No.            
In the Supreme Court of the United States
FEDERAL COMMUNICATIONS COMMISSION
AND UNITED STATES OF AMERICA, PETITIONERS
v.
CBS CORPORATION, CBS BROADCASTING, INC.,
CBS TELEVISION STATIONS, INC., CBS STATIONS
GROUP OF TEXAS L.P., AND KUTV HOLDINGS, INC.
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS 
FOR THE THIRD CIRCUIT
PETITION FOR A WRIT OF CERTIORARI
MATTHEW B. BERRY
General Counsel
JOSEPH R. PALMORE
Deputy General Counsel
JACOB M. LEWIS
Associate General Counsel
Federal Communications
Commission
Washington, D.C. 20554
GREGORY G. GARRE
Solicitor General
Counsel of Record
GREGORY G. KATSAS
Assistant Attorney General
MALCOLM L. STEWART
Deputy Solicitor General
ERIC D. MILLER
Assistant to the Solicitor
General
THOMAS M. BONDY
Attorney
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217
(I)
QUESTION PRESENTED
Whether the court of appeals erred in holding that
the Federal Communications Commission acted arbi-
trarily and capriciously under the Administrative Pro-
cedure Act, 5 U.S.C. 551 et seq., in determining that the
most widely viewed broadcast of public nudity in televis-
ion history fell within the federal prohibitions on broad-
cast indecency.  
(III)
TABLE OF CONTENTS
 Page
Opinions below........................................ 1
Jurisdiction........................................... 2
Statutes and regulations involved........................ 2
Statement ............................................ 2
Reasons for granting the petition ....................... 13
A. The decision below is inconsistent with settled
principles of deference to an agencys reasonable
interpretation of its own precedent ................ 14
B. The petition should be held pending this Courts
decision in Fox and disposed of as appropriate in
light of that decision ............................. 21
Conclusion .......................................... 24
Appendix A    Court of appeals opinion (July 21, 2008,
      as amended on Aug. 6, 2008) ............ 1a
Appendix B    Order on Reconsideration (May 31,
      2006) ................................ 83a
Appendix C    Forfeiture Order (Mar. 15, 2006) ....... 123a
Appendix D    Judgment (July 21, 2008) .............. 184a
Appendix E    Statutory provisions involved .......... 186a
TABLE OF AUTHORITIES
Cases:
Action for Childrens Television v. FCC,
58 F.3d 654 (D.C. Cir. 1995), cert. denied,
516 U.S. 1043 (1996) ......................... 2
852 F.2d 1332 (D.C. Cir. 1988) ................... 4
Boca Airport, Inc. v. FAA, 389 F.3d 185 (D.C. Cir.
2004) .......................................... 15
Bowles v. Seminole Rock & Sand Co., 325 U.S. 410
(1945) .......................................... 15
IV
CasesContinued: Page
Cassell v. FCC, 154 F.3d 478 (D.C. Cir. 1998) .......... 15
Citizens Complaint Against Pacifica Found. Station
WBAI (FM), In re, 56 F.C.C.2d 94 (1975) ............ 3
Comcast Corp. v. FCC, 526 F.3d 763 (D.C. Cir. 2008) . . . 19
Complaints Against Various Broad. Licensees
Regarding Their Airing of the Golden Globe
Awards Program, In re, 19 F.C.C.R. 4975 (2004) . 6, 10
Complaints Against Various Television Licensees
Concerning Their Feb. 1, 2004 Broad. of the
XXXVIII Super Bowl Halftime Show, In re,
19 F.C.C.R. 19,230 (2004) .......................... 8
Complaints Regarding Various Television Broads.
between Feb. 2, 2002 & Mar. 8, 2005, In re, 21
F.C.C.R. 13299 (2006) .......................... 6, 21
FCC v. Pacifica Found., 438 U.S. 726 (1978) ............ 3
Fox Television Stations, Inc. v. FCC, 489 F.3d 444
(2d Cir. 2007), cert. granted, No. 07-582 (argued
Nov. 4, 2008) .................................. 6, 22
Infinity Broad. Corp., In re, 3 F.C.C.R. 930 (1987) .... 3, 4
Pacifica Found., Inc., In re, 2 F.C.C.R 2698 
(1987) ..................................... 4, 15, 18
United States v. Martin, 746 F.2d 964 (3d Cir. 1984) .... 19
WGHB Educ. Found., In re, 69 F.C.C.2d 1250 (1978) . . . 19
WPBN/WTOM License Subsidiary, Inc., In re,
15 F.C.C.R. 1838 (2000) .......................... 18
Young Broad. of San Francisco, Inc., In re,
19 F.C.C.R. 1751 (2004) ..................... 8, 17, 18
V
Constitution, statutes and regulations: Page
U.S. Const. Amend. I................................ 3
Administrative Procedure Act, 5 U.S.C. 551 et seq. . . . 6, 10
Public Telecommunications Act of 1992, Pub. L. No.
102-356,  16(a), 106 Stat. 954 ...................... 2
18 U.S.C. 1464 .................................... 2, 3
47 U.S.C. 307 (2000 & Supp. V 2005) ................... 3
47 U.S.C. 309(k) .................................... 3
47 U.S.C. 503(b)(1)(B) ............................... 2
47 U.S.C. 503(b)(1)(D) ............................... 2
47 C.F.R.:
Section 0.445(e) ................................. 19
Section 73.3999(b) ................................ 2
Miscellaneous:
Industry Guidance on the Commns Case Law
Interpreting 18 U.S.C.  1464 & Enforcement
Policies Regarding Broad. Indecency, In re,
16 F.C.C.R. 7999 (2001) ................... 4, 5, 10, 16
The Broadcast Decency Act of 2004:  Hearings on
H.R. 3717 Before the Subcomm. on Telecomm.
and the Internet of the House Comm. on Energy
& Commerce, 108th Cong., 2d Sess. (2004) ........... 7
(1)
In the Supreme Court of the United States
No.            
FEDERAL COMMUNICATIONS COMMISSION
AND UNITED STATES OF AMERICA, PETITIONERS
v.
CBS CORPORATION, CBS BROADCASTING, INC.,
CBS TELEVISION STATIONS, INC., CBS STATIONS
GROUP OF TEXAS L.P., AND KUTV HOLDINGS, INC.
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS 
FOR THE THIRD CIRCUIT
PETITION FOR A WRIT OF CERTIORARI
The Solicitor General, on behalf of the Federal Com-
munications Commission and the United States of Amer-
ica, respectfully petitions for a writ of certiorari to re-
view the judgment of the United States Court of Ap-
peals for the Third Circuit in this case.
OPINIONS BELOW
The opinion of the court of appeals (App., infra, 1a-
82a) is reported at 535 F.3d 167.  The orders of the Fed-
eral Communications Commission (App., infra, 83a-
122a, 123a-183a) are reported at 21 F.C.C.R. 6653 and
21 F.C.C.R. 2760, respectively.
2
JURISDICTION
The judgment of the court of appeals (App., infra,
184a-185a) was entered on July 21, 2008.  On October 9,
2008, Justice Souter extended the time within which to
file a petition for a writ of certiorari to and including
November 18, 2008.  The jurisdiction of this Court is in-
voked under 28 U.S.C. 1254(1).
STATUTES AND REGULATIONS INVOLVED
Pertinent provisions are set out in the appendix to
this petition.  App., infra, 186a-189a.
STATEMENT
1. a.  Federal law has long forbidden the broadcast
of obscene, indecent, or profane language by means of
radio communication.  18 U.S.C. 1464.  In 1992, Con-
gress supplemented that prohibition by directing the
Federal Communications Commission (FCC or Commis-
sion) to promulgate regulations to prohibit the broad-
casting of indecent programming during certain times
of the day.  Public Telecommunications Act of 1992, Pub.
L. No. 102-356,  16(a), 106 Stat. 954.  See Action for
Childrens Television v. FCC, 58 F.3d 654, 669-670 (D.C.
Cir. 1995) (en banc), cert. denied, 516 U.S. 1043 (1996).
The FCCs rules currently prohibit licensees of radio
and television stations from broadcasting any material
which is indecent between the hours of 6 a.m. and 10
p.m.  47 C.F.R. 73.3999(b).  The Commission does not
regulate indecent broadcasts outside that time period.
The FCC has authority to enforce the broadcast-inde-
cency prohibition by, inter alia, imposing civil forfei-
tures, see 47 U.S.C. 503(b)(1)(B) and (D), or taking vio-
lations into account during license-renewal proceedings,
3
see 47 U.S.C. 307 (2000 & Supp. V 2005); 47 U.S.C.
309(k).
b.  In FCC v. Pacifica Foundation, 438 U.S. 726
(1978), this Court upheld the constitutionality of the
FCCs authority to regulate indecent broadcasting.  At
issue in Pacifica was the midday radio broadcast of
George Carlins monologue Filthy Words.  Responding
to a listener complaint, the Commission determined that
the broadcast violated Section 1464.  Id. at 731-732.
This Court held that the Commissions enforcement ac-
tion was consistent with the First Amendment.  Id. at
749-750.
c.  For several years after Pacifica, the Commission
enforced the indecency prohibition only against mate-
rial that closely resembled the George Carlin mono-
logue, that is, material that involved the repeated use,
for shock value, of words similar or identical to those
used by Carlin.  In re Infinity Broad. Corp., 3 F.C.C.R.
930, 930  4 (1987) (Infinity Reconsideration Order).  In
1987, however, the Commission determined that such a
highly restricted enforcement standard  *  *  *  was
unduly narrow as a matter of law because it focus[ed]
exclusively on specific words rather than the generic
definition of indecency.  Id. at 930  5.  Accordingly, the
Commission concluded that, in enforcing Section 1464,
it would apply the generic indecency test articulated in
Pacifica, that is, whether the material describes, in
terms patently offensive as measured by contemporary
community standards for the broadcast medium, sexual
or excretory activities or organs, when there is a reason-
able risk that children may be in the audience.  Id. at
930  2, 5 (quoting In re Citizens Complaint Against
Pacifica Found. Station WBAI (FM), 56 F.C.C.2d 94, 98
 11 (1975)).
4
In making that change, the Commission recognized
that the question of whether material is patently offen-
sive requires careful consideration of context.  Infinity
Reconsideration Order, 3 F.C.C.R. at 932  16.  Despite
its renewed emphasis on context, however, the Commis-
sion stated that [i]f a complaint focuses solely on the
use of expletives  *  *  *  deliberate and repetitive use
*  *  *  is a requisite to a finding of indecency.  In re
Pacifica Found., Inc., 2 F.C.C.R. 2698, 2699  13 (1987).
In contrast, the Commission explained, when offensive
material goes beyond the use of expletives and in-
volves the description or depiction of sexual or excre-
tory functions, repetition of specific words or phrases
is not necessarily an element critical to a determination
of indecency.  Ibid.  In Action for Childrens Television
v. FCC, 852 F.2d 1332 (1988) (R.B. Ginsburg, J.), the
District of Columbia Circuit held that the Commission
had provided a reasoned explanation for its change in
enforcement policy, and it rejected a constitutional chal-
lenge to the Commissions new enforcement standards
for indecency.
d.  In 2001, the Commission issued a policy statement
to provide further guidance concerning the indecency
standard.  In re Industry Guidance on the Commns
Case Law Interpreting 18 U.S.C.  1464 and Enforce-
ment Policies Regarding Broad. Indecency, 16 F.C.C.R.
7999 (Industry Guidance).  In that statement, the Com-
mission explained that it applies a two-part test to deter-
mine whether a broadcast is indecent.  First, the mate-
rial at issue must fall within the subject matter scope of
[the] indecency definitionthat is, the material must
describe or depict sexual or excretory organs or activi-
ties.  Id. at 8002  7.  Second, the broadcast must be
patently offensive as measured by contemporary com-
5
munity standards for the broadcast medium.  Id. at
8002  8.
The policy statement reiterated that whether a
broadcast is patently offensive turns on the full con-
text in which the material is broadcast and is therefore
highly fact-specific.  Industry Guidance, 16 F.C.C.R.
at 8002-8003  9.  The Commission set out three princi-
pal factors that it considered significant in evaluating
patent offensiveness:  (1) the explicitness or graphic
nature of the description or depiction of sexual or excre-
tory organs or activities; (2) whether the material dwells
on or repeats at length descriptions of sexual or excre-
tory organs or activities; [and] (3) whether the material
appears to pander or is used to titillate, or whether the
material appears to have been presented for its shock
value.  Id. at 8003  10 (emphases omitted).
The Commission stressed that [e]ach indecency case
presents its own particular mix of these, and possibly
other, factors, which must be balanced to ultimately de-
termine whether the material is patently offensive and
therefore indecent.  Industry Guidance, 16 F.C.C.R. at
8003  10.  For example, with respect to the second fac-
tor, the Commission noted that [r]epetition of and per-
sistent focus on sexual or excretory material may ex-
acerbate the potential offensiveness of broadcasts, but
even relatively fleeting references may be found inde-
cent where other factors contribute to a finding of pat-
ent offensiveness.  Id. at 8008-8009  17, 19.
e.  In 2004, the Commission changed its policy con-
cerning isolated expletives.  The previous year, NBC
had presented a live broadcast of the Golden Globe
Awards, at which the rock singer Bono used the F-Word
while receiving an award.  The FCC determined that the
broadcast was indecent.  In re Complaints Against Var-
6
ious Broad. Licensees Regarding Their Airing of the
Golden Globe Awards Program, 19 F.C.C.R. 4975
(2004) (Golden Globe Awards Order).  It disavowed, as
no longer good law, prior Commission and staff ac-
tion that had indicated that isolated or fleeting broad-
casts of the F-Word  *  *  *  are not indecent or would
not be acted upon, and it stated that the mere fact that
specific words or phrases are not sustained or repeated
does not mandate a finding that material that is other-
wise patently offensive to the broadcast medium is not
indecent.  Id. at 4980  12.
Two years later, the FCC applied the new policy ar-
ticulated in the Golden Globes Awards Order when it
concluded that two broadcasts of the Billboard Music
Awards that included isolated uses of expletives were
indecent.  In re Complaints Regarding Various Televi-
sion Broads. Between Feb. 2, 2002 and Mar. 8, 2005, 21
F.C.C.R. 13,299 (2006).  The Commission reaffirmed
that the fleeting nature of an utterance does not by itself
preclude a finding of indecency, reasoning that cate-
gorically requiring repeated use of expletives in order to
find material indecent would be inconsistent with our
general approach to indecency enforcement and its
stress[] [on] the critical nature of context.  Id. at
13,308  23.  The Second Circuit granted petitions for
review and vacated that order, concluding that the Com-
mission had violated the Administrative Procedure Act
(APA), 5 U.S.C. 551 et seq., because it had failed to pro-
vide an adequate explanation for its change in policy.
Fox Television Stations, Inc. v. FCC, 489 F.3d 444
(2007), cert. granted, 128 S. Ct. 1647 (No. 07-582) (2008)
(argued Nov. 4, 2008).
2.  This case arises from the February 1, 2004, broad-
cast of the Super Bowl XXXVIII halftime show.  The
7
2004 Super Bowl was the most-watched Super Bowl up
to that time and was the highest-rated program of the
2003-2004 television season (among children of all ages
as well as adults).  App., infra, 84a, 113a.  The halftime
show was produced by MTV Networks, a subsidiary of
Viacom, Inc., and was carried live by stations owned by
CBS Broadcasting (another Viacom subsidiary), as well
as by independently owned stations affiliated with the
CBS television network.  Id. at 124a-125a & n.2.  For the
finale of the show, at approximately 8:30 p.m. eastern
standard time, Janet Jackson performed a duet with
Justin Timberlake entitled Rock Your Body.  Id. at
124a, 127a.  During the song, Timberlake repeatedly
grabbed Jackson and rubbed against her in a sexually
suggestive manner.  Id. at 127a.  At the close of the per-
formance, while singing, gonna have you naked by the
end of this song, Timberlake pulled off the right portion
of Jacksons bustier, exposing her breast to the televi-
sion audience.  Ibid.
Soon after the incident, CBS issued a statement that
expressed its deep[] regret, emphasized that [t]he
moment did not conform to CBS broadcast standards,
and apologize[d] to anyone who was offended.  C.A.
App. 101.  Viacoms president and chief operating officer
subsequently told a congressional committee that ev-
eryone at CBS and everyone at MTV was shocked and
appalled  *  *  *  by what transpired, and that the mate-
rial went far beyond what is acceptable standards for
our broadcast network.  The Broadcast Decency Act of
2004:  Hearings on H.R. 3717 Before the Subcomm. on
Telecomm. and the Internet of the House Comm. on
Energy and Commerce, 108th Cong., 2d Sess. 37 (2004)
(statement of Mel Karmazin).
8
 3.  a.  The Commission received an unprecedented
number of complaints about the broadcast.  In re Com-
plaints Against Various Television Licensees Concern-
ing Their Feb. 1, 2004 Broad. of the XXXVIII Super
Bowl Halftime Show, 19 F.C.C.R. 19,230, 19,231  2
(2004).  In response to those complaints, the Commission
issued a letter of inquiry asking CBS to provide a tape
of the broadcast and information about its production.
Id. at 19,231  3.  After considering CBSs submissions,
the Commission issued a notice of apparent liability,
concluding that CBS had apparently violated the federal
restrictions on broadcast indecency, and proposing a
total forfeiture of $550,000 against the television sta-
tions that the network owned and operated.  Id. at
19,240  24.
b.  After receiving CBSs opposition to the notice of
apparent liability, the Commission reaffirmed its tenta-
tive conclusions in a forfeiture order.  App., infra, 123a-
183a.  The Commission first found that the material fell
within the subject-matter scope of its indecency defini-
tion because the broadcast of an exposed female
breast depicted a sexual organ.  Id. at 133a.  The Com-
mission then determined, applying its three-factor con-
textual analysis, that the material was patently offensive
as measured by contemporary community standards for
the broadcast medium.  Id. at 133a-139a.  
First, the Commission concluded that the material
was graphic and explicit.  App., infra, 134a-136a.  In
reaching that conclusion, the Commission relied on In re
Young Broadcasting of San Francisco, Inc., 19 F.C.C.R.
1751 (2004) (Young Broadcasting), released shortly be-
fore the Super Bowl broadcast, which had found an ap-
parent indecency violation when a television station
briefly aired images of a performers penis.  Stating that
9
a scene showing nude sexual organs is graphic and ex-
plicit if the nudity is readily discernible, the Commis-
sion found that the image of Jacksons breast was clear
and recognizable to the average viewer.  App., infra,
135a.  The Commission further found that the explicit-
ness of the image was reinforced by the presence of
Jackson and Timberlake (the shows headline perform-
ers) in the center of the screen and by the fact that
Timberlakes dramatic ripping off of Jacksons bustier
drew the viewers attention to what was exposed.  Ibid.
Second, the Commission concluded that the broad-
cast of Jacksons exposed breast was shocking and pan-
dering.  It noted that the exposure occurred just as
Timberlake sang gonna have you naked by the end of
this song and after repeated references to sexual activ-
ities and sexually suggestive choreography.  App., in-
fra, 137a-138a.  The display was particularly shocking
to the viewing audience, the Commission stated, be-
cause it occurred as a result of a man tearing off a
womans clothing during a prime time broadcast of a
sporting event that was marketed as family entertain-
ment and contained no warning that it would include
nudity.  Id. at 138a.
Third, the Commission acknowledged that the image
of Jacksons breast was displayed only briefly.  It con-
cluded, however, that the brevity of the exposure
alone did not compel the conclusion that the broadcast
was not indecent and, instead, was outweighed by its
explicitness and its shocking nature.  App., infra, 136a-
137a, 139a.
c.  CBS filed a petition for reconsideration.  On re-
consideration, the Commission reaffirmed its conclusion
that the broadcast was indecent and that a forfeiture
was appropriate.  App., infra, 83a-122a.  
10
4.  The court of appeals vacated and remanded.  App.,
infra, 1a-82a.
a.  The court of appeals held that the Commissions
order was invalid under the APA on the ground that it
constituted an unexplained departure from a policy that
isolated or fleeting material did not fall within the scope
of actionable indecency.  App., infra, 9a.  The court
rejected the Commissions argument that its 2001 policy
statement had made clear to broadcasters that even
relatively fleeting references may be found indecent
where other factors contribute to a finding of patent of-
fensiveness.  Industry Guidance, 16 F.C.C.R. at 8009
 19.  According to the court, the relatively fleeting
references identified by that sentence are distinguish-
able from the truly fleeting broadcast material the
FCC had included in its fleeting material policy.  App.,
infra, 19a.  The court also rejected, as against the bal-
ance of the evidence, the Commissions contention that
the former exception extended only to fleeting words
and not to fleeting images.  Id. at 37a. Reviewing the
Commissions precedents, the court held that the Com-
missions decisions treated broadcasted images and
words interchangeably, so it follow[ed] that the Com-
missions exception for fleeting material  *  *  *  likewise
treated images and words alike.  Ibid. 
According to the court of appeals, the Golden Globe
Awards Order, in which the Commission had disavowed
any indecency exception for isolated or fleeting broad-
casts of the F-word, 19 F.C.C.R. at 4980  12, repre-
sented the first time the Commission distinguished be-
tween formats of broadcast material or singled out any
one category of material for special treatment under its
fleeting material policy, App., infra, 22a-23a.  The court
construed the Golden Globe Awards Order to modify the
11
FCCs prior policies only slightly, by excising only one
category of fleeting materialfleeting expletives, thus
leaving in effect a residual policy on other categories of
fleeting materialincluding all broadcast content other
than expletives.  Id. at 23a (emphasis added).
The court of appeals distinguished the Second Cir-
cuits decision in Fox, which involved a challenge to the
application of the Commissions indecency standard to
the broadcast of isolated expletives.  In Fox, the court
stated, the FCC provided an explanation for changing
its policy on fleeting expletives, and the critical ques-
tion splitting the [Second Circuit] was whether that ex-
planation was adequate under the APA.  Pet. App. 27a.
In this case, however, the court of appeals believed that
the FCC has not offered any explanationreasoned or
otherwisefor changing its policy on fleeting images.
Ibid. (emphasis added).  Rather, the court explained,
the FCC asserts it never had a policy of excluding fleet-
ing images from the scope of actionable indecency, and
therefore no policy change occurred when it determined
that the Halftime Shows fleeting image of [an exposed
female] breast was actionably indecent.  Ibid.  The
court of appeals, however, rejected that contention and
concluded that the FCC had changed its enforcement
policy as to fleeting images.
The court of appeals also dismissed the significance
of the notice of apparent liability in Young Broadcast-
ing.  The court recognized that in Young Broadcasting,
the Commission had found a television licensee appar-
ently liable for permitting the broadcast of less than
one second of nudity.  App., infra, 32a.  But it dis-
agreed with the Commissions view that the decision
demonstrated the agencys preexisting  *  *  *  policy
of treating fleeting images differently from fleeting
12
words.  Id. at 33a.  Instead, the court concluded that
the case was best understood as the Commissions ini-
tial effort to abandon its restrained enforcement policy
on fleeting material.  Id. at 34a.
The court of appeals also questioned the Commis-
sions finding that CBS had the requisite mental state to
be liable for Jackson and Timberlakes performance dur-
ing the halftime show.  App., infra, 39a.  The court sta-
ted that liability could not be premised on a respondeat
superior theory because Jackson and Timberlake were
independent contractors rather than employees of
CBS.  Id. at 57a.  It also rejected the contention that
CBS broadcast licensees could be held vicariously liable
for violating a non-delegable duty not to broadcast inde-
cent material.  Id. at 57a-67a.  Instead, the court deter-
mined that [r]ecklessness would appear to suffice as
the appropriate scienter threshold for the broadcast
indecency regime, id. at 74a, and it suggested that a
broadcasters failure to use available preventative tech-
nology, such as a delay mechanism, when airing live pro-
gramming may, depending on the circumstances, consti-
tute recklessness, id. at 76a-77a.  The court stated that
it could not determine, on the existing record, whether
CBS had acted recklessly in failing to employ a video de-
lay technology in this case.  Id. at 79a.
The court of appeals accordingly vacated and re-
manded the Commissions decision, specifying that
[f]urther action by the Commission would be declara-
tory in nature, because the agency may not retroac-
tively penalize CBS.  App., infra, 80a.
b.  Judge Rendell dissented in part.  App., infra, 81a-
82a.  She agreed with the majoritys conclusion that
Commission had acted arbitrarily and capriciously, but
she disagreed with the majoritys conclusion that there
13
is a need to remand this case, noting that the agency
could instead explain its change in policy in the next
case or issue a declaratory ruling.  Id. at 82a.  She also
disagreed with the majoritys decision to discuss, in
dicta, the level of scienter required to establish a viola-
tion of the Commissions broadcast indecency rules.  Id.
at 81a.
REASONS FOR GRANTING THE PETITION
The court of appeals erred in overturning the Com-
missions determination that CBSs broadcast of the
2004 Super Bowl halftime show violated federal inde-
cency prohibitions.  In holding that the Commissions
order in this case reflected an unexplained departure
from the FCCs prior enforcement regime, the court
relied on a purported fleeting images exemption to
indecency enforcement that in fact has never existed.  In
the orders at issue here, the Commission explained that,
while it formerly required expletives to be repeated be-
fore it would treat them as actionably indecent (which
accounts for the change in policy at issue in Fox), it had
never exempted the broadcast of imageshowever
brief from federal indecency restrictions.  In the de-
cision below, the court of appeals erroneously construed
the Commissions policies on broadcast indecency and,
in the process, contravened settled principles governing
the review of administrative action and interpretations.
Rather than deferring to the Commissions reason-
able interpretation of its own precedent, the court of
appeals conducted what was in substance a de novo re-
view of Commission indecency decisions over the past
three decades.  And even though none of the prior ad-
ministrative decisions that the court surveyed had ex-
empted a brief image from indecency enforcement, the
14
court concluded that the FCCs prior exemption for
fleeting material had applied to isolated words and im-
ages interchangeably.  By vacating the Commissions
order for failure to explain its divergence from a policy
that never existed, the judgment below departs from
settled administrative-law principles and leaves the
Commission powerless to enforce the sanctions it levied
against CBS for the most widely-viewed broadcast of
public nudity in television history during a time of day
when millions of children were watching.
Both this case and FCC v. Fox Television Stations,
Inc, No. 07-582 (argued Nov. 4, 2008), concern APA
challenges to the FCCs enforcement of broadcast-inde-
cency prohibitions that were upheld by this Court in
Pacifica.  Both cases involve the contours of the Commis-
sions indecency policies over the past three decades
specifically as applied to offensive material (expletives
in Fox, images in this case) that is isolated or fleeting.
And both cases involve the deference due to the Commis-
sions actions and interpretations under the APA.  In
light of the substantial overlap between the two cases,
the petition for a writ of certiorari should be held pend-
ing the disposition of Fox.  At that time, the Court can
determine whether to grant certiorari, vacate the deci-
sion below, and remand for further consideration in light
of its decision in Fox, or instead to grant certiorari and
proceed with plenary review.
A. The Decision Below Is Inconsistent With Settled Princi-
ples of Deference To An Agencys Reasonable Interpre-
tation Of Its Own Precedent
It is well settled that an agencys interpretation of its
own regulations is of controlling weight unless it is
plainly erroneous or inconsistent with the regulation.
15
Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414
(1945).  Likewise, [a]n agencys interpretation of its
own precedent is entitled to deference and must be up-
held if reasonable.  Boca Airport, Inc. v. FAA, 389
F.3d 185, 190 (D.C. Cir. 2004) (brackets in original)
(quoting Cassell v. FCC, 154 F.3d 478, 483 (D.C. Cir.
1998)).  The Commissions interpretation of its inde-
cency rules and policies is well supported by its prior
guidance and decisions, as well as by the common-sense
distinction between words and images.  The court of ap-
peals erred in setting that interpretation aside under the
APA.
1.  More than two decades ago, the Commission held
that [w]hile speech that is indecent must involve more
than an isolated use of an offensive word,  *  *  *  repeti-
tive use of specific words or phrases is not an absolute
requirement for a finding of indecency.  In re Pacifica
Found., Inc., 2 F.C.C.R. at 2699  13.  Instead, the Com-
mission stated, deliberate and repetitive use in a pa-
tently offensive manner is a requisite to a finding of in-
decency only where a complaint focuses solely on the
use of expletives.  Ibid.  By contrast, [w]hen a com-
plaint goes beyond the use of expletives,  *  *  *  repeti-
tion of specific words or phrases is not necessarily an
element critical to a determination of indecency.  Ibid.
Accordingly, speech involving the description or depic-
tion of sexual or excretory functions must be examined
in context to determine whether it is patently offensive.
Ibid.
Those statements made clear that, under the Commis-
sions then-existing policy, repetition was essential to a
finding of indecency only where expletives were con-
cerned.  By contrast, depictions or verbal descriptions of
sexual or excretory functions did not have to be re-
16
1
The court of appeals sought to distinguish the examples of fleeting
indecent material discussed in the Commissions 2001 policy statement
on the ground that they were not truly fleeting.  App., infra, 19a.
Each of the examples highlighted by the Commission, however,  in-
volved statements of only one or two sentences.  See Industry Guid-
ance, 16 F.C.C.R. 8009-8010  19.
peated to be found indecent.  Because an image is not an
expletiveand because an image necessarily depicts
the Commissions 1987 decision put broadcasters on
notice that the exception to the broadcast indecency re-
gime for isolated expletives had no application to iso-
lated indecent images.
The Commission reiterated the distinction between
expletives and other types of indecent material in its
2001 policy statement.  The FCC first set forth its three-
factor test for assessing the patent offensiveness of al-
legedly indecent programming, noting that one of the
factors is whether the material dwells on or repeats at
length descriptions of sexual or excretory organs or ac-
tivities.  Industry Guidance, 16 F.C.C.R. at 8003  10
(emphasis omitted).  The Commission then explained
that the passing or fleeting nature of sexual or excre-
tory references would tend to weigh against a finding
of indecency, id. at 8008  17, while emphasizing that
even relatively fleeting references may be found inde-
cent where other factors contribute to a finding of pat-
ent offensiveness, id. at 8009  19.  The examples the
Commission gave of non-indecent brief matter involved
the passing use of expletives; the examples of indecent
brief matter involved descriptions of sexual activities.
Id. at 8008-8010  17-19.
1
Any remaining doubt about the FCCs policy should
have been removed by the order in Young Broadcasting,
which was issued just days before the 2004 Super Bowl
17
took place.  In that case, the Commission proposed to
impose a forfeiture on a broadcast licensee for televising
less than a second of nudity.  19 F.C.C.R. at 1755  12.
As here, the Commission explained that although the
actual exposure  *  *  *  was fleeting, ibid., the weight
of the pandering, titillating and shocking manner of pre-
sentation, coupled with the graphic and explicit nature
of the  *  *  *  nudity, made the broadcast indecent.  Id.
at 1757  14.
The court of appeals characterized Young Broadcast-
ing as the Commissions initial effort to abandon its
restrained enforcement policy on fleeting material.
App., infra, 34a.  But that simply begged the relevant
question by assuming that the Commissions exception
for fleeting expletives extended to images in the first
place.  The court did not explain why the Commission
would have decided to abandon its policy sub silentio
in order to impose a forfeiture in a case involving one
local broadcaster.  And the Commission did not do so.
Rather, the FCC in Young Broadcasting refrained from
discussing the categorical exemption for fleeting nudity
because no such exemption existed.
2.  To support its view that the Commission previ-
ously recognized an exception for fleeting material
that treated images and words alike, App., infra, 37a,
the court of appeals observed that the agency had con-
sistently applied identical standards and engaged in
identical analyses regardless of whether indecency
complaints were based on words or images, id. at 28a-
29a.  The court found the Commissions reliance on
Young Broadcasting unavailing because, in the courts
view, the decision makes no distinction, express or im-
plied, between words and images in reaching its inde-
cency determination.  Id. at 33a.  The court likewise
18
stated that the Commission had not treated the nudity
in a broadcast of the film Schindlers List differently
factually or legallyfrom a complaint for indecency
based on a spoken utterance.  Id. at 29a (citing In re
WPBN/WTOM License Subsidiary, Inc., 15 F.C.C.R.
1838 (2000)).
The court of appeals analysis is flawed.  The courts
principal error lay in its focus on the Commissions
broad analytical framework for evaluating broadcast
indecency, which applies equally to words and images,
rather than on the agencys specific statements regard-
ing fleeting material, which have expressly distinguished
between expletives and other material.  See In re
Pacifica Found., Inc., 2 F.C.C.R. at 2699  13.  Whether
material is dwelled upon has always been a relevant fac-
tor under the Commissions generally applicable three-
part test for patent offensiveness, but only in a narrow
category of casesthose involving expletiveswas rep-
etition required.  That requirement, which until the
Golden Globe Awards Order effectively exempted iso-
lated expletives from indecency enforcement, had no
application to other material, including sexually graphic
images or nudity.  That is why the Commission in Young
Broadcasting expressly rejected the contention that the
indecent images at issue were equivalent to other in-
stances in which the Commission has ruled that fleeting
remarks in live, unscripted broadcasts do not meet the
indecency definition.  19 F.C.C.R. at 1755  12.  By fo-
cusing on the Commissions general indecency frame-
work, and not specifically on the FCCs treatment of
fleeting material, the court ignored the FCCs long-
19
2
The court of appeals also stated that in refusing to grant a petition
to deny a license renewal in In re WGBH Educational Foundation, 69
F.C.C.2d 1250 (1978) (WGBH), the FCC made no distinction between
words and images (nudity or otherwise).  App., infra, 30a-31a.  But
although the petitioner in that case complained that the licensee had
broadcast a variety of allegedly indecent material, including nudity,
WGBH, 69 F.C.C.2d at 1250  2, the Commissions order did not discuss
the allegation of nudity at all, id. at 1254  10 & n.6 (examining the
complained-of words).  Likewise, nothing of significance can be
gleaned from the various unpublished staff decisions dismissing
indecency complaints involving some variety of sexually explicit
imagery.   App., infra, 31a.  The Commission is not bound by unpub-
lished decisions of its staff where, as here, it has not endorsed them.
Comcast Corp. v. FCC, 526 F.3d 763, 769 (D.C. Cir. 2008); 47 C.F.R.
0.445(e).  More importantly, as the court of appeals recognized, the staff
letters summarily rejected each of these complaints as not actionably
indecent.  App., infra, 31a.  That the Commission staff used identical
form letters to announce summary dismissals of indecency complaints
says nothing about the staffs analysis, which was not set forth in the
letters.  Id. at 32a.
standing policy of distinguishing between isolated exple-
tives and other brief material.
2
3.  The policy that the court of appeals attributed to
the Commission, under which offensive words and im-
ages were purportedly treated as interchangeable, is
also at odds with the court of appeals own recognition
that televised images are qualitatively different from
spoken language.  See United States v. Martin, 746 F.2d
964, 971-972 (3d Cir. 1984) (The hackneyed expression,
one picture is worth a thousand words fails to convey
adequately the comparison between the impact of the
televised portrayal of actual events upon the viewer
*  *  *  and that of the spoken or written word upon the
listener or reader.).  Given the power of images, there
is no reason to believe that simply because the Commis-
sion permitted an exemption for isolated expletives, it
20
would allow a parallel exemption for brief displays of
sexual organs or activities during times of day when
children are in the audience.
4.  The broadcast at issue here occurred at a time,
and under circumstances, that made virtually certain it
would attract a large audience of children and adults.
The 2004 Super Bowl, viewed by 90 million Americans,
was the most-watched Super Bowl up to that time and
the highest-rated program of the 2003-2004 television
season among viewers of all ages.  The Commission re-
ceived an unprecedented number of complaints about
the halftime show, and the act of public indecency that
was broadcast to the nation subsequently became the
focus of congressional hearings.  See pp. 6-7, supra.  If
left uncorrected, the court of appeals decision will pre-
clude the Commission from imposing any sanction for
the most widely-viewed violation of the indecency prohi-
bition in the countrys history.
More generally, the Third Circuits decision in this
case calls into question key aspects of the Commissions
broadcast-indecency enforcement regime.  Specifically,
it threatens the Commissions ability to take enforce-
ment action with respect to any of the numerous pending
complaints involving the broadcast of brief images, and
perhaps even brief sexually explicit language other than
expletives.  The court below held that the Commissions
Golden Globe Awards Order had excised only fleeting
expletives from its enforcement exemption, and that a
residual policy on other categories of fleeting mate-
rialincluding all broadcast content other than exple-
tivesremained in effect.  App., infra, 23a.  If that
reading of the regulatory history were correct, the Com-
mission would be disabled from taking action against
any fleeting broadcast indecency that did not involve
21
expletives, such as brief nudity, depictions of sexual in-
tercourse, or sexually explicit comments, until it at-
tempted to explain the change from its alleged prior
policy of immunizing such material from liability.  Even
if the FCC articulated an explanation of its preferred
policy that the court of appeals regarded as adequate,
the Commission could not impose or enforce forfeitures
with respect to broadcasts that are the subject of pend-
ing complaints.
B. The Petition Should Be Held Pending This Courts Deci-
sion In Fox And Disposed Of As Appropriate In Light Of
That Decision
In Fox, this Court is currently considering whether
the Commission adequately explained its decision to
abandon a policy of exempting isolated expletives from
indecency enforcement.  In making that determination,
the Court will presumably consider what that prior pol-
icy was.  Significantly, the order under review in Fox
stated that [i]n evaluating whether material is patently
offensive, the Commissions approach has generally
been to examine all factors relevant to that determina-
tion.  To the extent that Commission dicta had previ-
ously suggested that one of these factorswhether ma-
terial had been repeatedwould always be decisive in
a certain category of cases, we believe that such dicta
was at odds with the Commissions overall enforcement
policy and was appropriately disavowed.  In re Com-
plaints Regarding Various Television Broads. Between
Feb. 2, 2002 and Mar. 8, 2005, 21 F.C.C.R. at 13,308  23
(footnote omitted) (emphasis added).  Although the Sec-
ond Circuit held that the Commission had not suffi-
ciently explained its departure from prior policy, the
court did not disagree with the Commissions description
22
of the earlier policy.  Rather, the Second Circuit stated
that the Commissions consistent[] interpretation had
been that isolated, non-literal, fleeting expletives were
outside its indecency enforcement policies.  Fox, 489
F.3d at 455 (emphasis added).
The parties in Fox disagree as to the contours of the
FCCs prior policy, and that disagreement may have a
direct bearing on the issue presented here.  Consistent
with the Commissions order in Fox and the view of the
Second Circuit, the government maintains that [u]ntil
recently, the Commission made one factor dispositive in
its analysis in certain cases by holding that the utter-
ance of a single vulgar expletive could not be found inde-
cent, no matter how strongly other contextual factors
weighed in favor of such a finding.  Govt Br. at 17, Fox,
supra (No. 07-582).  If the Court holds that the FCC in
Fox properly decided to conform its approach to isolated
expletives with its approach to all other broadcast mate-
rial claimed to be indecent, it will cast serious doubt on,
if not necessarily reject, the view of the court below, see
App., infra, 37a, that the Commissions prior exemption
for fleeting material was not limited to expletives. 
At the same time, Fox and the other networks (in-
cluding CBS) have maintained in Fox that [t]here was
never a per se rule against liability for isolated exple-
tives, Fox Resp. Br. at 19, Fox, supra (No. 07-582), and
that [c]ontext has always been the touchstone of the
FCCs indecency policy, with repetition being merely
one aspect of that analysis, id. at 26 (emphasis added);
see ibid. (arguing that the suggestion that such an ex-
emption for isolated expletives existed is simply incor-
rect); NBC Resp. Br. at 53 n.19, Fox, supra (No. 07-
582) ([T]here has never been an automatic exemption
to the indecency prohibition for nonrepeated exple-
23
3
The government does not seek review of the court of appeals dis-
cussion of the level of scienter necessary for the Commission to impose
a monetary forfeiture on CBS.  App., infra, 39a-79a.  As Judge Rendell
recognized, those statements by the panel majority were dicta, given
the courts threshold ruling that the Commissions enforcement policy
was invalid under the APA.  Id. at 81a.  Moreover, if this Court were to
overturn the court of appeals judgment that the Commissions order
embodied an unacknowledged change in policy, theneven accepting
the scienter analysis of the panel majoritythe Commission would be
free to impose a forfeiture on remand so long as it could demonstrate
that CBS acted recklessly and not merely negligently when it failed to
implement a video delay mechanism for the Halftime Show broadcast.
Id. at 79a.
tives.).  That position, too, is inconsistent with the view
of the court below that until the Golden Globe Awards
Order, the FCCs policy included an exemption for all
fleeting broadcast material.  App., infra, 18a.  As a re-
sult, even if respondents position were to prevail in Fox,
the Courts decision could cast substantial doubt on the
correctness of the decision below.
3
24
CONCLUSION
The petition for a writ of certiorari should be held
pending this Courts decision in FCC v. Fox Television
Stations, Inc., No. 07-582.  The Court then should deter-
mine whether to grant certiorari, vacate the decision
below, and remand the matter for further consideration
in light of the decision in Fox, or instead to grant certio-
rari and to proceed with plenary review.
Respectfully submitted.
MATTHEW B. BERRY
General Counsel
JOSEPH R. PALMORE
Deputy General Counsel
JACOB M. LEWIS
Associate General Counsel
Federal Communications
Commission
GREGORY G. GARRE
Solicitor General
GREGORY G. KATSAS
Assistant Attorney General
MALCOLM L. STEWART
Deputy Solicitor General
ERIC D. MILLER
Assistant to the Solicitor
General
THOMAS M. BONDY
Attorney
NOVEMBER 2008
(1a)
APPENDIX A
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No.  06-3575
CBS CORPORATION; CBS BROADCASTING INC.;
CBS TELEVISION STATIONS, INC.; CBS STATIONS
GROUP OF TEXAS L.P.; AND KUTV HOLDINGS, INC.,
PETITIONERS
v.
FEDERAL COMMUNICATION COMMISSION; 
UNITED STATES OF AMERICA, RESPONDENTS
Argued:  Sept. 11, 2007
Filed:  July 21, 2008
As Amended:  Aug. 6, 2008
OPINION OF THE COURT
Before:  SCIRICA, Chief Judge, RENDELL and FUENTES,
Circuit Judges.
SCIRICA, Chief Judge.
In this petition for review, CBS appeals orders of the
Federal Communications Commission imposing a mone-
tary forfeiture under 47 U.S.C.  503(b) for the broad-
cast of indecent material in violation of 18 U.S.C.
 1464 and 47 C.F.R.  73.3999.  The sanctions stem
from CBSs live broadcast of the Super Bowl XXXVIII
Halftime Show, in which two performers deviated from
2a
1
At that time, both CBS and MTV Networks were divisions of Via-
com, Inc.
the shows script resulting in the exposure of a bare fe-
male breast on camera, a deceitful and manipulative act
that lasted nine-sixteenths of one second.  CBS trans-
mitted the image over public airwaves, resulting in puni-
tive action by the FCC.
CBS challenges the Commissions orders on constitu-
tional, statutory, and public policy grounds.  Two of the
challenges are paramount:  (1) whether the Commission
acted arbitrarily and capriciously under the Administra-
tive Procedure Act, 5 U.S.C.  706, in determining that
CBSs broadcast of a fleeting image of nudity was ac-
tionably indecent; and (2) whether the Commission, in
applying three theories of liabilitytraditional respon-
deat superior doctrine, an alternative theory of vicarious
liability based on CBSs duties as a broadcast licensee,
and the willfulness standard of the forfeiture stat-
uteproperly found CBS violated the indecency provi-
sions of 18 U.S.C.  1464 and 47 C.F.R.  73.3999.  We
will vacate the FCCs orders and remand for further
proceedings consistent with this opinion.
I.
On February 1, 2004, CBS presented a live broadcast
of the National Football Leagues Super Bowl XXXVIII,
which included a halftime show produced by MTV Net-
works.
1
  Nearly 90 million viewers watched the Halftime
Show, which began at 8:30 p.m. Eastern Standard Time
and lasted about fifteen minutes.  The Halftime Show
featured a variety of musical performances by contem-
porary recording artists, with Janet Jackson as the an-
3a
2
The record is unclear on the actual number of complaints received
from unorganized, individual viewers.  In its brief, the FCC asserts it
received an unprecedented number of complaints about the nudity
broadcast during the halftime show.   FCC Br. at 12 (citation omitted).
CBS disputes the calculation and significance of the viewer complaints.
See CBS Reply Br. at 15 n.6 (Of the over 542,000 complaints concern-
ing the broadcast the FCC claims to have received, over 85 percent are
form complaints generated by single-interest groups.  Approximately
twenty percent of the complaints are duplicates, with some individual
complaints appearing in the record up to 37 times.  (citations omitted)).
nounced headlining act and Justin Timberlake as a sur-
prise guest for the final minutes of the show.
Timberlake was unveiled on stage near the conclu-
sion of the Halftime Show.  He and Jackson performed
his popular song Rock Your Body as the shows finale.
Their performance, which the FCC contends involved
sexually suggestive choreography, portrayed Timber-
lake seeking to dance with Jackson, and Jackson alter-
nating between accepting and rejecting his advances.
The performance ended with Timberlake singing, gon-
na have you naked by the end of this song, and simulta-
neously tearing away part of Jacksons bustier.  CBS
had implemented a five-second audio delay to guard
against the possibility of indecent language being trans-
mitted on air, but it did not employ similar precaution-
ary technology for video images.  As a result, Jacksons
bare right breast was exposed on camera for nine-six-
teenths of one second.
Jacksons exposed breast caused a sensation and re-
sulted in a large number of viewer complaints to the
Federal Communications Commission.
2
  In response, the
Commissions Enforcement Bureau issued a letter of
inquiry asking CBS to provide more information about
the broadcast along with a video copy of the entire Su-
4a
3
This figure represented the aggregate of proposed penalties
against individual CBS stations.  At the time the Commission issued its
Notice of Apparent Liability, forfeiture penalties for indecency viola-
tions were statutorily capped at $27,500.  The Commission proposed the
maximum penalty for each CBS station.
per Bowl program.  CBS supplied the requested materi-
als, including a script of the Halftime Show, and issued
a public statement of apology for the incident.  CBS
stated Jackson and Timberlakes wardrobe stunt was
unscripted and unauthorized, claiming it had no advance
notice of any plan by the performers to deviate from the
script.
On September 22, 2004, the Commission issued a
Notice of Apparent Liability finding CBS had appar-
ently violated federal law and FCC rules restricting the
broadcast of indecent material.  After its review, the
Commission determined CBS was apparently liable for
a forfeiture penalty of $550,000.
3
  CBS submitted its Op-
position to the Notice of Apparent Liability on Novem-
ber 5, 2004.
The Commission issued a forfeiture order over CBSs
opposition on March 15, 2006, imposing a forfeiture pen-
alty of $550,000.  In re Complaints Against Various
Television Licensees Concerning Their February 1,
2004 Broadcast of the Super Bowl XXXVIII Halftime
Show,  21 F.C.C.R. 2760 (2006) (Forfeiture Order ).
Affirming its preliminary findings, the Commission con-
cluded the Halftime Show broadcast was indecent be-
cause it depicted a sexual organ and violated contem-
porary community standards for the broadcast med-
ium.  Id. at  10.  In making this determination, the
FCC relied on a contextual analysis to find the broad-
cast of Jacksons exposed breast was:  (1) graphic and
5a
4
This section of the Communications Act provides:  The term will-
ful, when used with reference to the commission or omission of any act,
means the conscious and deliberate commission or omission of such act,
explicit, (2) shocking and pandering, and (3) fleeting.  Id.
at  14.  It further concluded that the brevity of the im-
age was outweighed by the other two factors.  Id.  The
standard applied by the Commission is derived from its
2001 policy statement setting forth a two-part test for
indecency:  (1) the material must describe or depict
sexual or excretory organs or activities, and (2) it must
be patently offensive as measured by contemporary
community standards for the broadcast medium.  In re
Industry Guidance on the Commissions Case Law In-
terpreting 18 U.S.C.  1464 and Enforcement Policies
Regarding Broadcast Indecency, 16 F.C.C.R. 7999, 8002
 7-8 (2001) (emphasis in original).  The Commission
had informed broadcasters in its 2001 policy statement
that in performing the second step of the testmeasur-
ing the offensiveness of any particular broadcastit
would look to three factors:  (1) the explicitness or gra-
phic nature of the description or depiction of sexual or
excretory organs or activities; (2) whether the material
dwells on or repeats at length descriptions of sexual or
excretory organs or activities; (3) whether the material
appears to pander or is used to titillate, or whether the
material appears to have been presented for its shock
value.  Id. at  10 (emphasis omitted).
Additionally, the FCC determined CBSs actions in
broadcasting the indecent image were willful and
therefore sanctionable by a monetary forfeiture under
47 U.S.C.  503(b)(1).  See id. at  15.  Adopting the defi-
nition of willful found in section 312(f)(1) of the Com-
munications Act,
4
 the Commission offered three explana-
6a
irrespective of any intent to violate any provision of this Act or any rule
or regulation of the Commission authorized by this Act or by a treaty
ratified by the United States.  47 U.S.C.  312(f)(1).
tions for its determination of willfulness.  Id.  First, the
FCC found CBS acted willfully because it consciously
and deliberately broadcast the halftime show, whether
or not it intended to broadcast nudity  .  .  .  .  Id.  Sec-
ond, the FCC found CBS acted willfully because it con-
sciously and deliberately failed to take reasonable pre-
cautions to ensure that no actionably indecent material
was broadcast.  Id. Finally, the FCC applied a respon-
deat superior theory in finding CBS vicariously liable
for the willful actions of its agents, Jackson and Timber-
lake.  Id.
On April 14, 2006, CBS submitted a Petition for Re-
consideration under 47 C.F.R.  1.106, raising several
arguments against the Commissions findings and con-
clusions.  In its Order on Reconsideration, the FCC re-
jected CBSs statutory and constitutional challenges and
reaffirmed its imposition of a $550,000 forfeiture.  In re
Complaints Against Various Television Licensees Con-
cerning Their February 1, 2004 Broadcast of the Super
Bowl XXXVIII Halftime Show, 21 F.C.C.R. 6653 (2006)
(Reconsideration Order).  The Reconsideration Order
revised the Commissions approach for determining
CBSs liability under the willfulness standard.  The
Commission reiterated its application of vicarious liabil-
ity in the form of respondeat superior and its determina-
tion that CBS was directly liable for failing to take ade-
quate measures to prevent the broadcast of indecent
material.  See id. at  16.  But it abandoned its position
that CBS acted willfully under 47 U.S.C.  503(b)(1) by
intentionally broadcasting the Halftime Show irrespec-
7a
tive of its intent to broadcast the particular content in-
cluded in the show.  Instead, it determined CBS could be
liable given the nondelegable nature of broadcast licens-
ees responsibility for their programming.  Id. at  23.
The Commission has since elaborated on this aspect of
the Reconsideration Order, explaining it as a separate
theory of liability whereby CBS can be held vicariously
liable even for the acts of its independent contractors
because it holds non-delegable duties as a broadcast
licensee to operate in the public interest and to avoid
broadcasting indecent material.  See, e.g., FCC Br. at
44-45.
CBS timely filed a petition for review of the Recon-
sideration Order on July 28, 2006.  It challenges the
FCCs orders on several grounds, and both parties are
supported by briefing from several amici.
II.
Our standard of review of agency decisions is gov-
erned by the Administrative Procedure Act, 5 U.S.C.
 706.  Under the Administrative Procedure Act, we
hold unlawful and set aside agency action, findings, and
conclusions that are found to be arbitrary, capricious,
an abuse of discretion, or otherwise not in accordance
with the law.  Id.  706(2)(A); see, e.g., Motor Vehicle
Mfrs. Assn v. State Farm Mut. Auto. Ins. Co., 463 U.S.
29, 41, 103 S. Ct. 2856, 77 L. Ed. 2d 443 (1983).
The scope of review under the arbitrary and capri-
cious standard is narrow, and a court is not to substi-
tute its judgment for that of the agency.  State Farm,
463 U.S. at 43, 103 S. Ct. 2856.  Nevertheless, the agency
must reach its decision by examin[ing] the relevant
data, and it must articulate a satisfactory explanation
8a
for its action including a rational connection between
the facts found and the choice made.  Id. (quoting Bur-
lington Truck Lines, Inc. v. United States, 371 U.S. 156,
168, 83 S. Ct. 239, 9 L. Ed. 2d 207 (1962)).  We generally
find agency action arbitrary and capricious where:
the agency has relied on factors which Congress has
not intended it to consider, entirely failed to consider
an important aspect of the problem, offered an expla-
nation for its decision that runs counter to the evi-
dence before the agency, or is so implausible that it
could not be ascribed to a difference in view or the
product of agency expertise.  The reviewing court
should not attempt itself to make up for such defi-
ciencies; we may not supply a reasoned basis for the
agencys action that the agency itself has not given.
Id. at 43, 103 S. Ct. 2856 (citing SEC v. Chenery Corp.,
332 U.S. 194, 196, 67 S. Ct. 1575, 91 L. Ed. 1995 (1947)).
Our review of the constitutional questions is more
searching.  In cases raising First Amendment issues, we
have an obligation to make an independent examina-
tion of the whole record in order to make sure that the
judgment does not constitute a forbidden intrusion on
the field of free expression.  United States v. Various
Articles of Merch., Schedule No. 287, 230 F.3d 649, 652
(3d Cir. 2000) (quoting Bose Corp. v. Consumers Union,
466 U.S. 485, 499, 104 S. Ct. 1949, 80 L. Ed. 2d 502
(1984) (citations omitted)).
III.
The FCC possesses authority to regulate indecent
broadcast content, but it had long practiced restraint in
exercising this authority.  During a span of nearly three
decades, the Commission frequently declined to find
9a
5
See 47 U.S.C.  326 (Nothing in this chapter shall be understood
or construed to give the Commission the power of censorship over the
radio communications or signals transmitted by any radio station, and
no regulation or condition shall be promulgated or fixed by the Com-
broadcast programming indecent, its restraint punctu-
ated only by a few occasions where programming con-
tained indecent material so pervasive as to amount to
shock treatment for the audience.  Throughout this
period, the Commission consistently explained that iso-
lated or fleeting material did not fall within the scope of
actionable indecency.
At the time the Halftime Show was broadcasted by
CBS, the FCCs policy on fleeting material was still in
effect.  The FCC contends its restrained policy applied
only to fleeting utterancesspecifically, fleeting exple-
tivesand did not extend to fleeting images.  But a re-
view of the Commissions enforcement history reveals
that its policy on fleeting material was never so limited.
The FCCs present distinction between words and im-
ages for purposes of determining indecency represents
a departure from its prior policy.
Like any agency, the FCC may change its policies
without judicial second-guessing.  But it cannot change
a well-established course of action without supplying
notice of and a reasoned explanation for its policy depar-
ture.  Because the FCC failed to satisfy this require-
ment, we find its new policy arbitrary and capricious
under the Administrative Procedure Act as applied to
CBS.
A.
Section 326 of the Communications Act prohibits the
FCC from censoring its licensees broadcasts.
5
  Subject
10a
mission which shall interfere with the right of free speech by means of
radio communication.).
6
See 47 U.S.C.  503(b)(1)(D) (Any person who is determined by the
Commission  .  .  .  to have  .  .  .  violated any provision of section  .  .  .
1464 of title 18  .  .  .  shall be liable to the United States for a forfeiture
penalty.).
to this constraint, the FCC retains authority to regulate
obscene, indecent, or profane broadcast content.  See 18
U.S.C.  1464 (Whoever utters any obscene, indecent,
or profane language by means of radio communication
shall be fined under this title or imprisoned not more
than two years, or both.).  Indecency and obscenity are
distinct categories of speech. See FCC v. Pacifica
Found., 438 U.S. 726, 739-41, 98 S. Ct. 3026, 57 L. Ed. 2d
1073 (1978) (plurality opinion) (Pacifica ).  Indecency,
unlike obscenity, is protected by the First Amendment.
Sable Commcns of Cal., Inc. v. FCC, 492 U.S. 115, 126,
109 S. Ct. 2829, 106 L. Ed. 2d 93 (1989).  The FCCs au-
thority to restrict indecent broadcast content is never-
theless constitutionally permissible because of the un-
ique nature of the broadcast medium.  Pacifica, 438 U.S.
at 750-51, 98 S. Ct. 3026; see also id. at 755-56, 98 S. Ct.
3026 (Powell, J., concurring).
Congress authorized the FCC to impose forfeiture
penalties for violations of 18 U.S.C.  1464 in 1960.
6
  But
the FCC did not exercise its authority to find a broad-
cast statutorily indecent until 1975, when it issued a
forfeiture penalty against Pacifica Foundation for
broadcasting comedian George Carlins Filthy Words
monologue.  See In re Citizens Complaint Against Pa-
cifica Found., Station WBAI(FM), N.Y., N.Y., 56 F.C.C.
2d 94 (1975).  Carlins monologue, which Pacifica aired
on the radio in an early-afternoon time slot, contained
11a
extensive and repetitive use of several vulgar expletives
over a period of twelve minutes.  See Pacifica, 438 U.S.
at 739, 98 S. Ct. 3026.
Pacifica appealed the FCCs forfeiture order to the
United States Court of Appeals for the D.C. Circuit.
The FCC issued a clarification order while Pacificas ap-
peal was pending, expressly limiting its prior forfeiture
order to the specific facts of the Carlin monologue.  In
re a Petition for Clarification or Reconsideration of a
Citizens Complaint against Pacifica Found., Station
WBAI(FM), N.Y., N.Y., 59 F.C.C. 2d 892 (1976) (Paci-
fica Clarification Order).  Expressly acknowledging
the forfeiture orders potential negative impact on
broadcast coverage of live events where there is no op-
portunity for journalistic editing, the FCC stated its
intention to exclude such circumstances from the scope
of actionable indecency.  Id. at  4 n. 1.
Following the Pacifica Clarification Order, the D.C.
Circuit reversed the FCCs forfeiture order against Pa-
cifica as vague and overbroad and found the agencys
indecency regime constituted invalid censorship under
47 U.S.C.  326.  Pacifica Found. v. FCC, 556 F.2d 9, 14
(D.C. Cir. 1977).  The FCC appealed and the Supreme
Court reversed in a narrow plurality opinion.  See Pacif-
ica, 438 U.S. at 726, 98 S. Ct. 3026.  The Court rejected
Pacificas statutory argument that the term indecent
in 18 U.S.C.  1464 only covered obscene speech.  Pacif-
ica, 438 U.S. at 739, 98 S. Ct. 3026.  But the Court con-
firmed the general validity of the FCCs indecency re-
gime, emphasiz[ing] the narrowness of [its] holding,
which it confined to the facts of the Carlin monologue.
Id. at 750, 98 S. Ct. 3026.  Justices Powell and Blackmun
concurred in the judgment, writing separately in part to
12a
reiterate the narrowness of the decision and to note the
Courts holding did not speak to cases involving the
isolated use of a potentially offensive word in the course
of a radio broadcast, as distinguished from the verbal
shock treatment administered by respondent here.  Id.
at 760-61, 98 S. Ct. 3026 (Powell, J., concurring).
Shortly after the Courts ruling in Pacifica, a broad-
casters license renewal was challenged on the basis that
the broadcaster had aired indecent programming.  See
In re Application of WGBH Educ. Found., 69 F.C.C.2d
1250 (1978) (WGBH).  Viewer complaints alleged the
broadcaster aired several programs containing nudity
and other allegedly offensive material.  Id. at  2.  Dis-
tinguishing the facts of WGBH from the Courts ruling
in Pacifica, the FCC rejected the challenge and denied
that Pacifica afforded it any general prerogative to
intervene in any case where words similar or identical to
those in Pacifica are broadcast over a licensed radio or
television station.  Id. at  10.  The FCC, noting it in-
tend[ed] strictly to observe the narrowness of the Pacif-
ica holding and emphasizing the language in Justice
Powells concurring opinion, id. at  10, concluded the
single use of an expletive in a program should not call
for us to act under the holding of Pacifica.  Id. at  10
n.6.
The FCCs restrained enforcement policy continued
in the years following Pacifica.  Rejecting another chal-
lenge to a broadcasters license renewal based on the
airing of allegedly indecent material, the FCC reaf-
firmed that isolated use of expletives in broadcasts did
not constitute actionable indecency under 18 U.S.C.
 1464.  See In re Application of Pacifica Found., 95
F.C.C.2d 750 (1983).  The complaint alleged the broad-
13a
7
See In re Infinity Broad. Corp., 3 F.C.C.R. 930,  5 (1987), vacated
in part on other grounds, Action for Childrens Television v. FCC, 852
F.2d 1332, 1337 (D.C. Cir. 1988), superseded in part by Action for
Childrens Television v. FCC,  58 F.3d 654 (D.C. Cir. 1995) (en banc). 
caster had on multiple occasions aired programming
containing language such as motherfucker, fuck, and
shit.  Id. at  16.  The FCC held these facts did not
constitute a prima facie showing of actionable indecency
under 18 U.S.C.  1464, because the complainant had
failed to show the broadcasts amounted to verbal shock
treatment as opposed to isolated use.  Id. at  18.
In April 1987, the FCC issued three simultaneous
indecency decisions.  See In re Pacifica Found., Inc.,
2 F.C.C.R. 2698 (1987); In re Regents of the Univ. of
Cal., 2 F.C.C.R. 2703 (1987); In re Infinity Broad.
Corp., 2 F.C.C.R. 2705 (1987).  These decisions reaf-
firmed the Commissions restrained enforcement policy
and reiterated the agencys policy that isolated or fleet-
ing material would not be considered actionably inde-
cent.  See, e.g., Regents of the Univ. of Cal. at  3
(Speech that is indecent must involve more than an
isolated use of an offensive word.).
Later in 1987, reconsidering these decisions, the
Commission abandoned the view that only the particular
dirty words used in the Carlin monologue could be
indecent.
7
  Instead, the FCC explained it would thereaf-
ter rely on the broader terms of its generic indecency
standard, which defined indecent material as language
that describes, in terms patently offensive as measured
by contemporary community standards for the broad-
cast medium, sexual or excretory activities or organs,
when there is a reasonable risk that children may be in
14a
8
As described in greater detail infra, subsequent litigation deter-
mined what time of day broadcasters could reasonably air indecent pro-
gramming without expecting children to be in the audience.  The D.C.
Circuit Court of Appeals rejected a total ban on indecency, instructing
the FCC to identify a precise time period during which broadcasters
could air indecent material.  See Action for Childrens Television v.
FCC, 932 F.2d 1504 (D.C. Cir. 1991) (ACT I), superseded in part by
Action for Childrens Television v. FCC, 58 F.3d 654 (D.C. Cir. 1995)
(en banc) (ACT II).  In response, the Commission adopted the safe-
harbor rule of 47 C.F.R.  73.3999.  After further instruction from the
D.C. Circuit in 1995, ACT II, the Rule was amended to its current form,
which confines enforcement of indecency restrictions to the hours
between 6:00 a.m. and 10:00 p.m.  See 47 C.F.R.  73.3999; In re En-
forcement of Prohibitions Against Broadcast Indecency in 18 U.S.C.
 1464, 10 F.C.C.R. 10558 (1995).
the audience.  Id. at  2, 5.
8
  Even so, the FCC af-
firmed all three decisions on reconsideration, never indi-
cating disagreement with those decisions express state-
ments that isolated or fleeting material could not be ac-
tionably indecent.  Id.
In 2001, the broadcast industry sought clarification
of the policies and rules of the FCCs indecency enforce-
ment regime.  Guidance for the industry came in the
form of a policy statement issued by the Commission.
See Industry Guidance on the Commissions Case Law
Interpreting 18 U.S.C.  1464 and Enforcement Policies
Regarding Broadcast Indecency, 16 F.C.C.R. 7999,  19
(2001) (Industry Guidance).  The policy statement in-
cluded multiple examples of FCC rulings as case com-
parisons highlighting the factors that had proved sig-
nificant in prior indecency determinations.  One of the
factors noted as leading to prior determinations that a
program was not actionably indecent was the fleeting
or isolated nature of potentially indecent material in
the context of the overall broadcast.  See id. at  17-18.
15a
Soon after the Commissions issuance of the Industry
Guidance policy statement, its restrained enforcement
policy changed.  In an unscripted remark during a live
NBC broadcast of the Golden Globe Awards on January
19, 2003, musician Bono said this is really, really fuck-
ing brilliant while accepting an award.  See In re Com-
plaints Against Various Broadcast Licenses Regarding
The Airing of the Golden Globe Awards Program, 19
F.C.C.R. 4975,  3 n.4 (2004) (Golden Globes).  View-
ers complained to the FCC about Bonos speech, but the
Commissions Enforcement Bureau rejected the com-
plaints in part because the utterance was fleeting and
isolated and therefore did not fall within the scope of
the Commissions indecency prohibition.  See In re
Complaints Against Various Broadcast Licensees Re-
garding Their Airing of the Golden Globe Awards
Program, 18 F.C.C.R. 19859,  6 (FCC Enforcement
Bureau 2003).  The Enforcement Bureau specifically re-
affirmed that fleeting and isolated remarks of this na-
ture do not warrant Commission action.  Id.
On March 3, 2004, the full Commission reversed the
Enforcement Bureaus decision.  See generally Golden
Globes, supra.  Although the FCC acknowledged the
existence of its restrained enforcement policy for iso-
lated or fleeting utterances, it overruled all of its prior
cases holding such instances not actionable.  Id. at  12
(While prior Commission and staff action have indi-
cated that isolated or fleeting broadcasts of the F-Word
such as that here are not indecent or would not be acted
upon, consistent with our decision today we conclude
that any such interpretation is no longer good law.).
But the Commission made it clear that licensees could
not be held liable for broadcasting fleeting or isolated
16a
9
The Commission also cited Trinity Broad. of Fla., Inc. v. FCC, 211
F.3d 618 (D.C. Cir.  2000), explaining that the court in Trinity re-
versed [a] Commission decision that denied a renewal application for
abuse of process in connection with the Commissions minority owner-
ship rules because the court found the Commission had not provided
sufficiently clear notice of what those rules required.  Golden Globes
at  15 n.40.
indecent material prior to its Golden Globes decision.
See id. at  15 & n.40 (declining to impose a forfeiture
penalty because existing precedent would have permit-
ted [the Golden Globe Awards] broadcast and therefore
it would be inappropriate to sanction licensees for con-
duct prior to notice of policy change).
9
 
