program  included  nudity.  The  other  cases  cited  by  CBS  are  inapposite  for  the  same  reason.  See  Opposition  at  23-  24. 
 41  See  NAL,  19  FCC  Rcd  at  19236,    14. 
 42  Indecency  Policy  Statement,  16  FCC  Rcd  at  8009,    19.  See  also  Young  Broadcasting;  Tempe  Radio,  Notice  of 
 Apparent  Liability,  12  FCC  Rcd  21828  (Mass  Media  Bur.  1997)  (paid);  LBJS  Broadcasting,  Notice  of  Apparent  Liability,  13  FCC  Rcd.  20956  (Mass  Media  Bur.  1998)  (paid). 

 43  Indecency  Policy  Statement,  16  FCC  Rcd  at  8010,  20. 
 44  NAL,  19  FCC  Rcd  at  19236  n.  44.  The  NAL  stated  that  the  nudity  here  was  designed  to  pander  to,  titillate  and 
 shock  the  viewing  audience.  Id.  at    14.  To  the  extent  that  the  language  in  the  NAL  could  be  interpreted  to  suggest  that  the  broadcasters  state  of  mind  is  a  decisional  factor,  we  wish  to  clarify  that  this  is  not  the  case.  Our  Indecency 

 Policy  Statement  frames  this  factor  as  whether  the  material  appears  to  pander  or  is  used  to  titillate,  or  whether  the  material  appears  to  have  been  presented  for  its  shock  value.  Indecency  Policy  Statement,  19  FCC  Rcd  at  8003,   
 10  (emphasis  in  original).  In  making  this  determination,  we  focus  on  the  material  that  was  broadcast  and  its  manner  of  presentation,  not  on  the  state  of  mind  of  the  broadcaster  or  performer.  See  Young  Broadcasting,  19  FCC  Rcd  at 
 1755-  57,    13-  14.  45 
 NAL,  19  FCC  Rcd  at  19236,    14. 
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 contained  repeated  references  to  sexual  activities  46  and  choreography  in  which  Timberlake  grabbed  Jackson,  slapped  her  buttocks,  and  rubbed  up  against  her  in  a  manner  simulating  sexual  activity.  These 
 sexually  suggestive  performances  culminated  in  the  spectacle  of  Timberlake  ripping  off  a  portion  of  Jacksons  bustier  and  exposing  her  breast  while  he  sang  gonna  have  you  naked  by  the  end  of  this  song. 
 Clearly,  the  nudity  in  this  context  was  pandering,  titillating  and  shocking  to  the  viewing  audience,  particularly  during  a  prime  time  broadcast  of  a  sporting  event  that  was  marketed  as  family  entertainment 
 and  contained  no  warning  that  it  would  include  nudity.  47  Contrary  to  CBSs  contention,  we  do  evaluate  the  nudity  in  context.  The  offensive  segment  in  question  did  not  merely  show  a  fleeting  glimpse  of  a 
 womans  breast,  as  CBS  presents  it.  Rather,  it  showed  a  man  tearing  off  a  portion  of  a  womans  clothing  to  reveal  her  naked  breast  during  a  highly  sexualized  performance  and  while  he  sang  gonna  have  you 
 naked  by  the  end  of  this  song.  From  the  viewers  standpoint,  this  nudity  hardly  seems  accidental,  nor  was  it.  48  This  broadcast  thus  presents  a  much  different  case  than  would,  for  example,  a  broadcast  in 
 which  a  womans  dress  strap  breaks,  accidentally  revealing  her  breast  for  a  fraction  of  a  second. 
 14.  Accordingly,  we  conclude  that  the  Super  Bowl  XXXVIII  halftime  show  contained  material  that  was  graphic,  explicit,  pandering,  titillating  and  shocking  and,  in  context  and  on  balance,  was 

 patently  offensive  under  contemporary  community  standards  for  the  broadcast  medium  and  thus  indecent.  Although  the  patently  offensive  material  was  brief,  its  brevity  is  outweighed  in  this  case  by  the  first  and 
 third  factors  in  our  contextual  analysis.  The  complained-  of  material  was  broadcast  within  the  6  a.  m.  to  10  p.  m.  time  frame  relevant  to  an  indecency  determination  under  Section  73.3999  of  the  Commissions 
 rules,  49  and  is  therefore  legally  actionable. 
 15.  Whether  Violation  was  Willful.  CBS  argues  that,  if  it  did  air  indecent  programming,  its  violation  was  accidental  rather  than  willful  and  therefore  cannot  be  sanctioned  under  section 

 503(  b)(  1)  of  the  Act.  In  support  of  this  argument,  CBS  cites  definitions  of  willful  from  criminal  and  copyright  law  cases.  50  These  definitions,  however,  are  inapposite.  Rather  than  borrowing  definitions 
 from  unrelated  areas  of  law,  the  Commission  appropriately  applies  the  definition  of  willful  that  appears  in  the  Communications  Act.  Section  312(  f)(  1)  of  the  Act  defines  willful  as  the  conscious  and 
 deliberate  commission  or  omission  of  [any]  act,  irrespective  of  any  intent  to  violate  the  law.  51  As 
 46  Timberlake  sang  the  lyrics:  Ive  been  watching  you,  I  like  the  way  you  move,  so  go  head  and  girl  just  do  that 
 ass-  shakin  thing  you  do  .  .  .  I  wanna  rock  your  body,  let  me  rock  your  body.  Broadcast  Videotape.  See  also  CBS  Response,  Ex.  9  at  36-  37;  http://  www.  lyricsondemand.  com/  j/  justintimberlakelyrics/  rockyourbodylyrics.  html. 

 47  Indeed,  CBS  appears  to  concede  that  it  was  shocking,  but  maintains  that  the  costume  reveal  was  as  much  a 
 shock  to  Viacom  as  to  everyone  else.  Opposition  at  iii.  48 
 See  CBS  Response  at  Ex.  7  and  Ex.  8.  Whether  this  nudity  was  planned  or  foreseeable  by  CBS  and  the  stations  that  broadcast  it  is  a  distinct  issue  that  is  addressed  below  in  the  discussion  of  the  willfulness  factor. 

 49  47  C.  F.  R.    73.3999. 
 50  See  Opposition  at  37-  38. 
 51  The  Conference  Report  to  the  1982  amendment  to  the  Act  that  added  this  definition  stated:  Willful  means  that 
 the  licensee  knew  he  was  doing  the  act  in  question,  regardless  of  whether  there  was  an  intent  to  violate  the  law.  H.  R.  Rep.  No.  97-  765,  97  th  Cong.  2d  Sess.  51  (1982).  The  Conference  Report  also  makes  it  clear  that  this  definition 

 applies  to  section  503(  b)  of  the  Act  as  well  as  section  312.  See  Southern  California  Broadcasting  Co.,  Memorandum  Opinion  and  Order,  6  FCC  Rcd  4387,  4388  (1991).  CBS  initially  acknowledges  that  the 
 Commission  has  held  that  in  order  to  satisfy  the  willfulness  requirement,  the  purported  offender  need  not  intend  to  violate  the  Act  or  an  FCC  rule,  or  even  be  aware  the  action  in  question  constitutes  a  violation.  Opposition  at  36. 
 Yet  on  the  next  page  of  its  Opposition  it  urges  us  to  apply  criminal  cases  in  which  the  scienter  requirement  has  been  held  to  require  an  act  done  with  a  bad  purpose  or  an  evil  motive.  Id.  at  37.  Clearly,  those  cases  have  no 
 application  in  interpreting  the  willfulness  requirement  in  a  regulatory  statute  authorizing  the  imposition  of  administrative  sanctions.  We  disagree  with  CBSs  contention  that  criminal  law  definitions  of  willful  are  apt 
 because  18  U.  S.  C.    1464  is  a  criminal  statute.  Id.  In  Pacifica,  the  Supreme  Court  declined  to  consider  questions  relating  to  possible  application  of  section  1464  as  a  criminal  statute  in  upholding  a  broadcast  indecency  forfeiture 
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 discussed  in  detail  below,  CBS  acted  willfully  because  it  consciously  and  deliberately  broadcast  the  halftime  show,  whether  or  not  it  intended  to  broadcast  nudity,  and  because  it  consciously  and  deliberately 
 failed  to  take  reasonable  precautions  to  ensure  that  no  actionably  indecent  material  was  broadcast.  52  CBS  also  is  vicariously  liable  for  the  willful  actions  of  the  performers  under  the  doctrine  of  respondeat 
 superior. 
 16.  The  Commissions  forfeiture  authority  was  enacted  to  impel  broadcast  licensees  to  become  familiar  with  the  terms  of  their  licenses  and  the  applicable  Rules,  and  to  adopt  procedures, 

 including  periodic  review  of  operations,  which  will  insure  that  stations  are  operated  in  substantial  compliance  with  their  licenses  and  the  Commissions  Rules.  53  The  obligation  of  licensees  to  adopt 
 measures  to  ensure  compliance  with  the  Act  and  the  Commissions  rules  has  particular  force  when  it  comes  to  broadcasters  responsibility  for  the  programming  that  they  broadcast  to  the  public.  Under  well-established 
 principles  of  broadcast  regulation,  [  b]  roadcast  licensees  must  assume  responsibility  for  all  material  which  is  broadcast  through  their  facilities,  and  that  duty  is  personal  to  the  licensee  and  may  not 
 be  delegated.  54 
 17.  CBS  claims  that  it  had  no  advance  knowledge  that  Timberlake  planned  to  tear  off  part  of  Jacksons  clothing  to  reveal  her  breast.  Even  assuming  that  this  claim  is  true,  however,  we  do  not  believe 

 that  this  relieves  CBS  from  responsibility  for  the  indecent  material  that  it  broadcast.  Rather,  the  record  reveals  that  CBS  was  acutely  aware  of  the  risk  of  unscripted  indecent  material  in  this  production,  but  failed 
 to  take  adequate  precautions  that  were  available  to  it  to  prevent  that  risk  from  materializing. 

 (...  continued  from  previous  page)  imposed  by  the  Commission.  FCC  v.  Pacifica  Foundation,  438  U.  S.  726,  739  n.  13  (1978)  (  the  validity  of  the  civil 
 sanctions  [authorized  under  the  Act]  is  not  linked  to  the  validity  of  the  criminal  penalty.).  Likewise,  we  reject  CBSs  suggestion  that  the  First  Amendment  requires  statutes  imposing  civil  penalties  on  speech  to  be  interpreted  to 
 include  the  same  scienter  requirement  as  those  imposing  criminal  penalties.  Opposition  at  38,  citing  United  States  v.  X-  Citement  Video,  Inc.,  513  U.  S.  64,  77-  78  (1994),  Smith  v.  California,  361  U.  S.  147  (1959),  and  United  States  v. 
 Reilly,  2002  WL  31307170  (S.  D.  N.  Y.  2002).  52 
 We  note  that  application  of  this  standard  to  CBS  does  not  impose  a  strict  liability  requirement  on  protected  speech.  Opposition  at  38,  citing  Gertz  v.  Robert  Welch,  Inc.,  418  U.  S.  323  (1974).  The  Supreme  Court  held  in 

 Gertz  that  the  States  should  retain  substantial  latitude  in  their  efforts  to  enforce  a  legal  remedy  for  defamatory  falsehood  injurious  to  the  reputation  of  a  private  individual,  so  long  as  they  do  not  impose  liability  without  fault. 
 Id.  at  345-  46.  As  discussed  infra,  CBS  clearly  is  at  fault  for  broadcasting  actionably  indecent  material  during  the  Super  Bowl  telecast.  We  also  note  that  CBSs  reliance  on  Saxe  v.  State  College,  240  F.  3d  200,  206  (3d  Cir.  2001), 
 as  holding  that  willful  indifference  is  a  legally  insufficient  basis  for  punishing  speech,  is  misplaced.  See  Opposition  at  38.  Saxe  held  that  a  school  district  policy  prohibiting  harassing  speech  was  unconstitutionally  overbroad 
 because  it  was  not  limited  to  vulgar  or  lewd  speech  or  school-  sponsored  speech,  and  was  not  necessary  to  prevent  substantial  disruption  or  interference  with  the  rights  of  students  or  the  conduct  of  the  school.  The  court  did  not 
 address  the  intent  required  to  impose  liability  for  expressive  speech  or  conduct  under  the  First  Amendment.  53 
 Crowell-  Collier  Broadcasting  Corp.,  Memorandum  Opinion  and  Order,  44  FCC  2444,  2449  (1961)  (violation  due  to  erroneous  advice  from  the  stations  competent  engineering  consultant  warrants  a  forfeiture). 