The FCCs new indecency policy created in Golden
Globes was soon challenged by the broadcast industry.
On February 21, 2006, the Commission issued an omni-
bus order resolving multiple indecency complaints
against television broadcasters in an effort to provide
substantial guidance to broadcasters and the public
about the types of programming that are impermissible
under our indecency standard.  In re Complaints Re-
garding Various Television Broadcasts Between Febru-
ary 2, 2002 and March 8, 2005, 21 F.C.C.R. 2664,  2
(2006) (Omnibus Order).  The Omnibus Order found
four programs indecent and profane:  (1) Foxs broad-
cast of the 2002 Billboard Music Awards, in which per-
former Cher used an unscripted expletive during her
acceptance speech; (2) Foxs broadcast of the 2003 Bill-
board Music Awards, in which presenter Nicole Richie
used two unscripted expletives; (3) ABCs broadcast of
various episodes of its NYPD Blue series, in which as-
sorted characters used scripted expletives; and (4) a
CBS broadcast of The Early Show, in which a guest used
an unscripted expletive during a live interview.  Id. at
17a
 101, 112 n.64, 125, 137.  Applying its policy announced
in Golden Globes, the Commission found the broadcasts
indecent despite the fleeting and isolated nature of the
offending expletives.  Id. at  104, 116, 129, 140.
As in Golden Globes, the Commission recognized the
inequity in retroactively sanctioning the conduct of
broadcast licensees.  Because the offending broadcasts
occurred prior to the issuance of its Golden Globes deci-
sion, the FCC concluded that existing precedent would
have permitted the broadcasts.  Id.  Accordingly, the
FCC did not issue forfeiture orders against any of the
licensees.  Id. at  111, 124, 136, 145.
The networks appealed the Omnibus Order, and the
cases were consolidated before the United States Court
of Appeals for the Second Circuit.  Granting a request
by the FCC, the court remanded the matter to allow the
Commission an opportunity to address the petitioners
arguments.  After soliciting public comment, the FCC
issued a new order on November 6, 2006, reaffirming its
indecency findings against Fox for the 2002 and 2003
Billboard Music Awards but reversing its finding
against CBS for The Early Show broadcast and dismiss-
ing the complaint against ABC on procedural grounds.
See In re Complaints Regarding Various Television
Broadcasts Between February 2, 2002 and March 8,
2005, 21 F.C.C.R. 13299 (2006) (Fox Remand Order).
The networks original appeal to the Second Circuit
was reinstated on November 8, 2006, and consolidated
with a petition for review of the Fox Remand Order.
Fox Television Stations, Inc. v. FCC, 489 F.3d 444, 454
(2d Cir. 2007) (Fox), cert. granted, ___ U.S. ___, 128
S. Ct. 1647, 170 L. Ed. 2d 352 (2008) (No. 07-582).  The
18a
court granted motions to intervene by other networks,
including CBS, and the networks collectively raised sev-
eral challenges to the validity of the Fox Remand Order
essentially mirroring those raised in this case.  See Fox,
489 F.3d at 454.
Undertaking a thorough review of the history of the
FCCs indecency regime similar to that which we engage
in here, the Second Circuit found the FCCs consistent
enforcement policy prior to the Golden Globes decision
excluded fleeting or isolated expletives from regulation.
Id. at 455.  The court concluded there is no question
that the FCC changed its policy with respect to fleeting
expletives, and that the policy changed with the issu-
ance of Golden Globes.  Id. (citations omitted).  Judge
Leval, dissenting in Fox for other reasons, agreed with
the majoritys conclusion that the FCC changed its posi-
tion on fleeting utterances, although he considered the
change of standard relatively modest.  See id. at 469
(Leval, J., dissenting); see also id. at 470 (Leval, J., dis-
senting) (stating that the FCC changed its position and
finding that the FCC clearly acknowledges that its Gol-
den Globes and Fox Remand Order rulings were not
consistent with its prior standard).  We agree that the
Golden Globes decision represented a policy departure
by the FCC.  The extensive history detailed above dem-
onstrates a consistent and entrenched policy of exclud-
ing fleeting broadcast material from the scope of action-
able indecency.
In spite of this history, the FCC contends that by
February 1, 2004 (the date of the Halftime Show), a
broadcaster in CBSs position should have known that
even isolated or fleeting indecent material in program-
ming could be actionable.  Despite its announced rever-
19a
10
In its 2001 policy statement, the Commission described the prin-
cipal factors that have proved significant in [its] decisions to date as:
(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 of sexual or excretory or-
gans or activities; (3) whether the material appears to pander or is used
to titillate, or whether the material appears to have been presented for
its shock value.  Industry Guidance at  10 (emphasis in original).  It
has since contended that its fleeting material policy was no policy at all,
asserting instead that the fleeting nature of material was only a consid-
eration under the second factor and could be outweighed by the other
two factors depending on the specific facts of a case.  But as we detail
infra, this assertion contradicts the history of the Commissions inde-
cency enforcement regime and is foreclosed by the agencys admissions
in Golden Globes and Fox, which are controlling here, that its prior pol-
icy was to exclude fleeting material from the scope of actionable inde-
cency.  Although the FCC disputes the breadth of its policy, now con-
tending the policy was limited only to fleeting expletives or alterna-
tively to fleeting utterances, the fleeting nature of broadcast material
was unquestionably treated by the FCC as more than one of several
contextual factors subject to balancing.  
sal of prior policy in its Golden Globes decision on March
3, 2004, the Commission points to one sentence in its
2001 policy statement to support its position:  [E]ven
relatively fleeting references may be found indecent
where other factors contribute to a finding of patent of-
fensiveness.  Industry Guidance at  19.
10
  But when
read in its original context rather than as an isolated
statement, this sentence does not support the Commis-
sions assertion here.  The relatively fleeting refer-
ences identified by that sentence are distinguishable
from the truly fleeting broadcast material the FCC
had included in its fleeting material policy.  The para-
graph cites, for instance, a notice of apparent liability
against WEZB-FM, New Orleans, to exemplify the kind
of relatively fleeting references the FCC considered
20a
11
The WEZB-FM NAL found a broadcast licensee apparently liable
for a forfeiture penalty of $12,000 for its broadcast of indecent material
during six radio broadcasts spanning fourteen hours of airtime over
nearly a one year period.  The WEZB-FM NAL provides transcript ex-
cerpts from these broadcasts, which involved very graphic segments
discussing a variety of sexual topics in extended detail.  The announcer
joke included in the FCCs Industry Guidance was merely one of
these factual predicates for the broadcast licensees forfeiture liability
for indecency.
actionably indecent.  See id. (citing EZ New Orleans,
Inc. WEZB(FM), 12 F.C.C.R. 4147 (FCC 1997)
(WEZB-FM NAL)).  The citation to WEZB-FM NAL
specifically describes as indecent an announcer joke
involving incest, forceful sexual contact with children,
and a reference to cleaning blood off [a] diaper.  Id.
The announcer joke is distinguishable on its face from
fleeting material such as a brief glimpse of nudity or
isolated use of an expletive.  Moreover, the announcer
joke was merely one incident among dozens included in
a transcript supporting the forfeiture liability determi-
nation in the WEZB-FM NAL.
11
 