 54  Report  and  Statement  of  Policy  re:  Commission  en  banc  Programming  Inquiry,  44  FCC  Rcd  2303,  2313  (1960). 
 See  also  Yale  Broadcasting  Co.  v.  FCC,  478  F.  2d  594  (D.  C.  Cir.  ),  cert.  denied,  414  U.  S.  914  (1973)  (affirmed  action  of  Commission  reminding  broadcast  licensees  of  their  duty  to  have  knowledge  of  the  content  of  their 

 programming  and  on  the  basis  of  this  knowledge  to  evaluate  the  desirability  of  broadcasting  music  dealing  with  drug  use);  Gaffney  Broadcasting,  Inc.,  23  FCC  2d  912,  913  (1970)  (  licensees  are  responsible  for  the  selection  and 
 presentation  of  program  material  over  their  stations,  including  .  .  .  acts  or  omissions  of  their  employees);  Alabama  Educational  Television  Commission,  50  FCC  2d  461,  464  (1975)  (AETC  lost  its  license  in  part  because  it  failed  to 
 maintain  exclusive  authority  over  all  of  its  programming  decisions);  WCHS-  AM-  TV  Corp.,  8  FCC  2d  608,  609  (1967)  (maintenance  of  control  over  programming  is  a  most  fundamental  obligation  of  the  licensee). 
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 18.  It  is  disingenuous  for  CBS  to  argue  that  the  costume  reveal  was  as  much  a  shock  to  Viacom  as  to  everyone  else.  55  CBS  clearly  recognized  that  the  live  broadcast  of  the  Super  Bowl  halftime 
 show  posed  a  significant  risk  that  indecent  material  would  be  aired.  The  extensive  planning  and  preparation  for  the  show  highlighted  this  risk.  CBS  knew  that  MTV,  the  corporate  affiliate  that  was 
 producing  the  show,  was  seeking  to  push  the  envelope  by,  among  other  things,  including  sexually  provocative  performers  and  material.  56  In  fact,  the  NFL  expressed  concerns  about  whether  the  planned 
 halftime  show  might  be  heading  in  too  risqu  a  direction  and  rebuffed  MTVs  desire  to  feature  one  performer  because  of  a  prior  incident  in  which  the  performer  unexpectedly  removed  her  clothes  during  a 
 national  telecast  of  an  NFL  event.  57  MTV  sought  to  overcome  the  NFLs  objections  to  another  performer  by  offering  assurances  that  it  would  exercise  control  over  her  wardrobe  and  actions,  despite  its  own 
 doubts  about  its  ability  to  do  so.  58 
 19.  CBS  maintains  that  it  selected  Jackson  and  Timberlake  to  minimize  the  possibility  of  the  unexpected,  59  but  CBS  was  well  aware  that  their  selection  did  not  obviate  this  risk.  The  NFL 

 specifically  expressed  concerns  to  CBS  about  the  costume  that  Jackson  would  wear  during  the  halftime  show.  60  Moreover,  the  NFL  raised  concerns  about  Timberlakes  scripted  line  gonna  have  you  naked  by 
 the  end  of  this  song  that  anticipated  the  stunt  resulting  in  the  broadcast  nudity.  61  There  were  other  warning  signs  as  well.  In  a  January  28,  2004  news  item  posted  on  MTVs  website,  Jacksons 
 choreographer  predicted  that  Jacksons  performance  would  include  some  shocking  moments  and  said  I  dont  think  the  Super  Bowl  has  ever  seen  a  performance  like  this  .  .  .  62  Shortly  before  the  game,  one 
 halftime  show  performer  asked  about  the  length  of  the  audio  delay,  a  question  that  MTV  employees  evidently  recognized  implied  an  intention  to  depart  from  the  script.  63  Further,  MTV  learned  the  morning 
 of  the  Super  Bowl  telecast  of  plans  to  use  tearaway  cheerleading  outfits  for  dancers  in  another  halftime  performance  in  connection  with  a  scripted  line  (  I  wanna  take  my  clothes  off)  that  is  quite  similar  to 
 Timberlakes  line  (  gonna  have  you  naked  by  the  end  of  this  song).  64  The  record  reflects  CBSs  awareness  that  there  is  always  a  risk  that  performers  will  ad-  lib  remarks  or  take  unscripted  actions,  and 
 that  the  risk  level  varies  according  to  the  nature  of  the  performance.  65  In  sum,  there  was  a  significant  and 
 55  Opposition  at  iii. 
 56  See,  e.  g.,  CBS  Response,  App.  B-  C  at  Bates  stamped  pgs.  18,  176,  219,  314,  1175,  1229,  1456.  See  also  Super 
 Bowl  NAL,  19  FCC  Rcd  at  19238-  39    19  (discussing  MTVs  promotion  of  the  sexually-  provocative  nature  of  the  halftime  show  by,  inter  alia,  posting  on  its  website  a  news  item  entitled  Janet  Jacksons  Super  Bowl  Show 

 Promises  Shocking  Moments,    which  quoted  her  choreographer  Gil  Dulduleos  prediction  that  her  performance  would  include  some  shocking  moments.).  Confidential  Appendix  1. 
 57  See  CBS  Response,  App.  B  at  Bates  stamped  pgs.  72,  96,  195,  218-  19.  Confidential  Appendix  2. 
 58  See  CBS  Response,  App.  B  at  Bates  stamped  pgs.  123,  355,  447.  Confidential  Appendix  3. 
 59  Opposition  at  18.  See  CBS  Response  at  9  (stating  that  Jackson  and  Timberlake  were  proven,  experienced 
 talent).  60 
 See  CBS  Response,  App.  B  at  Bates  stamped  p.  72.  Confidential  Appendix  4.  61 
 See  CBS  Response,  App.  B  at  Bates  stamped  pgs.  39,  452-  54.  Confidential  Appendix  5.  Cf.  CBS  Radio  License,  Inc.  (WLLD(  FM)),  Notice  of  Apparent  Liability  for  Monetary  Forfeiture,  15  FCC  Rcd  23881,  23883,    8  (Enf.  Bur. 

 2000)  (given  licensees  awareness  of  the  actual  language  used  in  performers  recordings,  it  should  have  taken  precautions  to  avoid  airing  actionably  indecent  material  during  a  live,  unscripted  broadcast). 
 62  See  Super  Bowl  NAL,  19  FCC  Rcd  at  19238-  39,    19;  CBS  Response,  App.  D  at  Bates  stamped  pgs.  2659. 
 63  See  CBS  Response,  App.  B  at  Bates  stamped  p.  462.  Confidential  Appendix  6. 
 64  See  CBS  Response,  App.  B  at  Bates  stamped  p.  458.  Confidential  Appendix  7. 

 65  See  CBS  Response,  App.  B  at  Bates  stamped  pgs.  503-  04,  511,  527.  Confidential  Appendix  5,  8.  See  also  supra, 
   4.  The  risk  of  departures  from  the  script  was  heightened  here  not  only  by  the  suggestive  lyrics,  but  also  by  the  fact  that  the  line  which  occasioned  Jacksons  nudity  was  the  culminating  one  in  the  script;  the  record  reflects  both  the 

 performers  and  the  producers  desire  for  a  high-  impact  grand  finale  to  the  show.  Confidential  Appendix  9. 
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 foreseeable  risk  in  a  halftime  show  seeking  to  push  the  envelope  and  replete  with  sexual  content  that  performers  might  depart  from  script  and  staging,  and  this  is  particularly  true  of  Jackson  and  Timberlake 
 given  the  sexually-  provocative  nature  of  their  performance,  the  fact  that  it  was  promoted  as  shocking,  and  the  fact  that  it  culminated  with  the  scripted  line  gonna  have  you  naked  by  the  end  of  this  song.  66 
 Based  on  examination  of  the  record,  we  conclude  that  CBS  recognized  the  high  risk  that  this  broadcast  raised  of  airing  indecent  material.  67 

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

 66  See  Super  Bowl  NAL,  19  FCC  Rcd  at  19237,    17  n.  54,  citing  Complaints  Against  Various  Broadcast  Licensees 
 Regarding  Their  Airing  of  the  Golden  Globe  Awards  Program,  19  FCC  Rcd  4975,  4979  (2004)  (network  could  have  anticipated  that  a  recipient  at  a  live  award  ceremony  might  use  profanity  because  similar  mishaps  had  occurred 

 in  the  past).  CBS  points  out  that  the  Golden  Globe  Awards  Order  was  released  after  the  Super  Bowl  telecast,  Opposition  at  19,  but  the  issue  here  is  whether  CBS  could  have  anticipated  an  unscripted  costume  reveal,  not 
 whether  it  had  notice  of  the  Golden  Globe  Awards  Order.  67 
 See,  e.  g.,  supra,    2,  4  and  n.  4.  68 
 See  Opposition  at  5  (  Historically,  a  five-  second  delay  has  been  adequate  to  preclude  the  broadcast  of  any  spontaneous  or  unplanned  audio  material.  With  such  an  arrangement,  an  individual  from  the  broadcast  standards 

 department  monitors  the  transmission  of  a  live  event  and  manually  hits  the  button  to  delete  any  objectionable  material  before  it  is  broadcast.  Although  both  the  audio  and  visual  transmission  is  delayed,  five  seconds  does  not 
 provide  sufficient  time  to  edit  video  images.  Accordingly,  the  precaution  of  a  five-  second  delay  could  not  prevent  the  broadcast  of  the  unexpected  images  at  the  end  of  the  halftime  show.)  (emphasis  added).  As  indicated  above, 
 CBS  also  had  reason  to  believe  that  its  five-  second  audio  delay  might  be  inadequate  to  edit  unscripted  audio  material  during  the  halftime  show.  See  note  63  supra  and  accompanying  text. 
 69  CBS  Response  at  5. 
 70  Id.  at  5,  n.  13. 
 71  CBS  Response  at  5,  n.  13. 
 72  CBS  Response,  App.  B-  C  at  Bates  stamped  pgs.  168-  72,  431-  34,  2152-  2332,  2336-  42,  2469.  Confidential 
 Appendix  10.  CBS  did  not  provide  an  executed  agreement  for  either  Jackson  or  Timberlake  in  response  to  the  LOI,  but  none  of  the  contract  drafts  provided  by  CBS  refers  to  a  script  or  to  broadcast  standards  and  practices.  The 