Nevertheless, as it clarified at oral argument, the
FCC relies on its 2001 Industry Guidance to contend its
policy on fleeting or isolated material was a policy with
respect to cases relying solely on the use of expletives.
As the Commission explained at oral argument, [t]here
was not a policy that all short utterances were exempt.
This reading of the Commissions policy on fleeting ma-
terial is untenable.  Even the FCCs Industry Guidance
fails to support such a narrow characterization.  See,
e.g., Industry Guidance at  18 (quoting L.M. Commcns
of S.C., Inc. (WYBB(FM)), 7 F.C.C.R. 1595 (FCC 1992),
for the proposition that  a fleeting or isolated utterance
21a
.  .  .  , within the context of live and spontaneous pro-
gramming, does not warrant a Commission sanction.).
Accordingly, we find the Commissions unsubstanti-
ated contentions in this regard contradict the lengthy
history of the Commissions restrained enforcement pol-
icy.  While an agencys interpretation of its own prece-
dent is entitled to deference, Cassell v. FCC, 154 F.3d
478, 483 (D.C. Cir. 1998), deference is inappropriate
where the agencys proffered interpretation is capri-
cious.  Until its Golden Globes decision in March of 2004,
the FCCs policy was to exempt fleeting or isolated ma-
terial from the scope of actionable indecency.  Because
CBS broadcasted the Halftime Show prior to Golden
Globes, this was the policy in effect when the incident
with Jackson and Timberlake occurred.
B.
If the FCCs restrained enforcement policy for fleet-
ing broadcast material was intact until the Golden
Globes decision in March of 2004, our inquiry would end
with a simple examination of the chronology of the
FCCs actions.  CBS broadcasted the Halftime Show
more than a month prior to Golden Globes.  The Commis-
sions orders here would amount to a retroactive applica-
tion of the new policy it announced in Golden Globes,
which would raise due process concerns.  The Commis-
sion has recognized the inequity in such an outcome.  See
Omnibus Order, supra, at  111, 124, 136, 145 (declin-
ing to issue forfeiture orders because the offending
broadcasts occurred prior to the issuance of its Golden
Globes decision, and therefore existing precedent would
have permitted [the] broadcasts); see also Trinity
Broad. of Fla., Inc., 211 F.3d at 628 (Because [d]ue
22a
process requires that parties receive fair notice before
being deprived of property, we have repeatedly held
that [i]n the absence of noticefor example, where the
regulation is not sufficiently clear to warn a party about
what is expected of itan agency may not deprive a par-
ty of property by imposing civil or criminal liability.
(citation omitted)).
But the FCC urges another reading of Golden
Globes, perhaps less obvious yet still plausible, which in-
terprets Golden Globes as addressing only the broadcast
of fleeting expletives, not other fleeting material such as
brief images of nudity.  Further, the Commission con-
tends its fleeting material policy, as initially adopted,
was limited to fleeting words and did not extend to fleet-
ing images.  Under this view, Golden Globes would be
inapposite herethe Commissions sanction against
CBS would be in line with its treatment of images as
part of its historical indecency enforcement regime.  If,
as the FCC contends, Golden Globes was limited to
fleeting expletives, then its orders issuing forfeiture
penalties in this case did not constitute a retroactive
application of the policy change in Golden Globes.
But even if we accept the FCCs interpretation of
Golden Globes and read it as only addressing fleeting
expletives, the Commissions view of the scope of its
fleeting materials policy prior to Golden Globes is unsus-
tainable.  As we will explain, the Commissionbefore
Golden Globeshad not distinguished between catego-
ries of broadcast material such as images and words.
Accordingly, even if, as the FCC contends, Golden
Globes only addressed expletives, it nevertheless repre-
sented the first time the Commission distinguished be-
tween formats of broadcast material or singled out any
23a
one category of material for special treatment under its
fleeting material policy.  That is, it altered the scope of
the FCCs fleeting material policy by excising only one
category of fleeting materialfleeting expletivesfrom
the policy.  And it therefore did not constitute an abdica-
tion of its fleeting material policy.  Rather, a residual
policy on other categories of fleeting materialinclud-
ing all broadcast content other than expletivesre-
mained in effect.
Accordingly, subsequent agency action was required
to change the fleeting material policy as it applied to
broadcast content other than expletives.  By targeting
another category of fleeting materialfleeting images
in its orders against CBS in this case, the FCC appar-
ently sought to further narrow or eliminate the fleeting
material policy as it existed following Golden Globes.
The Commissions determination that CBSs broadcast
of a nine-sixteenths of one second glimpse of a bare fe-
male breast was actionably indecent evidenced the
agencys departure from its prior policy.  Its orders con-
stituted the announcement of a policy changethat
fleeting images would no longer be excluded from the
scope of actionable indecency.
The question is whether the FCCs departure from
its prior policy is valid and enforceable as applied to
CBS.  As noted, agencies are free to change their rules
and policies without judicial second-guessing.  See, e.g.,
Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc.,
467 U.S. 837, 863, 104 S. Ct. 2778, 81 L. Ed. 2d 694
(1984).  But an agency cannot ignore a substantial diver-
sion from its prior policies.  See Ramaprakash v. FAA,
346 F.3d 1121, 1124 (D.C. Cir. 2003) (agency must pro-
vide a reasoned analysis indicating that prior policies
24a
and standards are being deliberately changed, not casu-
ally ignored).  As the Supreme Court explained in State
Farm, an agency must be afforded great latitude to
change its policies, but it must justify its actions by ar-
ticulating a reasoned analysis behind the change:
Petitioner  .  .  .  contend[s] that the rescission of an
agency rule should be judged by the same standard
a court would use to judge an agencys refusal to pro-
mulgate a rule in the first placea standard Peti-
tioner believes considerably narrower than the tradi-
tional arbitrary and capricious test and close to the
borderline of nonreviewability.  We reject this view.
.  .  .  Petitioners view would render meaningless
Congress authorization for judicial review of orders
revoking  .  .  .  rules.  Moreover, the revocation of an
extant regulation is substantially different than a
failure to act.  Revocation constitutes a reversal of
the agencys former views as to the proper course.  A
settled course of behavior embodies the agencys
informed judgment that, by pursuing that course, it
will carry out the policies committed to it by Con-
gress.  There is, then, at least a presumption that
those policies will be carried out best if the settled
rule is adhered to.  Accordingly, an agency chang-
ing its course by rescinding a rule is obligated to sup-
ply a reasoned analysis for the change beyond that
which may be required when an agency does not act
in the first instance.
463 U.S. at 42-43, 103 S. Ct. 2856 (citations omitted).
The agencys obligation to supply a reasoned analysis
for a policy departure requires an affirmative showing
on record.  It must examine the relevant data and artic-
25a
12
It was undisputed that the FCC changed its policy on fleeting
expletives in Golden Globes, which was decided prior to Fox.  But as the
Fox court explained, the actual moment the agency changed its course
was not pertinent in determining whether the change was valid under
State Farm: 
[W]e  .  .  .  reject the FCCs contention that our review here is nar-
rowly confined to the specific question of whether the two Fox broad-
casts  .  .  .  were indecent.  The [Fox Remand Order] applies the
policy announced in Golden Globes.  If that policy is invalid, then we
cannot sustain the indecency findings against Fox.  Thus, as the Com-
mission conceded during oral argument, the validity of the new
fleeting expletive policy announced in Golden Globes and applied in
ulate a satisfactory explanation for its action including
a rational connection between the facts found and the
choice made.  Id. at 43, 103 S. Ct. 2856 (quoting Bur-
lington Truck Lines v. United States, 371 U.S. 156, 168,
83 S. Ct. 239, 9 L. Ed. 2d 207 (1962)).  A reviewing court
must consider whether the decision was based on a
consideration of the relevant factors and whether there
has been a clear error of judgment.  Id. (citations omit-
ted).  The agencys actions will then be set aside as
arbitrary and capricious if the agency failed to provide
a reasoned explanation for its decision to change
course.  Massachusetts v. EPA, U.S., 127 S. Ct. 1438,
1463, 167 L. Ed. 2d 248 (2007); see State Farm, 463 U.S.
at 42-43, 103 S. Ct. 2856; Natl Cable & Telecomms.
Assn v. Brand X Internet Servs., 545 U.S. 967, 981, 125
S. Ct. 2688, 162 L. Ed. 2d 820 (2005) (unexplained in-
consistency in agency practice is a reason for holding a
policy reversal arbitrary and capricious under the
APA, unless the agency adequately explains the rea-
sons for a reversal of policy).
In Fox, the Second Circuit analyzed the FCCs chan-
ged policy on fleeting expletives under State Farm,
12
 but
26a
the [Fox Remand Order] is a question properly before us on this pe-
tition for review.
Fox, 489 F.3d at 454.  To hold otherwise would create a situation ripe
for manipulation by an agency.  Cf. Action for Childrens Television v.
FCC, 852 F.2d 1332, 1337 (D.C. Cir. 1988), superseded in part by ACT
II, supra note 8 ([A]n agency may not resort to [ad hoc] adjudication
as a means of insulating a generic standard from judicial review.).
the panel split on the outcome of its analysis.  Judge
Pooler, writing for the majority, found the policy change
arbitrary and capricious because the FCC failed to pro-
vide a reasoned explanation for the change.  Fox, 489
F.3d at 455 (The Networks contend that the Remand
Order is arbitrary and capricious because the FCC has
made a 180-degree turn regarding its treatment of
fleeting expletives without providing a reasoned expla-
nation justifying the about-face.  We agree.).  Scrutiniz-
ing the sufficiency of the Commissions explanation for
its policy change, the court rejected the agencys prof-
fered rationale as disconnected from the actual policy
implemented by the Commission.  Id. at 459 n.8 (cita-
tion omitted).
Judge Leval, writing in dissent, also applied State
Farm, but he disagreed with the amount of deference
the majority afforded the FCCs policy decision.  Al-
though he agreed that the FCC was obligated to provide
a reasoned explanation for its policy shift, he found the
agencys explanation sufficient.  As Judge Leval ex-
plained:
In my view, in changing its position on the repetition
of an expletive, the Commission complied with these
requirements.  It made clear acknowledgment that
its Golden Globes and Fox Remand Order rulings
were not consistent with its prior standard regarding
27a
lack of repetition.  It announced the adoption of a
new standard.  And it furnished a reasoned explana-
tion for the change.  Although one can reasonably
disagree with the Commissions new position, its ex-
planation  .  .  .  is not irrational, arbitrary, or capri-
cious.  The Commission thus satisfied the standards
of the Administrative Procedure[ ] Act.
Id. at 470 (Leval, J., dissenting).
In this case, State Farm also provides the correct
standard of review, but we need not engage in the sub-
stantive inquiry that divided the Second Circuit panel in
Fox.  There, as Judge Leval noted in dissent, the FCC
provided an explanation for changing its policy on fleet-
ing expletives.  The critical question splitting the court
was whether that explanation was adequate under State
Farm.  Here, unlike in Fox, the FCC has not offered any
explanationreasoned or otherwisefor changing its
policy on fleeting images.  Rather, the FCC asserts it
never had a policy of excluding fleeting images from the
scope of actionable indecency, and therefore no policy
change occurred when it determined that the Halftime
Shows fleeting image of Janet Jacksons breast was
actionably indecent.  Accordingly, we must determine
whether the FCCs characterization of its policy history
is accurate.  If it is not, then the FCCs policy change
must be set aside as arbitrary and capricious, because it
has failed to even acknowledge its departure from its
former policy let alone supply a reasoned explanation
for the change as required by State Farm.
CBS contends the FCCs indecency regime treated
words and images alike, so the exception for fleeting
material applied with equal force to words and images.
28a
13
The FCCs position is difficult to reconcile with the source of its
authority to regulate broadcast content.  The text of 18 U.S.C.  1464
provides:  Whoever utters any obscene, indecent, or profane language
by means of radio communication shall be fined under this title or im-
prisoned not more than two years, or both.  Id. (emphasis added).  Al-
though the text on its face only reaches spoken words, it is applied
broadly, as here, to reach all varieties of indecent content.  But this
broad interpretation of the text requires that the FCC treat words and
images interchangeably in order to fit its regulation of indecent images
within the boundaries of its statutory authority.  Where the FCCs
entire enforcement regime is built on the agencys treatment of words
and images as functionally identical, it is unclear how the difference
between words and images is obvious.  At minimum, the FCC cannot
reasonably expect the difference between words and images to be so
self-evident that broadcast licensees seeking to comply with indecency
standards would interpret FCC enforcement orders narrowly based on
whether the reviewed content consisted of words or images.
The Commission rejects this assertion, contending its
prior policy on fleeting material was limited to words
alone.  Although the FCC acknowledges it had never
explicitly distinguished between images and words for
the purpose of defining the scope of actionable inde-
cency, it contends the existence of such a distinction was
obvious, even if unstated.
13
 
The Commissions conclusion on the nature and scope
of its indecency regimeincluding its fleeting material
policyis at odds with the history of its actions in regu-
lating indecent broadcasts.  In the nearly three decades
between the Supreme Courts ruling in Pacifica and
CBSs broadcast of the Halftime Show, the FCC had
never varied its approach to indecency regulation based
on the format of broadcasted content.  Instead, the FCC
consistently applied identical standards and engaged in
identical analyses when reviewing complaints of poten-
29a
tial indecency whether the complaints were based on
words or images.
In 2000, for example, the FCC rejected a complaint
of indecency based on scenes of nudity in a television
broadcast of the film Schindlers List.  In re WPBN/
WTOM License Subsidiary, Inc., 15 F.C.C.R. 1838
(2000).  Finding the broadcasted images not actionably
indecent, the FCC noted nudity itself is not per se in-
decent and applied the identical indecency test the
agency used to review potentially indecent language.  Id.
at  11.  The Commission did not treat the nudity com-
plaint differentlyfactually or legallyfrom a com-
plaint for indecency based on a spoken utterance.  See
id. at  10 n.5 (The Supreme Court has observed that
contextual assessments may involve (and are not limited
to) an examination of whether the actual words or depic-
tions in context are, for example, vulgar or shocking, a
review of the manner in which the words or depictions
are portrayed, and an analysis of whether the allegedly
indecent material is isolated or fleeting.  (emphasis
added)).  The Commission even referred in a footnote to
its policy towards fleeting material, never suggesting
the policy would be inapplicable because the offending
broadcast content was an image rather than a word.  See
id. at  5 n.10 (explaining that contextual assessments of
whether certain programming is patently offensive, and
therefore actionably indecent, may involve  .  .  .  analy-
sis of whether the allegedly indecent material is isolated
or fleeting).
The Commission took the same approach when re-
viewing viewer complaints against a television station
for multiple broadcasts of programs containing exple-
tives, nudity, and other allegedly indecent material.  See
30a
14
Among several broadcasts at issue in WGBH were:  (1) numerous
episodes of Monty Pythons Flying Circus, which allegedly consistently
relie[d] primarily on scatology, immodesty, vulgarity, nudity, profanity
and sacrilege for humor; (2) a program entitled Rock Follies  .  .  .
which [the petitioner] describe[d] as vulgar and as containing profanity
including obscenities such as shit, bullshit, etc., and action indicating
some sexually-oriented content in the program; and (3) other pro-
grams which allegedly contained nudity and/or sexually-oriented ma-
terial.  69 F.C.C.2d 1250 at  2 (internal quotation marks omitted).
15
The FCC contends WGBH is inapposite because it was a license
revocation proceeding rather than a direct complaint for indecency.
But its analysis in reaching its decision is instructive.  Because the com-
plainant in WGBH challenged the broadcasters license based on a
pattern of allegedly indecent broadcasts, the Commission expressly an-
swered the threshold question of whether the broadcasts were indecent.
Separate from the question of whether the broadcasters actions were
sufficient to revoke its license, the Commissions analysis illustrates
that words and depictions were treated identically for purposes of
determining whether a broadcast was actionably indecent.
WGBH, supra.
14
  Categorically denying that the pro-
gramming in WGBH was actionably indecent,
15
 the FCC
distinguished the facts of WGBH from the Carlin mono-
logue in Pacifica by invoking its restrained enforcement
policy for fleeting or isolated material.  See id. at  10
(We intend strictly to observe the narrowness of the
Pacifica holding.  .  .  .  Justice Powells concurring opin-
ion  .  .  .  specifically distinguished the verbal shock
treatment [in Pacifica ] from the isolated use of a po-
tentially offensive word in the course of a radio broad-
cast.  .  .  .  In the case before us, petitioner has made no
comparable showing of abuse by WGBH-TV of its pro-
gramming discretion.); id. at  10 n.6 (finding that
WGBH-TVs programs differ[ed] dramatically from the
concentrated and repeated assault involved in Pacif-
ica).  In its indecency analysis in WGBH, the FCC
31a
made no distinction between words and images (nudity
or otherwise).
As evidence that the FCCs policy on fleeting mate-
rial, as it existed at the time of the Halftime Show, did
not distinguish between words and images, CBS pre-
sented several complaints viewers had submitted to the
FCC about allegedly indecent broadcasts.  CBS Letter
Br., submitted pursuant to Fed R. App. P. 28(j) (Aug.
13, 2007).  Accompanying each complaint is a corre-
sponding reply letter by the FCC rejecting the inde-
cency allegation.  Each complaint involves some variety
of sexually explicit imagery.  One letter, for example,
describes the early-evening broadcast of a female adult
dancer at a strip club and alleges the broadcast con-
tained visible scenes of the woman nude from the waist
down revealing exposed buttocks and complete genital
nudity for approximately five to seven seconds.  An-
other letter describes in part a Sunday-morning televi-
sion broadcast of the movie Devices and Desires,
which included scenes of a topless woman in bed with
her lover, with her breast very clearly exposed, several
scenes of a topless woman running on the beach, and
several scenes of a nude female corpse, with the breasts
clearly exposed.
Citing Pacifica and the indecency standard used to
review the broadcast of potentially indecent language,
the FCC summarily rejected each of these complaints as
not actionably indecent.  The FCC contends these
form letters are irrelevant, as the letters do not even
explain the grounds for the staffs conclusions that the
broadcasts were not indecent, much less rely on the
fleeting nature of any alleged nudity as a reason for
rejecting the complaints.  FCC Letter Br., submitted
32a
pursuant to Fed R. App. P. 28(j) (Aug. 27, 2007).  But
the relevance of the FCCs rejection letters is not found
in their specific reasons for finding the images not ac-
tionably indecent.  Rather, the rejection letters illus-
trate that the FCC used the identical form letters and
indecency analyses to address complaints of indecent
nudity that it had long used to address complaints of
indecent language.
Confronted with this history of FCC enforcement of
restrictions on broadcast indecency, the entirety of
which reveals no distinction in treatment of potentially
indecent images versus words, the FCC nevertheless
finds such a distinction evident in its prior decisions.
See, e.g., FCC Br. at 26-27.  To support this view, the
FCC offers its Notice of Apparent Liability for Forfei-
ture in In re Young Broadcasting of San Francisco,
Inc., 19 F.C.C.R. 1751 (2004), issued four days before
CBSs broadcast of the Halftime Show.  See Reconsider-
ation Order at  10, 36; FCC Br. at 26-27.  Young
Broadcasting involved a morning news show segment in
which two performers from a production titled Pup-
petry of the Penis appeared in capes but were other-
wise naked underneath the capes.  Young Broadcasting
at  13.  The two men, whose act involved manipulating
and stretching their genitalia to simulate various ob-
jects, performed a demonstration of their act with the
agreement of the shows hosts and at the urging of
off-camera station personnel.  Id.  Although the perfor-
mance was directed away from the camera, the penis of
one performer was fully exposed on camera for less than
one second as the men turned away to act out their per-
formance.  See id. at  12, 13.  Based on these facts, the
Commission found the station apparently liable for a
33a
16
Several statements in the FCCs own press release announcing the
Young Broadcasting Notice of Apparent Liability belie the agencys
contention here that Young Broadcasting accorded with its prior
policies.  See Press Release, FCC, Commn Proposes to Fine Young
Broadcasting of San Francisco, Inc., Statutory Maximum for Ap-
parent Violation of Indecency Rules (Jan. 27, 2004) (statement of
Chairman Michael K. Powell:  Today, we open another front in our in-
creased efforts to curb indecency on our nations airwaves  .  .  .  .); id.
(statement of Commissioner Michael J. Copps:  I am pleased that this
Commission is finally taking an initial step against indecency on tele-
vision.); id. (statement of Commissioner Kevin J. Martin: I hope that
this step today represents the beginning of a commitment to consider
each indecency complaint seriously  .  .  .  .).
forfeiture penalty for broadcasting indecent material.
Id. at  16.
The FCC contends Young Broadcasting was not a
departure from its prior indecency regime.  Rather, as
it explains, Young Broadcasting merely represented the
first instance in which the Commission expressly articu-
lated its preexisting (but unstated) policy of treating
fleeting images differently from fleeting words.
16
  On
this view, according to the FCC, Young Broadcasting
should have dispelled any doubts about the historical
breadth of its fleeting material policy prior to the
Halftime Show because it was issued a few days before
CBSs broadcast.  But Young Broadcasting is unavailing
for this purpose.  It makes no distinction, express or
implied, between words and images in reaching its inde-
cency determination.  To the contrary, it discusses and
compares several other FCC determinations on poten-
tially indecent utterances and depictions, treating the
cases interchangeably and ultimately distinguishing
those cases outcomes without any indication that the
34a
17
One of the cases the FCC distinguished in Young Broadcasting was
its Notice of Apparent Liability in Flambo Broadcasting, Inc. (KFMH-
FM), 9 F.C.C.R. 1681 (MMB 1994), which involved a radio stations
broadcast of sexual material in a crude joke that was not found action-
ably indecent.  Young Broadcasting at  12 n.35.  As with the other
cases it discussed in its Young Broadcasting Notice of Apparent Lia-
bility, the FCC did not draw any distinction between Young Broadcast-
ing and Flambo Broadcasting based on the subject material there
being words or images.  But it did distinguish the two notices of appar-
ent liability in part because:  assuming that the joke [at issue in Flam-
bo Broadcasting] was cut off immediately, the staff of the then-Mass
Media Bureau found that it would not have been actionably indecent
because it was brief, live, unscripted and from an outside source.
Young Broadcasting at  12 n.35 (emphasis added).  Notably, the facts
herea brief image of a bare female breast during the live Halftime
Show broadcast resulting from an unscripted stunt by Jackson and
Timberlakeare remarkably similar to the Flambo Broadcasting fact
pattern that the FCC found readily distinguishable from the actionably
indecent material in Young Broadcasting.
18
Young Broadcasting was a notice of apparent liability, which is
non-final until the implicated licensee either declines to dispute the
findings in the notice or the licensees responsive opposition is fully
adjudicated.  See FCC Br. at 13 (describing content of CBS Notice of
Apparent Liability as tentative conclusions); see also 47 U.S.C.
 504(c) (In any case where the Commission issues a notice of apparent
liability looking toward the imposition of a forfeiture under this chapter,
format of the offending material was a relevant consid-
eration.  See, e.g., id. at  12 & n.35; id. at  14.
17
 