 executed  agreement  for  Jacksons  choreographer  likewise  contains  no  such  references. 
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 MTVs  contract  with  the  NFL  required  MTV  to  communicate  those  standards  and  practices  to  all  performers.  73 
 21.  CBS  also  overstates  the  level  of  care  it  exercised  in  overseeing  the  halftime  production.  Critically,  it  failed  to  investigate  Jacksons  choreographers  shocking  moments  prediction,  which  was 
 posted  on  MTVs  website,  despite  CBSs  concern  about  unscripted  remarks  or  actions.  74  In  addition,  contrary  to  its  contention,  75  each  aspect  of  the  halftime  show  was  not  reviewed  in  advance  by  CBSs 
 Program  Practices  Department.  As  stated  above,  MTV  learned  for  the  first  time  on  the  morning  of  the  Super  Bowl  telecast  of  plans  for  dancers  to  use  tearaway  cheerleading  outfits  to  act  out  the  line  I  wanna 
 take  my  clothes  off.  76  It  does  not  appear  that  these  plans  were  reviewed  by  CBSs  Program  Practices  Department  because  the  rehearsals  that  CBS,  MTV  and  NFL  representatives  reviewed  occurred  several 
 days  before  the  Super  Bowl  telecast,  and  the  dancers  were  not  in  costume  during  the  scene  in  question.  77 
 22.  Under  these  circumstances,  we  believe  that  CBS  can  and  should  be  held  responsible  for  the  patently  offensive  material  that  it  broadcast  to  a  nationwide  audience.  A  contrary  result  would  permit 

 a  broadcast  licensee  to  stage  a  show  that  pushes  the  envelope,  send  that  show  out  over  the  air  waves,  knowingly  taking  the  risk  that  performers  will  engage  in  offensive  unscripted  acts  or  use  offensive 
 unscripted  language,  and  then  disavow  responsibility    leaving  no  one  legally  responsible  for  the  result.  We  believe  that  these  are  fully  appropriate  circumstances  for  application  of  the  conscious  and  deliberate 
 .  .  .  omission  basis  for  finding  willfulness  incorporated  by  Congress  into  Section  503(  b)  of  the  Act.  78 
 73  See  Confidential  Appendix  10.  Because  CBSs  failure  to  take  reasonable  precautions  to  prevent  the  broadcast  of 
 actionably  indecent  material  was  conscious  and  deliberate,  its  reliance  on  Mega  Communications  of  New  Britain  Licensee,  L.  L.  C.,  19  FCC  Rcd  11373  (Enf.  Bur.  2004),  is  misplaced.  See  Opposition  at  36,  n.  57  (  The  same  result 

 should  apply  here,  where  Viacom  took  all  reasonable  precautions  based  on  past  experience  including  inspecting  Ms.  Jacksons  costume  but  an  unforeseeable  violation  nevertheless  occurred.).  The  Bureau  held  in  Mega  that  a 
 licensee  did  not  commit  a  willful  violation  of  the  Commissions  antenna  structure  fencing  requirements  because  it  conducted  regular  inspections  in  compliance  with  those  requirements  and  the  problem  occurred  shortly  after  an 
 inspection  by  Mega.  As  the  above  discussion  indicates,  however,  CBS  consciously  failed  to  prevent  the  airing  of  indecent  material.  Moreover,  the  Mega  case  is  distinguishable  because  it  involved  actions  by  a  third  party,  not  the 
 licensee.  Vernon  Broadcasting,  Inc.,  Memorandum  Opinion  and  Order,  60  RR  2d  1275  (1986),  illustrates  this  distinction.  In  Vernon,  the  Commission  rescinded  a  forfeiture  liability  for  a  tower  fencing  violation  as  not  willful, 
 while  affirming  a  liability  for  an  unintentional  violation  of  the  public  file  rule.  The  distinction  between  the  two  situations  was  that  the  damage  to  the  fence  was  caused  by  vandals,  despite  the  stations  regular  process  of 
 inspections  and  repairs,  whereas  the  public  file  violation  arose  from  the  stations  own  actions.  74 
 See  note  62  supra  and  accompanying  text.  CBS  maintains  that  it  interpreted  the  shocking  moments  quote  innocently,  stating  that  it  believed  the  quote  referred  to  Timberlakes  surprise  guest  appearance,  and  that  it  did  not 

 stand  out  because  such  hyperbolic  language  is  not  uncommon  in  the  music  world.  Opposition  at  7-  8.  As  the  Commission  has  indicated,  CBSs  explanation  lacks  credibility.  See  NAL,  19  FCC  Rcd  at  19239,  n.  64  (  at  the  start 
 of  the  halftime  segment,  MTV  included  an  onscreen  credit  for  Timberlake,  hardly  a  disclosure  that  would  be  made  ten  minutes  before  his  appearance,  had  his  participation  in  the  program  been  the  shocking  moments  that  it  had 
 publicized  for  days  on  its  Internet  site.).  CBSs  explanation  also  is  dubious  in  light  of  the  fact  that  the  quote  referred  to  moments  in  the  plural,  whereas  it  would  have  been  expected  to  refer  to  a  moment  if  it  only 
 concerned  Timberlakes  appearance.  CBS  has  never  provided  a  statement  from  Jacksons  choreographer  to  explain  what  he  meant  by  the  quote.  But  even  accepting  CBSs  argument  that  the  choreographers  comment  may  have  been 
 innocent  hyperbole,  it  should  at  least  have  caused  CBS  to  look  into  the  matter,  given  the  level  of  concern  at  CBS  and  the  NFL  about  the  edgy  lyrics  and  the  possibility  of  inappropriate  script  departures.  CBS  gives  no  indication  that  it 
 did  so.  75 
 Opposition  at  4.  See  CBS  Response  at  9-  10.  76 
 See  CBS  Response,  App.  B  at  Bates  stamped  p.  458.  77 
 See  CBS  Response  at  9,  App.  B  at  Videotapes  6,  8  (Jackson/  Timberlake  Dress  Rehearsal).  78 
 47  U.  S.  C.    503(  b)(  1);  47  U.  S.  C.    312(  f). 
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 Indeed,  given  the  nondelegable  nature  of  broadcast  licensees  responsibility  for  programming  and  the  means  available  to  but  declined  by  CBS  to  reduce  the  risk  of  the  broadcast  of  indecent  programming,  it  is 
 difficult  to  conceive  of  a  more  appropriate  context  in  which  to  apply  that  standard. 
 23.  Further,  CBS  is  legally  responsible  here  for  another  reason;  it  is  fully  responsible  for  the  actions  of  Jackson,  Timberlake,  and  Jacksons  choreographer  under  the  doctrine  of  respondeat  superior. 

 It  is  well  established  that  traditional  vicarious  liability  rules  ordinarily  make  principals  or  employers  vicariously  liable  for  acts  of  their  agents  or  employees  in  the  scope  of  their  authority  or  employment.  79 
 The  Commission  has  long  held  licensees  responsible  for  the  unauthorized  acts  of  their  agents  under  this  doctrine.  80  Respondeat  superior  subjects  a  principal  to  vicarious  liability  when  its  agent-  employee 
 commits  a  tort  while  acting  within  the  scope  of  employment.  81  Whether  an  agent  is  an  employee  for  purposes  of  respondeat  superior  depends  on  whether  the  agent  is  subject  to  the  principals  control  or  right 
 to  control  the  performance  of  the  work.  82  An  agent-  employee  acts  within  the  scope  of  employment  when  performing  work  assigned  by  the  employer  or  engaging  in  a  course  of  conduct  subject  to  the  employers 
 control.  83 
 24.  It  is  appropriate  to  impose  vicarious  responsibility  on  CBS  for  the  willful  actions  of  Jackson,  Timberlake,  and  Jacksons  choreographer  under  the  doctrine  of  respondeat  superior.  Even 

 assuming  arguendo  that  the  corporate  officers  and  other  corporate  employees  of  CBS  and  MTV  did  not  act  willfully  within  the  meaning  of  section  503(  b)(  1),  there  is  no  question  that  the  performers  did. 
 Timberlakes  declaration  acknowledges  a  premeditated  plan  for  him  to  tear  off  part  of  Jacksons  clothing  during  the  performance.  84  Jackson,  Timberlake,  and  Jacksons  choreographer  were  CBS  agents  for  the 
 halftime  show  performance;  Jackson  and  Timberlake  entered  into  agreements  with  MTV  (MTV  and  CBS  at  the  time  were  both  Viacom  subsidiaries)  to  perform  during  the  halftime  show,  and  Gil  Duldulao 
 contractually  agreed  to  choreograph  the  dance.  85  Based  on  examination  of  the  record,  we  also  believe  that  the  three  were  CBS  employees  for  purposes  of  applying  the  principle  of  respondeat  superior.  CBS  had 
 the  right  to  control,  and  in  fact  exercised  considerable  control  over,  the  halftime  show: 
 Each  aspect  of  the  halftime  show  was  scripted  in  advance  and  a  script  of  the  halftime  show  was  reviewed  by  the  CBS  Program  Practices  Department.  In  addition,  employees  of  CBS, 

 79  Meyer  v.  Holley,  537  U.  S.  280,  285  (2003)  (citations  omitted). 
 80  See  Dial-  a-  Page,  Inc.,  8  FCC  Rcd  2767  (1993),  recon.  den.,  10  FCC  Rcd  8825  (1995)  (rule  violation  resulting 
 from  employee  error  was  fully  attributable  to  licensee  under  doctrine  of  respondeat  superior  and  willful  within  the  meaning  of    503(  b)(  1));  Wagenvoord  Broadcasting  Co.,  35  FCC  2d  361  (1972);  Eure  Family  Ltd.  Partnership,  17 

 FCC  Rcd  7042,  7044    7  (Enf.  Bur.  2002)  (  it  is  a  basic  tenet  of  agency  law  that  the  actions  of  an  employee  or  contractor  are  imputed  to  the  employer  and  the  Commission  has  consistently  refused  to  excuse  licensees  from 
 forfeiture  penalties  where  actions  of  employees  or  independent  contractors  have  resulted  in  violations.  ).  81 
 Restatement  (Second)  of  Agency    219(  1)  (1957)  (2  nd  Restatement).  See  also  Restatement  (Third)  of  Agency    7.07  (T.  D.  No.  5  2004)  (3  rd  Restatement). 

 82  2  nd  Restatement    220.  See  also  3  rd  Restatement    7.07. 
 83  2  nd  Restatement    228. 
 84  CBS  Response  at  Att.  8  (  At  the  end  of  the  song,  I  attempted  to  perform  a  costume  reveal  by  removing  a  portion  of 
 Ms.  Jacksons  costume  and  revealing  the  undergarment  beneath.  I  had  neither  the  intention  nor  the  knowledge  that  the  reveal  could  expose  her  right  breast.  The  decision  to  add  the  costume  reveal  to  the  finale  was  made  by  Ms.  Jackson 

 and  her  choreographer  after  final  rehearsals  for  the  Halftime  Show.  They  informed  me  just  before  the  performance  began.). 
 85  See  CBS  Response,  App.  B-  C  at  Bates  stamped  pgs.  168-  72,  431-  34,  2152-  2332,  2336-  42;  2  nd  Restatement    1 
 (  Agency  is  a  legal  concept  which  depends  upon  the  existence  of  required  factual  elements:  the  manifestation  by  the  principal  that  the  agent  shall  act  for  him,  the  agent's  acceptance  of  the  undertaking  and  the  understanding  of  the 

 parties  that  the  principal  is  to  be  in  control  of  the  undertaking.),  cited  in  Meyer  v.  Holley,  537  U.  S.  at  286. 
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 MTV,  and  the  NFL  attended  two  full  run-  throughs  of  the  halftime  show  on  Thursday,  January  29  to  review  the  production.  The  run-  throughs  were  videotaped,  and  reviewed  by 
 representatives  of  CBS  and  the  NFL.  MTV  producers  then  used  the  tape  to  individually  review  the  rehearsal  performances  with  the  talent  to  instruct  them  on  changes  to  be  made  in 
 the  actual  performance  on  Super  Bowl  Sunday.  Based  on  these  procedures,  certain  changes  were  made  to  the  show.  For  example,  the  costume  worn  by  one  of  the  dancers  during  the 
 run-  throughs  was  considered  to  be  too  revealing,  and  she  was  instructed  to  change  it  before  the  final  show.  There  was  also  concern  about  some  of  the  language,  and  changes  were 
 suggested.  .  .  .  Because  Ms.  Jackson  was  not  in  costume  during  the  run-  throughs,  an  executive  producer  subsequently  checked  to  make  sure  that  Ms.  Jacksons  wardrobe  would 
 conform  to  broadcast  standards  during  the  actual  performance.  86 
 25.  Thus,  CBS  exercised  control  over  all  aspects  of  the  performers  conduct  in  the  performance  of  the  halftime  show,  including  the  script,  staging  and  wardrobe  used  during  the  Jackson-Timberlake 
 performance.  Other  factual  indicia  of  control  are  present  as  well.  CBS  (through  MTV)  provided  the  set  and  set  elements  for  the  performance  and  dictated  its  time  and  place,  as  well  as  the  time 
 and  place  of  production  and  press-  related  activities.  87  Many  courts  have  held  entertainers  to  be  employees  for  respondeat  superior  and  other  purposes  under  similar  circumstances.  88  Finally,  the 
 performers  actions  were  clearly  within  the  scope  of  their  employment.  In  this  regard,  the  determining  factor  is  not  whether  their  actions  were  authorized  by  CBS  but  whether  the  performance  was  subject  to 
 CBSs  control.  89  Put  differently,  their  conduct  was  incident  to  the  performance  rather  than  an 
 86  CBS  Response  at  9-  10.  Although  CBS  had  the  right  to  exercise  control  over  the  halftime  show,  and  in  fact 
 exercised  considerable  control,  there  were,  as  discussed  above,  significant  lapses  in  the  level  of  care  that  it  exercised  in  overseeing  the  halftime  production.  See  para.  17-  22.  Those  lapses  in  supervision  do  not,  however,  negate  the  fact 

 that  the  performances  were  subject  to  CBSs  control  and  that  CBS  was  thus  vicariously  responsible  for  the  performers  actions  within  the  scope  of  their  employment  under  the  doctrine  of  respondeat  superior.  See  note  87 
 infra.  87 
 Id.  at  Bates-  stamped  pgs.  168-  72,  431-  34,  2336-  42.  See  2  nd  Restatement    220;  3  rd  Restatement    7.07  (relevant  factual  indicia  of  control  include  whether  the  agent  or  the  principal  supplies  the  tools  and  other  instrumentalities 

 required  for  the  work  and  the  place  in  which  to  perform  it).  88 
 See  P.  T.  Barnums  Nightclub  v.  Duhamell,  766  N.  E.  2d  729  (Ind.  App.  2002)  (referring  to  2  nd  Restatement  factors  in  affirming  denial  of  summary  judgment  as  to  whether  male  exotic  dancer  was  an  employee  for  respondeat  superior 

 purposes  where  the  Club  exercised  some  degree  of  control  over  Ajishegiris  work,  particularly  with  regard  to  work  hours,  conditions,  and  regulations,  and  was  in  the  business  of  displaying  adult  entertainers  (primarily  female),  but 
 did  not  dictate  the  stylistic  aspects  of  Ajishegiris  performance);  White  v.  Frenkel,  615  So.  2d  535,  538-  40  (La.  App.  3  Cir.  1993)  (professional  wrestler  was  employee  for  respondeat  superior  purposes  where,  inter  alia,  promoter 
 controlled  who  would  win  and  who  would  lose  wrestlers  matches  and  had  total  control  over  who,  where,  and  when  wrestler  wrestled);  Jeffcoat  v.  State  Dept.  of  Labor,  732  P.  2d  1073,  1075-  78  (Alaska  1987)  (dancer  was  employee 
 for  purposes  of  state  labor  statute  where,  inter  alia,  club  exercised  some  control  over  costumes  and  dances  and  total  control  over  music  and  dancers  working  hours);  Jack  Hammer  Assoc.  v.  Delmy  Productions,  Inc.,  499  N.  Y.  S.  2d 
 418,  419-  20  (1  st  Dept.  1986)  (actor  was  employee  for  purposes  of  determining  availability  of  workers  compensation  benefits  where  actor  entered  into  a  written  contract  for  a  stipulated  sum  for  a  term  certain,  time  and  place  for  his 
 work  was  determined  by  production  company,  actor  had  to  perform  in  a  certain  number  of  shows  at  specified  times,  and  he  had  to  follow  a  script  and  was  subject  to  supervision  of  plays  director).  New  York  state  courts  have 
 consistently  held  entertainers  to  be  employees  of  the  producers  who  engage  them.  See  Jack  Hammer  Assoc.,  499  N.  Y.  S.  2d  at  419-  20;  Challis  v.  Natl  Producing  Co.,  88  N.  Y.  S.  2d  731  (3d  Dept.  1949)  (circus  clown);  Berman  v. 
 Barone,  88  N.  Y.  S.  2d  327,  328  (3d  Dept.  1949)  (ballet  dancer  and  variety  artist).  See  also  In  re  Sims,  602  N.  Y.  S.  2d  225  (3d  Dept.  1993)  (finding  a  sufficient  degree  of  direction  and  control  by  a  conductor  who  hired  musicians  for 
 imposition  of  respondeat  superior  liability  although  supervision  was  not  direct).  Here,  the  performers  agreements  contain  choice-  of-  law  provisions  specifying  New  York  law.  CBS  Response  at  Bates-  stamped  pgs.  168-  72,  431-  34, 
 2336-  42.  89 
 2  nd  Restatement    228. 
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 independent  course  of  conduct  intended  to  serve  no  purpose  of  the  employer.  90  Accordingly,  the  performers  willful  actions  are  fully  attributable  to  CBS  under  the  doctrine  of  respondeat  superior 
 irrespective  of  whether  the  performers  actions  were  authorized  by  CBS. 
 26.  Amount  of  Forfeiture.  CBS  offers  a  variety  of  arguments  that  the  forfeiture  proposed  in  the  NAL  is  excessive  or  unfair.  First,  it  contends  that  it  is  unfair  to  impose  a  forfeiture  on  it,  when  no 

 forfeiture  was  imposed  on  those  affiliates  of  the  CBS  Television  Network  that  are  not  owned  by  CBS.  91  Second,  CBS  argues  that  the  NAL  improperly  cites  the  history  of  recent  indecent  broadcasts  by  CBS 
 owned  radio  stations  with  a  footnote  to  cases  that  are  not  completely  adjudicated.  92  Third,  CBS  maintains  that  the  forfeiture  is  excessive  in  relation  to  the  duration  of  the  nude  scene  and  in  light  of  CBSs 
 precautionary  measures.  93  Fourth,  CBS  argues  that  it  had  no  prior  notice  that  a  brief  scene  of  partial  nudity  constituted  actionable  indecency  and  thus  should  not  be  subject  to  any  forfeiture.  94 

 27.  We  conclude  that  CBSs  arguments  do  not  justify  a  reduction  in  the  amount  of  the  proposed  forfeiture.  The  NAL  proposed  no  forfeiture  against  CBS  Television  Network  affiliate  stations 
 that  are  not  owned  by  Viacom  because  there  is  no  evidence  that  the  licensees  of  any  of  those  stations  played  any  role  in  the  selection,  planning  or  approval  of  the  halftime  show  or  that  they  could  have 
 reasonably  anticipated  that  CBSs  production  of  the  halftime  show  would  include  partial  nudity.  CBS  has  not  provided  any  contrary  evidence.  In  contrast,  CBS  admits  that  it  was  closely  involved  in  the 
 production  of  the  halftime  show,  and  that  its  MTV  affiliate  produced  it. 
 28.  With  respect  to  the  NALs  reference  to  the  history  of  indecent  broadcasts  by  CBSs  radio  stations,  we  note  that  those  cases  have  been  resolved  by  a  Consent  Decree  in  which  CBS  admitted  to 

 certain  violations,  and  the  Commission  agreed  not  to  use  that  admission  against  CBS  in  any  other  proceeding,  including  this  one.  95  Accordingly,  we  no  longer  rely  on  that  history  of  indecent  broadcasts  in 
 reaching  our  determination  here.  Nevertheless,  we  remain  convinced  that  the  upward  adjustment  to  the  statutory  maximum  is  appropriate  in  light  of  all  of  the  factors  enumerated  in  section  503(  b)(  2)(  D)  of  the 
 Act,  particularly  the  circumstances  involving  the  preparation,  execution  and  promotion  of  the  halftime  show  by  CBS,  the  gravity  of  the  violation  in  light  of  the  nationwide  audience  for  the  indecent  broadcast, 

 90  3  rd  Restatement    7.07  (  an  employees  conduct  is  outside  the  scope  of  employment  when  it  occurs  within  an 
 independent  course  of  conduct  intended  to  serve  no  purpose  of  the  employer.).  See  also  id.  (  Alternative  formulations  avoid  the  use  of  motive  or  intention  to  determine  whether  an  employee's  tortious  conduct  falls  within 

 the  scope  of  employment.  These  tests  vary  somewhat  in  how  they  articulate  the  requisite  tie  between  the  tortfeasor's  employment  and  the  tort.  In  general,  such  a  tie  is  present  only  when  the  tort  is  a  generally  foreseeable  consequence 
 of  the  enterprise  undertaken  by  the  employer  or  is  incident  to  it.).  91 
 Opposition  at  14.  92 
 Id.  at  39-  40.  CBS  relies  on  section  504(  c)  of  the  Act,  which  provides  that  the  Commission  may  not  use  the  issuance  of  a  notice  of  apparent  liability  in  any  other  proceeding  involving  that  person  unless  the  forfeiture  has  been 

 paid  or  there  is  a  final  court  order  for  the  payment  of  the  forfeiture.  CBS  argues  that  the  Commission  not  only  must  ignore  cases  in  which  there  has  been  no  final  adjudication,  but  that  it  must  consider  CBSs  long  record  of 
 compliance  with  broadcast  standards.  Id.  at  42.  93 
 Id.  at  41-  43.  94 
 Id.  at  43.  95 
 See  Viacom  Inc.,  Order,  19  FCC  Rcd  23100  (2004),  petition  for  recon.  pending.  In  light  of  that  Consent  Decree,  entered  into  after  the  NAL,  we  conclude  that  CBSs  history  of  past  offenses  is  not  relevant  to  our  analysis.  We  note, 

 however,  that  we  disagree  with,  and  have  previously  rejected,  CBSs  interpretation  of  section  504(  c).  We  have  made  it  clear  that  the  Commission  may  rely  on  the  underlying  facts  that  provide  the  basis  for  a  notice  of  apparent 
 liability  in  a  separate  case.  See  Forfeiture  Policy  Statement  and  Amendment  of  Section  1.80  of  the  Rules  to  Incorporate  the  Forfeiture  Guidelines,  Report  and  Order,  15  FCC  Rcd  303,  304-  05,    3-  5  (1999)  (  Forfeiture 
 Policy  Statement),  recon.  denied,  17  FCC  Rcd  303  (1999). 
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 and  CBSs  ability  to  pay.  96  The  crux  of  CBSs  defense  is  that  the  blame  lies  with  the  performers  who  planned  and  carried  out  the  costume  reveal  that  resulted  in  the  exposure  of  Jacksons  breast.  However, 
 CBSs  attempt  to  place  blame  on  the  performers  in  question  is  unavailing;  as  discussed  above,  the  performers  were  acting  as  CBSs  agents  and  CBS  is  responsible  for  their  actions  within  the  scope  of  their 
 employment.  In  addition,  CBS  planned  almost  every  element  of  the  halftime  show.  In  the  course  of  doing  so,  it  brushed  off  warning  signs  of  the  potential  for  actionably  indecent  behavior  and  failed  to  take 
 adequate  precautions  to  prevent  the  airing  of  indecent  material.  As  a  result  of  its  decisions,  an  enormous  nationwide  audience,  97  including  numerous  children,  was  subjected  without  warning  to  the  offensive 
 spectacle  of  a  man  tearing  off  a  womans  clothing  on  stage  in  the  midst  of  a  sexually  charged  performance.  Finally,  regarding  the  element  of  ability  to  pay  and  financial  disincentives  to  violate  the  Act 
 and  rules,  98  we  find  that  CBSs  size  and  resources,  without  question,  support  an  upward  adjustment  to  the  maximum  statutory  forfeiture  of  $550,000  because  a  lesser  amount  would  not  serve  as  a  significant 
 penalty  or  deterrent  to  a  company  of  its  size  and  resources.  99 
 29.  We  also  reject  CBSs  claim  that  it  lacked  prior  notice  that  a  brief  scene  of  partial  nudity  might  result  in  a  forfeiture.  Our  rule  against  the  broadcast  of  indecent  material  outside  of  the  safe  harbor 