Accordingly, Young Broadcasting does not support
the FCCs assertion here that its policy on fleeting ma-
terial had always excluded images and applied only to
words.  Young Broadcasting appears instead to be best
understood as the Commissions initial effort to abandon
its restrained enforcement policy on fleeting material.
While the final disposition of Young Broadcasting was
still unresolved,
18
 the overarching policy departure that
35a
that fact shall not be used, in any other proceeding before the Commis-
sion, to the prejudice of the person to whom such notice was issued,
unless (i) the forfeiture has been paid, or (ii) a court of competent jur-
isdiction has ordered payment of such forfeiture, and such order has
become final.).  At the time the Commission issued its Reconsideration
Order against CBS and after its determination in Golden Globes, the
question of whether the broadcast licensee in Young Broadcasting
would contest the Notice of Apparent Liability in that case was still
unresolved.  See Reconsideration Order at  6 n.25 (indicating the
status of the Young Broadcasting Notice of Apparent Liability as re-
sponse pending at the time of the Reconsideration Orders issuance).
the Commission sought to accomplish there was effectu-
ated by a combination of its Golden Globes order and its
orders on appeal here.  The Commissions reasoning in
Young Broadcasting is therefore illuminating here.
In Young Broadcasting, the Commission distin-
guished that cases facts from several of its prior orders.
But in so doing, the Commission overlooked the fact that
application of its fleeting material policy had been a de-
terminative factor in those prior orders.  For example,
the licensee in Young Broadcasting cited for support
L.M. Communications, 7 F.C.C.R. 1595 (1992), in which
the radio broadcast of a single expletive was found not
actionably indecent.  Young Broadcasting at  12 n.35.
The FCC found L.M. Communications distinguishable
because there was no finding that the material, in con-
text, was pandering, titillating or intended to shock the
audience.  Id.  But L.M. Communications made no ref-
erence to the pandering, titillating or shocking nature of
the subject broadcast material.  Rather, it determined
the material was not actionably indecent because the
broadcast contained only a fleeting and isolated utter-
ance which, within the context of live and spontaneous
36a
programming, does not warrant a Commission sanc-
tion.  L.M. Commcns, 7 F.C.C.R. at 1595.
The Commissions failure to acknowledge the exis-
tence of its prior policy on fleeting material in Young
Broadcasting is illustrative of its approach here.  In
Young Broadcasting, it read the policy out of existence
by substituting new rationales for its prior indecency
determinations that had applied the policy.  Here, the
Commission is foreclosed from adopting the same ap-
proach by its admission in Golden Globes that the fleet-
ing material policy existed.  So it instead apparently
seeks to revise the scope of the policy by contending the
policy never included fleeting images.  But extensive
precedent over thirty years of indecency enforcement
demonstrates otherwise.
Our reluctant conclusion that the FCC has advanced
strained arguments to avoid the implications of its own
fleeting indecency policy was echoed by our sister circuit
in Fox: 
In [its Omnibus Order], the FCC reject[s] Foxs
suggestion that Nicole Richies [use of two exple-
tives] would not have been actionably indecent prior
to our Golden Globes decision, and would only con-
cede that it was not apparent that Chers [use of
one expletive] at the 2002 Billboard Music Awards
would have been actionably indecent at the time it
was broadcast.  [Id.] at  22, 60.  Decisions express-
ly overruled in Golden Globes were now dismissed as
staff letters and dicta, and the Commission even
implied that the issue of fleeting expletives was one
of first impression for the FCC in Golden Globes.  Id.
at  21 ([I]n 2004, the Commission itself considered
37a
for the first time in an enforcement action whether a
single use of an expletive could be considered in-
decent.).
Fox, 489 F.3d at 456 n.6.  When confronted with these
troublesome revisionist arguments, the FCC conceded
the existence of its prior policy.  See id. at 456 ([I]n its
brief to this court, the FCC now concedes that Golden
Globes changed the landscape with regard to fleeting
expletives.  (citations omitted)); see also id. at 470 (Lev-
al, J., dissenting) ([The FCC] made clear acknowledg-
ment that its Golden Globes and Fox Remand Order
rulings were not consistent with its prior standard re-
garding lack of repetition.).  But it has made no such
concession here.  Faced with extensive evidence to the
contrary, the Commission nevertheless continues to as-
sert that its fleeting material policy was limited to words
and did not exclude fleeting images from the scope of
actionable indecency.
In sum, the balance of the evidence weighs heavily
against the FCCs contention that its restrained enforce-
ment policy for fleeting material extended only to fleet-
ing words and not to fleeting images.  As detailed, the
Commissions entire regulatory scheme treated broad-
casted images and words interchangeably for purposes
of determining indecency.  Therefore, it follows that the
Commissions exception for fleeting material under that
regulatory scheme likewise treated images and words
alike.  Three decades of FCC action support this conclu-
sion.  Accordingly, we find the FCCs conclusion on this
issue, even as an interpretation of its own policies and
precedent, counter to the evidence before the agency
and so implausible that it could not be ascribed to a
38a
19
In its brief and at oral argument, the Commission continues to as-
sert it has not changed its policy on fleeting material, yet it also sug-
gests several reasons why a policy including fleeting images within the
scope of actionable indecency is reasonable.  But see State Farm, 463
U.S. at 50, 103 S. Ct. 2856 ([T]he courts may not accept appellate coun-
sels post hoc rationalizations for agency action.  It is well-established
that an agencys action must be upheld, if at all, on the basis articulated
by the agency itself.  (internal citations omitted)).
difference in view or the product of agency expertise.
State Farm, 463 U.S. at 43, 103 S. Ct. 2856.
Because the Commission fails to acknowledge that it
has changed its policy on fleeting material, it is unable
to comply with the requirement under State Farm that
an agency supply a reasoned explanation for its depar-
ture from prior policy.
19
  See id.; cf. Ramaprakash, 346
F.3d at 1125 ([F]ailure to come to grips with conflicting
precedent constitutes an [agencys] inexcusable depar-
ture from the essential requirement of reasoned decision
making.); LeMoyne-Owen College v. NLRB, 357 F.3d
55, 61 (D.C. Cir. 2004) (Roberts, J.) ([W]here, as here,
a party makes a significant showing that analogous
cases have been decided differently, the agency must do
more than simply ignore that argument.  .  .  .  The need
for an explanation is particularly acute when an agency
is applying a multi-factor test through case-by-case
adjudication.).  Consequentially, the FCCs new policy
of including fleeting images within the scope of action-
able indecency is arbitrary and capricious under State
Farm and the Administrative Procedure Act, and there-
fore invalid as applied to CBS.
39a
20
This issue was extensively briefed by the parties and amici.
IV.
The FCCs arbitrary and capricious change of policy
on the broadcast of fleeting indecent material should be
a sufficient ground to decide this case.  But if not, it
would appear the Commission incorrectly determined
CBSs liability for Jackson and Timberlakes Halftime
Show performance.
20
  CBS contends it neither planned
Jackson and Timberlakes offensive actions nor knew of
the performers intent to incorporate those actions into
their performance.  The FCC does not dispute this as-
sertion, but it nevertheless seeks to hold CBS liable for
the performers actions.  The Commission offers three
theories of liability.  First, the FCC contends the per-
formers intent can be imputed to CBS under the com-
mon law doctrine of respondeat superior.  Second, the
FCC contends CBSs unique duties as a broadcast li-
censee permit an extension of vicarious liability beyond
the traditional employer-employee scope of respondeat
superior.  Third, the FCC contends CBS is directly lia-
ble for the performers actions because it willfully
failed to take adequate measures to guard against a
known risk that indecency might occur during the Half-
time Show.
At this juncture, we do not believe these theories
provide grounds for CBSs liability.  Jackson and Tim-
berlake were independent contractors, who are outside
the scope of respondeat superior, rather than employees
as the FCC found.  The First Amendment precludes the
FCC from sanctioning CBS for the indecent expressive
conduct of its independent contractors without offering
proof of scienter as an element of liability.  And it is un-
40a
clear whether the FCC correctly applied a willfulness
standard to find CBS liable for failing to prevent the
Halftime Shows indecency.
A.
The FCC relies primarily on the traditional agency
doctrine of respondeat superior to hold CBS vicariously
liable for the actions of Janet Jackson and Justin
Timberlake during the Halftime Show.  The respondeat
superior doctrine provides that [a]n employer is sub-
ject to liability for torts committed by employees while
acting within the scope of their employment.  Restate-
ment (Third) of Agency  2.04 (2006); see also id.  7.07.
The doctrines scope is limited to the employment rela-
tionship and to conduct falling within the scope of that
relationship  .  .  .  .  Id.   2.04 cmt. b.  Here, the parties
dispute whether the conduct giving rise to liability was
performed by CBSs employees.  CBS asserts, and the
FCC denies, that Jackson and Timberlake were inde-
pendent contractors and therefore outside the scope of
respondeat superior.  CBS also contends respondeat
superior is an unsuitable theory of liability in the broad-
cast indecency context and asserts the FCCs novel
adoption of it in this case is improper.
The federal statutes restricting broadcast indecency,
18 U.S.C.  1464, and establishing the FCCs forfeiture
penalty scheme, 47 U.S.C.  503, are silent on vicarious
liability. Nevertheless, there is sound authority that
CBS may be vicariously liable for the indecent speech or
expression of its employees.  See Cantrell v. Forest City
Pub. Co., 419 U.S. 245, 253-54, 95 S. Ct. 465, 42 L. Ed. 2d
419 (1974) (holding a newspaper publisher liable under
traditional doctrines of respondeat superior for a re-
41a
porters story that contained knowing falsehoods injuri-
ous to the privacy of the subjects of the story);  Schia-
vone Constr. Co. v. Time, Inc., 847 F.2d 1069, 1089 n.34
(3d Cir. 1988) (Because [reporter] Sandy Smith was an
employee of Time, Time is responsible for Smiths actual
malice under a theory of respondeat superior. (citing
Cantrell, 419 U.S. at 253-54, 95 S. Ct. 465; R. Smolla,
Law of Defamation  3.36 (1986))).  Accordingly, if a
broadcasters employee violates the indecency provision
of 18 U.S.C.  1464, as sanctioned through the forfeiture
scheme of 47 U.S.C.  503(b), respondeat superior liabil-
ity may be permissible.
But even though the respondeat superior doctrine
may apply in this context, it is limited to the conduct of
employees acting within the scope of their employment.
Determining whether CBS may be liable under respon-
deat superior first requires selection of the applicable
legal standard for differentiating an employee from an
independent contractor.  Neither party has adequately
analyzed the issue.  CBS suggests New York law ap-
plies, asserting the FCC itself determined in its orders
that a choice-of-law provision included in both perform-
ers Halftime Show agreements requires application of
New York law.  But it provides no additional argument
in support of applying New York law.  The Commission
denies it ever made this determination in its orders, in-
stead urging application of federal law, but without
elaborating or specifying the applicable legal standard.
As CBS states, the Commission, in its orders in this
case, referenced the choice-of-law provisions in the
Jackson and Timberlake performance agreements.  See
Forfeiture Order at  25 n.88; Reconsideration Order at
 27 n.90.  But those references by the Commission, read
42a
in context, were not determinations of what law should
apply here.  Rather, as it asserts, the FCC cited New
York law as one non-exhaustive example of courts ap-
plying common law agency principles.  Reconsideration
Order at  27.  And its references to the choice-of-law
provisions in the performers agreements were included
only for the purpose of adding weight to its citations to
New York law in this regard.
Moreover, the choice-of-law provisions in the Jack-
son and Timberlake performance agreements only select
New York contract law.  The provisions, which are iden-
tical in the two agreements, read:  CHOICE OF LAW:
This Agreement and all matters or issues collateral
thereto shall be governed by the laws of the State of
New York applicable to contracts executed and to be
performed entirely therein.  The plain text of these
contract provisions select the laws of the State of New
York applicable to contractsthat is, New York con-
tract lawin all disputes central or collateral to the con-
tract.  Respondeat superior is a principle of agency law.
Were the present case a matter of interpreting the con-
struction or validity of contractual provisions, New York
law might well apply.  But we read the contract as silent
on applicable agency law, and CBS has not offered any
further explanation to support a finding to the contrary.
Furthermore, even if the choice-of-law provisions
had been inclusively drafted to select all categories of
New York law, or if the matters or issues collateral
thereto language of the choice-of-law provisions could
be interpreted to cover this case, our conclusion would
be the same.  The regulation of broadcast indecency is
43a
21
The FCC possesses broad authority to regulate television broad-
casters, which operate as licensees subject to federal rules.  Some of
those rules, such as the indecency restrictions implicated here, appear
to leave little room for regulation by the States.  See Allen B. Dumont
Labs. v. Carroll, 184 F.2d 153, 156 (3d Cir. 1950) (invalidating a regula-
tion of the Pennsylvania State Board of Censors, which required that
all motion picture films intended to be broadcast by television in Penn-
sylvania be submitted to the Board for censorship purposes, because
federal provisions on broadcast indecency, profanity and obscenity
preempted state censorship rules).
the province of the federal government.
21
  Whether or
not an agent was an employee of its principalfor the
specific purpose of determining liability under the
broadcast indecency regimedepends on the definition
the federal government assigns to the term employee
under its administrative scheme.  No states law may
alter the scope or nature of liability for broadcast inde-
cency by supplying an alternate definition.
Accordingly, we believe the FCCs contention that
federal law applies is correct.  Liability here arises
under a federal regulatory scheme, and defining the
boundaries of permissible vicarious liability under that
scheme is likewise a federal matter.  To hold otherwise
would create opportunities for broadcasters to evade
liability for broadcast indecency through artful drafting
of contracts and would frustrate the federal govern-
ments intention of crafting uniform national rules re-
stricting the transmission of indecent and obscene mate-
rial over public airwaves.  Cf. Cmty. for Creative Non-
Violence v. Reid, 490 U.S. 730, 740, 109 S. Ct. 2166, 104
L. Ed. 2d 811 (1989) (Establishment of a federal rule of
agency, rather than reliance on state agency law, is par-
ticularly appropriate here given the [Copyright Act of
1976]s express objective of creating national, uniform
44a
copyright law by broadly pre-empting state statutory
and common-law copyright regulation.).  The question
is how to define the scope and substance of the vicarious
liability rule herea uniform federal rule on a broad-
casters liability for its own agents indecent acts.
In analogous situations requiring a determination of
vicarious liability under a uniform, nationally-applicable
law, the Supreme Court has looked to the general com-
mon law of agency rather than the law of any particular
state:
The Act nowhere defines the terms employee or
scope of employment.  It is, however, well estab-
lished that where Congress uses terms that have ac-
cumulated settled meaning under the common law, a
court must infer, unless the statute otherwise dic-
tates, that Congress means to incorporate the estab-
lished meaning of these terms.  In the past, when
Congress has used the term employee without de-
fining it, we have concluded that Congress intended
to describe the conventional master-servant relation-
ship as understood by common-law agency doctrine.
.  .  .  [W]hen we have concluded that Congress in-
tended such terms as employee, employer, and
scope of employment to be understood in light of
agency law, we have relied on the general common
law of agency, rather than on the law of any particu-
lar State, to give meaning to these terms.
Reid, 490 U.S. at 739-40, 109 S. Ct. 2166 (interpreting
use of the term employee in the Copyright Act of 1976,
to ascertain whether a work was prepared by an em-
ployee or independent contractor, which is part of the
determination of whether work is for hire under the
45a
Act) (internal quotations and citations omitted); see also
Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 323
n.3, 112 S. Ct. 1344, 117 L. Ed .2d 581 (1992) (As in
Reid, we construe the term [employee in ERISA, 29
U.S.C.  1002(6),] to incorporate the general common
law of agency, rather than  .  .  .  the law of any particu-
lar State.  (quoting Reid, 490 U.S. at 740, 109 S. Ct.
2166)).  Unlike in Reid or Darden, here we do not review
a statutory scheme in which Congress expressly used
the terminology of agency law.  The relevant provisions
of 18 U.S.C.  1464 and 47 U.S.C.  503(b) do not include
terms such as employee or scope of employment.
But the respondeat superior doctrines application in the
broadcast indecency context is premised on the notion
that some form of vicarious liability under these statutes
was implicitly authorized by Congress.
Drawing on Reid and Darden for guidance, we agree
with the FCC that the general common law of agency
supplies the appropriate standard for determining whe-
ther Jackson and Timberlake were employees of CBS
where Congress has not provided specific direction on
the scope of vicarious liability in this context.  In Dar-
den, the Court described Reid as requiring a presum-
ption that Congress means an agency law definition for
employee unless it clearly indicates otherwise  .  .  .  .
Darden, 503 U.S. at 325, 112 S. Ct. 1344 (citations omit-
ted).  The Courts rationale is based on Congresss cre-
ation of vicarious liability without defining the scope of
that liabilitynot whether magic words have been in-
cluded in the statute:
ERISAs nominal definition of employee as any
individual employed by an employer, 29 U.S.C.
 1002(6), is completely circular and explains noth-
46a
22
The Supreme Court has noted the breadth and uniformity of the
FCCs federal regulatory regime for the broadcast industry:  The Com-
missions authority to regulate broadcasting and other communications
is derived from the Communications Act of 1934, as amended.  The
Acts provisions are explicitly applicable to all interstate and foreign
ing.  As for the rest of the Act, Darden does not cite,
and we do not find, any provision either giving spe-
cific guidance on the terms meaning or suggesting
that construing it to incorporate traditional agency
law principles would thwart the congressional design
or lead to absurd results. Thus, we adopt a com-
mon-law test for determining who qualifies as an
employee under ERISA, a test we most recently
summarized in Reid  .  .  .  .
Id. at 323, 112 S. Ct. 1344 (footnote omitted).  The Dar-
den rationale applies with equal force here.  Assuming
Congress authorized vicarious liability at all under 18
U.S.C.  1464 and 47 U.S.C.  503(b), its implicit authori-
zation by definition lacks specificity.  There is little dif-
ference between implicit adoption of a rule and the ex-
plicit but circular and uninformative inclusion of
agency law terminology in statutory text.
Moreover, the Court in Reid explained that the prac-
tice of relying on the general common law of agency,
rather than the law of any particular state, reflects the
fact that federal statutes are generally intended to have
uniform nationwide application.  Id. at 740, 109 S. Ct.
2166 (quoting Miss. Band of Choctaw Indians v.
Holyfield, 490 U.S. 30, 43, 109 S. Ct. 1597, 104 L. Ed. 2d
29 (1989)).  CBS has not offered any reason why this
rule should not inform our interpretation of the federal
governments regulatory scheme for broadcast inde-
cency.
22
 Accordingly, we agree with the FCC that re
47a
communication by wire or radio  .  .  .  .  47 U.S.C.  152(a).  The Com-
missions responsibilities are no more narrow:  it is required to endeav-
or to make available  .  .  .  to all the people of the United States a rap-
id, efficient, Nation-wide, and world-wide wire and radio communication
service  .  .  .  .  47 U.S.C.  151.  The Commission was expected to
serve as the single Government agency with unified jurisdiction and
regulatory power over all forms of electrical communication, whether
by telephone, telegraph, cable, or radio.  It was for this purpose given
broad authority.  As this Court emphasized in an earlier case, the
Acts terms, purposes, and history all indicate that Congress formula-
ted a unified and comprehensive regulatory system for the (broadcast-
ing) industry.  FCC v. Pottsville Broad. Co., 309 U.S. 134, 137, 60 S. Ct.
437, 84 L. Ed. 656 (1940).
spondeat superior liability for violations of 18 U.S.C.
 1464, as sanctioned through 47 U.S.C.  503(b) forfei-
ture penalties, should be understood in light of the gen-
eral common law of agency, Reid, 490 U.S. at 741, 109
S. Ct. 2166.  And under the common law, respondeat
superior is limited to the employer-employee relation-
ship.  United States v. Sw. Cable Co., 392 U.S. 157,
167-68, 88 S. Ct. 1994, 20 L. Ed. 2d 1001 (1968) (foot-
notes omitted).
In Reid, the Court set forth a test, incorporating the
Restatement definition of employee, for determining
who qualifies as an employee under the common law:
In determining whether a hired party is an employee
under the general common law of agency, we con-
sider the hiring partys right to control the manner
and means by which the product is accomplished.
Among the other factors relevant to this inquiry are
the skill required; the source of the instrumentalities
and tools; the location of the work; the duration of
the relationship between the parties; whether the
hiring party has the right to assign additional pro-
48a
jects to the hired party; the extent of the hired par-
tys discretion over when and how long to work; the
method of payment; the hired partys role in hiring
and paying assistants; whether the work is part of
the regular business of the hiring party; whether the
hiring party is in business; and the tax treatment of
the hired party.
Id. at 751-52, 109 S. Ct. 2166 (internal quotations and
citations omitted).
While establishing that all of these factors are rele-
vant and that no one of these factors is determinative,
id. at 752, 109 S. Ct. 2166, Reid did not provide guidance
on the relative weight each factor should be assigned
when performing a balancing analysis.  But the Court
has indicated that determining the appropriate balance
is a case-specific endeavor:
There are innumerable situations which arise in the
common law where it is difficult to say whether a
particular individual is an employee or an independ-
ent contractor.  .  .  .  In such a situation  .  .  .  there
is no shorthand formula or magic phrase that can be
applied to find the answer, but all of the incidents of
the relationship must be assessed and weighed with
no one factor being decisive.  What is important is
that the total factual context is assessed in light of
the pertinent common-law agency principles.
NLRB v. United Ins. Co. of Am., 390 U.S. 254, 258, 88 S.
Ct. 988, 19 L. Ed. 2d 1083 (1968) (footnote omitted). Oth-
er courts have followed this approach.  See, e.g.,  Carter
v. Helmsley-Spear, Inc., 71 F.3d 77, 85 (2d Cir. 1995)
([T]he [Reid] factors are weighed by referring to the
49a
23
In Aymes, the Second Circuit offered an example of how the facts
of a case might diminish the significance of a Reid factor:  The [Reid]
factors should not merely be tallied but should be weighed according to
their significance in the case.
For example, the factors relating to the authority to hire assistants
will not normally be relevant if the very nature of the work requires
the hired party to work alone.  In such a case, that factor should be
accorded no weight in applying the Reid test.  Having the authority
to hire assistants, however, might have great probative value where
the individual claiming to be an independent contractor does exercise
authority to enlist assistants without prior approval of the party that
hired him. In the latter case, this show of authority would be highly
indicative that the hired party was acting as an independent contrac-
tor.
Aymes, 980 F.2d at 861.  The court went on to specify five Reid factors
that will be significant in virtually every situation and should be
given more weight in the analysis, because they will usually be highly
probative of the true nature of the employment relationship.  Id.
These factors, according to the court, include:  (1) the hiring partys
right to control the manner and means of creation; (2) the skill required;
(3) the provision of employee benefits; (4) the tax treatment of the hired
party; and (5) whether the hiring party has the right to assign addi-
facts of a given case.  (citing Aymes v. Bonelli, 980 F.2d
857, 861 (2d Cir. 1992))).
Accordingly, all of the Reid factors are relevant, and
no one factor is decisive, but the weight each factor
should be accorded depends on the context of the case.
Some factors will have little or no significance in deter-
mining whether a party is an independent contractor or
an employee on the facts of a particular case.  Aymes,
980 F.2d at 861; see Marco v. Accent Publg Co., 969
F.2d 1547, 1552 (3d Cir. 1992) (noting that three Reid
factors were indeterminate on the facts of the case and
according those factors little or no weight in applying
Reids balancing test).
23
  
50a
tional projects to the hired party.  Id.  We agree that these factors will
almost always be critical in determining whether a hired party is an
employee or independent contractor.  But we reiterate that the proper
weight to be accorded any Reid factor is dependent on its significance
in the relevant case. 
24
In its Reconsideration Order, the Commission explained that
every aspect of the performance, including the exact time, length,
location, material, set, script, staging, and wardrobe, was subject to the
control of Viacom/CBS through its corporate affiliate MTV.  Id. at  26.
The Commission went on to state:  
We recognize that some of the common law factors are not indicative
of agency.  Again, however, the relative weight of common law factors
varies according to the legal context in which the agency issue arises.
The central issue here is the parties relationship for the specific pur-
pose of imposing vicarious liability for the performers actions in [the
Halftime Show] performance that were harmful to the public (rather
than for copyright, workers compensation, anti-discrimination or
other purposes).  In this context, the Commission properly concluded
that the evidence clearly demonstrating Viacom/CBSs right to
control the halftime show performance was decisive.
Id. at  27 (footnote omitted).
In the present case, the FCC erred by failing to con-
sider several important Reid factors when determining
whether Jackson and Timberlake were employees of
CBS.  And rather than balancing those factors it did
consider, the Commission focused almost exclusively on
CBSs right of control over the performers.  See FCC
Br. at 42 (The critical factor of control weighs so heav-
ily in favor of a conclusion that Jackson and Timberlake
were CBSs employees that, as the Commission reason-
ably determined, consideration of that factor alone is
decisive.  (citing Reconsideration Order at  27)).
24
Although the right-to-control factor is usually signifi-
cant in determining employment status, the Commission
assigned it disproportionate, even dispositive, weight
51a
25
On appellate review, the findings of fact constituting each relevant
Reid factor are afforded significant deference under the Administrative
Procedure Act (APA). But balancing those factors to determine
employment status is a question of law traditionally accorded no
deference.   See Marco, 969 F.2d at 1548 ([W]e exercise plenary review
of the  .  .  .  application of the law of agency to the facts. (citations
omitted)); Carter, 71 F.3d at 85-87 (describing the question of whether
a hired party is an employee or independent contractor as a legal
conclusion and engaging in de novo balancing of the Reid factors);
Aymes, 980 F.2d at 861-64 (same).  In the past, we have held that agen-
cy determinations on questions of law not within the agencys exper-
tisesuch as the FCCs determination here on employment status
receive less deference under the APA than other agency conclusions.
See Natl Indus. Sand Assn v. Marshall, 601 F.2d 689, 699 n.34 (3d Cir.
1979) (A court may decide all relevant questions of law [d]e novo under
the standard set forth in 5 U.S.C. []706(2)(A).  (citation omitted)).
Other courts have agreed.  See, e.g., Wolfe v. Barnhart, 446 F.3d 1096,
1100 (10th Cir. 2006) (When we review an agencys decision under the
APAs arbitrary, capricious or abuse of discretion standard, our review
is narrow and deferential.  .  .  .  However, these limitations do not apply
to questions of law. (citations and internal quotation omitted));
Davidson v. Glickman, 169 F.3d 996, 1000 (5th Cir. 1999) (Under the
APA, we review questions of law de novo, without deference to the
agencys conclusions.  (citations omitted)); Wagner v. Natl Transp.
Safety Bd., 86 F.3d 928, 930 (9th Cir. 1996) (Purely legal questions are
reviewed de novo. (citation omitted)); Texas E. Prods. Pipeline Co. v.
Occupational Safety and Health Review Commn, 827 F.2d 46, 47 (7th
here.  But Reid stresses contextual balancing, with no
one factor decisive.  See Marco, 969 F.2d at 1552 (reject-
ing an application of the Reid test that gave dispro-
portionate consideration to the factor of control, reiter-
ating that no single factor is dispositive of employee sta-
tus, and instructing that courts should keep this factor
[of control] in perspective).  Accordingly, we will review
the Reid factors, weighed in light of the context of this
case, to determine whether Jackson and Timberlake
were employees or independent contractors of CBS.
25
  
52a
Cir. 1987) (For questions of law, the APA on its face mandates de novo
review.  (citing the text of 5 U.S.C.  706:  To the extent necessary to
decision and when presented, the reviewing court shall decide all
relevant questions of law.  .  .  .) (additional citation omitted)); Artesian
Indus., Inc. v. Dept of Health and Human Servs., 646 F. Supp. 1004,
1006 (D.D.C. 1986) (Based on the express language of the APA, the
arbitrary and capricious standard applies only to actions, findings and
conclusions, by an agency, excluding any questions of law.  The APA
explicitly empowers reviewing courts to decide all relevant questions
of law, and the United States Court of Appeals for the District of Co-
lumbia Circuit has construed this language to mean what it says
questions of law are to be decided by courts, not agencies.(citations
and footnotes omitted)).
Here, we need not resolve whether de novo review of the FCCs
application of the Reid test is appropriate.  It is true the FCC has no
unique expertise in determining whether a broadcast licensees agent
is an employee or independent contractor under the general common
law of agency.  But even under the APAs traditionally deferential stan-
dard, we hold unlawful and set aside agency conclusions that are not
in accordance with law.  5 U.S.C.  706(2)(A).  And the FCCs conclu-
sion on the performers employment status, by placing dispositive
weight on the single factor of CBSs right to control, is contrary to
settled law under Reid.  See Marco, 969 F.2d at 1552 (rejecting an app-
lication of the Reid test that gave disproportionate consideration to
the factor of control, reiterating that no single factor is dispositive of
employee status, and instructing that courts should keep this factor [of
control] in perspective).  Moreover, the FCC failed to consider several
relevant Reid factorsan error the Supreme Court has described as
sufficient to render an agencys conclusions arbitrary and capricious
under the APA.  See State Farm, 463 U.S. at 43, 103 S. Ct. 2856 (de-
scribing an agencys fail[ure] to consider an important aspect of [a]
problem as arbitrary and capricious under the APA).
Only three factors weigh in favor of a determination
that Jackson and Timberlake were employees of CBS.
First, CBS is in business, which increases the possibil-
ity that it would employ people.  Marco, 969 F.2d at
1551.  Second, CBS regularly produces shows for na-
tional broadcast in the course of its business.  Both fac-
53a
26
Furthermore, the FCC, asserting that CBS scripted every word
uttered on stage, appears to overstate CBSs scripting role.  The re-
cord indicates the performersand Jackson in particularhad a role
in selecting songs to be performed at the show, all of which were prev-
iously recorded by the performers.  Moreover, the songs were revised
by the performers and their assistants to accommodate extra vocalists,
time constraints, and other unique aspects of the Halftime Show per-
formances.
tors are relatively insignificant on balance.  See id. (not-
ing that a hiring party might easily accomplish its regu-
lar business by using independent contractors rather
than employees); Aymes, 980 F.2d at 863 (according
factor of whether hiring party is in business negligible
weight, noting it will always have very little weight in
this analysis and will generally be of little help).
Third, and most significant to its argument, is the
factor the FCC focused on in its orders:  CBSs right to
control the manner and means by which Jackson and
Timberlake accomplished their Halftime Show perfor-
mance.  As the FCC contends, CBS, through its corpo-
rate affiliates, supervised the Halftime Show and re-
tained the right to approve all aspects of the shows per-
formances.  But it is undisputed that CBSs actual con-
trol over the Halftime Show performances did not ex-
tend to all aspects of the performers work.  The per-
formers, not CBS, provided their own choreography and
retained substantial latitude to develop the visual per-
formances that would accompany their songs.  Similarly,
as the FCC notes, CBS personnel reviewed the perform-
ers selections of set items and wardrobes, but the per-
formers retained discretion to make those choices in the
first instance and provided some of their own materi-
als.
26
 
54a
27
Some Reid factors carry little or no weight in our analysis because
they are indeterminate on the facts.  See Marco, 969 F.2d at 1552 (find-
ing some factors indeterminate based on the facts of that case).  The
extent of the performers discretion over when and how long to work
is unclear.  Their performance agreements require certain scheduled
appearances and rehearsals, including the Halftime Show itself, but the
record indicates the performers were free to (and did) complete addi-
tional preparations at their own discretion.  Similarly, the record is in
We reviewed a comparable set of facts in Marco,
where we held a photographer was an independent con-
tractor even though the hiring party, a magazine, exer-
cised significant control over the details of the work.
Marco, 969 F.2d at 1551.  There, the magazine supplied
jewelry, props, models, sketches intended to describe
the exact composition of the photographs, and, at some
sessions, an Art Director.  Id.  Even though the maga-
zine controlled  .  .  .  the subject matter and composi-
tion of the images, we noted that other aspects of the
workincluding the choice of light sources, filters,
lenses, camera, perspective, aperture setting, shutter
speed, and processing techniqueswere not under the
magazines control.  Id. at 1551-52.  Moreover, the Art
Directoralthough exercising supervisory control
only supervised some of the sessions, and his super-
vision was limited to subject matter, composition, and
mood.  Id. at 1552.
Here, as in Marco, CBSs control was extensive but
not determinative of employment.  Even though a princi-
pals right to control is an important factor weighing in
favor of a determination that an employment relation-
ship existed, it is not dispositive when considered on
balance with the rest of the Reid factors.  Of the remain-
ing factors significant on the facts here,
27
 all are strong
55a
conclusive on the location of the performers worksome of which was
on set and scheduled, and some of which was off set and unscheduled.
28
This factor is accorded great weight under the common law: 
In general, employment contemplates a continuing relationship and
a continuing set of duties that the employer and employee owe to
each other.  Agents who are retained as the need arises and who are
not otherwise employees of their principal normally operate their own
business enterprises and are not, except in limited respects, integra-
ted into the principals enterprise so that a task may be completed or
a specified objective accomplished.  Therefore, respondeat superior
does not apply.
Restatement (Third) of Agency  2.04 cmt. b (2006); see also Aymes,
980 F.2d at 861 (describing the hiring partys right to assign additional
work as one of five Reid factors, along with control, to be given more
weight in the analysis, because [it] will usually be highly probative of
the true nature of the employment relationship).
ly indicative of Jackson and Timberlakes independent
contractor status.  First, it is undisputed that both Jack-
son and Timberlake were hired for brief, one-time per-
formances during the Halftime Show; CBS could not
assign more work to the performers.
28
  Second, Jackson
and Timberlake selected and hired their own choreogra-
phers, backup dancers, and other assistants without any
involvement on the part of CBS.  Third, Jackson and
Timberlake were compensated by one-time, lump-sum
contractual payments and promotional considerations
rather than by salaries or other similar forms of remit-
tances, without the provision of employee benefits.
Fourth, the skill required of a performer hired to sing
and dance as the headlining act for the Halftime Show
a performance during a Super Bowl broadcast, as the
FCC notes, that attracted nearly 90 million viewers and
was the highest-rated show during the 2003-04 television
seasonis substantial even relative to the job of a gen-
eral entertainer, which is itself a skilled occupation.
56a
Also weighing heavily in favor of Jackson and Tim-
berlakes status as independent contractors is CBSs
assertion in its briefs, which the FCC does not refute,
that it paid no employment tax.  Had the performers
been employees rather than independent contractors,
federal law would have required CBS to pay such taxes.
See, e.g., Enochs v. Williams Packing & Nav. Co., 370
U.S. 1, 3, 82 S. Ct. 1125, 8 L. Ed. 2d 292 (1962) (citing
statutory provisions requiring employers to pay Social
Security taxes of their employees); McDonald v. S.
Farm Bureau Life Ins. Co., 291 F.3d 718, 721 (11th Cir.
2002) (explaining the FICA tax scheme, which requires
employers to share the FICA tax liabilities of their em-
ployees but not of their independent contractors).
Finally, there is no evidence that Jackson, Timber-
lake, or CBS considered their contractual relationships
to be those of employer-employee.  In Reid, the Court
incorporated the Restatement, describing it as setting
forth a nonexhaustive list of factors relevant to deter-
mining whether a hired party is an employee under the
common law of agency.  490 U.S. at 752, 109 S. Ct. 2166.
Among the factors not explicitly listed in Reid, but in-
cluded in the Restatement, is the parties understanding
of their contractual relationship.  See Restatement
(Third) of Agency  7.07 cmt. f (including as an explicit
factor in determining employment status whether the
principal and the agent believe that they are creating an
employment relationship).  Although the Commission
did not inquire into this factor, it should have been a
significant consideration in this case. Under the FCCs
rationale, band members contracted to play a one-song
set on a talk show or a one-show-only televised concert
special presumably would be employees of the broad-
57a
caster.  These performerswho frequently promote
their work through brief contractual relationships with
media outletswould be employees of dozens of em-
ployers every year.  Accordingly, it is doubtful that ei-
ther the performers here or CBS believed their con-
tracts created employment relationships.  Nevertheless,
given the lack of a developed record on this factor, we
will not accord it significant weight in our analysis.
On balance, the relevant factors here weigh heavily
in favor of a determination that Jackson and Timberlake
were independent contractors rather than employees of
CBS.  The Commission erred in according the right-to-
control factor disproportionate weight and in treating it
as determinative without considering several significant
factors weighing against it.  Cf. Reid, 490 U.S. at 752,
109 S. Ct. 2166 (Examining the circumstances of this
case in light of these factors, we agree  .  .  .  that Reid
was not an employee of CCNV but an independent con-
tractor.  True, CCNV members directed enough of
Reids work to ensure that he produced a sculpture that
met their specifications.  But the extent of control the
hiring party exercises over the details of the product is
not dispositive.  Indeed, all the other circumstances
weigh heavily against finding an employment relation-
ship.).  In sum, both performers were acting as inde-
pendent contractors for the limited purpose of providing
entertainment services for one isolated, brief program.
Accordingly, the doctrine of respondeat superior does
not apply on these facts.
B.
Although vicarious liability is traditionally limited to
the employer-employee scope of respondeat superior,
58a
29
See, e.g., Forfeiture Order at  23 n.80 (citing In re Liab. of Wagen-
voord Broad. Co., Licensee of Station WVOG, New Orleans, LA, 35
F.C.C.2d 361 (1972); In re Eure Family Ltd. Pship, 17 F.C.C.R. 7042,
the FCC proffers an alternative theory of liability under
which CBS may be held vicariously liable for its inde-
pendent contractors actions based on its duties as a
broadcast licensee.  The FCC contends CBS is vicari-
ously liable for Jackson and Timberlakes actions during
the Halftime Showirrespective of their status as inde-
pendent contractorsbecause broadcast licensees hold
non-delegable duties to avoid the broadcast of indecent
material and to operate in the public interest.  CBS dis-
putes the validity of this theory as applied to them, con-
tending it functionally creates a strict liability standard
for broadcast indecency and therefore unconstitutionally
eliminates the scienter element of the indecency provi-
sions of 18 U.S.C.  1464 and 47 C.F.R.  73.3999(b).
1.
Broadcast licensees hold several duties as conditions
of maintaining their licenses.  There are good reasons to
hold a broadcaster strictly liable for complying with li-
censing rules.  Broadcasters have the right and the ca-
pability to control the manner in which they operate and
conduct their business as licensees on the public air-
waves.  It may be argued that anything less than strict
liability may relieve broadcasters of responsibility and
undermine their willingness to exercise vigilance.
In some contexts, these reasons have led the FCC to
adopt and enforce strict liability for broadcasters viola-
tions of its rules and regulations.  The Commission has
cited several of these cases in support of its determina-
tion of CBSs liability.
29
  But unlike the facts in this case,
59a
7044 (FCC Enforcement Bureau 2002)) (additional citations omitted).
Wagenvoord held a broadcast licensee liable where an independent con-
tractor consulting engineer negligently provided erroneous advice that
resulted in the violations of the stations presunrise authorization.  See
Wagenvoord at  3.   Similarly, Eure Family Limited Partnership held
a broadcast licensee liable where an independent contractor violated
FCC rules by failing to properly monitor the beacon light on an antenna
structure and notify the licensee of an outage.  See Eure Family Ltd.
Pship at  7.  Other FCC cases on point are likewise directed towards
broadcast licensees delegation of technical and operational duties.  See,
e.g., In re Application for Review of Liab. of MTD, Inc., Permittee of
Station KWMW(FM), Maljamar, NM, 6 F.C.C.R. 34,  5 (1991)
(holding licensee liable for independent contractors violation of Com-
missions tower lighting rule); In re Liab. of Sundial Broad. Corp., Li-
censee of Station KDFC(FM), San Francisco, CA, 30 F.C.C.2d 949
(1971) (holding licensee liable for an independent contractor engineers
failure to make equipment performance measurements within the time
period required by the Commission).
30
Cantrell is inapposite for this purpose.  Central to the Courts hold-
ing in Cantrell was the status of the reporter as an employee acting
within the scope of his employment.  See Cantrell, 419 U.S. at 253, 95 S.
Ct. 465 ([There] was sufficient evidence for the jury to find that Esz-
terhas writing of the feature was within the scope of his employment
all of the cases cited by the FCC address situations in
which a third party steps into the shoes of a broadcaster,
performing the broadcasters duties by operating sta-
tions, maintaining equipment, or otherwise filling the
broadcasters role as a licensee.  Essentially, these cases
prohibit licensees from avoiding liability by delegating
aspects of the operation and control of broadcasting fa-
cilities or equipment to third-party independent contrac-
tors.
But the Commission has cited no authority for the
proposition that a broadcaster may be vicariously liable
for the speech or expression of its independent contrac-
tors.
30
  Cases concerning the operation or mainten-
60a
at the Plain Dealer and that Forest City Publishing Co. was therefore
liable under traditional doctrines of respondeat superior. (footnote
omitted)); see also McFarlane v. Esquire Magazine, 74 F.3d 1296, 1302
(D.C. Cir. 1996) (The writer in question [in Cantrell ] was an employee
of the corporate defendant, and, although the trial court had given an
instruction somewhat muddling the categories of employee and agent,
no one had objected.  So Cantrell presented no occasion for the Court
to address the issue of when the mental state of non-employee agents
may be imputed to the principal.  (citations omitted)).
ance of broadcasting stations are inapposite to a deter-
mination of the scope of a licensees liability for the con-
tent of its programming.  A broadcast licensees rela-
tionships with the performers it hires to create the con-
tent of its broadcasts are as a factual matter signifi-
cantly different than those in which a third party steps
into the licensees shoes to perform requisite mainte-
nance on broadcast equipment or similar operational
duties.  Moreover, the nature of a licensees duty with
respect to broadcast content implicates different legal
considerations than do its duties with respect to the op-
eration of its stations or equipment.  Unlike the Commis-
sions prior cases on the operational and managerial as-
pects of broadcasting, the imposition of liability for the
content of programming necessarily implicates the First
Amendment.  For example, an unwitting broadcaster
might be held liable for its independent contractors
negligence in monitoring and maintaining a tower an-
tenna without raising a constitutional question.  But the
same cannot be said of imposing liability for the speech
or expression of independent contractors.  Cf. McFar-
lane, 74 F.3d at 1303 ([A]ctual malice is a First Amend-
ment protection predicated on a subjective state of
mind, which surely cuts against any extension of vicari-
ous liability beyond respondeat superior  .  .  .  .  [W]e
61a
doubt that actual malice can be imputed except under
respondeat superior  .  .  .  .).
2.
Broadcast licensees duties with respect to the con-
tent of broadcast material are defined by statute under
18 U.S.C.  1464 and by the corresponding agency rule,
47 C.F.R.  73.3999(b).  The Commission correctly as-
serts that a licensee may not sidestep its obligations
under these provisions, including the licensees duty to
avoid the broadcast of indecent material, through rou-
tine delegation to third parties.  And the Commissions
practical concerns underscoring the need for strict lia-
bility are meritorious.  But because these provisions
sanction the content of speech or expression, the First
Amendment precludes a strict liability regime for broad-
cast indecency.  The First Amendment requires that the
FCC prove scienter when it seeks to hold a broadcaster
liable for indecent material.  In the case of scripted or
pre-recorded indecent material, the scienter element
likely would be satisfied.  But when the indecent mate-
rial is unscripted and occurs during a live broadcast, as
in the Halftime Show, a showing of scienter must be
made on the evidence.
It is a well-established constitutional requirement
that in the few areas where the government may law-
fully enforce content-based restrictions on speech and
expression, liability may not be imposed on a speaker
without proof of scienter.  See, e.g., In re Grand Jury
Matter, Gronowicz, 764 F.2d 983, 988 (3d Cir. 1985) (en
banc) (In the post-publication [punishment of the dis-
semination of conscious falsehoods] setting,  .  .  . accom-
odation to the first amendment protection of free ex-
62a
pression is made by scienter requirements.  .  .  .).
Non-obscene child pornography, for instance, can be
restricted when adult pornography cannot because the
States compelling interest in protecting children out-
weighs conflicting First Amendment interests.  New
York v. Ferber, 458 U.S. 747, 102 S. Ct. 3348, 73 L. Ed.
2d 1113 (1982); United States v. Cochran, 17 F.3d 56, 58
(3d Cir. 1994).  But statutes criminalizing child pornog-
raphy must require proof of scienter to withstand consti-
tutional scrutiny.  Cochran, 17 F.3d at 58; see Ferber,
458 U.S. at 765, 102 S. Ct. 3348.  Proof of scienter is nec-
essary even where the prohibited category of speech or
expression is unprotected by the First Amendment.  In
Smith v. California, 361 U.S. 147, 80 S. Ct. 215, 4 L. Ed.
2d 205 (1959), the Supreme Court set forth a constitu-
tional rule that convictions under statutes prohibiting
obscenity cannot be sustained without proof of the defen-
dants scienter.  As the Court discussed in Smith, a con-
trary rule would risk chilling protected speech.  Id. at
153-54, 80 S. Ct. 215.  The rule announced in Smith has
been reaffirmed repeatedly by the Court. See, e.g.,
Osborne v. Ohio, 495 U.S. 103, 115, 110 S. Ct. 1691, 109
L. Ed. 2d 98 (1990); Hamling v. United States, 418 U.S.
87, 123, 94 S. Ct. 2887, 41 L. Ed. 2d 590 (1974); Ginsberg
v. New York, 390 U.S. 629, 644, 88 S. Ct. 1274, 20 L. Ed.
2d 195 (1968); Mishkin v. New York, 383 U.S. 502, 511,
86 S. Ct. 958, 16 L. Ed. 2d 56 (1966).
The FCC contends its broadcast indecency regime,
as a civil enforcement mechanism, is distinguishable
from Smith, which reviewed convictions under criminal
statutes.  But the Supreme Court rejected a similar ar-
gument in Manual Enterprises, Inc. v. Day, 370 U.S.
478, 82 S. Ct. 1432, 8 L. Ed. 2d 639 (1962).  See id. at 492,
63a
82 S. Ct. 1432 ([T]his Courts ground of decision in
Smith v. California  .  .  .  indicates that a substantial
constitutional question would arise were we to construe
[a statute proscribing obscene advertising] as not re-
quiring proof of scienter in civil proceedings.); cf. New
York Times Co. v. Sullivan, 376 U.S. 254, 277, 84 S. Ct.
710, 11 L. Ed. 2d 686 (1964) (What a State may not con-
stitutionally bring about by means of a criminal statute
is likewise beyond the reach of its civil law of libel.  The
fear of damage awards  .  .  .  may be markedly more
inhibiting than the fear of prosecution under a criminal
statute.); Gronowicz, 764 F.2d at 988 (No distinction
having any first amendment significance can be made
between libel, civil or criminal, and fraud, civil or crimi-
nal.  In both libel and fraud, post-publication sanctioning
occurs because of a falsehood made with the requisite
state of mind.).  We agree with other courts that  any
statute that chills the exercise of First Amendment
rights must contain a knowledge element.  Am.-Arab
Anti-Discrimination Comm. v. City of Dearborn, 418
F.3d 600, 611 (6th Cir. 2005) (quoting Video Software
Dealers Assn v. Webster, 968 F.2d 684, 690 (8th Cir.
1992)).
Moreover, indecency is protected by the First
Amendment, whereas the constitutional rule of Smith
applied to obscenity, an unprotected form of speech.  If
liability for obscenity may lie only where scienter is
proven, then liability for higher-value speech must de-
pend on a showing of some quantum of scienter at least
as significant.  The governments authority to restrict
constitutionally protected speech or expression can be
no greater than its authority to restrict unprotected
speech or expression.  See Florida Star v. B.J.F., 491
64a
U.S. 524, 539, 109 S. Ct. 2603, 105 L. Ed. 2d 443 (1989)
(Nor is there a scienter requirement of any kind under
[Florida Stat.]  794.03 [,which proscribes the dissemi-
nation through mass communication of the name of a
sexual assault victims name,] engendering the perverse
result that truthful publications challenged pursuant to
this cause of action are less protected by the First
Amendment than even the least protected defamatory
falsehoods  .  .  .  .).
Accordingly, the statutory prohibition of broadcast
indecency, 18 U.S.C.  1464, should be read to include a
scienter element.  Other courts have agreed.  In Tall-
man v. United States, 465 F.2d 282 (7th Cir. 1972), the
United States Court of Appeals for the Seventh Circuit
held scienter is a necessary ingredient of an offense un-
der 18 U.S.C.  1464.  Id. at 285.  In a companion case,
the court described its Tallman holding as conclud[ing]
that scienter is a pertinent and necessary element for
conviction under [18 U.S.C.]  1464  .  .  .  .  United
States v. Smith, 467 F.2d 1126, 1128 (7th Cir. 1972).
Similarly in Gagliardo v. United States, 366 F.2d 720
(9th Cir. 1966), the United States Court of Appeals for
the Ninth Circuit, reviewing a conviction for violating
the obscenity provision of 18 U.S.C.  1464, described
the defendants intent as a very pertinent and neces-
sary element for conviction under the statute.  Id. at
724.
Because it also grounded CBSs forfeiture liability in
a violation of the indecency provisions of 47 C.F.R.
 73.3999, the agencys administrative rule on broadcast
indecency, the FCC contends the scienter element req-
uisite to 18 U.S.C.  1464 is not necessarily an impedi-
ment here.  The rule provides that [n]o licensee of a
65a
radio or television broadcast station shall broadcast on
any day between 6 a.m. and 10 p.m. any material which
is indecent.  Id.  But the title of 47 C.F.R.  73.3999,
Enforcement of 18 U.S.C.  1464 (restrictions on the
transmission of obscene and indecent material), seems
to indicate that the rule merely enforces 18 U.S.C.
 1464 and does not serve as an independent prohibition
on indecency in broadcasting.
The history of Rule 73.3999 further shows that the
indecency element of the rule is identical to that of 18
U.S.C.  1464.  In 1988, Congress directed the FCC to
promulgate regulations in accordance with section
1464, title 18, United States Code, to enforce the provi-
sions of such section on a 24 hour per day basis.  An Act
Making Appropriations for the Departments of Com-
merce, Justice, and State, Pub. L. No. 100-459,  608,
102 Stat. 2186, 2228 (1988).  On December 28, 1988, the
FCC complied by adopting 47 C.F.R.  73.3999, which
provided in its entirety that [t]he Commission will en-
force the provisions of section 1464 of the United States
Criminal Code, 18 U.S.C. 1464, on a twenty-four hour
per day basis in accordance with Pub. L. No. 100-459.
This rule was subsequently invalidated by the United
States Court of Appeals for the D.C. Circuit, which re-
jected a 24-hour ban on indecency and mandated a
safe-harbor time period during which 18 U.S.C.  1464
would not be enforced.  See ACT I, supra, 932 F.2d at
1508.  The FCC then amended the rule to include a
safe-harbor period, but subsequent review by the D.C.
Circuit sitting en banc found the FCCs safe-harbor time
period too limited.  The court instructed the FCC to
limit its ban on broadcasting of indecent programs to
the period from 6:00 a.m. to 10:00 p.m.  ACT II, supra,
66a
31
The FCCs interpretation of its own regulation is, of course, en-
titled to considerable deference.  Barnes v. Cohen, 749 F.2d 1009, 1018
(3d Cir. 1984).  But our deference to an agencys interpretation of its
own regulations is tempered by our duty to independently insure that
the agencys interpretation comports with the language it has adopted.
Conn. Gen. Life Ins. Co. v. Commr of Internal Revenue, 177 F.3d 136,
144 (3d Cir. 1999) (quoting Dir., Office of Workers Comp. Programs,
U.S. Dept of Labor v. Gardner, 882 F.2d 67, 70 (3d Cir. 1989)).  Ac-
cordingly, we need not accept the agency interpretation if it is plainly
erroneous or inconsistent with the regulation.  Barnes, 749 F.2d at
1018 (quoting Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414,
65 S. Ct. 1215, 89 L. Ed. 1700 (1945)); see also Conn. Gen. Life Ins. Co.,
177 F.3d at 144 (We must defer to the [agencys] interpretation unless
an alternative reading is compelled by the regulations plain language
or by other indications of the [agencys] intent at the time of the reg-
ulations promulgation. ) (quoting Thomas Jefferson Univ. v. Shal-
ala, 512 U.S. 504, 512, 114 S. Ct. 2381, 129 L. Ed. 2d 405 (1994) (quoting
Gardebring v. Jenkins, 485 U.S. 415, 430, 108 S. Ct. 1306, 99 L. Ed. 2d
515 (1988))) (additional citation omitted) (alterations in original).
58 F.3d at 670.  In response, the FCC amended 47
C.F.R.  73.3999 to its current form.  In re Prohibitions
Against Broad. Indecency in 18 U.S.C.  1464, 10
F.C.C.R. 10558 (1995).
Accordingly, the Commissions proffered interpreta-
tion of 47 C.F.R.  73.3999, which appears to contradict
the plain language of the regulation as well as the his-
tory of its adoption, would appear to be erroneous and
inconsistent with the regulation.
31
  Because Rule 73.3999
only indicates the time of day during which 18 U.S.C.
 1464 will be enforced, the FCC should establish a vio-
lation of 18 U.S.C.  1464 in order to show a violation of
Rule 73.3999.  And because the indecency provision of
18 U.S.C.  1464 should be interpreted as containing a
scienter element, so too should the indecency provision
of 47 C.F.R.  73.3999.
67a
Moreover, the FCC cannot do by administrative rule
that which Congress is constitutionally prohibited from
doing by statute.  Whether or not the indecency provi-
sion of 47 C.F.R.  73.3999 functions independently of 18
U.S.C.  1464, the FCCs rule risks chilling constitution-
ally protected speech in the same manner as the statu-
tory provision.  As a constitutional rule, Smith is no less
relevant merely because the government acts through
an executive agency in restricting the content of speech.
Any government regulation penalizing the content of
speech or expression should require proof of scienter as
an element of liability to survive First Amendment scru-
tiny.
Scienter is an element in determining whether a vio-
lation of 18 U.S.C.  1464 or 47 C.F.R.  73.3999 oc-
curred.  A broadcast licensee should not be found liable
for violating the indecency provisions of 18 U.S.C.  1464
or 47 C.F.R.  73.3999 without proof the licensee acted
with scienter.  Because the Commissions proffered
non-delegable duty theory of CBSs vicarious liability,
which functionally equates to strict liability for speech
or expression of independent contractors, appears to
dispense with this constitutional requirement, it should
not be sustained.
C.
As an alternative to vicarious liability, the FCC found
CBS directly liable for a forfeiture penalty under 47
U.S.C.  503(b)(1)(B) for failing to take adequate pre-
cautionary measures to prevent potential indecency dur-
ing the Halftime Show.  Reconsideration Order at  17.
According to the Commission, CBS deliberately ignored
warnings that visual indecency might occur during the
68a
Halftime Show.  The FCC contends the risk of indecency
was obvious following public comments of Jacksons cho-
reographer, who predicted that Jacksons performance
would include some shocking moments, and concerns
raised by the NFL over the Halftime Show script.  The
FCC asserts that CBS failed to investigate these warn-
ings or properly act to address the risk.
This failure, the FCC contends, satisfies the willful-
ness element of 47 U.S.C.  503(b)(1)(B).  Under 47
U.S.C.  503(b)(1)(B), the FCC has authority to order
forfeiture penalties upon determining that a person:
willfully or repeatedly failed to comply with any of
the provisions of this chapter or of any rule, regula-
tion, or order issued by the Commission under this
chapter or under any treaty, convention, or other
agreement to which the United States is a party and
which is binding upon the United States.
Id.  Willful is defined elsewhere in the Communica-
tions Act as the conscious and deliberate commission or
omission of [an] act, irrespective of any intent to violate
any provision of this chapter or any rule or regulation of
the Commission authorized by this chapter or by a
treaty ratified by the United States.  47 U.S.C.
 312(f)(1).  Applying this standard, the FCC asserts its
finding of willfulness is based on CBSs knowledge of
the risks and its conscious and deliberate omissions of
the acts necessary to address them.  Reconsideration
Order at  23.
1.
As an initial matter, we note the record before us is
unclear on whether the agency properly applied the for-
feiture statute.  As described, the Commission issued its
69a
32
If violations of 18 U.S.C.  1464 may not be penalized under section
503(b)(1)(B), it is uncertain whether violations of 47 C.F.R.  73.3999
may be penalized under that section.  As discussed supra, 47 C.F.R.
 73.3999 does no more than establish the time of day during which 18
U.S.C.  1464 will be enforced.  If Congress intended for violations of
18 U.S.C.  1464 to be penalized under section 503(b)(1)(D), then it may
have intended for violations of 47 C.F.R.  73.3999 also to be penalized
under that section.
forfeiture order under 47 U.S.C.  503(b)(1)(B), which
includes an express willfulness standard.  But section
503(b)(1)(B) may not be the applicable statutory provi-
sion for forfeitures based on broadcast indecency.  A
separate provision of the forfeiture statute47 U.S.C.
 503(b)(1)(D)authorizes the Commission to issue a
forfeiture penalty against any person the Commission
determines violated any provision of section  .  .  .  1464
of Title 18.  Accordingly, the forfeiture statute on its
face appears to require the Commission to sanction
broadcast indecency through section 503(b)(1)(D) rather
than through section 503(b)(1)(B).
32
  Cf. Action for Chil-
drens Television v. FCC, 59 F.3d 1249 (D.C. Cir. 1995)
(citing 47 U.S.C.  503(b)(1)(D) as the relevant provision
authorizing the FCC to impose a civil forfeiture for a
violation of the indecency provision of 18 U.S.C.  1464).
CBS and supporting amici contend the very fact of
section 503(b)(1)(D) excludes the possibility of the FCC
sanctioning violations of 18 U.S.C.  1464 through sec-
tion 503(b)(1)(B), because doing so would render section
503(b)(1)(D) superfluous.  While this contention is per-
haps meritorious, we recognize the Commissions inter-
pretation of the Communications Act, including the rele-
vant forfeiture provisions of 47 U.S.C.  503(b)(1), would
be entitled to considerable deference.  But we cannot
resolve this dispute among the parties, because, as we
70a
will explain, the Commissions interpretation of the stat-
utory scheme is unclear.
The FCCs initial Forfeiture Order and subsequent
Reconsideration Order create some confusion.  In both,
the Commission frequently refers to 47 U.S.C.  503(b)
generally without specifying whether it is acting under
subpart (1)(B) or subpart (1)(D).  See, e.g., Forfeiture
Order at  1 n.1 (citing section 503(b) without specifica-
tion of relevant subpart); id. at  15 (referring to CBSs
forfeiture under section 503(b)(1) of the Act); Recon-
sideration Order at  5 (The Forfeiture Order also re-
jected CBSs claim that the violation was accidental
rather than willful under section 503(b)(1) of the Act.).
Moreover, the Commission repeatedly describes its or-
ders as determinations that CBS violated the indecency
provisions of both 18 U.S.C.  1464 and 47 C.F.R.
 73.3999.  E.g., Forfeiture Order at  1, 7, 36; Recon-
sideration Order at  1 & n.3.  Yet the Commission ap-
pears to be penalizing these violations only under sec-
tion 503(b)(1)(B), and not under section 503(b)(1)(D):
Under section 503(b)(1)(B) of the [Communications]
Act, any person who is determined by the Commis-
sion to have willfully failed to comply with any provi-
sion of the Act or any rule, regulation, or order is-
sued by the Commission shall be liable to the United
States for a monetary forfeiture penalty.  .  .  .  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.
Forfeiture Order at  36 (footnote omitted); see also id.
at  30 n.103 (As we find CBS legally responsible for
71a
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 responsi-
ble under Section 503(b)(1)(D) without a showing of
willfulness.).
On this record, the FCCs orders may be read as pe-
nalizing a violation of 18 U.S.C.  1464 under section
503(b)(1)(B).  Or, the FCCs orders may be understood
as penalizing CBSs violation of the indecency provision
of 47 C.F.R.  73.3999 under section 503(b)(1)(B) but not
penalizing CBSs violation of the indecency provision of
18 U.S.C.  1464.  Under the latter reading, the FCCs
assertions that CBS violated 18 U.S.C.  1464 would be
included in the orders only for the purpose of establish-
ing CBSs violation of Rule 73.3999, which enforces 18
U.S.C.  1464.
Again, it is unclear whether the statutory scheme
permits violations of 18 U.S.C.  1464 to be penalized by
forfeitures issued under section 503(b)(1)(B) instead of,
or in addition to, section 503(b)(1)(D).  And, if section
503(b)(1)(D) is implicated here, it is unclear whether the
willfulness standard applies under that section.  Unlike
section 503(b)(1)(B), the language of section 503(b)(1)(D)
does not include the term willful.
Accordingly, further clarification from the FCC is
necessary before it may be determined whether the
agency correctly concluded that CBSs actions consti-
tuted a willful violation of the indecency provisions.
72a
33
The FCC has not yet addressed this possibility.  See Forfeiture Or-
der at  29 n.103 (As we find CBS legally responsible for the indecent
broadcast based on both its own willful omission and its vicarious lia-
bility 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.).
2.
The record is also unclear whether the Commission
correctly determined that CBSs conduct satisfied the
willfulness standard.  Specifically, it is unclear whether
the Commissions determination accounts for the appar-
ent interplay between the statutory willfulness stan-
dard of the forfeiture statute and the constitutionally
required scienter element of the indecency provisions.
If the FCC based its forfeiture order in whole or in part
on 47 U.S.C.  503(b)(1)(D), and if it interpreted that
section as not incorporating the willfulness standard of
section 503(b)(1)(B), then the scienter element of 18
U.S.C.  1464 would appear to set the bar for establish-
ing that CBS acted with the requisite mental state.
33
But even if the willfulness standard is incorporated into
section 503(b)(1)(D)or if a forfeiture for broadcast
indecency may issue entirely under section 503(b)(1)(B)
a showing of scienter is constitutionally required to
penalize broadcast indecency.  Accordingly, the willful-
ness standard, both as interpreted and as applied by the
FCC, should set a bar at least as high as scienter.  And
on this record, it is not clear whether the FCC has com-
plied with this requirement.
Forfeiture liability under 47 U.S.C.  503(b)(1)(B) is
triggered by a broadcast licensees violation of a distinct
rule, regulation, or order of the Commission.  This
appears to call for a two-part inquiry:  did a violation
73a
34
If 47 U.S.C.  503(b)(1)(D) is interpreted as incorporating the will-
fulness standard, its operation appears identical.  Forfeiture liability
under that section is triggered by a broadcast licensees violation of 18
U.S.C.  1464.
occur; and was that violation willful or repeated for
the purposes of section 503(b)(1)(B).
34
  Here, the trigger-
ing violationsthat is, the violations that satisfy the
first partare CBSs alleged violations of the indecency
provisions of 18 U.S.C.  1464 and 47 C.F.R.  73.3999.
Accordingly, it seems the Commissions first step should
be to determine whether CBSs conduct violated the
indecency provisions, including establishing scienter.
The scienter element of the indecency provisions-as
a constitutional requirementis paramount.  That is,
scienter is the constitutional minimum showing for pe-
nalizing the speech or expression of broadcastersirre-
spective of whether the penalty is in the form of a mone-
tary forfeiture under 47 U.S.C.  503(b)(1) or a different
punitive measure available to the FCC.  But the record
is unclear whether the Commissions interpretation and
application of the willfulness standard account for this
apparent interplay with the scienter element of the inde-
cency provisions.  Accordingly, we are unable to decide
whether the Commissions determination that CBS
acted willfully was proper in light of this scienter re-
quirement.
Determining whether CBS acted with the requisite
scienter would call for an examination of the scienter
element inherent in the indecency provisions.  Where a
scienter element is read into statutory text, scienter
would not necessarily equate to a requirement of actual
knowledge or specific intent.  See Carter v. United
States, 530 U.S. 255, 269, 120 S. Ct. 2159, 147 L. Ed. 2d
74a
203 (2000) (citing Staples v. United States, 511 U.S. 600,
114 S. Ct. 1793, 128 L. Ed. 2d 608 (1994)).  The pre-
sumption in favor of scienter requires a court to read
into a statute only that mens rea which is necessary to
separate wrongful conduct from otherwise innocent
conduct.  Id. (citing United States v. X-Citement Video,
Inc., 513 U.S. 64, 72, 115 S. Ct. 464, 130 L. Ed. 2d 372
(1994)).  In some circumstances, recklessness is consid-
ered a sufficiently culpable mental state for the pur-
poses of imposing liability for an act.  E.g., Ernst &
Ernst v. Hochfelder, 425 U.S. 185, 194, 96 S. Ct. 1375, 47
L. Ed. 2d 668 (1976) (In certain areas of the law reck-
lessness is considered to be a form of intentional conduct
for purposes of imposing liability for some act.).
Recklessness would appear to suffice as the appro-
priate scienter threshold for the broadcast indecency
regime.  It is likely that a recklessness standard would
effectively separate wrongful conduct from otherwise
innocent conduct of broadcasters, Carter, 530 U.S. at
269, 120 S. Ct. 2159, without creating an endaround in-
decency restrictions that might be encouraged by an
actual knowledge or intent standard.  And a broadcast
licensees reckless disregard for the content of its pro-
gramming would be likely to unreasonably create a
known or obvious risk of indecent material being aired,
making it highly probable that harm will follow.  See
Safeco Ins. Co. of Am. v. Burr, ____U.S. ____, 127 S. Ct.
2201, 2215, 167 L. Ed. 2d 1045 (2007) (While the term
recklessness is not self-defining, the common law has
generally understood it in the sphere of civil liability as
conduct violating an objective standard:  action entailing
an unjustifiably high risk of harm that is either known
or so obvious that it should be known. (quoting Farmer
75a
v. Brennan, 511 U.S. 825, 836, 114 S. Ct. 1970, 128 L.
Ed. 2d 811 (1994); citing Prosser and Keeton, Handbook
of the Law of Torts  34 at 213-14)).
Also instructive here are other cases determining
recklessness to be an adequate level of scienter for im-
posing liability in related First Amendment contexts
where speech or expression is restricted based on its
content.  In Osborne v. Ohio, 495 U.S. 103, 110 S. Ct.
1691, 109 L. Ed. 2d 98 (1990), the Supreme Court ad-
dressed a criminal defendants constitutional challenges
to Ohios prohibition against possessing and viewing
child pornography.  The petitioner in Osborne contended
in part that the statute was unconstitutional because it
did not expressly include a scienter element.  See id. at
112 n.9, 110 S. Ct. 1691.  But the Court rejected this ar-
gument, noting that Ohio law provides that reckless-
ness is the appropriate mens rea where a statute nei-
ther specifies culpability nor plainly indicates a purpose
to impose strict liability.  Id. (quoting Ohio Rev. Code
Ann.  2901.21(B) (1987)).  The Court went on to explain:
The Ohio Supreme Court also concluded that the
State had to establish scienter in order to prove a
violation of [the child pornography statute] based on
the Ohio default statute specifying that recklessness
applies when another statutory provision lacks an
intent requirement.  The [child pornography] statute
on its face lacks a mens rea requirement, but that
omission brings into play and is cured by another law
that plainly satisfies the requirement laid down in
Ferber that prohibitions on child pornography in-
clude some element of scienter.
Id. at 115 (citations omitted).
76a
35
The facts of Young Broadcasting, as alleged by the FCC in its
Notice of Apparent Liability in that case, may be indicative of reckless-
ness.  There, the broadcast licensee presented inherently risky progra-
But recklessness should be the constitutional mini-
mum.  A broadcast licensees mere negligence in airing
indecent material during a restricted time slot would not
satisfy the scienter element of 18 U.S.C.  1464 or 47
U.S.C.  73.3999.  In Manual Enterprises, the Supreme
Court read a scienter element into a federal statute pro-
hibiting the advertisement of obscene material through
the mails.  370 U.S. at 492-93, 82 S. Ct. 1432.  The Court
addressed the scope of this inferred scienter element,
stating it may safely be said that a federal statute
which, as we construe it, required the presence of that
[scienter] element is not satisfied  .  .  .  merely by show-
ing that a [magazine publisher] defendant did not make
a good faith effort to ascertain the character of his adver-
tisers materials.  Id. at 493, 82 S. Ct. 1432.  In the
broadcast indecency context, a broadcaster might act
recklessly if it fails to exercise proper control over the
unscripted content of its programming.  But when a
broadcaster endeavors to exercise proper control, but
ultimately fails, to prevent unscripted indecency, it will
not have acted with scienter if its actions were negligent
rather than reckless.
The airing of scripted indecency or indecent material
in pre-recorded programming would likely show reck-
lessness, or may even constitute evidence of actual
knowledge or intent.  But when unscripted indecent ma-
terial occurs during a live or spontaneous broadcast, as
it did here, the FCC should show that the broadcaster
was, at minimum, reckless in causing the indecent mate-
rial to be transmitted over public airwaves.
35
  A broad-
77a
mming, a segment titled Puppetry of the Penis, and invited perform-
ers on camera who it knew were nude below their overcoats and who it
knew employed nudity as a central part of their act.  Indeed, the per-
formers were a source of interest for the program precisely because
their act involved nudity and the graphic display of sexual organs.
Moreover, the broadcast licensees off-camera employees urged the
performers to demonstrate their actwhich involved manipulating
their genitalia to form various objectswhile the cameras were broad-
casting live.
casters failure to use available preventative technology,
such as a delay mechanism, when airing live program-
ming may, depending on the circumstances, constitute
recklessness.
Here, CBS contends it took adequate measures to
guard against the risk of unscripted indecency in the
Halftime Show.  It points to numerous script reviews
and revisions on record, several wardrobe checks, and
the implementation of a standard-industry-practice au-
dio delay.  CBS also notes that it engaged in extensive
internal discussions and dialogue with the NFL over
concerns relating to potential performers and content of
the Halftime Show.  CBS rejected other potentially-con-
troversial performers who had previously engaged in
offensive on-air conduct in favor of Jackson and Tim-
berlake, with the NFL ultimately approving the selec-
tions.  Timberlake in particular, CBS asserts, had on
several prior occasions performed Rock Your Body
live on national television without incident. CBS also
rejects the FCCs contention that Jacksons choreogra-
phers shocking moments prediction should have elic-
ited concern about the potential for unscripted nudity,
explaining that the statement was reasonably consid-
ered commonplace entertainment industry hyperbole
and a veiled reference to Timberlakes surprise guest
78a
36
This issue appears central to a recklessness inquiry on the facts
here.
appearance.  Moreover, CBS notes it is undisputed
that, after the [choreographers shocking moments]
quote appeared, CBS reviewed the script, issued ward-
robe instructions, checked Jacksons costume, and im-
plemented a delay to ensure adherence to CBS stan-
dards.  CBS Reply Br. at 23 (emphasis omitted).
The Commission disputes the adequacy of these ef-
forts by CBS.  And the parties also dispute the avail-
abilityor lack thereofof video delay technology at
the time of the Halftime Show.
36
  The FCC contends
CBS should have instituted a video delay mechanism to
guard against a potential act of indecency.  See, e.g., Re-
consideration Order at  22 n.71 (Notwithstanding
CBSs protestations to the contrary, delaying a live
broadcast long enough to block visual indecency does
not appear to pose major technical challenges to a com-
pany such as CBS.).  But according to CBS, no such
technology had ever been developed, or was thought
necessary, before the unprecedented halftime incident.
CBS Reply Br. at 23.  Instead, CBS states its implemen-
tation of a five-second audio delay was both state of the
art and standard industry practice at the time of the
Halftime Show.  See, e.g., Reconsideration Order at  22
([CBS] asserts that [its use of audio but not video de-
lay] did not reflect a calculated risk but rather simply
conformance with standard industry practice, and that
a video delay was entirely unprecedented, and the tech-
nique had to be specifically engineered after the Super
Bowl incident.).
79a
37
As discussed, it is unclear whether the Commission interprets the
willfulness standard, which requires a conscious and deliberate act or
omission, as setting a lower or higher bar than scienter.  We note there
appears to be tension between the common understanding of the terms
conscious and deliberatewhich typically indicate a higher standard
than recklessnessand the Commissions interpretation of those terms
in its application of the willfulness standard of 47  U.S.C. 503(b)(1)(B)
to CBS.  But because further clarification is needed on the FCCs
interpretation of the text and mechanics of the forfeiture statute, we do
not decide whether the Commissions interpretation of these terms, or
its application of the willfulness standard, is permissible.
The Commission has not refuted CBSs assertions.
Instead, it points only to CBSs use of video delay for an
awards show in the weeks following the Halftime Show.
But the state of the art even shortly after the Halftime
Show does not necessarily refute CBSs contention that
video delay technology was newly created for the awards
show as a reaction to the Halftime Show incident but
otherwise unavailable prior to that time.  The record at
present is scant on evidence regarding the availability,
history and other details of video delay technology.  And
the Commission cannot prevail if the issue of CBSs
scienter is to be resolved only on assertions of the par-
ties that are unsupported by evidence on record.  Be-
cause the Commission carries the burden of showing
scienter, it should have presented evidence to demon-
strate, at a minimum, that CBS acted recklessly and not
merely negligently when it failed to implement a video
delay mechanism for the Halftime Show broadcast.
Accordingly, we are unable to decide whether the
Commissions determination that CBS acted willfully
was proper in light of the scienter requirement.
37
 