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

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

 97  See  http://  www.  usatoday.  com/  sports/  football/  super/  2004-  02-  02-  ratings_  x.  htm  (stating  that  Super  Bowl  XXXVIII 
 was  most-  watched  Super  Bowl  in  history  with  estimated  143.  6  million  viewers  and  41.  3  national  rating).  98 
 See  47  C.  F.  R.    1.80,  Note  to  Paragraph  (b)(  4),  Section  II,  Upward  Adjustment  Criterion  No.  2.  99 
 See  Viacom  Takes  Big  Write-  Down,  Creating  a  Loss,  New  York  Times,  Feb.  25,  2005,  at  C1  (reporting  that  Viacom,  Inc.  took  a  non-  cash  charge  for  2004  to  write  down  the  value  of  its  assets  by  27%,  to  $49  billion,  and  that 

 the  companys  revenue  for  the  final  quarter  of  2004  was  $6.  3  billion);  While  Shares  Fell,  Viacom  Paid  Three  $160  Million,  New  York  Times,  April  16,  2005,  at  C1  (reporting  that  the  companys  top  three  executives  received  a  total 
 of  $160  million  in  compensation  for  2004).  100 
 See  Enforcement  of  Prohibitions  Against  Broadcast  Indecency,  Report  and  Order,  8  FCC  Rcd  704  (1993),  modified,  10  FCC  Rcd  10558  (1995).  CBS,  Inc.  and  Infinity  Broadcasting  Corporation,  both  of  which  became 

 Viacom,  Inc.  subsidiaries,  submitted  comments  in  that  rulemaking  proceeding.  Id.,  8  FCC  Rcd  at  712.  101 
 Young  Broadcasting,  19  FCC  Rcd  at  1751  (release  date  of  January  27,  2004).  102 
 Opposition  at  19,  27-  28. 
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 to  the  facts  of  a  new  case  and  is  not  overruling  precedent.  Thus,  it  is  entirely  lawful  and  appropriate  to  impose  a  forfeiture  when  we  determine  that  the  licensee  has  violated  that  standard.  103 
 30.  Constitutional  Issues.  CBS  offers  a  number  of  arguments  attacking  the  constitutional  underpinnings  of  the  Commissions  indecency  framework.  We  find  no  merit  in  those  arguments. 
 31.  We  reject  CBSs  arguments  that  the  Commissions  indecency  standard  is  vague,  overbroad,  and  vests  the  Commission  with  excessive  discretion.  104  Courts  have  upheld  the  indecency 
 standard  applied  in  the  NAL  and  in  this  Order  against  facial  vagueness  and  overbreadth  challenges.  105  The  D.  C.  Circuit  also  has  rejected  the  argument  that  the  Commissions  indecency  standard  is  overbroad 
 because  it  may  encompass  material  with  serious  merit.  106  We  do  not  believe  that  requiring  broadcasters  to  exercise  care  to  prevent  a  televised  depiction  of  naked  sexual  organs  prior  to  10  p.  m.  unduly  chills 
 exercise  of  their  First  Amendment  rights.  As  the  D.  C.  Circuit  observed,  some  degree  of  self-  censorship  is  inevitable  and  not  necessarily  undesirable  so  long  as  proper  standards  are  available.  107 

 32.  We  also  disagree  with  CBS  that  the  NAL  is  inconsistent  with  the  Supreme  Courts  Pacifica  decision.  108  Pacifica  stressed  the  importance  of  contextual  analysis  such  as  that  reflected  in  this 
 Order.  109  Accordingly,  we  do  not  read  Pacifica  as  precluding  an  indecency  finding  based  on  a  brief  depiction  of  partial  nudity.  The  Supreme  Court  specifically  stated  that  it  had  not  decided  whether  an 
 occasional  expletive  in  a  different  setting  (e.  g.,  a  two-  way  radio  conversation  between  a  cab  driver  and  a  dispatcher,  or  a  telecast  of  an  Elizabethan  comedy)  would  justify  any  sanction.  110  The  Courts  emphasis 
 on  the  narrowness  of  its  holding  was  meant  to  highlight  the  all-  important  role  of  context,  not  to  deprive 
 103  As  we  find  CBS  legally  responsible  for  the  indecent  broadcast  based  on  both  its  own  willful  omission  and  its 
 vicarious  liability  for  the  willful  acts  of  its  agents  under  the  principle  of  respondeat  superior,  we  need  not  address  whether  it  could  also  be  held  responsible  under  Section  503(  b)(  1)(  D)  without  a  showing  of  willfulness. 

 104  Opposition  at  65-  77. 
 105  See  ACT  III,  58  F.  3d  at  659  (upholding  the  Commissions  indecency  definition  against  facial  vagueness  and 
 overbreadth  challenges).  CBSs  arguments  about  the  Commissions  discretion  focus  on  the  Commissions  investigatory  practices  in  cases  where  a  complaint  is  based  on  a  description  of  allegedly  offensive  programming,  and 

 not  supported  by  a  tape  or  a  transcript.  Opposition  at  74-  76.  However,  those  arguments  have  nothing  to  do  with  this  case,  in  which  there  was  no  dispute  about  what  was  broadcast  and  in  which  CBS  issued  a  public  apology  to  viewers 
 for  the  violation  of  its  broadcast  standards.  Similarly,  CBSs  contention  about  delay  in  the  Commissions  enforcement  process  (Opposition  at  76-  77)  is  irrelevant  to  this  case.  We  also  note  that  the  D.  C.  Circuit  has 
 previously  rejected  this  argument.  Action  for  Childrens  Television  v.  FCC,  59  F.  3d  1249,  1261-  62  (D.  C.  Cir.  1995)  (  ACT  IV),  cert.  denied,  516  U.  S.  1072  (1996). 
 106  Action  for  Childrens  Television  v.  FCC,  852  F.  2d  1332,  1339  (D.  C.  Cir.  1988)  (  ACT  I)  (  serious  merit  need 
 not,  in  every  instance,  immunize  material  from  FCC  channeling  authority).  107 
 ACT  IV,  59  F.  3d  at  1261;  see  ACT  III,  58  F.  3d  at  666  (  Whatever  chilling  effect  may  be  said  to  inhere  in  the  regulation  of  indecent  speech,  these  have  existed  ever  since  the  Supreme  Court  first  upheld  the  FCCs  enforcement 

 of  section  1464  of  the  Radio  Act.).  108 
 Opposition  at  44-  53.  In  making  this  argument,  CBS  generally  ignores  the  specific  context  of  this  case,  preferring  instead  to  opine  about  live  television  coverage  of  political  and  other  events  and  even  to  lament  the  end  of  live 

 broadcasting  as  we  know  it.  Id.  at  48.  We  reiterate  that  our  decision  is  limited  to  the  specific  context  of  this  case,  which  involves  a  Super  Bowl  halftime  entertainment  show  that  was  produced  by  CBS,  using  performers  selected 
 and  paid  by  CBS.  For  the  reasons  stated  in  the  NAL  and  in  this  Order,  there  is  ample  support  for  our  conclusion  that  CBS  failed  to  take  reasonable  precautions  to  ensure  that  no  actionably  indecent  material  was  broadcast  in  this 
 context.  109 
 Pacifica,  438  U.  S.  at  742  (  indecency  is  largely  a  function  of  context    it  cannot  be  adequately  judged  in  the  abstract). 

 110  Id.,  438  at  750;  see  id.  at  760-  61  (Powell,  J.,  concurring). 
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 the  Commission  of  power  to  regulate  broadcast  indecency  except  in  situations  involving  extended  or  repetitious  expletives  or  depictions  of  sexual  or  excretory  organs  or  activities.  111 
 33.  CBS  also  claims  that  the  constitutional  validity  of  our  indecency  enforcement  practice  has  been  undermined  by  a  changed  legal  and  technological  landscape,  citing  the  Supreme  Courts  decisions  in 
 United  States  v.  Playboy  Entertainment  Group,  Inc.,  112  Reno  v.  ACLU,  113  and  Denver  Area  Educational  Telecommunications  Consortium  v.  FCC,  114  and  pointing  to  the  pervasiveness  of  cable  and  satellite 
 television,  and  the  development  of  online  media  and  media  recording  technology  (e.  g.,  videocassette  recorders,  DVD  recorders  and  personal  video  recorders  featuring  time-  shifting  technology)  and  the  V-chip. 
 115  Again,  we  disagree.  In  striking  down  as  unconstitutional  an  Internet  indecency  standard,  the 
 Supreme  Court  expressly  recognized  in  Reno  the  special  justifications  for  regulation  of  the  broadcast  media,  citing  Red  Lion  and  Pacifica.  116  Moreover,  in  Denver  Area,  the  Court  addressed  the 

 constitutionality  of  a  Commission  order  implementing  provisions  of  the  1992  Cable  Television  Consumer  Protection  and  Competition  Act  that  concerned  indecent  and  obscene  cable  programming,  not  over-  the-  air 
 broadcasting.  We  find  nothing  in  that  opinion  that  undermines  the  constitutionality  of  our  framework  for  enforcing  our  rule  against  the  broadcast  of  indecent  material  outside  the  safe  harbor  hours. 

 34.  Furthermore,  CBSs  arguments  about  new  technologies  have  no  apparent  application  to  this  case.  The  V-  chip  technology  cannot  be  utilized  to  block  sporting  events  such  as  the  Super  Bowl  because 
 sporting  events  are  not  rated.  117  Nevertheless,  even  if  the  V-  chip  could  be  used  to  block  sporting  events,  based  on  CBSs  representations  it  appears  that  CBS  would  not  have  rated  the  Super  Bowl  halftime  show  as 
 inappropriate  for  children. 
 35.  Finally,  we  address  CBSs  dire  warnings  that  imposing  sanctions  in  this  case  will  have  a  chilling  effect  on  live  coverage  of  public  events,  such  as  national  political  conventions  and  presidential 

 scandals,  and  violates  the  Commissions  own  pledge  to  take  no  action  which  would  inhibit  broadcast 

 111  Id.  at  750.  The  D.  C.  Circuit  upheld  the  Commissions  interpretation  of  Pacifica  as  not  imposing  such  limits.  See 
 ACT  I,  852  F.  2d  at  1338  (upholding  the  Commissions  decision  to  depart  from  its  prior  policy  of  acting  only  in  cases  involving  the  repeated  use,  for  shock  value,  of  words  similar  to  those  satirized  in  the  Carlin  Filthy  Words 

 monologue.  .  .  .  The  FCC  rationally  determined  that  its  former  policy  could  yield  anomalous,  even  arbitrary,  results.). 
 112  529  U.  S.  803  (2000). 
 113  521  U.  S.  844  (1997). 
 114  518  U.  S.  717  (1996). 
 115  Opposition  at  53-  61. 
 116  Similarly,  in  Playboy,  the  Court  distinguished  broadcast  services  from  cable  due  to  differences  in  the  nature  of 
 those  media.  See  United  States  v.  Playboy  Entertainment  Group,  Inc.,  529  U.  S.  at  815.  117 
 See  Implementation  of  Section  551  of  the  Telecommunications  Act  of  1996,  Report  and  Order,  13  FCC  Rcd  8232,  8242-  43,    21  (1998)  (news  programming,  sports  programming  and  advertisements  are  not  included  in  the  V-  chip 

 ratings  system).  Outside  of  the  context  of  exempt  programming  such  as  sports  programming,  we  agree  that  the  V-chip  is  an  important  protection,  but  it  does  not  eliminate  the  need  for  enforcing  our  indecency  rule  or  undermine  the 
 constitutionality  of  that  rule.  We  note  that  last  year,  CBS  and  the  other  major  networks  announced  their  participation  with  the  Advertising  Council  in  an  educational  campaign  designed  to  improve  awareness  of  the  V-  chip. 
 The  announcement  stated  that  less  than  10  percent  of  all  parents  are  using  the  V-  chip  and  80  percent  of  all  parents  who  currently  own  a  television  set  with  a  V-  chip  are  not  aware  that  they  have  it.  See  News  Release,  The 
 Advertising  Council  and  Four  Major  Television  Networks  Announce  Unprecedented  Partnership  to  Educate  Parents  About  the  V-  Chip,  http://  www.  adcouncil.  org/  about/  news_  033004  (March  30,  2004).  In  addition,  numerous 
 television  sets  in  U.  S.  households  lack  V-  chips. 
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 journalism.  118  While  we  are  sensitive  to  the  impact  of  our  decisions  on  speech  and,  in  particular,  on  live  news  coverage,  we  do  not  believe  that  CBSs  fears  about  the  chilling  effect  of  our  decision  here  are  well-founded. 
 As  discussed  in  detail  above,  this  case  involves  a  staged  show  planned  by  CBS  and  its  affiliates,  under  circumstances  where  they  had  the  means  to  exercise  control  and  good  reasons  to  take  precautionary 
 measures.  These  circumstances  are  obviously  completely  different  from  live  coverage  of  breaking  news  events,  which  are  not  controlled  by  broadcasters,  and  this  decision  in  no  way  suggests  that  we  are  imposing 
 strict  liability  for  such  coverage  or,  indeed,  any  other  programming. 
 36.  Conclusion.  Under  section  503(  b)(  1)(  B)  of  the  Act,  any  person  who  is  determined  by  the  Commission  to  have  willfully  failed  to  comply  with  any  provision  of  the  Act  or  any  rule,  regulation,  or 

 order  issued  by  the  Commission  shall  be  liable  to  the  United  States  for  a  monetary  forfeiture  penalty.  119  In  order  to  impose  such  a  forfeiture  penalty,  the  Commission  must  issue  a  notice  of  apparent  liability,  the 
 notice  must  be  received,  and  the  person  against  whom  the  notice  has  been  issued  must  have  an  opportunity  to  show,  in  writing,  why  no  such  forfeiture  penalty  should  be  imposed.  120  The  Commission 
 will  then  issue  a  forfeiture  if  it  finds  by  a  preponderance  of  the  evidence  that  the  person  has  violated  the  Act  or  a  Commission  rule.  For  the  reasons  set  forth  above,  we  conclude  under  this  standard  that  CBS  is 
 liable  for  a  forfeiture  for  its  willful  violation  of  18  U.  S.  C.    1464  and  section  73.3999  of  the  Commissions  rules. 

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

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

 39.  Payment  of  the  forfeiture  shall  be  made  in  the  manner  provided  for  in  section  1.80  of  the  Commissions  rules  within  30  days  of  the  release  of  this  Order.  If  the  forfeiture  is  not  paid  within  the 
 period  specified,  the  case  may  be  referred  to  the  Department  of  Justice  for  collection  pursuant  to  section  504(  a)  of  the  Act.  125  Payment  of  the  forfeiture  must  be  made  by  check  or  similar  instrument,  payable  to 

 118  Opposition  at  53,  quoting  Pacifica  Reconsideration  Order,  59  FCC  2d  at  893.  See  also  Opposition  at  ix,  x,  46, 
 48-  53.  119 
 47  U.  S.  C.    503(  b)(  1)(  B);  47  C.  F.  R.    1.  80(  a)(  1).  120 
 47  U.  S.  C.    503(  b);  47  C.  F.  R.    1.80(  f).  121 
 Forfeiture  Policy  Statement,  12  FCC  Rcd  at  17113.  122 
 Id.,  12  FCC  Rcd  at  17100-  01,    27.  123 
 47  U.  S.  C.    503(  b).  124 
 47  C.  F.  R.    0.311,  1.  80(  f)(  4).  125 
 47  U.  S.  C.    504(  a). 
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 the  order  of  the  Federal  Communications  Commission.  The  payment  must  include  the  NAL/  Acct.  No.  referenced  above  and  the  FRN(  s)  referenced  in  the  Appendix.  Payment  by  check  or  money  order  may  be 
 mailed  to  Federal  Communications  Commission,  P.  O.  Box  358340,  Pittsburgh,  PA  15251-  8340.  Payment  by  overnight  mail  may  be  sent  to  Mellon  Bank/  LB  358340,  500  Ross  Street,  Room  1540670, 
 Pittsburgh,  PA  15251.  Payment  by  wire  transfer  may  be  made  to  ABA  Number  043000261,  receiving  bank  Mellon  Bank,  and  account  number  911-  6106. 

 40.  Requests  for  payment  under  an  installment  plan  should  be  sent  to:  Associate  Managing  Director  -  Financial  Operations,  445  12th  Street,  S.  W.,  Room  1-  A625,  Washington,  D.  C.  20554.  126 
 41.  IT  IS  FURTHER  ORDERED  THAT  a  copy  of  this  FORFEITURE  ORDER  shall  be  sent  by  Certified  Mail,  Return  Receipt  Requested  to  CBS  Corporation,  2000  K  Street,  N.  W.,  Suite  725, 
 Washington,  DC  20006,  and  to  its  counsel,  Robert  Corn-  Revere,  Esquire,  Davis  Wright  Tremaine  LLP,  1500  K  Street,  N.  W.,  Washington,  DC  20005. 

 FEDERAL  COMMUNICATIONS  COMMISSION 
 Marlene  H.  Dortch  Secretary 

 126  See  47  C.  F.  R.    1.1914. 
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 APPENDIX 
 CBS-  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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 STATEMENT  OF  CHAIRMAN  KEVIN  J.  MARTIN 
 Re:  Complaints  Against  Various  Television  Licensees  Concerning  Their  February  1,  2004  Broadcast  of  the  Super  Bowl  XXXVIII  Halftime  Show;  Complaints  Regarding  Various  Television  Broadcasts 
 Between  February  2,  2002  and  March  8,  2005;  Complaints  Against  Various  Television  Licensees  Concerning  Their  December  31,  2004  Broadcast  of  the  Program  Without  A  Trace 

 Congress  has  long  prohibited  the  broadcasting  of  indecent  and  profane  material  and  the  courts  have  upheld  challenges  to  these  standards.  But  the  number  of  complaints  received  by  the  Commission  has 
 risen  year  after  year.  They  have  grown  from  hundreds,  to  hundreds  of  thousands.  And  the  number  of  programs  that  trigger  these  complaints  continues  to  increase  as  well.  I  share  the  concerns  of  the  public  - 
 and  of  parents,  in  particular  -  that  are  voiced  in  these  complaints. 
 I  believe  the  Commission  has  a  legal  responsibility  to  respond  to  them  and  resolve  them  in  a  consistent  and  effective  manner.  So  I  am  pleased  that  with  the  decisions  released  today  the  Commission  is 
 resolving  hundreds  of  thousands  of  complaints  against  various  broadcast  licensees  related  to  their  televising  of  49  different  programs.  These  decisions,  taken  both  individually  and  as  a  whole,  demonstrate 
 the  Commissions  continued  commitment  to  enforcing  the  law  prohibiting  the  airing  of  obscene,  indecent  and  profane  material. 

 Additionally,  the  Commission  today  affirms  its  initial  finding  that  the  broadcast  of  the  Super  Bowl  XXXVIII  Halftime  Show  was  actionably  indecent.  We  appropriately  reject  the  argument  that  CBS 
 continues  to  make  that  this  material  is  not  indecent.  That  argument  runs  counter  to  Commission  precedent  and  common  sense. 
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 STATEMENT  OF  COMMISSIONER  MICHAEL  J.  COPPS 
 Re:  Complaints  Regarding  Various  Television  Broadcasts  Between  January  1,  2002  and  March  12,  2005,  Notices  of  Apparent  Liability  and  Memorandum  Opinion  and  Order 
 Complaints  Against  Various  Television  Licensees  Concerning  Their  December  31,  2004  Broadcast  of  the  Program  Without  A  Trace,  Notice  of  Apparent  Liability 
 Complaints  Against  Various  Television  Licensees  Concerning  Their  February  1,  2004  Broadcast  Of  The  Super  Bowl  XXXVII  Halftime  Show,  Forfeiture  Order 

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

 Todays  Orders  highlight  two  additional  issues  with  which  the  Commission  must  come  to  terms.  First,  it  is  time  for  the  Commission  to  look  at  indecency  in  the  broader  context  of  its  decisions  on  media 
 consolidation.  In  2003  the  FCC  sought  to  weaken  its  remaining  media  concentration  safeguards  without  even  considering  whether  there  is  a  link  between  increasing  media  consolidation  and  increasing 
 indecency.  Such  links  have  been  shown  in  studies  and  testified  to  by  a  variety  of  expert  witnesses.  The  record  clearly  demonstrates  that  an  overwhelming  number  of  the  Commissions  indecency  citations  have 
 gone  to  a  few  huge  media  conglomerates.  One  recent  study  showed  that  the  four  largest  radio  station  groups  which  controlled  just  under  half  the  radio  audience  were  responsible  for  a  whopping  96  percent  of 
 the  indecency  fines  levied  by  the  FCC  from  2000  to  2003. 
 One  of  the  reasons  for  the  huge  volume  of  complaints  about  excessive  sex  and  graphic  violence  in  the  programming  we  are  fed  may  be  that  people  feel  increasingly  divorced  from  their  local  media. 
 They  believe  the  media  no  longer  respond  to  their  local  communities.  As  media  conglomerates  grow  ever  larger  and  station  control  moves  farther  away  from  the  local  community,  community  standards  seem  to 
 count  for  less  when  programming  decisions  are  made.  Years  ago  we  had  independent  programming  created  from  a  diversity  of  sources.  Networks  would  then  decide  which  programming  to  distribute.  Then 
 local  affiliates  would  independently  decide  whether  to  air  that  programming.  This  provided  some  real  checks  and  balances.  Nowadays  so  many  of  these  decisions  are  made  by  vertically-  integrated 
 conglomerates  headquartered  far  away  from  the  communities  they  are  supposed  to  be  serving  entities  that  all  too  often  control  both  the  distribution  and  the  production  content  of  the  programming. 