80a
V.
In finding CBS liable for a forfeiture penalty, the
FCC arbitrarily and capriciously departed from its prior
policy excepting fleeting broadcast material from the
scope of actionable indecency.  Moreover, the FCC can-
not impose liability on CBS for the acts of Janet Jackson
and Justin Timberlake, independent contractors hired
for the limited purposes of the Halftime Show, under a
proper application of vicarious liability and in light of
the First Amendment requirement that the content of
speech or expression not be penalized absent a showing
of scienter.  And the FCCs interpretation and applica-
tion of 47 U.S.C.  503(b)(1) are not sufficiently clear to
permit review of the agencys determination of CBSs
direct liability for a forfeiture penalty based on broad-
cast indecency.
Further action by the Commission would be declara-
tory in nature, as the agency may not retroactively pe-
nalize CBS.  Even so, our holding will not foreclose all of
the Commissions adjudicatory options.  In Golden
Globes, for instance, the Commission set forth a new
policy and proceeded with its indecency determination
even though a retroactive monetary forfeiture was un-
available.  See id. at  15 (concluding that [b]ut for
the fact that existing precedent would have permitted
this broadcast, it would be appropriate to initiate a for-
feiture proceeding .  .  .); see also 33 Wright & Koch,
Federal Practice and Procedure:  Judicial Review
 8313(c) (2007) (suggesting that, in order to avoid ar-
rogating authority for policymaking that is assigned to
the agency, remand is appropriate when an agency has
issued an arbitrary decision).  Accordingly, we will va-
81a
38
The majority points out that the FCC only abandoned this posi-
tionor, really, side-stepped itin the Reconsideration Order, where
it sought to impose the prevention of this type of broadcast as a non-
delegable duty.  See Reconsideration Order at  23.
cate the orders of the FCC and remand for further pro-
ceedings consistent with this opinion.
RENDELL, Circuit Judge, concurring in part, dissenting
in part.
I wholeheartedly agree with the majoritys cogent
reasoning and conclusion that the FCCs imposition of a
fine against CBS cannot stand, because it acted arbi-
trarily and capriciously in doing so.
However, I disagree with our opining, in dicta, re-
garding the various possible levels of scienter arguably
required under  503(b)(1)(B) or (D), or 18 U.S.C.
 1464, or the Constitution.  For one thing, this is dicta.
For another, the FCC has conceded that the level of
scienter required in order to warrant a fine is willful,
and has itself urged that the definition of willful is as
set forth in 47 U.S.C.  312(f)(i), meaning conscious and
deliberate commission or omission of such act.  Appel-
lees Br. 34-38.
Were it necessary to venture more deeply into the
issue of scienter, which I submit it is not, we should
point out that the real dispute between the parties is as
to what must have been willful.  The FCC adopted the
position that the conscious and deliberate act was simply
the act of broadcasting,
38
 while the opposing (and, I be-
lieve, better) view is that the requisite conscious and
deliberate act is the act of broadcasting the indecent
82a
39
Or, if an omission, as the FCC alternatively argues, the conscious
and deliberate failure to prevent the broadcast of indecent material.
40
Because we have held that the FCC changed its policy, and because
the broadcast at issue predated this change, the FCC cannot, consistent
with its policy, re-impose the fine after providing an explanation.  See
Golden Globes, 18 F.C.C. 19859, at  15 & n.40.
41
The majority cites Golden Globes as authority for the agencys
setting forth a new policy on remand, but that case did not involve a
remand.  Moreover, the passage from the treatise cited by the majority,
33 Wright & Koch, Federal Practice and Procedure:  Judicial Review
 8313(c) (2007), concerns the proper disposition of a case where further
proceedings are necessary for the agency to consider the matter anew
and reach a well-reasoned ultimate decision.  That is not the case here
where the arbitrariness of the agencys decision is conclusive as to the
outcome of the case.
material at issue.
39
  Clearly, CBSs conduct here fails the
latter test.
I also take issue with the majoritys conclusion that
there is a need to remand this case.  We have held that
the instant fine was improperly imposed.  There are no
further proceedings necessary.
40
  Should the FCC wish
to explain its change in policy, it can do so in the next
case or issue a declaratory ruling.  See 47 C.F.R.  1.2.
41
It serves no purpose to do so in the context of this litiga-
tion.  Nothing is to be gained, and CBS should not be
forced to be a party to any such remand, with its atten-
dant time and expense.  Accordingly, I respectfully dis-
agree with the disposition of this appeal and would re-
verse the order imposing forfeiture, without remanding
the case.
83a
1
47 U.S.C.  405(a); 47 C.F.R.  1.106(j).
APPENDIX B
BEFORE THE
FEDERAL COMMUNICATIONS COMMISSION
WASHINGTON, D.C.  20554
File No. EB-04-IH-0011
NAL/Acct. No. 200432080212
IN THE MATTER OF COMPLAINTS AGAINST VARIOUS
TELEVISION LICENSEES CONCERNING THEIR FEBRU-
ARY 1, 2004 BROADCAST OF THE SUPER BOWL
XXXVIII HALFTIME SHOW
Adopted:  May 4, 2006
Released:  May 31, 2006
ORDER ON RECONSIDERATION
By the Commission:  Commissioner Adelstein concur-
ring in part, dissenting in part, and issuing a statement.
I. INTRODUCTION
1. In this Order on Reconsideration, issued pursuant
to section 405(a) of the Communications Act of 1934, as
amended (the Act), and section 1.106(j) of the Commis-
sions rules,
1
 we deny the Petition for Reconsideration of
Forfeiture Order (Petition) filed by CBS Broadcasting
84a
2
Petition for Reconsideration of Forfeiture Order by CBS, dated
April 14, 2006 (Petition).
3
See Complaints Against Various Television Licensees Concerning
Their February 1, 2004 Broadcast of the Super Bowl XXXVIII Half-
time Show, Forfeiture Order, FCC 06-19 at 1  1 & n.2, 2006 FCC
LEXIS 1267 (rel. March 15, 2006) (Forfeiture Order) (citing 18 U.S.C.
 1464 and 47 C.F.R.  73.3999).
4
The CBS Stations were identified in the Appendix to the Forfeiture
Order.  The Forfeiture Order noted that viewers in markets served by
each of the CBS Stations filed complaints with the Commission concern-
ing the February 1, 2004 broadcast of the Super Bowl XXXVIII half-
time show.  See Forfeiture Order at 1  1, n.4 and Appendix.
5
VNU Media and Marketing Guide for Super Bowl, (http://www.
nielsenmedia.com/newsreleases/2005/2005SuperBowl.pdf).
Inc. (CBS) in this forfeiture proceeding.
2
  The CBS
Petition seeks reconsideration of our decision to impose
a forfeiture of $550,000 against CBS Corporation, as the
ultimate parent company of the licensees of the televi-
sion stations involved in this proceeding, for the viola-
tion of 18 U.S.C.  1464 and the Commissions rule regu-
lating the broadcast of indecent material.
3
  We find that
CBS has failed to present any argument warranting re-
consideration of our Forfeiture Order.
II. BACKGROUND
2. This proceeding involves the broadcast of the
halftime show of the National Football Leagues Super
Bowl XXXVIII over the CBS owned-and-operated tele-
vision stations in the CBS Network (the CBS Stations)
on February 1, 2004, at approximately 8:30 p.m. Eastern
Standard Time.
4
  Super Bowl XXXVII was the most-
watched program of the 2003-2004 television season and
had an average of audience of 89.8 million viewers.
5
  At
the end of the musical finale of the halftime show, Justin
Timberlake pulled off part of Janet Jacksons bustier,
85a
6
The NAL was directed to Viacom, Inc., which was the ultimate cor-
porate parent company of the licensees in question at that time.  As of
December 31, 2005, Viacom, Inc. effected a corporate reorganization in
which the name of the ultimate parent company of the licensees of the
CBS Stations was changed to CBS Corporation.  For the sake of clarity,
we generally refer to the petitioner herein as CBS and to its corporate
parent company as CBS Corporation, even for periods preceding the
reorganization.  As part of the reorganization, certain non-broadcast
businesses, including MTV Networks, were transferred to a new com-
pany named Viacom Inc.  At the time of the violations, however, the
CBS Stations and MTV Networks were corporate affiliates under
common control.
7
See Complaints Against Various Television Licensees Concerning
Their February 1, 2004, Broadcast of the Super Bowl XXXVIII Half-
time Show, Notice of Apparent Liability, 19 FCC Rcd 19230, n.4 (2004)
(NAL) (citing 18 U.S.C.  1464 and 47 C.F.R.  73.3999).  The NAL
found that there was no evidence that any licensee of any non-CBS-
owned television station was involved in the selection, planning or
approval of the apparently indecent material and that such licensees
could not have reasonably anticipated that the CBS Network's pro-
duction of a prestigious national event such as the Super Bowl would
contain material that included the on-camera exposure of Ms. Jackson's
breast.  Id., 19 FCC Rcd at 19240  25.  Accordingly, the NAL did not
propose a forfeiture by any such licensee.
8
Id., 19 FCC Rcd at 19240  24.
exposing one of her breasts to the television audience.
After conducting an investigation, the Commission is-
sued a Notice of Apparent Liability (the NAL) finding
the ultimate parent company of the licensees of the CBS
Stations
6
 apparently liable for violating 18 U.S.C.  1464
and section 73.3999, the Commissions rule regulating
the broadcast of indecent material.
7
  The NAL proposed
a forfeiture in the amount of $27,500, the statutory maxi-
mum forfeiture amount, against each of the CBS Sta-
tions, for a total forfeiture amount of $550,000.
8
86a
9
Opposition to Notice of Apparent Liability for Forfeiture by CBS,
dated November 5, 2004 (Opposition).
10
Opposition at 13-34.
11
Id. at 35-38.
12
Id. at 44-77.
13
Forfeitue Order at 6-7  11.
3. CBS submitted its Opposition to the NAL on No-
vember 5, 2004.
9
  CBS argued that the material broad-
cast was not actionably indecent under the Commissions
existing case law.
10
  CBS further argued that the broad-
cast of Jacksons breast was accidental, and therefore
not willful under section 503(b)(1)(B) of the Act.
11
CBS further argued that the Commissions indecency
framework is unconstitutionally vague and overbroad,
both on its face and as applied to the halftime show.
12
4. In the Forfeiture Order, released on March 15,
2006, the Commission rejected CBSs arguments and
imposed the $550,000 forfeiture proposed in the NAL.
The Forfeiture Order held that, under the Commissions
contextual analysis, the broadcast of the halftime show
was patently offensive as measured by contemporary
community standards for the broadcast medium.  With
respect to the first principal factor in the Commissions
contextual analysis, the Commission rejected CBSs ar-
guments relating to whether the broadcast of partial
nudity was premeditated or planned by the broadcaster.
Rather, the Commission held that the focus of the first
factor of the analysis is whether the broadcast was
graphic and explicit from the viewers or listeners point
of view.  The Commission found that the video broadcast
of an image of a womans breast is graphic and explicit
if it is clear and recognizable to the average viewer, as
was the case here.
13
  With respect to the second principal
87a
14
Id. at 7  12.
15
Id. at 7 n.44.
16
NAL, 19 FCC Rcd at 19236  14.
17
Forfeiture Order at 8  13.
18
Id.
19
Id. at 8  14.
factor in the Commissions contextual analysis, the Com-
mission agreed with CBS that the image in the halftime
show was fleeting, but the Commission held that the
brevity of the partial nudity was not dispositive.
14
  The
third principal factor is whether the material is pander-
ing, titillating or shocking.  The Commission clarified
that the broadcasters or performers state of mind is
not relevant here.  Rather, this factor focuses on the
material that was broadcast and its manner of presenta-
tion.
15
  The Commission rejected CBSs claim that the
segment in question merely involved an accidental, fleet-
ing glimpse of a womans breast.  Rather, the segment
was part of a halftime show that featured perfor-
mances, song lyrics, and choreography [that] discussed
or simulated sexual activities.
16
  These sexually sugges-
tive performances culminated in the spectacle of Tim-
berlake tearing off a portion of Jacksons clothing to re-
veal her naked breast during a highly sexualized perfor-
mance while he sang gonna have you naked by the end
of this song.
17
  The Commission stated:  Clearly, the
nudity in this context was pandering, titillating and
shocking to the viewing audience.
18
  The Commission
therefore held that, on balance, the graphic, explicit,
pandering, titillating and shocking nature of the mate-
rial outweighed its brevity in the contextual analysis.
19
88a
20
Id. at 8-9  15.
21
Id. at 8-13  15-22.
22
Id. at 13-15  23-25.
23
Id. at 17-19  30-35.
5. The Forfeiture Order also rejected CBSs claim
that the violation was accidental rather than willful un-
der section 503(b)(1) of the Act.  The Commission dis-
missed CBSs attempts to define willful in accordance
with criminal law and copyright law cases, holding that
the definition of the word appearing in section 312 of the
Act applies to this case.
20
  Specifically, the Commission
held that CBS Corporation acted willfully because it
consciously and deliberately broadcast the halftime
show, whether or not it intended to broadcast nudity,
and because it consciously and deliberately failed to take
reasonable precautions to ensure that no actionably in-
decent material was broadcast.
21
  The Commission fur-
ther held that CBS Corporation was vicariously liable
under the doctrine of respondeat superior for the willful
actions of the performers and choreographer that it se-
lected and over whose performance it exercised exten-
sive control.
22
6. The Forfeiture Order also rejected CBSs consti-
tutional arguments, concluding that the Commissions
indecency standard has been upheld in a series of deci-
sions and has not been invalidated by subsequent devel-
opments in the legal or technological landscape.
23
  The
Forfeiture Order further held that the upward adjust-
ment of the forfeiture amount to the statutory maximum
was supported by the factors enumerated in section
503(b)(2)(D) of the Act, particularly the circumstances
involving the preparation, execution and promotion of
the halftime show by CBS Corporation, the gravity of
89a
24
Id. at 15-16  26-28.
25
Young Broadcasting of San Francisco, Inc., Notice of Apparent
Liability for Forfeiture, 19 FCC Rcd 1751 (2004) (Young Broadcast-
ing) (response pending).
26
Id. at 16-17  29.
27
Forfeiture Order at 5  9.
the violation in light of the nationwide audience for the
indecent broadcast, CBS Corporations ability to pay the
forfeiture, and the need for strong financial disincen-
tives to violate the Act and the indecency rule.
24
  The
Forfeiture Order also rejected CBSs claim that it
lacked prior notice that a brief scene of partial nudity
might result in a forfeiture.  The Commission noted that
in Young Broadcasting,
25
 the Commission released a
Notice of Apparent Liability proposing the statutory
maximum forfeiture amount in a case involving a brief
display of male frontal nudity shortly before the subject
Super Bowl broadcast.
26
 
III. DISCUSSION
7. Indecency Analysis.  We reject CBSs contention
that the Commission misapplied the test for broadcast
indecency in the Forfeiture Order.  In doing so, we note
that CBS does not contest the Commissions determina-
tion that the material at issue here falls within the sub-
ject matter scope of our indecency definition because it
describe[d] or depict[ed] sexual or excretory organs or
activities.
27
  Rather, CBS takes issue with our conclu-
sion that the Super Bowl halftime show was patently
offensive as measured by contemporary community
standards for the broadcast medium.  While many of the
arguments raised by CBS are repetitive of those set
forth in its Opposition to the NAL and rejected by the
90a
28
Id. at 6  11.
29
Complaints Regarding Various Television Broadcasts Between
February 2, 2002 and March 8, 2005, FCC 06-17, 2006 FCC LEXIS
1265, released March 15, 2006 (Omnibus Order).
30
Omnibus Order at  215.
Commission in the Forfeiture Order, we do address two
new objections raised in the Petition.
8. First, CBS disputes the Commissions conclusion
that a video broadcast image of [Justin] Timberlake
pulling off part of [Janet] Jacksons bustier and expos-
ing her bare breast, where the image of the nude breast
is clear and recognizable to the average viewer, is gra-
phic and explicit,
28
 arguing that this conclusion is incon-
sistent with determinations reached by the Commission
in the Omnibus Order.
29
  No such inconsistency exists;
rather, a comparison of the Super Bowl halftime show to
the material addressed in the Omnibus Order highlights
the critical importance that the Commission places on
the particular content and context in evaluating inde-
cency complaints.
9. CBSs attempt to compare Ms. Jacksons ward-
robe malfunction to the material addressed in the Om-
nibus Order from The Today Show and The Amazing
Race 6 is unavailing.  In both of those cases, the com-
plainedof material did not constitute the focus of the
scene in question.  During The Today Show, a mans
penis was briefly exposed at a considerable distance
while he was shown being pulled from raging flood-
waters in news footage.  As the Commission indicated,
the overall focus of the scene [was] on the rescue at-
tempt, not on the mans sexual organ.
30
  As a result,
many viewers may not have even noticed the briefly ex-
91a
31
See Omnibus Order at  189-92.
32
As such, we note that the Commissions treatment of the Super
Bowl halftime show is consistent with our evaluation of the brief
exposure of a penis in Young Broadcasting.
33
Forfeiture Order at 6  11.
34
See id.
posed penis.  Similarly, during The Amazing Race 6,
while two contestants were leaving a train in Budapest,
the camera shot briefly showed the phrase Fuck Cops!
spray-painted in small white letters on the side of a
train.  Again, the graffiti was in the background, did not
constitute the focus of the scene, and would not likely
have been noticed by the average viewer.
31
  Under these
circumstances, we found that the material at issue was
not graphic or explicit.
10. In the Super Bowl halftime show, by contrast, the
exposure of Ms. Jacksons breast was the central focus
of the scene in question.
32
  As we stated in the Forfeiture
Order, Jackson and Timberlake, as the headline per-
formers, are in the center of the screen, and Timber-
lakes hand motion ripping off Jacksons bustier draws
the viewers attention to her exposed breast.
33
  Fur-
thermore, even though CBS claims that this action oc-
curred only after the shot moved away from a close-up
to a long shot, Jacksons breast is nonetheless readily
discernable and the natural focus of viewers atten-
tion.
34
  As Jackson and Timberlake were the headline
performers on stage at that time, it would have been
hard for someone looking at the television screen not to
notice that he ripped off her clothing to expose her
breast.  We therefore reject CBSs theory that most
viewers did not notice the exposure of Jacksons
92a
35
In support of its claim that the event became recognizable as nudi-
ty to most people only because they actively searched for images after
the fact, CBS cites the facts that Janet Jackson was the most searched
term on Google in February 2004 and that the end of the Super Bowl
halftime show became the most TiVoed moment in the history of digital
video recorders, Petition at 5, n.7.  This evidence, however, does not
provide support for CBSs theory.  Given the widespread media cover-
age of the Super Bowl halftime show, it should come as no surprise that
public interest in Jackson skyrocketed in the aftermath of the incident,
thus causing many people to search for information about her using
Google.  While some of these searches may have been conducted by
individuals wishing to see images from the halftime show, it is entirely
speculative to suggest that many of these individuals: (1) had watched
the halftime show; but (2) did not realize at the time that Jackson had
exposed her breast.  Similarly, the fact that the end of the Super Bowl
halftime show was the most TiVoed moment in the history of digital
video recorders lends no support to CBSs theory.  There are many rea-
sons why viewers might have replayed the exposure of Jacksons breast
not the least of which is that viewers clearly saw the image and were
truly shocked. For CBS to suggest that the fact that the Super Bowl
halftime show was the most TiVoed moment in history demonstrates
that people watching the broadcast at the time were confused about
what had happened has no basis in the evidence.  For example, before
Super Bowl XXXVIII, the most replayed moment in TiVo history had
been the kiss shared by Britney Spears and Madonna during the 2003
MTV Video Music Awards, and it was not unclear at the time whether
those two singers had actually kissed.  See Ben Charny, Janet Jackson
Still Holds TiVo Title, September 29, 2004 (http://news.com.com/Janet
+Jackson+still+holds+ TiVo+title/2100-1041_3-5388626.html).
36
See Young Broadcasting.
breast.
35
  We also reject CBSs repeated attempt to con-
flate the first and second factors of the Commissions
contextual analysis.  While we acknowledge that the ex-
posure of Jacksons breast was relatively brief, this does
not alter the fact that it was explicit.
36
  For all of these
reasons, we reaffirm our conclusion that the televised
93a
37
To the extent that CBS attempts to compare, for purposes of ex-
plicitness, the exposure of Jacksons breast during the Super Bowl half-
time show to the brief exposure of an infants naked buttocks on Amer-
icas Funniest Home Videos, see Petition at 5, we seriously question
CBSs grasp of contemporary community standards.  We also note that
the Commission found the footage from Americas Funniest Home Vid-
eossomewhat explicit but that factor was outweighed in that case by
the scenes brevity and the absence of any shocking, pandering, or titil-
lating effect on the audience.  Omnibus Order at  226.  Moreover,
CBSs comparison of the Super Bowl halftime show to the display of a
portion of the side of [a] maids breast in material previously con-
sidered by the Commission is obviously inapposite as far more than a
portion of the side of Jacksons breast was displayed during her duet
with Timberlake.  See Petition at 3, n.3. 
38
Forfeiture Order at 8  13.
image of Timberlake tearing off Jacksons clothing to
reveal her bare breast was explicit.
37
 
11. Second, CBS maintains that the Commission
misconstrued the third prong of our contextual analysis.
Tellingly, CBS does not directly dispute the Commis-
sions conclusion that the material was presented in a
pandering, titillating and shocking manner.  At the con-
clusion of a halftime show filled with sexual references,
Timberlake and Jackson performed a duet of the song
Rock Your Body in which Timberlake repeatedly
grabbed Jackson, slapped her buttocks, and rubbed up
against her in a manner simulating sexual activity, all
the while proclaiming, among other things:  I wanna
rock your body.  Then, as the Commission stated in the
Forfeiture Order, the performance culminated in the
spectacle of Timberlake ripping off a portion of Jack-
sons bustier and exposing her breast while he sang
gonna have you naked by the end of this song.
38
 
94a
39
Contrary to CBSs assertion, see Petition at 7, n. 10, the Commis-
sion in Young Broadcasting used the same approach that we have
employed in this case.  In Young Broadcasting, the Commission con-
cluded that the manner of presentation of the complainedof material
.  .  .  was pandering, titillating, and shocking.  Young Broadcasting,
19 FCC Rcd at 1757 (2004) (emphasis added).  Among other things, the
Commission pointed to the fact that the broadcast included comments
made by off-camera station employees urging performers from Pup-
petry of the Penis to conduct a nude demonstration.
40
See Petition at 7.
12. Understandably, given these facts, CBS does not
make any effort to argue that the material was not pre-
sented in a pandering, titillating, and shocking manner.
Instead, CBS argues that the Commission should have
examined whether CBS intended to pander, titillate, or
shock the audience, rather than the manner in which the
material was actually presented.  CBS fundamentally
misunderstands the contextual analysis employed by the
Commission.  In evaluating whether material is inde-
cent, we examine the material itself and the manner in
which it is presented, not the subjective state of mind of
the broadcaster.
39
  Indeed, under the test proposed by
CBS, the same material presented in the same manner
and context could be indecent on one occasion but not
indecent on another if the broadcasters in question had
differing intents in airing the material.  CBS suggests no
legal or public policy reason why the Commission should
be compelled to undertake such a fruitless analysis.
13. In this instance, it is clear that the material was
presented in a pandering, titillating, and shocking man-
ner.  In this regard, we strongly dispute CBSs assertion
that the exposure of Jacksons breast was exactly the
same as a broadcast where a womans dress strap
breaks and accidentally reveals her breast.
40
  In this
95a
41
Petition at 9.
42
Petition at 9.
case, at the conclusion of a highly sexualized perfor-
mance in which Timberlake, among other things, rubbed
up against Jackson in a manner simulating sexual inter-
course and implored her to do that ass-shakin thing
you do, Timberlake ripped off a portion of Jacksons
clothing, thus exposing her breast, while singing gonna
have you naked by the end of this song.  To claim that
this material is no more pandering or titillating than an
incident where a womans dress strap accidentally
breaks, thus revealing her breast for a second, utterly
ignores the far different contexts of each situation.
14. We also once again reject CBSs general argu-
ment that the imposition of a forfeiture here would be
contrary to contemporary community standards for the
broadcast medium because available information
shows that the community at large was not upset about
the Super Bowl broadcast.
41
  In light of the public up-
roar following the Super Bowl halftime show, we believe
that it is CBS, and not the Commission, that is out of
touch with the standards of the American people.  More-
over, while we continue to reject the use of third-party
polls as determinative in our assessment of contempo-
rary community standards for the broadcast medium
and our analysis in this order does not rely upon any
third-party polls, we do not accept CBSs argument that
available information shows that the community at
large was not upset about the Super Bowl broadcast.
42
The polls cited by CBS do not indicate whether the
Super Bowl broadcast was patently offensive under con-
temporary community standards for the broadcast me-
96a
43
The surveys cited by CBS in its Petition highlight the difficulties
associated with relying on third-party public opinion polls in assessing
whether material is patently offensive as measured by contemporary
community standards for the broadcast medium.  Most significantly,
the questions asked by pollsters are often not aligned with the issues we
must resolve in determining whether broadcast material is indecent
under the statute and our rule.  For example, the Kaiser Family Foun-
dation survey cited by CBS did not ask respondents whether or not
they found the broadcast of the Super Bowl halftime show finale to be
offensive.  Rather, they were asked about a quite different matter:   how
concerned they were about the effect of the Janet Jackson incident on
their own children.  Indeed, the fact that 17% of respondents answered
that they were very concerned about the impact that the Janet Jack-
son Super Bowl incident had on their own children and that another
14% of respondents were somewhat concerned shows an astoundingly
high level of concern about the impact of a single program on their own
families, especially given that not all of the respondents even had chil-
dren who watched the Super Bowl halftime show.  Contrary to the sug-
gestion of CBS, it certainly does not show that the community at large
was not upset about the Super Bowl broadcast. Petition at 9. Sim-
ilarly, the Associated Press/Ipsos poll cited by CBS does not appear to
have asked respondents whether or not they found the broadcast of the
finale of the Super Bowl halftime show to have been offensive.  Rather,
the survey appears to have asked the conclusory question of whether
the Timberlake/Jackson stunt was an illegal act, even though there is
no evidence that poll respondents were informed before answering the
question of the legal standard for broadcast indecency.  See Poll:
Janets Revelation No Crime, February 21, 2004, www. cbsnews.conm/
stories/2004/02/02/entertainment/printable597184.shtml.  (We note that
the poll is proprietary, and CBS does not provide any information con-
cerning precisely what was asked to elicit the poll responses.)   In sum,
we view the results of polls and surveys in the indecency context with
care and a measure of skepticism because survey results in this area
can easily be skewed by the phraseology of the questions, and those
questions are often not on point with the issues we must resolve in de-
termining whether broadcast material is indecent under the statute and
our rule.
dium.
43
  Moreover, we note that other survey informa-
tion suggests that most Americans were indeed offended
97a
44
For example, when specifically asked by survey researchers whe-
ther the $550,000 forfeiture proposed by the FCC against CBS was ap-
propriate in this case, a majority of Americans responded either that
the FCC had handled the case appropriately or that the Commissions
proposed sanction was not harsh enough.   See  Americans Geared Up
for Ad Bowl 2005, February 4, 2005, (http://www.comscore.com/
press/release.asp?press=554) (44 percent of Americans agree that the
FCC handled the Super Bowl halftime incident appropriately while
another 12 percent felt that the Commission should have done more to
punish CBS and the NFL).  Moreover, a survey conducted by Opinion
Dynamics Corporation also reveals that the majority of the American
people think that CBS and MTV showed a lack of respect for the
American people in airing the Super Bowl halftime show.  See Could
Election 2004 Be as Close as 2000? (February 5, 2004) (http://www.
foxnews.com/story/0,2933,110675,00.html) (56 percent of Americans
agree that CBS and MTV demonstrated a lack of respect for the Ameri-
can people with the Janet Jackson-Justin Timberlake halftime show
during the Super Bowl).
45
Hearings Before the Subcommittee on Telecommunications and
the Internet of the Committee on Energy and Commerce of the House
of Representatives on H.R. 3717, Serial No. 108-68 (February 11, 2004)
at 37 (statement of Mel Karmazin).
by the Super Bowl halftime incident and did not believe
that it was appropriate broadcast material.
44
  Further,
we note that while CBS now claims that the exposure of
Jacksons breast was not patently offensive, it conceded
otherwise shortly after the incident.  For example, testi-
fying before the House Energy and Commerce Commit-
tee, Viacoms President and Chief Operating Officer
stated that everyone at CBS and everyone at MTV was
shocked and appalled  .  .  .  by what transpired and
maintained that the material went far beyond what is
acceptable standards for our broadcast network.
45
  Sim-
ilarly, at the same hearing, the Commissioner of the
NFL said that he was deeply disappointed and of-
98a
46
Id. at 30 (statement of Paul Tagliabue).
47
Infinity Radio License, Inc., Memorandum Opinion and Order, 19
FCC Recd 5022, 5026 (2004).  
48
Forfeiture Order at  14.
49
Id.
fended by the inappropriate content of the show.
46
  Fi-
nally, we reject CBSs argument that the Commission
generally does not evaluate material using contempo-
rary community standards for the broadcast medium.
As we have stated before, We rely on our collective ex-
perience and knowledge, developed through constant
interaction with lawmakers, courts, broadcasters, public
interest groups and ordinary citizens, to keep abreast of
contemporary community standards for the broadcast
medium.
47
 
15. In sum, we reaffirm our conclusion in the Forfei-
ture Order that the Super Bowl XXXVIII halftime
show contained material that was graphic, explicit, pan-
dering, titillating, and shocking and, in context and on
balance, was patently offensive under contemporary
community standards for the broadcast medium and
thus indecent.
48
  As we found in the Forfeiture Order,
[a]though the patently offensive material was brief, its
brevity is outweighed in this case by the first and third
factors in our contextual analysis.
49
 
16. Whether Violation Was Willful.  Seeking to ab-
solve itself of responsibility for the Super Bowl halftime
show broadcast, CBS challenges the Commissions find-
ing that the indecency violation was willful because of
both CBSs own conduct and its vicarious liability for the
willful actions of the performers under the doctrine of
99a
50
Petition at 12.
51
Forfeiture Order at 8-13  15-22.
52
Id.
53
See 47 U.S.C.  312(f)(1).
54
Petition at 14.
respondeat superior.  We conclude that there is no basis
to reconsider our decision on either ground.
17. CBS contends that the only question in deter-
mining whether it is legally responsible for willfully
violating the Act and the Commissions rules is whether
it intended for Ms. Jackson to bare her breast as part
of a broadcast that CBS aired.
50
  The Commission dis-
agrees.  Not only is that not the only question, it is not
the question at all.  CBS acted willfully because it con-
sciously and deliberately broadcast the halftime show
and consciously and deliberately failed to take reason-
able precautions to ensure that no actionably indecent
material was broadcast.
51
  The record shows that CBS
was acutely aware of the risk of unscripted indecent ma-
terial in this production, but failed to take adequate pre-
cautions that were available to it to prevent that risk
from materializing.
52
  Under these circumstances, the
Commission was justified in finding CBS responsible for
the indecent broadcast based on its conscious and delib-
erate omissions even if it did not intend for Ms. Jackson
to bare her breast.
53
 
18. While defending its meticulous efforts to ensure
the performance adhered to broadcast standards and
that no unforeseen incidents or departures from script
occurred,
54
 and dismissing the record evidence on
which the Commission relied, CBS fails to address sev-
eral important facts cited by the Commission.  For ex-
100a
55
Forfeiture Order at 10  19.
56
See Opposition at 7-8.
57
See Forfeiture Order at 12 n.74.
58
Forfeiture Order at 10  19; Con. App. 6.
ample, CBS does not explain in its Petition why it was
not alarmed by, and did not investigate, the news item
posted on MTVs website before the show in which Jack-
sons choreographer predicted that Jacksons perfor-
mance would include some shocking moments.
55
  By
CBSs own account, the management of both MTV and
Viacom were aware of the claims but apparently did
nothing to investigate them, preferring instead to re-
main in the dark based on implausible assumptions re-
garding their meaning.
56
  We found unconvincing CBSs
previous assertions that MTV management believed that
the shocking moments quote referred to Timberlakes
surprise appearance, and that Viacom personnel who
reviewed the story dismissed it as hyperbole common in
the music industry.  As we explained in the Forfeiture
Order, it seems dubious that Timberlakes appearance
would be described as shocking when MTV included
his name in the on-screen credits before the show.
57
Similarly, CBS says nothing about the fact that a ques-
tion posed by another halftime performer to MTV staff
about the length of the broadcast delay was recognized
as having scary implicationspresumably because it
signaled that a performer might be contemplating a
script departure and was wondering what he might be
able to get away with.
58
  And CBS does not dispute that
the shows sponsor, the NFL, raised specific concerns
about Timberlakes scripted line gonna have you naked
101a
59
Forfeiture Order at 10  19; Con. App. at 5.
60
Petition at 15-16.
61
Id.  See also id. at 14 (CBS double-checked with Ms. Jacksons
staff there would be no alterations in her performance as scripted,
including any involving wardrobe).  See alsoJacksons halftime stunt
fuels indecency debate, USAToday.com, February 2, 2004, http://www.
usatoday.com/sports/football/super/2004-02-02-jackson-halftime-
incident_x.htm (Close-ups of the costume, posted on the Internet,
appear to reveal snaps around that part of the bustier.).
62
Petition at 15-16.
by the end of this song, which anticipated the stunt re-
sulting in the broadcast nudity.
59
 
19. CBS dismisses as irrelevant the fact that it
learned the morning of the show of plans to use tear-
away cheerleading outfits for dancers in another half-
time performance in connection with a scripted line (I
wanna take my clothes off) that is markedly similar to
Timberlakes line that immediately preceded the tear-
away of Jacksons bustier (and had, incidentally, worried
the NFL).  CBS claims that this reveals that, in care-
fully examining the costumes before the show, CBS rein-
forced its prohibition on reveals or other stunts that
could go wrong and implicate indecency concerns.
60
But CBS does not say whether in carefully examining
the costumes before the show it noticed that Jacksons
bustier was constructed so that the cups could easily be
torn away.
61
  Nor does it address whether the parallel
lyrics noted by the Commission (I wanna take my
clothes off/gonna have you naked by the end of this
song) caused it any concern. In fact, CBS does not ex-
plain at all how it reinforced its prohibition on reveals
or other stunts that could go wrong and implicate inde-
cency concerns.
62
 
102a
63
See para. 22 infra regading CBSs decision to implement a 5-second
delay.
64
Forfeiture Order at  20.
65
See Petition at 14-15.
66
See Forfeiture Order at 10  18.  See also Con. App. 1, 5.
20. These should have served as warnings signs of
the risk of visual as well as audio departures from script,
yet CBS does not explain why its meticulous efforts
did not include further investigation or an adequate de-
lay mechanism.
63
  It also fails to explain why it did not
take the simple measure at the outset of requiring that
MTVs agreements with the performers obligate them to
conform to the script and to CBSs broadcast standards
and practices.
64
 
21. Regarding the evidence that it does address, CBS
complains that the Commission has taken evidence out
of context or inflated its significance, but the record sug-
gests otherwise. For example, it takes issue with the
Commissions characterization that MTV was seeking to
push the envelope in its halftime production, but coun-
ters only with the argument that MTV did not use that
term to mean pushing the bounds of propriety in terms
of sexually provocative content.
65
  But the Commissions
characterization is its own, and is well-founded based on
the entirety of the record.  MTV clearly intended for the
show to be sexually provocative and repeatedly made
decisions in an effort to push the show in that direction.
Moreover, the fact that the NFL had to rein in MTV
when it felt the show was heading in too risqu a direc-
tion suggests that MTV was in fact trying to push the
envelope of propriety, without regard to whether MTV
chose to use that term.
66
 
103a
67
Petition at 15.
68
Id. at n.24.
69
The NFLs concern about the lyrics I am going to get you naked
by the end of this song can most reasonably be understood as a con-
cern that the performers might act out the lyrics.  There did not appear
to be any particular cause for concern that the performers might insert
profanity into that line any more than any other line.
70
See Con. App. 5, 8.
71
Notwithstanding CBSs protestations to the contrary, delaying a
live broadcast long enough to block visual indecency does not appear to
pose major technical challenges to a company such as CBS.
22. CBS also disputes our conclusion that it made a
calculated decision to rely on a five-second audio delay
even though it was aware of the risk of visual deviations
from the script that could not be blocked with a five-sec-
ond delay.  It asserts that this did not reflect a calcu-
lated risk but rather simply conformance with standard
industry practice, and that a video delay was entirely
unprecedented, and the technique had to be specially
engineered after the Super Bowl incident.
67
  It also
claims that the NFL was concerned only about audio,
not visual, departures from the script.
68
  Contrary to
CBSs contention, however, the record indicates that the
NFLs expressed concerns were not limited to audio
deviation,
69
 and, perhaps even more importantly, that
CBS/MTV understood that the risks were not limited to
audio deviations as well.
70
  Furthermore, if the standard
industry delay practice was inadequate to alleviate the
concerns under the circumstances, then CBS was obli-
gated to do more.
71
  We note that this was not a typical
broadcast; it was the most-watched television program
of the year and millions of families and children were
expected to be in the audience.
104a
72
47 U.S.C.  312(f)(1), 503(b)(1).
73
Petition at 16 (internal quotes omitted).
74
Forfeiture Order at 13  23, quoting Meyer v. Holley, 537 U.S. 280,
285 (2003) (citation omitted).
75
Id. at 13-15  24-25. This decision was consistent with Holley.  In
that case, the Supreme Court held that, absent a statutory basis, vicar-
ious liability could not be imposed based solely on the right to control.
Rather, evidence was also needed that the employee acted in the scope
23. Holding CBS responsible for the indecent broad-
cast under these circumstances is not tantamount to
imposing strict liability, as CBS contends, because the
finding of willfulness is based on CBSs knowledge of the
risks and its conscious and deliberate omissions of the
acts necessary to address them.  As we stated in the
Forfeiture Order, this approach is consistent with the
statutory definition of willfulness,
72
 and it is particularly
appropriate here given the nondelegable nature of
broadcast licensees responsibility for their program-
ming.
24. We find CBSs arguments concerning our applica-
tion of the doctrine of respondeat superior equally un-
persuasive.  CBSs assertion that the Commission ap-
plied unusually strict rules of vicarious liability in the
Forfeiture Order is inaccurate.
73
  The Commission ap-
plied traditional agency principles, which ordinarily
make principals or employers vicariously liable for acts
of their agents or employees in the scope of their author-
ity or employment.
74
  Under these principles, the FCC
concluded that Jackson, Timberlake and Jacksons cho-
reographer were Viacom/CBS employees for purposes
of determining whether CBS is vicariously liable for
their conduct here, and that their actions were within
the scope of their employment.
75
  CBSs assertion that
105a
of employment.  See Meyer v. Holley, 537 U.S. at 286.  Here, the Com-
mission determined that the performers were both subject to CBSs
control and acting in the scope of their authority.
76
Petition at 17.
77
Community for Creative Non-Violence v. Reid, 490 U.S. 730, 751-
52 (1989), citing Restatement (Second) of Agency  220(2) (1957) (Re-
statement).
78
Eisenberg v. Advance Relocation & Storage, Inc., 237 F.3d 111, 114
(2nd Cir. 2000) (The first factor is entitled to this added weight be-
cause, under the common law of agency, an employer-employee rela-
tionship exists if the purported employer controls or has the right to
control both the result to be accomplished and the manner and means
by which the purported employee brings about that result.) (internal
quotes and citations omitted).  See id. at 114-15 (listing authorities).  See
also Restatement  220(1) cmt. D (control or right to control the phy-
sical conduct of the person giving service is important and in many
the Commission seeks to impose nontraditional vicari-
ous liability appears to be founded on the threes al-
leged status as independent contractors, not employ-
ees.
76
  The factors on which CBS relies, however, are
not strongly indicative of independent contractor status
in the circumstances before us, and CBS does not dis-
pute the Commissions finding on the decisive control
factor.
25. The Commission properly treated CBSs right to
control the halftime show as the most significant test of
its relationship with the performers.  Courts look to nu-
merous factors in determining a hired partys status
under common law agency principles.
77
  Though no
single factor is dispositive, the greatest emphasis should
be placed on the first factorthat is, on the extent to
which the hiring party controls the manner and means
by which the worker completes his or her assigned
tasks.
78
  In addition, the relative weight of common law
106a
situations is determinative of whether that person is an employee or
independent contractor).
79
See, e.g., id. at 116.
80
See Restatement  219(1) cmt. a (Bearing in mind the purpose for
fixing the categories, it may be said that a servant is an agent standing
in such close relation to the principal that it is just to make the latter
respond for some of his physical acts resulting from the performance
of the principals business.).
81
Petition at 17.
82
Forfeiture Order at 13-14  24.  See Lorenz Schneider Co. v. NLRB,
517 F.2d 445, 451 (2nd Cir. 1975) (the more detailed the supervision
and the stricter the enforcement standards, the greater the likelihood
of an employer-employee relationship).
83
See Petition at 18, n.31 and accompanying text (relying on Com-
munity for Creative Nonviolence v. Reid, 490 U.S. 730, 752-53 (1989)
(sculptor was an independent contractor under the work-for-hire doc-
trine) and Carpet Exch. Of Denver, Inc. v. Indus. Claim Appeals Office,
factors also varies according to the legal context in
which the agency  issue arises,
79
 and the control factor is
particularly important in the vicarious liability context
because the root issue is where responsibility lies for
preventing the risk of harm to third parties.
80
 
26. CBS does not dispute the Commissions finding
that the halftime show performance was subject to ex-
acting control by Viacom/CBS.  However, its suggestion
that it exercised no more control than necessary to en-
sure a proper result or end-product of the work
81
 belies
the evidence that every aspect of the performance, in-
cluding the exact time, length, location, material, set,
script, staging, and wardrobe, was subject to the control
of Viacom/CBS through its corporate affiliate MTV.
82
Viacom/CBS was not commissioning a sculpture for its
lobby or hiring workers to install a floor covering, as
were the hired parties in the cases it cites.
83
  Rather, it
107a
859 P.2d 278, 281 (Colo. App. 1993) (workers who installed floor cov-
ering purchased by companys customers were not employees for pur-
poses of state workers compensation law)).  CBS cites the Carpet Exch.
Of Denver, Inc. case for the proposition that independent contractors,
though subject to control sufficient to ensure that the end resulted
contracted for is reached, are not subject to control over the[ir] means
and methods.  As discussed herein, however, in this case the perform-
ers were subject to extensive control over their means and methods.
84
See CBS Response, App. C at Bates stamped pgs. 312, 355-57, 370.
85
Forfeiture Order at 13-14  24.  See CBS Response, App. C. at
Bates stamped pgs. 318, 452, 459-69, 518-19.
86
See Reid, 490 U.S. at 753 (Apart from the deadline for completing
the sculpture, Reid had absolute freedom to decide when and how long
to work.);  Chaiken v. VV Publishing Corp., 907 F. Supp. 689, 699
(S.D.N.Y. 1995) (As an experienced reporter, Friedman controlled the
manner in which the article was writtenincluding the selection of a
topic, research plan, and sourceswithout any guidance from the
Voice.  Voice editors reviewed the article only after Friedman com-
pleted a draft, and the editors subsequently made few substantive
changes.).
was producing the Super Bowl halftime show in order to
attract a large nationwide audience to a CBS network
program and promote the brand of its corporate affiliate
MTV.
84
  Viacom/CBS developed the creative concepts for
the show, scripted every word uttered on stage, and re-
viewed every article of clothing worn by the perform-
ers.
85
  CBSs reliance on Community for Creative Non-
Violence v. Reid and Chaiken v. VV Publishing Corp. is
misplaced because the extent of control exercised by the
hiring parties in those cases was not remotely compara-
ble to this situation.
86
  Reid is also a work-for-hire
copyright case in which factors related to compensation
108a
87
As the Second Circuit has explained, special consideration of such
factors may make sense in the copyright work-for-hire context be-
cause, under the copyright statute, workers and employees are free to
allocate intellectual property rights by contract.  Eisenberg, 237 F.3d
at 117.  If Reids weighing of factors applied in the vicarious liability
context, however, firms could devise compensation packages to opt out
of tort liability.  Compare id. (declining to accord presumptive signifi-
cance to benefits and tax treatment in determining whether a female
warehouse worker was an employee under anti-discrimination laws;
[w]hile the rights to intellectual property can depend on contractual
terms, the right to be treated in a non-discriminatory manner does not
depend on the terms of any particular contract.).
88
Petition at 17.
89
See Forfeiture Order at  16. Cf. Eisenberg, 237 F.3d at 117 (placing
special weight on the extent to which the hiring party controlled the
manner and means by which the worker completes her assigned
tasks, rather than benefits and tax treatment factors, in anti-discrimi-
nation context because special consideration of benefits and tax treat-
ment factors would allow workers and firms to use individual employ-
ment contracts to opt out of the anti-discrimination statutes.).
90
See Carter v. Helmsley-Spear, Inc., 71 F.3d 77, 87 (2nd Cir. 1995)
(sculptors held to be employees despite their artistic freedom and
and benefits are generally accorded more weight than
they are entitled to in other legal contexts.
87
 
27. In this context, the contractual terms related to
compensation and benefits cited by CBS are not strong-
ly indicative of independent contractor status.
88
  CBS
was obligated to ensure that its broadcast programming
served the public interest, and was not free to confer
this obligation on another by contract.
89
  Likewise,
CBSs contention that the performers were highly
skilled does not meaningfully cut in its favor. Courts
applying common law agency principles have not hesi-
tated to hold entertainers and artists to be employees of
the parties that hire them.
90
  We recognize that some of
109a
skill); Jack Hammer Assoc., Inc. v. Delmy Productions, Inc., 499
N.Y.S.2d 418, 419-20 (1st Dept 1986) (actor in musical play); Challis v.
National 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 Landman Fabrics, a div. of Blocks Fas-
hion Fabrics, Inc., 160 F.3d 106, 113 (2nd Cir. 1998) (evidence would
support a holding that artist who developed a fabric design was an em-
ployee in copyright context where, inter alia, artist was highly skilled
but hiring party controlled the artists work to the smallest detail).  As
the Commission noted, the contracts contain choice-of-law provisions
specifying New York law.  Forfeiture Order at 14  25 n.87.
91
CBS notes that Jacksons, Timberlakes, and Duldalaos contracts
were with a production company, not CBS or MTV, but fails to point
out the significance of this fact.  Examination of the record reflects that
Jacksons and Timberlakes contracts were with FRB Productions,
Inc., and Duldalaos contract was with Remote Productions, Inc.
Neither FRB nor Remote is identified in CBSs Response, but they
appear to be creatures of MTV. MTV executives generated, reviewed,
and signed the contracts on behalf of FRB and Remote.  See, e.g., CBS
Response, App. C at Bates stamped pgs. 154-71, 257-61, 359-63, 2160-
61, 2341.  At least one document in the record specifies that Remote is
a wholly owned subsidiary of MTV Networks,id. at Bates stamped
p. 2352, and another document suggests that MTV executives treated
FRB as interchangeable with Remote.  See id. at Bates stamped p.
2148.
the common law factors are not indicative of agency.
Again, however, the relative weight of common law fac-
tors varies according to the legal context in which the
agency issue arises.  The central issue here is the par-
ties relationship for the specific purpose of imposing
vicarious liability for the performers actions in that per-
formance that were harmful to the public (rather than
for copyright, workers compensation, anti-discrimina-
tion or other purposes).  In this context, the Commission
properly concluded that the evidence clearly demon-
strating Viacom/CBSs right to control the halftime
show performance was decisive.
91
 
110a
92
Petition at 19.
93
Forfeiture Order at 14-15  25, quoting Restatement (Third) of
Agency  7.07 (T.D. No.5 2004).
94
See Forfeiture Order at 10  18-19; CBS Response, App. B at
Bates stamped pgs. 130, 135.
95
Petition at 19-20.
28. CBSs assertion that the performers actions were
outside the scope of authority conferred by its agree-
ments with them also lacks merit.
92
  As the Commission
explained, their conduct is fully attributable to CBS if it
was incident to the performance rather than an inde-
pendent course of conduct intended to serve no purpose
of the employer.
93
  Here, the actions at issue were part
of the performance for which Jackson and Timberlake
were hired.  Furthermore, examination of the record
reflects that the costume reveal was intended to serve
Viacom/CBSs overarching entertainment goal of provid-
ing a spectacular finale.
94
  Accordingly, the Commission
correctly concluded that Jackson and Timberlake were
within the scope of their authority under common law
agency principles.
29. Amount of Forfeiture.  In its Petition, CBS asks
the Commission to reduce the amount of the forfeiture
imposed on it for three reasons.  We find each of these
arguments to be unpersuasive.
30. First, CBS maintains that [t]o the extent that
any O&O station was not the subject [of] a complaint
about the halftime show, its fine should be rescinded and
the total forfeiture reduced proportionately.
95
  How-
ever, as we stated in the Forfeiture Order, viewers in
markets served by each of the CBS Stations filed com-
plaints with the Commission concerning the February 1,
111a
96
Forfeiture Order at 1  1, n.4.
97
Petition at 20.
98
Forfeiture Order at 15  27.
99
Id.
2004 broadcast of the Super Bowl XXXVIII halftime
show.
96
  Accordingly, it was appropriate for the Com-
mission to impose a forfeiture on all stations owned by
CBS.  To the extent that CBS is suggesting that the
Commission will only impose a forfeiture in response to
complaints that specifically mention a stations call let-
ters, it misunderstands the enforcement policy an-
nounced by the Commission in the Omnibus Order.  Un-
der that policy, it is sufficient that viewers in markets
served by each of the CBS Stations filed complaints with
the Commission identifying the allegedly indecent pro-
gram broadcast by the CBS Stations.
31. Second, CBS claims that the Commission has not
provided a logically consistent explanation for why
forfeitures were imposed on those stations owned by
CBS but not on affiliates owned by others.
97
  However,
as we explained in the Forfeiture Order, CBSs culpabil-
ity for the broadcast of indecent material in this case
was far greater than that of other owners of CBS sta-
tions.
98
  CBS admits that it was closely involved in the
production of the halftime show, and that its MTV affili-
ate produced it.
99
  Under these circumstances, it was
within the Commissions enforcement discretion to im-
pose fines on the stations owned by CBS but not on affil-
iates owned by others.  While CBS attempts to distance
its wholly-owned television stations from its wholly-
owned affiliate supervising the halftime production, it
does not dispute that both entities were part of the same
112a
100
Petition at 21.
101
Forfeiture Order at 16  28.
102
Television Keeps NFL On Top,Fort Worth Star Telegram at
1A (January 30, 2004) (The cost for a 30-second advertisement is $2.3
million, or roughly the cost of a $77,000 luxury car each second.).
103
Contrary to CBSs suggestion in its Petition, this does not mean,
of course, that the Commission will always impose a maximum forfeit-
ure anytime that a large company violates our rules.  However, con-
sistent with section 503(b)(2)(D) of the Act, a companys ability to pay
is a factor that weighs in our analysis.
corporate structure, responsible to the same corporate
parent.
32. Third, CBS argues that the forfeiture should be
reduced because of its long record of compliance with
broadcast standards and because it did not intention-
ally flout[] FCC rules.
100
  We disagree.  Looking at
all of the relevant factors enumerated in section
503(b)(2)(D) of the Act, we continue to believe that the
maximum statutory forfeiture is warranted given the
particular circumstances of this case.  In particular,
given CBSs size and resources, we stand by our belief
that a lesser forfeiture would not serve as a significant
penalty or deterrent.
101
  Indeed, we note that the
amount of the forfeiture in this case is less than one-
quarter of the $2.3 million that CBS charged for a single
30-second advertisement aired during its broadcast of
Super Bowl XXXVIII.
102
  While CBS observes that inde-
cency findings may also have a deterrent effect because
of the potential negative consequences on a companys
licenses, it remains the case that monetary forfeitures
are a central tool used by the Commission to ensure
compliance with our rules.
103
  Moreover, as we noted in
the Forfeiture Order, the gravity of this violation is
113a
104
Forfeiture Order at 16  28.
105
SeeViewer Track:  Top-rated programs of 2003-04 (www.tvb.
org/rcentral/viewertrack/trends/top2003.asp).
106
See VNU Media and Marketing Guide for Super Bowl, 
(http://www.nielsenmedia.com/newsreleases/2005/2005SuperBowl.pdf).
107
See Joal Ryan, 52 Million Friends See Off Friends (May 7,
2004) (http://att.eonline.com/News/Items/0,1,14056,00.html).
108
See Nielsen Media Research, TV National People Meter Data
9/22/2003 - 5/26/2004.
109
Indeed, the program was not rated at all.
heightened because the indecent material was broadcast
to an enormous nationwide audience,
104
 a fact that
CBS does not dispute.  Indeed, the material in question
was part of the most-watched program of the entire
2003-2004 television season by far,
105
 and this fact
heightens the gravity of the violation in this case.  CBSs
broadcast of Super Bowl XXXVIII was viewed by an
average of 89.8 million people.
106
  By contrast, the sec-
ond most-watched program of the 2003-2004 television
season, the series finale of Friends, only drew an aver-
age of 52.5 million viewers.
107
  In addition, according to
Nielsen Media Research, Super Bowl XXXVIII was the
top-ranked program of the 2003-2004 television season
among children of all age groups:  2 to 5; 6 to 11; and 12
to 17.
108
  Finally, we continue to believe that the particu-
lar nature of this violation weighs in favor of the statu-
tory maximum forfeiture.  In this case, unsuspecting
viewers were confronted during the Super Bowl halftime
show, which was not rated as content inappropriate for
children,
109
 by a highly sexualized performance in which
Timberlake tore off a piece of clothing to reveal Jack-
sons breast while singing gonna have you naked by the
end of this song. While CBS now argues that this con-
duct was not patently offensive, we disagree.
114a
110
See, e.g., FCC v. Pacifica Foundation, 438 U.S. 726, 748-51
(1978); Action for Childrens Television v. FCC, 58 F.3d 654, 669-70
(D.C. Cir. 1995) (en banc) (ACT III), cert. denied, 516 U.S. 1043 (1996).
111
Petition at 23.
112
Forfeiture Order at 19  35.
113
Id. at 28.
33. Constitutional Issues.  We also adhere to our re-
jection of CBSs facial and as-applied constitutional chal-
lenges to the imposition of a forfeiture in this case.
34. The Commissions authority to enforce the statu-
tory restrictions against the broadcast of indecent pro-
gramming during times of day in which children are
likely to be in the audience was upheld against constitu-
tional challenge by the Supreme Court in Pacifica more
than a quarter-century ago, and has been reaffirmed
since then.
110
  Under our standards implementing this
settled precedent, as we have explained, CBSs broad-
cast was actionably indecent.
35. We reject CBSs contention that the Forfeiture
Order abandons the policy of restraint upon which Pa-
cifica was based.
111
  The Order does no such thing.  On
the contrary, the Commission remains sensitive to the
impact of our decisions on speech.
112
  In this case, how-
ever, CBS broadcast the offensive spectacle of a man
tearing off a womans clothing on stage in the middle of
a sexually charged performance during the halftime
show of one of the nations most heavily-watched sport-
ing events, to a vast nationwide audience that included
numerous children.
113
  As we have found, the broadcast
was planned by CBS and its affiliates under circum-
stances where they had the means to exercise control
115a
114
Id. at 19  35.
115
Petition at 23 n.42.
116
Pacifica, 438 U.S. at 750;see Golden Globes, 19 FCC Rcd 4975,
4982  16 (2004).
117
Petition at 24.
118
19 FCC Rcd 1751, 1755  12 (2004).  In WGBH Educ. Found., 68
FCC 2d 1250 (1978), we granted the renewal of a public television sta-
tion license renewal in the face of complaints based on the stations
broadcast of programsincluding Monty Pythons Flying Circus
that allegedly contained nudity and/or sexually-oriented material. 69
FCC2d at 1250-51  2.  In holding that the complaints did not make out
a case that the stations continued operation would be inconsistent with
and good reason to take precautionary measures.
114
Under the circumstances, we fail to see how the decision
in Pacificaor any other considerationrequires us to
refrain from exercising our indecency enforcement pow-
ers to impose a forfeiture in this case.
36. We also reject CBSs argument that Pacifica lim-
its the Commissions authority to penalize isolated and
fleeting transmissions of indecent material.
115
  On the
contrary, in upholding the Commissions power to pro-
ceed against material that involved the repeated use of
expletives, the Court in Pacifica expressly left open the
issue of whether an isolated expletive might also be held
indecent, and did not even address a brief display of
televised nudity.
116
  In addition, the Commission has
never itself held, as CBS suggests,
117
 that a brief display
of televised nudity could not be found actionably inde-
cent.  To the contrary, in Young Broadcasting (released
shortly before the Super Bowl halftime show was broad-
cast), we made clear that a televised display of male
frontal nudity, though comparably brief, constituted an
apparent violation of our indecency rules.
118
 