 If  heightened  media  consolidation  is  indeed  a  source  for  the  violence  and  indecency  that  upset  so  many  parents,  shouldnt  the  Commission  be  cranking  that  into  its  decisions  on  further  loosening  of  the 
 ownership  rules?  I  hope  the  Commission,  before  voting  again  on  loosening  its  media  concentration  protections,  will  finally  take  a  serious  look  at  this  link  and  amass  a  credible  body  of  evidence  and  not  act 
 again  without  the  facts,  as  it  did  in  2003. 
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 Second,  a  number  of  these  complaints  concern  graphic  broadcast  violence.  The  Commission  states  that  it  has  taken  comment  on  this  issue  in  another  docket.  It  is  time  for  us  to  step  up  to  the  plate  and 
 tackle  the  issue  of  violence  in  the  media.  The  U.  S.  Surgeon  General,  the  American  Academy  of  Pediatrics,  the  American  Psychological  Association,  the  American  Medical  Association,  and  countless 
 other  medical  and  scientific  organizations  that  have  studied  this  issue  have  reached  the  same  conclusion:  exposure  to  graphic  and  excessive  media  violence  has  harmful  effects  on  the  physical  and  mental  health 
 of  our  children.  We  need  to  complete  this  proceeding. 
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 STATEMENT  OF  COMMISSIONER  JONATHAN  S.  ADELSTEIN 
 CONCURRING 
 Re:  Complaints  Against  Various  Television  Licensees  Concerning  Their  February  1,  2004  Broadcast  of  the  Super  Bowl  XXXVIII  Halftime  Show,  Forfeiture  Order 

 I  have  sworn  an  oath  to  uphold  the  Constitution  1  and  to  carry  out  the  laws  adopted  by  Congress.  2  Trying  to  find  a  balance  between  these  obligations  has  been  challenging  in  many  of  the  indecency  cases 
 that  I  have  decided.  I  believe  it  is  our  duty  to  regulate  the  broadcast  of  indecent  material  to  the  fullest  extent  permissible  by  the  Constitution  because  safeguarding  the  well-  being  of  our  children  is  a 
 compelling  national  interest.  3  I  therefore  have  supported  efforts  to  step  up  our  enforcement  of  indecency  laws  since  I  joined  the  Commission. 

 The  Commissions  authority  to  regulate  indecency  over  the  public  airwaves  was  narrowly  upheld  by  the  Supreme  Court  with  the  admonition  that  we  should  exercise  that  authority  with  the  utmost 
 restraint,  lest  we  inhibit  constitutional  rights  and  transgress  constitutional  limitations  on  government  regulation  of  protected  speech.  4  Given  the  Courts  guidance  in  Pacifica,  the  Commission  has  repeatedly 
 stated  that  we  would  judiciously  walk  a  tightrope  in  exercising  our  regulatory  authority.  5  Hence,  within  this  legal  context,  a  rational  and  principled  restrained  enforcement  policy  is  not  a  matter  of  mere 
 regulatory  convenience.  It  is  a  constitutional  requirement.  6 
 Accordingly,  I  concur  with  todays  Super  Bowl  Order,  but  concur  in  part  and  dissent  in  part  with  the  companion  Omnibus  Order  7  because,  while  in  some  ways  todays  Omnibus  decision  goes  too  far,  in 
 other  ways  it  does  not  go  far  enough.  Significantly,  it  abruptly  departs  from  our  precedents  by  adopting  a  new,  weaker  enforcement  mechanism  that  arbitrarily  fails  to  assess  fines  against  broadcasters  who  have 
 aired  indecent  material.  Additionally,  while  todays  Omnibus  decision  appropriately  identifies  violations  of  our  indecency  laws,  not  every  instance  determined  to  be  indecent  meets  that  standard. 

 We  have  previously  sought  to  identify  all  broadcasters  who  have  aired  indecent  material,  and  hold  them  accountable.  In  the  Omnibus  Order,  however,  the  Commission  inexplicably  fines  only  the 
 licensee  whose  broadcast  of  indecent  material  was  the  subject  of  a  viewers  complaint,  even  though  we  know  millions  of  other  Americans  were  exposed  to  the  offending  broadcast.  I  cannot  find  anywhere  in 

 1  U.  S.  CONST.,  amend.  I. 
 2  Congress  has  specifically  forbidden  the  broadcast  of  obscene,  indecent  or  profane  language.  18  U.  S.  C.    1464.  It 
 has  also  forbidden  censorship.  47  U.  S.  C.    326.  3 
 See,  e.  g.,  N.  Y.  v.  Ferber,  458  U.  S.  747,  756-  57  (1982).  4 
 See  FCC  v.  Pacifica  Foundation,  438  U.  S.  726,  750  (1978)  (emphasizing  the  narrowness  of  the  Courts  holding);  Action  for  Childrens  Television  v.  FCC,  852  F.  2d  1332,  1344  (D.  C.  Cir.  1988)  (  ACT  I)  (  Broadcast 

 material  that  is  indecent  but  not  obscene  is  protected  by  the  [F]  irst  [A]  mendment.).  5 
 See  Brief  for  Petitioner,  FCC,  1978  WL  206838  at  *9.  6 
 ACT  I,  supra  note  4,  at  1344  (  the  FCC  may  regulate  [indecent]  material  only  with  due  respect  for  the  high  value  our  Constitution  places  on  freedom  and  choice  in  what  the  people  say  and  hear.);  Id.  at  1340  n.  14  ([  T]  he 

 potentially  chilling  effect  of  the  FCCs  generic  definition  of  indecency  will  be  tempered  by  the  Commissions  restrained  enforcement  policy.). 

 7  Complaints  Regarding  Various  Television  Broadcasts  Between  February  2,  2002  and  March  8,  2005,  Notices  of 
 Apparent  Liability  and  Memorandum  Opinion  and  Order  (decided  March  15,  2006)  (hereinafter  Omnibus  Order). 
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 the  law  that  Congress  told  us  to  apply  indecency  regulations  only  to  those  stations  against  which  a  complaint  was  specifically  lodged.  The  law  requires  us  to  prohibit  the  broadcast  of  indecent  material, 
 period.  This  means  that  we  must  enforce  the  law  anywhere  we  determine  it  has  been  violated.  It  is  willful  blindness  to  decide,  with  respect  to  network  broadcasts  we  know  aired  nationwide,  that  we  will 
 only  enforce  the  law  against  the  local  station  that  happens  to  be  the  target  of  viewer  complaints.  How  can  we  impose  a  fine  solely  on  certain  local  broadcasters,  despite  having  repeatedly  said  that  the  Commission 
 applies  a  national  indecency  standard    not  a  local  one?  8 
 The  failure  to  enforce  the  rules  against  some  stations  but  not  others  is  not  what  the  courts  had  in  mind  when  they  counseled  restraint.  In  fact,  the  Supreme  Courts  decision  in  Pacifica  was  based  on  the 
 uniquely  pervasive  characteristics  of  broadcast  media.  9  It  is  patently  arbitrary  to  hold  some  stations  but  not  others  accountable  for  the  same  broadcast.  We  recognized  this  just  two  years  ago  in  Married  By 
 America.  10  The  Commission  simply  inquired  who  aired  the  indecent  broadcast  and  fined  all  of  those  stations  that  did  so. 

 In  the  Super  Bowl  XXXVIII  Halftime  Show  decision,  we  held  only  those  stations  owned  and  operated  by  the  CBS  network  responsible,  under  the  theory  that  the  affiliates  did  not  expect  the  incident 
 and  it  was  primarily  the  networks  fault.  11  I  dissented  in  part  to  that  case  because  I  believed  we  needed  to  apply  the  same  sanction  to  every  station  that  aired  the  offending  material.  I  raise  similar  concerns  today, 
 in  the  context  of  the  Omnibus  Order. 
 The  Commission  is  constitutionally  obligated  to  decide  broadcast  indecency  and  profanity  cases  based  on  the  contemporary  community  standard,  which  is  that  of  the  average  broadcast  viewer  or 
 listener.  The  Commission  has  explained  the  contemporary  community  standard,  as  follows: 
 We  rely  on  our  collective  experience  and  knowledge,  developed  through  constant  interaction  with  lawmakers,  courts,  broadcasters,  public  interest  groups  and  ordinary 
 citizens,  to  keep  abreast  of  contemporary  community  standards  for  the  broadcast  medium.  12 

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

 8  See,  e.  g.,  In  re  Sagittarius  Broadcasting  Corporation,  Memorandum  Opinion  and  Order,  7  FCC  Rcd  6873,  6876 
 (1992)  (subsequent  history  omitted).  9 
 See  Pacifica  Found.,  438  U.  S.  at  748-  49  (recognizing  the  uniquely  pervasive  presence  of  broadcast  media  in  the  lives  of  all  Americans).  In  todays  Order,  paragraph  10,  the  Commission  relies  upon  the  same  rationale. 

 10  See  Complaints  Against  Various  Licensees  Regarding  Their  Broadcast  of  the  Fox  Television  Network  Program 
 Married  by  America  on  April  7,  2003,  Notice  of  Apparent  Liability  for  Forfeiture,  19  FCC  Rcd  20191,  20196  (2004)  (proposing  a  $7,000  forfeiture  against  each  Fox  Station  and  Fox  Affiliate  station);  reconsideration  pending. 

 See  also  Clear  Channel  Broadcast  Licenses,  Inc.,  19  FCC  Rcd  6773,  6779  (2004)  (proposing  a  $495,  000  fine  based  on  a  per  utterance  calculation,  and  directing  an  investigation  into  stations  owned  by  other  licensees  that  broadcast 
 the  indecent  program).  In  the  instant  Omnibus  Order,  however,  the  Commission  inexplicably  fines  only  the  licensee  whose  broadcast  of  indecent  material  was  actually  the  subject  of  a  viewers  complaint  to  the  Commission.  Id.  at   
 71.  11 
 See  Complaints  Against  Various  Television  Licensees  Concerning  Their  February  1,  2004,  Broadcast  of  the  Super  Bowl  XXXVIII  Halftime  Show,  Notice  of  Apparent  Liability,  19  FCC  Rcd  19230  (2004). 

 12  In  re  Infinity  Radio  License,  Inc.,  Memorandum  Opinion  and  Order,  19  FCC  Rcd  5022,  5026  (2004). 
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 The  Omnibus  Order  builds  on  one  of  the  most  difficult  cases  we  have  ever  decided,  the  Golden  Globe  Awards  case,  13  and  stretches  it  beyond  the  limits  of  our  precedents  and  constitutional  authority. 
 The  precedent  set  in  that  case  has  been  contested  by  numerous  broadcasters,  constitutional  scholars  and  public  interest  groups  who  have  asked  us  to  revisit  and  clarify  our  reasoning  and  decision.  Rather  than 
 reexamining  that  case,  the  majority  uses  the  decision  as  a  springboard  to  add  new  words  to  the  pantheon  of  those  deemed  to  be  inherently  sexual  or  excretory,  and  consequently  indecent  and  profane,  irrespective 
 of  their  common  meaning  or  of  a  fleeting  and  isolated  use.  By  failing  to  address  the  many  serious  concerns  raised  in  the  reconsideration  petitions  filed  in  the  Golden  Globe  Awards  proceeding,  before 
 prohibiting  the  use  of  additional  words,  the  Commission  falls  short  of  meeting  the  constitutional  standard  and  walking  the  tightrope  of  a  restrained  enforcement  policy. 