116a
the public interest, id. at 1255,  13, we nowhere suggested that the
televised broadcast of nudity could never be actionably indecent.
119
Petition at 25.
120
Id. (emphasis in original).  (citing United States v. Playboy
Entmt. Group, Inc. v. FCC, 529 U.S. 803 (2000); Reno v. ACLU, 521
U.S. 844 (1997); and Denver Area Educ. Telecomms. Consortium v.
FCC, 518 U.S. 727 (1996)).
121
Reno, 521 U.S. at 868. See Playboy, 529 U.S. at 815. See also
ACT III, 58 F.3d at 660 (recognizing that radio and television broad-
casts may properly be subject to differentand often more restric-
tiveregulation than is permissible for other media under the First
Amendment).
122
See ACT III, 58 F.3d at 659 (quoting Pacifica, 438 U.S. at 748).
123
As of January 1, 2000, all television sets manufactured in the
United States or shipped in interstate commerce with a picture screen
of thirteen inches or larger must be equipped with a V-chip system
that can be programmed to block violent, sexual, or other programming
that parents do not wish their children to view.  Technical Require-
37. Finally, we reiterate our rejection of CBSs con-
tention that changes in law and technology have under-
mined Pacifica and its progeny.
119
  CBS asserts that
every court decision that applies to every medium that
allows targeted blocking of content has struck down
broadcast-type indecency regulation.
120
  But those same
decisions recognize that there remain special justifica-
tions that allow for more extensive government regula-
tion of broadcast speech.
121
  Among them is that broad-
casting continues to have a uniquely pervasive presence
in the lives of all Americans,
122
 a presence that is partic-
ularly evident where highly-anticipated annual national
programming eventsepitomized by the Super Bowl
are concerned.  As for technological changes, while the
V-chip provides a technological tool not available when
Pacifica was decided, older televisions do not contain a
V-chip,
123
 and on newer sets the evidence shows that
117a
ments to Enable Blocking of Video Programming Based on Program
Ratings, 13 FCC Rcd 11248 (1998); 47 C.F.R.  15.120(b).  Out of a total
universe of 280 million sets in U.S. households, see Nielsen Media
Research U.S. TV Household Estimates, 2003-04, about 119 million sets
in use are equipped with V-chips. Broadcasting & Cable TVFAX, TV
Watch Exposes V-chip Critics, July 8, 2005, at 2.
124
See Forfeiture Order at  34 n.117 (citing broadcasters state-
ments in 2004 that less than 10 percent of all parents are using the V-
chip and 80 percent of all parents who currently own a television set
with a V-chip are not aware that they have it).  See also Parents,
Media and Public Policy:  A Kaiser Family Foundation Survey (Fall
2004), at 7 (telephone survey of 1,001 parents of children ages 2-17
showing that (1) only 15 percent of all parents have used the V-chip;
(2) 26 percent of all parents have not bought a new television set since
January 2000 (when the V-chip was first required in all sets); (3) 39
percent of parents have bought a new television set since January 2000,
but do not think it includes a V-chip; and (4) 20 percent know they have
a V-chip, but have not used it).
125
In the Kaiser Family Foundation survey, nearly 4 in 10 parents
of children aged 2-17 stated that most television programs are not rated
accurately.  Id. at 5.  See also Parents Television Council, The Ratings
Sham:  TV Executives Hiding Behind A System That Doesnt Work
(April 2005) (study of 528 hours of television programming concluding
that numerous shows were inaccurately and inconsistently rated).
126
Implementation of Section 551 of the Telecommunications Act
of 1996, Report and Order, 13 FCC Rcd 8232, 8242-43,  21 (1998).
most parents are unaware of the V-chips existence or
the manner of its operation.
124
  The V-chip also depends
on accurate program ratings,
125
 but as the Commission
explained in the Forfeiture Order, sporting events are
not included in the V-chip ratings system,
126
 and neither
the Super Bowl nor its halftime show were given V-chip
ratings in this case.  Nor does CBS provide any basis for
concluding that had it rated the Super Bowl halftime
show, it would have rated the show as inappropriate for
children.  Thus, CBSs constitutional argument based on
118a
127
47 U.S.C.  405(a); 47 C.F.R.  1.106(j).
the availability of blocking technology is completely ir-
relevant to this case.
38. Conclusion.  For all of these reasons, we deny
CBSs Petition.  Based on our careful consideration of
the law and the record in this case, we continue to be-
lieve that the $550,000 forfeiture imposed on CBS here
is appropriate.
IV. ORDERING CLAUSES
39. Accordingly, IT IS ORDERED, pursuant to sec-
tion 405(a) of the Act, and section 1.106(j) of the Commis-
sions rules,
127
 that the Petition for Reconsideration of
Forfeiture Order filed by CBS on April 14, 2006 is DE-
NIED.
40. IT IS FURTHER ORDERED that a copy of this
Order on Reconsideration be sent by Certified Mail,
Return Receipt Requested, to Anne Lucey, Esq., Senior
Vice President for Regulatory Policy, CBS Corporation,
1750 K Street, N.W., 6th Floor, Washington, D.C. 20005
and Robert Corn-Revere, Esq., Davis Wright Tremaine
LLP, 1500 K Street, N.W., Suite 450, Washington, D.C.
20005-1272.
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
Secretary
119a
STATEMENT OF
COMMISSIONER JONATHAN S. ADELSTEIN CON-
CURRING IN PART, DISSENTING IN PART
Re: Complaints Regarding Various Television Licens-
ees Concerning Their February 1, 2004 Broadcast
of the Super Bowl XXXVIII Halftime Show, Order
on Reconsideration
The Super Bowl XXXVIII halftime show was argu-
ably one of the most shocking incidents in the history of
live broadcast television.  Indeed, the Super Bowl was
the most-watched program of the entire 2003-04 televi-
sion season and American viewers, collectively, ex-
pressed their disappointment and disapproval.  The
Commission, entrusted with the responsibility to exe-
cute faithfully broadcast indecency laws, responded
swiftly and appropriately. 
While I agree with the ultimate outcome of todays
Order on Reconsideration, I concur in part because the
Commission again has not provided much-needed clarity
and guidance to our decision-making process in inde-
cency enforcement.  In addition, I dissent in part be-
cause I continue to believe the Commission has erred in
fining only CBS owned and operated stations, not all
stations that broadcasted the indecent material.
Considering the substantial public confusion that per-
vades the Commissions indecency enforcement, we
should, whenever possible, opt for clear statements of
Commission policy.  Until today, Commission policy has
been to refrain from considering third-party polls or
opinion surveys in assessing whether a program is inde-
cent as measured by contemporary community stan-
120a
1
While the Commission, in todays Order, maintains that it rejects
the use of third-party polls as determinative and that it does not re-
ly upon any third-party polls, we should provide clear guidance as to
whether the Commission, as a matter of policy, even considers polls
in its indecency analysis.  The answer to that inquiry should be an une-
quivocal no.  Rather than making this point clear, the Commission en-
gages in a gratuitous discussion about the adequacy of the polls cited by
CBS.  The Commission argues that the opinion polls cited by CBS were
unavailing because the polls did not answer the central legal question
namely, whether the Super Bowl broadcast was patently offensive un-
der contemporary community standards.  Order at  14.  This discus-
sion is misleading because the Commission does not consider polling
data, notwithstanding the artfulness of the questions asked by pollsters.
2
Order at  30.
3
Complaints Regarding Various Television Programs Broadcast Be-
tween February 2, 2002 and March 8, 2005, FCC 06-17 (released March
15, 2006) (Omnibus TV Order) at  71.
dards.  Regardless whether the poll or survey attempts
to reflect the views of the national or local audience, the
Commission simply does not consider opinion polls in
indecency cases and polls are not a factor in determining
the contemporary community standards.  To suggest
otherwise, as the instant Order does, is contrary to long
standing Commission policy.
1
I also have grave concerns with the failure of this Or-
der to provide clear guidance on the nature of the Com-
missions new fine imposition policy announced in the
March 15th, 2006, Omnibus TV Order.  Rather than stat-
ing what the new policy is not, as todays Order does,
2
the Commission should state affirmatively the key fea-
tures of our new more limited approach towards the
imposition of forfeiture penalties.
3
  After all, it is still
unclear how the Commission determines the sufficiency
121a
4
In a failed attempt to address this significant concern, the instant
Order states that it is sufficient that viewers in markets served by each of
the CBS Stations filed complaints with the Commission identifying the
allegedly indecent program broadcast by the CBS Stations.  This is a mere
restatement of fact, not a policy statement of the essential components
of a sufficient and adequate complaint.
In the Omnibus TV Order, the sole guidance the Commission provided
was that it would propose forfeiture against only the licensee whose
broadcast of the material was actually the subject of a viewer complaint.
 Omnibus TV Order at  71. Yet in the same order, based on a California
viewers complaint of indecent material against a local Washington,
D.C. affiliate and the entire network, the Commission proposed for-
feiture only against the local D.C. affiliate.  The California viewer did
not even assert that she viewed the program in Washington, D.C.  Fur-
ther, in the same case, it was completely unclear whether the complain-
ant even watched the program on over-the-air broadcasting or on cable.
The Commission is obligated to resolve or clarify these legitimate con-
cerns.
5
See Complaints Against Various Television Licensees Concerning
Their February 1, 2004, Broadcast of the Super Bowl XXXVIII Half-
time Show, Notice of Apparent Liability for Forfeiture, FCC 04-209 (re-
leased September 22, 2004) (Commr. Jonathan S. Adelstein, approving
in part and dissenting in part).
of a viewers complaint in light of this new enforcement
policy.
4
Finally, I dissented in part in our initial Super Bowl
decision (the September 22nd, 2004, Notice of Apparent
Liability),
5
  and I do so again today.  I continue to be-
lieve the Commission has decided erroneously to fine
only CBS owned and operated stations, not all stations
that broadcasted the indecent material.  Notwithstand-
ing the fact that this Commission has always purported
to apply a national indecency standard on the broadcast
medium, the Commission has failed to penalize the vast
122a
majority of stations that actually broadcasted the of-
fending halftime performance.
I believe now, as I believed then, that this is not the
restrained enforcement policy the Supreme Court ad-
vised in Pacifica.  Consistent with the values of First
Amendment, this Commission should exercise restraint
and caution in its determination of the type of expres-
sion that is indecent.  But once the indecency determina-
tion is made, the Commission should apply a uniform
fine imposition policy across the broadcast medium.
The Commission has an obligation to provide clarity
and guidance whenever possible.  Equally, the Commis-
sion is obligated to enforce a consistent fine imposition
policy across the broadcast medium.  Sadly, todays Or-
der fails to meet our obligation on both counts.  Accord-
ingly, I concur in part and dissent in part to this Order
on Reconsideration.
123a
1
47 U.S.C.  503(b); 47 C.F.R.  1.80.
APPENDIX C
BEFORE THE 
FEDERAL COMMUNICATIONS COMMMISSION 
WASHINGTON, D.C. 20554
File No. EB-04-IH-0011
NAL/Acct. No. 200432080212
IN THE MATTER OF COMPLAINTS AGAINST VARIOUS
TELEVISION LICENSEES CONCERNING
THEIR FEBRUARY 1, 2004 BROADCAST OF THE SUPER
BOWL XXXVIII HALFTIME SHOW
Adopted:  Feb. 21, 2006
Released:  Mar. 15, 2006
FORFEITURE ORDER
By the Commission:  Chairman Martin, Commissioners
Copps and Tate issuing separate statements; Commis-
sioner Adelstein concurring and issuing a statement.
I. INTRODUCTION
1. In this Forfeiture Order (Order), issued pursu-
ant to section 503(b) of the Communications Act of 1934,
as amended (the Act), and section 1.80 of the Commis-
sions rules,
1
 we impose a monetary forfeiture in the
124a
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 Sta-
tions was changed to CBS Corporation.  Accordingly, we generally re-
fer to the company herein as CBS even for periods preceding the re-
organization.  As part of the reorganization, certain non-broadcast busi-
nesses, 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 Sta-
tions filed complaints with the Commission concerning the February 1,
2004 broadcast of the Super Bowl XXXVIII halftime show.
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 broad-
cast 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
II. BACKGROUND
2. The halftime show in question was a live broad-
cast of music and choreography produced by MTV Net-
works (MTV), which was then a Viacom, Inc. subsid-
iary.  The halftime show lasted approximately fifteen
125a
5
See Letter from William D. Freedman, Deputy Chief, Investiga-
tions and Hearings Division, Enforcement Bureau, Federal Communi-
cations 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, En-
forcement 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, En-
forcement Bureau, Federal Communications Commission, dated Feb-
ruary 3, 2004.
7
Letter from Robert Corn-Revere, Esquire to William D. Freed-
man, Deputy Chief, Investigations and Hearings Division, Enforcement
Bureau, Federal Communications Commission, dated February 10,
2004 (the CBS Interim Response).
minutes and aired over the CBS Stations and other tele-
vision stations affiliated with the CBS Television Net-
work.  The show received considerable notoriety due to
an incident at the end of its musical finale, in which Jus-
tin Timberlake pulled off part of Janet Jacksons bus-
tier, exposing one of her breasts to the television audi-
ence.
3. Following the Super Bowl broadcast and the re-
ceipt of complaints, the Enforcement Bureau (Bureau)
issued a letter of inquiry (LOI) to CBS, seeking infor-
mation about the halftime show, followed by a letter re-
questing videotapes of the complete Super Bowl pro-
gramming broadcast over the CBS Television Network
stations on February 1, 2004, including the halftime
show (collectively, the Broadcast Videotape).
5
  In re-
sponse, 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 Feb-
ruary 10, 2004,
7
 the Broadcast Videotape on February
126a
8
Letter from James S. Blitz, Esquire to William D. Freedman, Dep-
uty 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 Bur-
eau, Federal Communications Commission, dated March 16, 2004 (the
CBS Response).  Although many of CBSs responses to the LOIs in-
quiries 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, how-
ever, we limit ourselves to describing or characterizing the substance
of the materials and providing record citations herein, rather than ac-
tually quoting the materials or otherwise incorporating them into the
Order.  The Confidential Appendix, however, contains quotations to
various documents in the record.
14, 2004,
8
 and a complete response to the LOI on March
16, 2004.
9
4. The script and Broadcast Videotape of the half-
time show provided by CBS confirm that the show con-
tained 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
127a
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.  Broad-
cast 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.
Got a nice package alright
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 perfor-
mance, P. Diddy and Nelly presented a medley of
songs containing occasional references to sexual activi-
ties, 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
128a
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 Interpret-
ing 18 U.S.C.  1464 and Enforcement Policies Regarding Broadcast
Indecency, Policy Statement, 16 FCC Rcd 7999, 8002,  7 (2001) (Inde-
cency 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 offen-
sive as measured by contemporary community standards for the broad-
cast 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 le-
gal support for a departure from that approach.
5. The Commission released its NAL on September
22, 2004, pursuant to section 503(b) of the Act and sec-
tion 1.80 of the Commissions rules, finding that CBS ap-
parently violated the federal restrictions regarding the
broadcast of indecent material.
14
  We noted that our in-
decency analysis involves two basic determinations.  The
first determination is whether the material in question
depicts or describes sexual or excretory organs or activi-
ties.
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 com-
munity standards for the broadcast medium.
17
  We ob-
served that, in our assessment of whether broadcast
material is patently offensive, the full context in which
129a
18
NAL, 19 FCC Rcd at 19235,  12, quoting Indecency Policy
Statement, 16 FCC Rcd at 8002,  9 (emphasis in original).
19
Indecency Policy Statement, 16 FCC Rcd at 8002-15,  8-23. 
20
NAL, 19 FCC Rcd at 19235,  12, quoting Indecency Policy State-
ment, 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 na-
ture 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
the material appeared is critically important.
18
  Three
principal factors are significant to this contextual ana-
lysis:  (1) the explicitness or graphic nature of the de-
scription 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 excre-
tory organs or activities; and (3) whether the material
appears to pander or is used to 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 deter-
mine whether the broadcast material is patently offen-
sive 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
130a
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 there-
fore do not apply here.  See Amendment of Section 1.80(b) of the Com-
missions Rules, Adjustment of Forfeiture Maxima to Reflect Infla-
tion, Order, 19 FCC Rcd 10945, 10946,  6 (2004).
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 broad-
cast of partial nudity in this instance was explicit and
graphic and appeared to pander to, titillate and shock
the viewing audience.  Therefore, the Commission deter-
mined that the material was patently offensive as mea-
sured 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 maxi-
mum 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 forfei-
ture 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
131a
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 programing over their stations, but this is not a new require-
ment.  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 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 in-
terest).   Another such filing by Litigation Recovery Trust (LRT) is
styled a Petition for Reconsideration but fails to meet the require-
ments of Section 1.106(b)(1) of our rules for petitions for reconsidera-
tion 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 un-
der 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 sub-
stance, LRTs filing is a supplement to a prior request for rulemaking
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
132a
on a matter that is outside the scope of, and is not affected by, this de-
cision.
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 Inde-
cency Policy Statement, 16 FCC Rcd at 8003,  10 (Each indecency
case presents its own particular mix of these [three], and pos-sibly
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.
8. CBS does not dispute that the halftime show in-
cluded 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 mate-
rial 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 in-
terpretation of the term willful and also address spe-
cific circumstances indicating that:  (1) CBS consciously
133a
31
Indecency Policy Statement, 16 FCC Rcd at 8002,  7.
32
NAL, 19 FCC Rcd at 19235,  11 .
omitted the actions necessary to ensure that actionably
indecent material would not be aired; and (2) the per-
formers willful actions here were attributable to CBS
under established principles of agency and respondeat
superior.  Finally, we reject CBSs constitutional argu-
ments, as the courts have repeatedly upheld the consti-
tutionality of the Commissions indecency framework
and our analysis of the halftime show is consistent with
that framework.  We therefore conclude that the broad-
cast 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 stat-
utory forfeiture is warranted.
9. Indecency Analysis.  The indecency analysis un-
dertaken in the NAL followed the approach that the
Commission has consistently applied.  First, the mate-
rial alleged to be indecent must fall within the subject
matter scope of our indecency definition, i.e., the mate-
rial 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 defini-
tion.
32
  The halftime show broadcast therefore warrants
further scrutiny to determine whether or not it was pa-
tently offensive as measured by contemporary commu-
nity standards for the broadcast medium.
10. As discussed above, in our assessment of whether
broadcast material is patently offensive, the full con-
text in which the material appeared is critically impor-
134a
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 involv-
ing 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 nip-
ple, it only partially covered her nipple and did not cover her breast.
tant.
33
  In cases involving televised nudity, the contex-
tual 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 half-
time show, not just the final segment during which Jack-
sons breast is uncovered.  We find that, in context and
on balance, the complained-of material is patently offen-
sive as measured by contemporary community stan-
dards for the broadcast medium.
11. Turning to the first principal factor of our contex-
tual 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
135a
36
Opposition at 21.
37
NAL, 19 FCC Rcd at 19235,  13 and n.42. CBS attempts to dis-
tinguish 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 ex-
posure of Jacksons breast was not in the official script submitted by
CBS, but CBS has not shown that it was unplanned.  Clearly, the cos-
tume 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.  Timber-
lakes Declaration disavows any knowledge on his part that the costume
reveal would lead to exposure of Jacksons breast, but Jacksons state-
ment does not address her knowledge or intentions, and Duldulao did
not provide a statement.  See CBS Response, Ex. 7 and Ex. 8.
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 re-
lied on Young Broadcasting, which supports the propo-
sition that a scene showing nude sexual organs is gra-
phic 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 cen-
ter 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
136a
39
CBS compares this case to a decision that it claims involves pro-
gramming that is considerably more explicit and clearly premedi-
tated, 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
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 ma-
terial at issue here is graphic and explicit.
40
CBS argues that our recent dismissals of complaints about pro-
gramming that we found not to be graphic or explicit requires a similar
decision here.  Opposition at 23-25, citing KSAZ Licensee, Inc., Memo-
randum 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.
logic or law.
39
  Rather, the first factor in our contextual
analysis focuses on the explicitness of the broadcast
from the viewers or listeners standpoint. Notwith-
standing CBSs claimed befuddlement at how the tele-
vised image of a man tearing off a womans clothing to
reveal her bare breast could be deemed explicit, we be-
lieve 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
137a
41
See NAL, 19 FCC Rcd at 19236,  14.
42
Indecency Policy Statement, 16 FCC Rcd at 8009,  19.  See also
Young Broafcasting; 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 audi-
ence.  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 deci-
sional 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 determi-
nation, 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.
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 out-
weighed 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 shockingwe examine how the material is presented
in context.
43
  The NAL found that the manner of pre-
sentation of the complained-of material over each [CBS
Station], for which Viacom failed to take adequate pre-
cautions, was pandering, titillating and shocking.
44
  The
NAL noted that the exposure of Jacksons breast fol-
lowed performances, song lyrics and choreography
138a
45
NAL, 19 FCC Rcd at 19236,  14.
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 ever-
yone else.  Opposition at iii.
[that] discussed or simulated sexual activities.
45
  Jack-
sons opening song contained repeated references to a
mans nice package that she was gonna have to ride
.  .  .  tonightslang references to male sexual organs
and sexual intercourse.  The P. Diddy/Nelly perfor-
mance also contained sexual references, emphasized by
Nellys crotch-grabbing gestures.  Likewise, the duet by
Jackson and Timberlake of Rock Your Body contained
repeated references to sexual activities
46
 and choreogra-
phy in which Timberlake grabbed Jackson, slapped her
buttocks, and rubbed up against her in a manner simu-
lating sexual activity.  These sexually suggestive perfor-
mances culminated in the spectacle of Timberlake rip-
ping 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 audi-
ence, particularly during a prime time broadcast of a
sporting event that was marketed as family entertain-
ment 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
139a
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 willful-
ness factor.
49
47 C.F.R.  73.3999.
50
See Opposition at 37-38.
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 ex-
ample, 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 offen-
sive material was brief, its brevity is outweighed in this
case by the first and third factors in our contextual anal-
ysis.  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 Commis-
sions 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 sup-
port of this argument, CBS cites definitions of willful
from criminal and copyright law cases.
50
  These defini-
140a
51
The Conference Report to the 1982 amendment to the Act that ad-
ded 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, 97th 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 Cali-
fornia 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 pur-
ported offender need not intend to violate the Act or an FCC rule, or
even be aware the action in question constitutes a violation.  Opposi-
tion 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 re-
quire 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 admi-
nistrative 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 con-
sider questions relating to possible application of section 1464  as a cri-
minal statute in upholding a broadcast indecency forfeiture 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).
tions, however, are inapposite.  Rather than borrowing
definitions from unrelated areas of law, the Commission
appropriately applies the definition of willful that ap-
pears 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 discussed in detail below,
CBS acted willfully because it consciously and deliber-
141a
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 for-
feiture).
ately broadcast the halftime show, whether or not it in-
tended to broadcast nudity, and because it consciously
and deliberately failed to take reasonable precautions to
ensure that no actionably indecent material was broad-
cast.
52
  CBS also is vicariously liable for the willful ac-
tions of the performers under the doctrine of respondeat
superior.
16. The Commissions forfeiture authority was en-
acted 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
142a
54
Report and Statement of Policy re: Commission en banc Program-
ming Inquiry, 44 FCC Rcd 2303, 2313 (1960).  See also Yale Broadcast-
ing 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 broad-
casting music dealing with drug use); Gaffney Broadcasting, Inc., 23
2d 912, 913 (1970) (licensees are responsible for the selec-tion and
presentation of program material over their stations, including  .  .  .
acts or omissions of their employees); Alabama Educational Televi-
sion Commission, 50 FCC 2d 461, 464 (1975) (AETC lost its license in
part because it failed to maintain exclusive authority over all of its pro-
gramming decisions); WCHS-AM-TV Corp., 8 FCC 2d 608, 609 (1967)
(maintenance of control over programming is a most fundamental
obligation of the licensee).
adopt measures to ensure compliance with the Act and
the Commissions rules has particular force when it co-
mes to broadcasters responsibility for the programming
that they broadcast to the public. Under well-estab-
lished 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 dele-
gated.
54
17. CBS claims that it had no advance knowledge that
Timberlake planned to tear off part of Jacksons cloth-
ing 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 precau-
tions that were available to it to prevent that risk from
materializing.
143a
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.).  Con-
fidential 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.
18. It is disingenuous for CBS to argue that the cos-
tume reveal was as much a shock to Viacom as to every-
one else.
55
  CBS clearly recognized that the live broad-
cast of the Super Bowl halftime show posed a significant
risk that indecent material would be aired.  The exten-
sive 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 pro-
vocative 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 re-
buffed 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 ob-
jections 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
144a
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 Re-
sponse, App. D at Bates stamped pgs. 2659.
63
See CBS Response, App. B at Bates stamped p. 462.  Confidential
Appendix 6.
19. CBS maintains that it selected Jackson and Tim-
berlake to minimize the possibility of the unexpected,
59
but CBS was well aware that their selection did not obvi-
ate this risk.  The NFL specifically expressed concerns
to CBS about the costume that Jackson would wear dur-
ing the halftime show.
60
  Moreover, the NFL raised con-
cerns 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 pre-
dicted 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
145a
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 perform-
ers and the producers desire for a high-impact grand finale to the
show.  Confidential Appendix 9.
66
See Super Bowl NAL, 19 FCC Rcd at 19237,  17 n.54, citing Com-
plaints 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
to use tearaway cheerleading outfits for dancers in an-
other 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 perfor-
mance.
65
  In sum, there was a significant and foreseeable
risk in a halftime show seeking to push the envelope and
replete with sexual content that performers might de-
part from script and staging, and this is particularly
true of Jackson and Timberlake given the sexually-pro-
vocative 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
146a
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 ma-
terial before it is broadcast.  Although both the audio and visual trans-
mission 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.
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 stag-
ingthat something spontaneous might occur or be
saidCBS 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 occurredand it had
no expectation that it would be able to block any inde-
cent images.
68
  Only after the Super Bowl halftime show
for the broadcast of the 2004 Grammy Awardsdid
CBS institute an audio and video delay to ensure that
no unexpected or unplanned video images would be
147a
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 pro-
vide an executed agreement for either Jackson or Timberlake in re-
sponse 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 ref-
erences.
73
See Confidential Appendix 10. Because CBSs failure to take rea-
sonable precautions to prevent the broadcast of actionably indecent
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 stan-
dards staff to implement than the delay that CBS actu-
ally used hardly excuses its omission under these cir-
cumstances.
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 stan-
dards and practices to Jackson, Timberlake, or Jack-
sons choreographer before the show, despite the highly
sexualized nature of the performances and the fact that
MTVs contract with the NFL required MTV to commu-
nicate those standards and practices to all performers.
73
148a
material was conscious and deliberate, its reliance on Mega Communi-
cations 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
experienceincluding inspecting Ms. Jacksons costumebut an un-
foreseeable violation nevertheless occurred.).  The Bureau held in
Mega that a licensee did not commit a willful violation of the Commis-
sions 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 rescind-
ed 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
21. CBS also overstates the level of care it exercised
in overseeing the halftime production. Critically, it
failed to investigate Jacksons choreographers shock-
ing moments prediction, which was posted on MTVs
website, despite CBSs concern about unscripted re-
marks or actions.
74
  In addition, contrary to its conten-
149a
that the quote referred to moments in the plural, whereas it would
have been expected to refer to a moment if it only concerned Tim-
berlakes appearance. CBS has never provided a statement from Jack-
sons 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/Timber-
lake Dress Rehersal).
tion,
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 of-
fensive material that it broadcast to a nationwide audi-
ence.  A contrary result would permit a broadcast li-
censee 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 dis-
avow responsibilityleaving no one legally responsible
for the result.  We believe that these are fully appropri-
150a
78
47 U.S.C.  503(b)(1); 47 U.S.C.  312(f).
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 em-
ployer and the Commission has consistently refused to excuse licensees
from forfeiture penalties where actions of employees or independent
contractors have resulted in violations.).
ate circumstances for application of the conscious and
deliberate  .  .  .  omission basis for finding willfulness
incorporated by Congress into Section 503(b) of the
Act.
78
  Indeed, given the nondelegable nature of broad-
cast 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 dif-
ficult to conceive of a more appropriate context in which
to apply that standard.
23. Further, CBS is legally responsible here for an-
other reason; it is fully responsible for the actions of
Jackson, Timberlake, and Jacksons choreographer un-
der the doctrine of respondeat superior.  It is well es-
tablished that traditional vicarious liability rules ordi-
narily 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 supe-
rior subjects a principal to vicarious liability when its
agent-employee commits a tort while acting within the
151a
81
Restatement (Second) of Agency  219(l) (1957) (2nd Restatement).
See also Restatement (Third) of Agency  7.07 (T.D. No. 5 2004) (3rd
Restatement).
82
2nd Restatement  220. See also 3rd Restatement  7.07.
83
2nd 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 cos-
tume and revealing the undergarment beneath.  I had neither the in-
tention 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.).
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-em-
ployee acts within the scope of employment when per-
forming 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 responsibil-
ity on CBS for the willful actions of Jackson, Timber-
lake, 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 per-
formers did. Timberlakes declaration acknowledges a
premeditated plan for him to tear off part of Jacksons
clothing during the performance.
84
  Jackson, Timber-
lake, 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
152a
85
See CBS Response, App. B-C at Bates stamped pgs. 168-72, 431-34,
2152-2332, 2336-42; 2nd 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
agents 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.
agreed to choreograph the dance.
85
  Based on examina-
tion 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 ad-
vance and a script of the halftime show was reviewed
by the CBS Program Practices Department.  In ad-
dition, employees of CBS, MTV, and the NFL at-
tended two full run-throughs of the halftime show on
Thursday, January 29 to review the production.  The
run throughs were videotaped, and reviewed by rep-
resentatives of CBS and the NFL. MTV producers
then used the tape to individually review the re-
hearsal performances with the talent to instruct them
on changes to be made in the actual performance on
Super Bowl Sunday.  Based on these procedures, cer-
tain 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
153a
86
CBS Response at 9-10.  Although CBS had the right to exercise
control over the halftime show, and in fact exercised considerable con-
trol, 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 2nd Restate-
ment  220; 3rd 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 per-
form it).
88
See P.T. Barnums Nightclub v. Duhamell, 766 N.E.2d 729 (Ind.
App. 2002) (referring to 2nd 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 dis-
playing adult entertainers (primarily female), but did not dictate the
stylistic aspects of Ajishegiris performance); White v. Frenkel, 615
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 ward-
robe 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 activ-
ities.
87
  Many courts have held entertainers to be em-
ployees for respondeat superior and other purposes un-
der similar circumstances.
88
  Finally, the performers
154a
So.2d 535, 538-40 (La. App. 3 Cir. 1993) (professional wrestler was em-
ployee 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); Jeff-
coat v. State Dept. of Labor, 732 P.2d 1073, 1075-78 (Alaska 1987) (danc-
er 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 (1st Dept. 1986)
(actor was employee for purposes of determining availability of work-
ers 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
2nd Restatement  228.
90
3rd 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
actions were clearly within the scope of their employ-
ment.  In this regard, the determining factor is not whe-
ther their actions were authorized by CBS but whether
the performance was subject to CBSs control.
89
  Put
differently, their conduct was incident to the perfor-
mance rather than an independent course of conduct
intended to serve no purpose of the employer.
90
 Accord-
155a
determine whether an employees tortious conduct falls within the
scope of employment.  These tests vary somewhat in how they articu-
late the requisite tie between the tortfeasors employment and the tort.
In general, such a tie is present only when the tort is a generally fore-
seeable 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 forfei-
ture 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.
ingly, the performers willful actions are fully attribut-
able 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 im-
posed 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 inde-
cent 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
156a
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 pre-
viously rejected, CBSs interpretation of section 504(c). We have made
it clear that the Commission may rely on the underlying facts that pro-
vide 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).
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 ad-
mits 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 his-
tory 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.
157a
96
See 47 U.S.C.  503(b)(2)(D) (the Commission shall take into ac-
count 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-rat-
ings_ x.htm (stating that Super Bowl XXXVIII was most-watched Su-
per Bowl in history with estimated 143.6 million viewers and 41.3 na-
tional rating).
Nevertheless, we remain convinced that the upward ad-
justment 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 broad-
cast, and CBSs ability to pay.
96
  The crux of CBSs de-
fense 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 addi-
tion, 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 fi-
158a
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 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) .
nancial disincentives to violate the Act and rules,
98
 we
find that CBSs size and resources, without question,
support an upward adjustment to the maximum statu-
tory 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 dis-
play 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
159a
102
Opposition at 19, 27-28.
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.
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 nu-
dity 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 exam-
ple, 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 refer-
ences 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 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
160a
104
Opposition at 65-77.
105
See ACT III, 58 F.3d at 659 (upholding the Commissions inde-
cency 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. Simi-
larly, 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).
30. Constitutional Issues.  CBS offers a number of
arguments attacking then constitutional underpinnings
of the Commissions indecency framework.  We find no
merit in those arguments.
31. We reject CBSs arguments that the Commis-
sions 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 ar-
gument that the Commissions indecency standard is
overbroad because it may encompass material with seri-
ous merit.
106
   We do not believe that requiring broad-
casters 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.
161a
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
contextit cannot be adequately judged in the abstract).
110
Id., 438 at 750; see id. at 760-61 (Powell, J., concurring).
Circuit observed, some degree of self-censorship is in-
evitable and not necessarily undesirable so long as
proper standards are available.
107
32. We also disagree with CBS that the NAL is incon-
sistent 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 Su-
preme 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 com-
edy) 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  the
Commission of power to regulate broadcast indecency
162a
111
Id. at 750.  The D.C. Circuit upheld the Commissions interpreta-
tion 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 Playbody, the Court distinguished broadcast ser-
vices from cable due to differences in the nature of those media.  See
United States v. Playboy Entertainment Group, Inc., 529 U.S. at 815.
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 under-
mined 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., vid-
eocassette recorders, DVD recorders and personal video
recorders featuring time-shifting technology) and the V-
chip.
115
  Again, we disagree.  In striking down as uncon-
stitutional an Internet indecency standard, the Supreme
Court expressly recognized in Reno the special justifi-
cations for regulation of the broadcast media, citing
Red Lion and Pacifica.
116
  Moreover, in Denver Area,
163a
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 ex-
empt 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 an-
nounced their participation with the Advertising Council in an educa-
tional 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 An-
nounce 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.
the Court addressed the constitutionality of a Commis-
sion order implementing provisions of the 1992 Cable
Television Consumer Protection and Competition Act
that concerned indecent and obscene cable program-
ming, 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 tech-
nologies 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 repre-
sentations 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 im-
posing sanctions in this case will have a chilling effect on
164a
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).
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 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 exer-
cise control and good reasons to take precautionary
measures.  These circumstances are obviously com-
pletely  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 Com-
mission will then issue a forfeiture if it finds by a pre-
165a
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).
ponderance 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 lia-
ble 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 State-
ment also specifies that the Commission shall adjust a
forfeiture based upon consideration of the factors enu-
merated in section 503(b)(2)(D) of the Act, 47 U.S.C.
 503(b)(2)(D) , such as the nature, circumstances, ex-
tent 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 jus-
tice may require.
122
  In this case, taking all of these fac-
tors 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 Commissions 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 Commissions rules.
166a
125
47 U.S.C.  504(a).
126
See 47 C.F.R.  1.1914.
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
  Pay-
ment of the forfeiture must be made by check or similar
instrument, payable to the order of the Federal Commu-
nications Commission.  The payment must include the
NAL/Acct. No. referenced above and the FRN(s) refer-
enced in the Appendix.  Payment by check or money
order may be mailed to Federal Communications Com-
mission, 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 DirectorFin-
ancial 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., Washing-
ton, DC 20005.
167a
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
Secretary
168a
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; Com-
plaints Regarding Various Television Broadcasts
Between February 2, 2002 and March 8, 2005; Com-
plaints Against Various Television Licensees Con-
cerning Their December 31, 2004 Broadcast of the
Program Without A Trace
Congress has long prohibited the broadcasting of in-
decent and profane material and the courts have upheld
challenges to these standards.  But the number of com-
plaints 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 publicand 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 deci-
sions released today the Commission is resolving hun-
dreds of thousands of complaints against various broad-
cast 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 appropri-
169a
ately reject the argument that CBS continues to make
that this material is not indecent.  That argument runs
counter to Commission precedent and common sense.
 
170a
STATEMENT OF
COMMISSIONER MICHAEL J. COPPS
Re: Complaints Regarding Various Television Broad-
casts 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 Appar-
ent Liability
Complaints Against Various Television Licensees
Concerning Their February 1, 2004 Broadcast Of
The Super Bowl XXXVII Halftime Show, Forfei-
ture Order
In the past, the Commission too often addressed inde-
cency complaints with little discussion or analysis, rely-
ing instead on generalized pronouncements.  Such an ap-
proach served neither aggrieved citizens nor the broad-
cast 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 nev-
er 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 pre-
cedents.  This measured process, common in jurispru-
dence, 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.
171a
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 whe-
ther there is a link between increasing media consolida-
tion 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 ci-
tations have gone to a few huge media conglomerates.
One recent study showed that the four largest radio sta-
tion 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 pro-
gramming we are fed may be that people feel increas-
ingly 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 pro-
gramming decisions are made.  Years ago we had inde-
pendent programming created from a diversity of
sources.  Networks would then decide which program-
ming to distribute.  Then local affiliates would independ-
ently decide whether to air that programming.  This pro-
vided some real checks and balances.  Nowadays so
many of these decisions are made by vertically-integra-
ted conglomerates headquartered far away from the
communities they are supposed to be servingentities
172a
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 par-
ents, 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.
Second, a number of these complaints concern graph-
ic 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 Psycho-
logical Association, the American Medical Association,
and countless other medical and scientific organizations
that have studied this issue have reached the same con-
clusion:  exposure to graphic and excessive media vio-
lence has harmful effects on the physical and mental
health of our children.  We need to complete this pro-
ceeding.
173a
1
U.S. Const., amend. I.
2
Congress has specifically forbidden the broadcast of obscene, in-
decent 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) (empha-
sizing the narrowness of the Courts holding); Action for Childrens
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, Forfei-
ture 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 chal-
lenging in many of the indecency cases that I have de-
cided.  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 there-
fore 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 ex-
ercise that authority with the utmost restraint, lest we
inhibit constitutional rights and transgress constitu-
tional limitations on government regulation of protected
speech.
4
  Given the Courts guidance in Pacifica, the
174a
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 defin-
ition of indecency will be tempered by the Commissions restrained en-
forcement 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).
Commission has repeatedly stated that we would judi-
ciously 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 constitu-
tional requirement.
6
Accordingly, I concur with todays Super Bowl Order,
but concur in part and dissent in part with the compan-
ion 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.  Addi-
tionally, 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 broadcast-
ers who have aired indecent material, and hold them
175a
8
See, e.g., In re Sagittarius Broadcasting Corporation, Memoran-
dum Opinion and Order, 7 FCC Rcd 6873, 6876 (1992) (subsequent his-
tory 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.
accountable.  In the Omnibus Order, however, the Com-
mission inexplicably fines only the licensee whose broad-
cast of indecent material was the subject of a viewers
complaint, even though we know millions of other Amer-
icans were exposed to the offending broadcast.  I cannot
find anywhere in the law that Congress told us to apply
indecency regulations only to those stations against
which a complaint was specifically lodged.  The law re-
quires us to prohibit the broadcast of indecent material,
period.  This means that we must enforce the law any-
where 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 tar-
get of viewer complaints.  How can we impose a fine
solely on certain local broadcasters, despite having re-
peatedly said that the Commission applies a national
indecency standardnot 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 arbi-
trary to hold some stations but not others accountable
for the same broadcast.  We recognized this just two
176a
10
See Complaints Against Various Licensees Regarding Their
Broadcast  of the Fox Television Network Program Married by Amer-
ica 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 calcu-
lation, and directing an investigation into stations owned by other licen-
sees that broadcast the indecent program).  In the instant Omnibus Or-
der, 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 Half-
time Show, Notice of Apparent Liability, 19 FCC Rcd 19230 (2004).
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 Omni-
bus Order.
The Commission is constitutionally obligated to de-
cide broadcast indecency and profanity cases based on
the contemporary community standard, which is that
of the average broadcast viewer or listener.  The Com-
mission has explained the contemporary community
standard, as follows:
177a
12
In re Infinity Radio License, Inc., Memorandum Opinion and Or-
der, 19 FCC Rcd 5022, 5026 (2004).
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 reconsidera-
tion pending.
We rely on our collective experience and knowledge,
developed through constant interaction with lawmak-
ers, 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 profan-
ity law, without first doing what is necessary to deter-
mine the appropriate contemporary community stan-
dard. 
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 prece-
dents 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 major-
ity 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
178a
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, Memoran-
dum 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 dim-
inished the power, realism and immediacy of the film experience for
viewers.).  See also Peter Branton, Letter by Direction of the Com-
mission, 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).
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 au-
thority 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 ap-
proach to the acclaimed Martin Scorsese documentary,
The Blues:  Godfathers and Sons.  It is clear from a
common sense viewing of the program that coarse lan-
guage 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 consis-
tent with our decisions in Saving Private Ryan
14
 and
Schindlers List.
15
179a
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 sup-
pressing ideas in the process.).
The Commission has repeatedly reaffirmed, and the
courts have consistently underscored, the importance of
content and context.  The majoritys decision today dan-
gerously departs from those precedents.  It is certain to
strike fear in the hearts of news and documentary mak-
ers, 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 ob-
served:
[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 over-
all message sought to be communicated.
17
Given all of these considerations, I find that the Omni-
bus 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 chil-
dren that it exercises so vigorously.    
 
180a
1
See 18 U.S.C.  1464.
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, Forfei-
ture Order; Complaints Regarding Various Televi-
sion 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 re-
sponsibility to enforce the federal statute prohibiting
the airing of obscene, indecent or profane language.
1
  To
be clearI 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 land-
marks, these are scarce and finite resources that must
be preserved for the benefit of all Americans.  If num-
bers 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
181a
with the content to which theyand, in particular, their
familiesare 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.  Pa-
rental 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.  Caregiversparents, in particular
need to take an active role in monitoring the content to
which children are exposed.  Even the most diligent par-
ent, however, cannot be expected to protect their chil-
dren from indecent material broadcast during live sport-
ing events or in commercials that appear during what is
marketed to be appropriate programming.
Today, we are making significant strides toward ad-
dressing the backlog of indecency complaints before this
agency.  The rules are simpleyou 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
182a
of The Simpsons.  The Order concludes that this seg-
ment 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 chil-
dren and adults simultaneously.  Nevertheless, the fact
remains that children were extremely likely to have
been in the viewing audience when this scene was broad-
cast.  Indeed, the marketing is aimed at children.  If the
scene had involved real actors in living color, at 5:30
p.m. Central 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 ex-
posing young people to such content.  By their very na-
ture, 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 opin-
ion, 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. Cen-
tral 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 inde-
cency.  Without question, this scene is violent, graphi-
cally so.  Moreover, it is presented in a way that appears
clearly designed to maximize its shock value.  And there-
in lies my concern.  One of the primary ways that this
scene shocks is that it leads the viewer to believe that
183a
the action is headed in one directionthrough dialogue
and actions which suggest that interaction of a sexual
nature is about to occurand then abruptly erupts in
anotherthe 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 vio-
lence as the punch line of titillating sexual innuendo
should not insulate broadcast licensees from our author-
ity.  To the contrary, the use of sexual innuendo may,
depending on the specific case, subject a licensee to po-
tential forfeiture, regardless of the overall violent na-
ture 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.
184a
APPENDIX D
UNITED STATES COURT OF APPEALS 
FOR THE THIRD CIRCUIT
No. 06-3575 
CBS CORPORATION; CBS BROADCASTING INC.; CBS
TELEVISION STATIONS, INC.; CBS STATIONS GROUP
OF TEXAS L.P.; AND KUTV HOLDINGS, INC., PETI-
TIONERS
v.
FEDERAL COMMUNICATION COMMISSION; UNITED
STATES OF AMERICA, RESPONDENTS 
On Petition for Review of Orders of the
Federal Communications Commission
FCC Nos. 06-19 and 06-68
Argued:  Sept. 11, 2007
Before:  SCIRICA, Chief Judge, RENDELL and FUENTES,
Circuit Judges.
JUDGMENT 
This cause came to be heard on the record from the
Federal Communications Commission and was argued
by counsel on September 11, 2007.  On consideration
whereof, it is now hereby
185a
ORDERED and ADJUDGED by this Court that the
petition for review is granted, the orders of the Federal
Communications Commission are vacated, and the case
is remanded for proceedings consistent with this opin-
ion.  Each party to bear their own costs.  All of the above
in accordance with the opinion of this Court. 
ATTEST: 
/s/ MARCIA M. WALDRON 
MARCIA M. WALDRON
Clerk 
DATED:  July 21, 2008 
186a
APPENDIX E
1. 18 U.S.C. 1464 provides:
Broadcasting obscene language 
Whoever utters any obscene, indecent, or profane
language by means of radio communication shall be
fined under this title or imprisoned not more than two
years, or both. 
2. 47 U.S.C. 312 provides in relevant part: 
Administrative sanctions 
(a) Revocation of station license or construction permit
The Commission may revoke any station license or
construction permit
(1)  for false statements knowingly made either in
the application or in any statement of fact which may be
required pursuant to section 308 of this title;
(2)  because of conditions coming to the attention of
the Commission which would warrant it in refusing to
grant a license or permit on an original application;
(3)  for willful or repeated failure to operate sub-
stantially as set forth in the license;
(4)  for willful or repeated violation of, or willful or
repeated failure to observe any provision of this chapter
or any rule or regulation of the Commission authorized
by this chapter or by a treaty ratified by the United
States; 
187a
(5)  for violation of or failure to observe any final
cease and desist order issued by the Commission under
this section;
(6)  for violation of section 1304, 1343, or 1464 Title
18; or 
(7)  for willful or repeated failure to allow reason-
able access to or to permit purchase of reasonable
amounts of time for the use of a broadcasting station,
other than a non-commercial educational broadcast sta-
tion, by a legally qualified candidate for Federal elective
office on behalf of his candidacy.
(b) Cease and desist orders 
Where any person (1) has failed to operate substan-
tially as set forth in a license, (2) has violated or failed to
observe any of the provisions of this chapter, or section
1304, 1343, or 1464 Title 18, or (3) has violated or failed
to observe any rule or regulation of the Commission au-
thorized by this chapter or by a treaty ratified by the
United States, the Commission may order such person
to cease and desist from such action. 
*    *    *    *    *
188a
3. 47 U.S.C. 503 provides in relevant part: 
Forfeitures 
*    *    *    *    *
(b) Activities constituting violations authorizing
imposition of forfeiture penalty;  amount of pen-
alty; procedures applicable; persons subject to
penalty; liability exemption period 
(1)  Any person who is determined by the Commis-
sion, in accordance with paragraph (3) or (4) of this sub-
section, to have
(A)  willfully or repeatedly failed to comply sub-
stantially with the terms and conditions of any li-
cense, permit, certificate, or other instrument or au-
thorization issued by the Commission; 
(B)  willfully or repeatedly failed to comply with
any of the provisions of this chapter or of any rule,
regulation, or order issued by the Commission under
this chapter or under any treaty, convention, or
other agreement to which the United States is a
party and which is binding upon the United States;
(C)  violated any provision of section 317(c) or
509(a) of this title; or 
(D)  violated any provision of section 1304, 1343,
or 1464 of Title 18; shall be liable to the United
States for a forfeiture penalty. A forfeiture penalty
under this subsection shall be in addition to any
other penalty provided for by this chapter; except
that this subsection shall not apply to any conduct
which is subject to forfeiture under subchapter II of
this chapter, part II or III of subchapter III of this
chapter, or section 507 of this title. 
189a
*    *    *    *    *
4.  Public Telecommunications Act of 1992, Pub. L. No.
102-356,  16(a), 106 Stat. 949, provides: 
FCC REGULATIONS.The Federal Communica-
tions Commission shall promulgate regulations to pro-
hibit the broadcasting of indecent programming 
(1)  between 6 a.m. and 10 p.m. on any day by any
public radio station or public television station that
goes off the air at or before 12 midnight; and 
(2)  between 6 a.m. and 12 midnight on any day
for any radio or television broadcasting station not
described in paragraph (1). 
The regulations required under this subsection shall be
promulgated in accordance with section 553 of title 5,
United States Code, and shall become final not later
than 180 days after the date of enactment of this Act. 
5.  47 C.F.R. 73.3999 provides: 
Enforcement of 18 U.S.C. 1464 (restrictions on the 
transmission of obscene and indecent material). 
(a)  No licensee of a radio or television broadcast
station shall broadcast any material which is ob-
scene. 
(b)  No licensee of a radio or television broadcast
station shall broadcast on any day between 6 a.m.
and 10 p.m. any material which is indecent.