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

 The  perilous  course  taken  today  is  evident  in  the  approach  to  the  acclaimed  Martin  Scorsese  documentary,  The  Blues:  Godfathers  and  Sons.  It  is  clear  from  a  common  sense  viewing  of  the 
 program  that  coarse  language  is  a  part  of  the  culture  of  the  individuals  being  portrayed.  To  accurately  reflect  their  viewpoint  and  emotions  about  blues  music  requires  airing  of  certain  material  that,  if 
 prohibited,  would  undercut  the  ability  of  the  filmmaker  to  convey  the  reality  of  the  subject  of  the  documentary.  This  contextual  reasoning  is  consistent  with  our  decisions  in  Saving  Private  Ryan  14  and 
 Schindlers  List.  15 
 The  Commission  has  repeatedly  reaffirmed,  and  the  courts  have  consistently  underscored,  the  importance  of  content  and  context.  The  majoritys  decision  today  dangerously  departs  from  those 
 precedents.  It  is  certain  to  strike  fear  in  the  hearts  of  news  and  documentary  makers,  and  broadcasters  that  air  them,  which  could  chill  the  future  expression  of  constitutionally  protected  speech. 

 We  should  be  mindful  of  Justice  Harlans  observation  in  Cohen  v.  California.  16  Writing  for  the  Court,  he  observed: 
 [W]  ords  are  often  chosen  as  much  for  their  emotive  as  their  cognitive  force.  We  cannot  sanction  the  view  that  the  Constitution,  while  solicitous  of  the  cognitive  content  of 
 individual  speech,  has  little  or  no  regard  for  that  emotive  function  which,  practically  speaking,  may  often  be  the  more  important  element  of  the  overall  message  sought  to  be 
 communicated.  17 
 13  In  re  Complaints  Against  Broadcast  Licensees  Regarding  Their  Airing  of  the  Golden  Globe  Awards  Program, 
 Memorandum  Opinion  and  Order,  19  FCC  Rcd  4975  (2004);  petitions  for  stay  and  reconsideration  pending.  14 
 In  the  Matter  of  Complaints  Against  Various  Television  Licensees  Regarding  Their  Broad.  on  November  11,  2004,  of  the  ABC  Television  Networks  Presentation  of  the  Film,  Saving  Private  Ryan,  Memorandum  Opinion  and 

 Order,  20  FCC  Rcd  4507,  4513  (2005)  (  Deleting  all  [indecent]  language  or  inserting  milder  language  or  bleeping  sounds  into  the  film  would  have  altered  the  nature  of  the  artistic  work  and  diminished  the  power,  realism  and 
 immediacy  of  the  film  experience  for  viewers.).  See  also  Peter  Branton,  Letter  by  Direction  of  the  Commission,  6  FCC  Rcd  610  (1991)  (concluding  that  repeated  use  of  the  f-  word  in  a  recorded  news  interview  program  not  indecent 
 in  context).  15 
 In  the  Matter  of  WPBN/  WTOM  License  Subsidiary,  Inc.,  15  FCC  Rcd  1838  (2000).  16 
 403  U.  S.  15  (1971).  17 
 Id.  at  26  (  We  cannot  indulge  the  facile  assumption  that  one  can  forbid  particular  words  without  also  running  a  substantial  risk  of  suppressing  ideas  in  the  process.). 
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 Given  all  of  these  considerations,  I  find  that  the  Omnibus  Order,  while  reaching  some  appropriate  conclusions  both  in  identifying  indecent  material  and  in  dismissing  complaints,  is  in  some  ways 
 dangerously  off  the  mark.  I  cannot  agree  that  it  offers  a  coherent,  principled  long-  term  framework  that  is  rooted  in  common  sense.  In  fact,  it  may  put  at  risk  the  very  authority  to  protect  children  that  it  exercises 
 so  vigorously. 
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 STATEMENT  OF  COMMISSIONER  DEBORAH  TAYLOR  TATE 
 Re:  Complaints  Against  Various  Television  Licensees  Concerning  Their  February  1,  2004  Broadcast  of  the  Super  Bowl  XXXVIII  Halftime  Show,  Forfeiture  Order;  Complaints  Regarding  Various  Television 
 Broadcasts  Between  February  2,  2002  and  March  8,  2005,  Notices  of  Apparent  Liability  and  Memorandum  Opinion  and  Order;  Complaints  Against  Various  Television  Licensees  Concerning  Their 
 December  31,  2004  Broadcast  of  the  Program  Without  A  Trace,  Notice  of  Apparent  Liability  for  Forfeiture 

 Today  marks  my  first  opportunity  as  a  member  of  the  Federal  Communications  Commission  to  uphold  our  responsibility  to  enforce  the  federal  statute  prohibiting  the  airing  of  obscene,  indecent  or 
 profane  language.  1  To  be  clear    I  take  this  responsibility  very  seriously.  Not  only  is  this  the  law,  but  it  also  is  the  right  thing  to  do. 

 One  of  the  bedrock  principles  of  the  Communications  Act  of  1934,  as  amended,  is  that  the  airwaves  belong  to  the  public.  Much  like  public  spaces  and  national  landmarks,  these  are  scarce  and 
 finite  resources  that  must  be  preserved  for  the  benefit  of  all  Americans.  If  numbers  are  any  indication,  many  Americans  are  not  happy  about  the  way  that  their  airwaves  are  being  utilized.  The  number  of 
 complaints  filed  with  the  FCC  reached  over  one  million  in  2004.  Indeed,  since  taking  office  in  January  2006,  I  have  received  hundreds  of  personal  e-  mails  from  people  all  over  this  country  who  are  unhappy 
 with  the  content  to  which  they    and,  in  particular,  their  families    are  subjected. 
 I  have  applauded  those  cable  and  DBS  providers  for  the  tools  they  have  provided  to  help  parents  and  other  concerned  citizens  filter  out  objectionable  content.  Parental  controls  incorporated  into  cable 
 and  DBS  set-  top  boxes,  along  with  the  V-  Chip,  make  it  possible  to  block  programming  based  upon  its  content  rating.  However,  these  tools,  even  when  used  properly,  are  not  a  complete  solution.  One  of  the 
 main  reasons  for  that  is  because  much  of  the  content  broadcast,  including  live  sporting  events  and  commercials,  are  not  rated  under  the  two  systems  currently  in  use. 

 I  also  believe  that  consumers  have  an  important  role  to  play  as  well.  Caregivers    parents,  in  particular    need  to  take  an  active  role  in  monitoring  the  content  to  which  children  are  exposed.  Even  the 
 most  diligent  parent,  however,  cannot  be  expected  to  protect  their  children  from  indecent  material  broadcast  during  live  sporting  events  or  in  commercials  that  appear  during  what  is  marketed  to  be 
 appropriate  programming. 
 Today,  we  are  making  significant  strides  toward  addressing  the  backlog  of  indecency  complaints  before  this  agency.  The  rules  are  simple    you  break  them  and  we  will  enforce  the  law,  just  as  we  are 
 doing  today.  Both  the  public  and  the  broadcasters  deserve  prompt  and  timely  resolution  of  complaints  as  they  are  filed,  and  I  am  glad  to  see  us  act  to  resolve  these  complaints.  At  the  same  time,  however,  I  would 
 like  to  raise  a  few  concerns  regarding  the  complaints  we  address  in  these  decisions. 
 First,  I  would  like  to  discuss  the  complaint  regarding  the  6:  30  p.  m.  Eastern  Daylight  Time  airing  of  an  episode  of  The  Simpsons.  The  Order  concludes  that  this  segment  is  not  indecent,  in  part  because  of 
 the  fact  that  The  Simpsons  is  a  cartoon.  Generally  speaking,  cartoons  appeal  to  children,  though  some  may  cater  to  both  children  and  adults  simultaneously.  Nevertheless,  the  fact  remains  that  children  were 
 extremely  likely  to  have  been  in  the  viewing  audience  when  this  scene  was  broadcast.  Indeed,  the  marketing  is  aimed  at  children.  If  the  scene  had  involved  real  actors  in  living  color,  at  5:  30  p.  m.  Central 

 1  See  18  U.  S.  C.    1464. 
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 Standard  Time,  I  wonder  if  our  decision  would  have  been  different?  One  might  argue  that  the  cartoon  medium  may  be  a  more  insidious  means  of  exposing  young  people  to  such  content.  By  their  very  nature, 
 cartoons  do  not  accurately  portray  reality,  and  in  this  instance  the  use  of  animation  may  well  serve  to  present  that  material  in  a  more  flattering  light  than  it  would  if  it  were  depicted  through  live  video.  I  stop 
 short  of  disagreeing  with  our  decision  in  this  case,  but  note  that  the  animated  nature  of  the  broadcast,  in  my  opinion,  may  be  cause  for  taking  an  even  closer  look  in  the  context  of  our  indecency  analysis. 

 Second,  our  conclusion  regarding  the  9:  00  p.  m.  Central  Standard  Time  airing  of  an  episode  of  Medium  in  which  a  woman  is  shot  at  point-  blank  range  in  the  face  by  her  husband  gives  me  pause.  While 
 I  agree  with  the  result  in  this  case,  I  question  our  conclusion  that  the  sequence  constitutes  violence  per  se  and  therefore  falls  outside  the  scope  of  the  Commissions  definition  of  indecency.  Without  question,  this 
 scene  is  violent,  graphically  so.  Moreover,  it  is  presented  in  a  way  that  appears  clearly  designed  to  maximize  its  shock  value.  And  therein  lies  my  concern.  One  of  the  primary  ways  that  this  scene  shocks 
 is  that  it  leads  the  viewer  to  believe  that  the  action  is  headed  in  one  direction    through  dialogue  and  actions  which  suggest  that  interaction  of  a  sexual  nature  is  about  to  occur    and  then  abruptly  erupts  in 
 another    the  brutally  violent  shooting  of  a  wife  by  her  husband,  in  the  head,  at  point-  blank  range.  Even  though  the  Commissions  authority  under  Section  1464  is  limited  to  indecent,  obscene,  and  profane 
 content,  and  thus  does  not  extend  to  violent  matter,  the  use  of  violence  as  the  punch  line  of  titillating  sexual  innuendo  should  not  insulate  broadcast  licensees  from  our  authority.  To  the  contrary,  the  use  of 
 sexual  innuendo  may,  depending  on  the  specific  case,  subject  a  licensee  to  potential  forfeiture,  regardless  of  the  overall  violent  nature  of  the  sequence  in  which  such  sexual  innuendo  is  used. 
 *  *  *  Finally,  I  would  like  to  express  my  hope  and  belief  that  the  problem  of  indecent  material  is  one 
 that  can  be  solved.  Programmers,  artists,  writers,  broadcasters,  networks,  advertisers,  parents,  public  interest  groups,  and,  yes,  even  Commissioners  can  protect  two  of  our  countrys  most  valuable  resources: 
 the  public  airwaves  and  our  childrens  minds.  We  must  take  a  stand  against  programming  that  robs  our  children  of  their  innocence  and  constitutes  an  unwarranted  intrusion  into  our  homes.  By  working 
 together,  we  should  promote  the  creation  of  programming  that  is  not  just  entertaining,  but  also  positive,  educational,  healthful,  and,  perhaps,  even  inspiring. 
30