No.        
In the Supreme Court of the United States
FEDERAL COMMUNICATIONS COMMISSION
AND UNITED STATES OF AMERICA, PETITIONERS
v.
FOX TELEVISION STATIONS, INC., ET AL.
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
PETITION FOR A WRIT OF CERTIORARI
MATTHEW B. BERRY
Acting General Counsel
JOSEPH R. PALMORE
Deputy General Counsel
DANIEL M. ARMSTRONG
JACOB M. LEWIS
Associate General Counsels
NANDAN M. JOSHI
Counsel
Federal Communications
Commission
Washington, D.C. 20554
PAUL D. CLEMENT
Solicitor General
Counsel of Record
JEFFREY S. BUCHOLTZ
Acting Assistant Attorney
General
THOMAS G. HUNGAR
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 striking down
the Federal Communications Commissions determin-
ation that the broadcast of vulgar expletives may violate
federal restrictions on the broadcast of any obscene,
indecent, or profane language, 18 U.S.C. 1464; see 47
C.F.R. 73.3999, when the expletives are not repeated.
(II)
PARTIES TO THE PROCEEDING
Petitioners are the Federal Communications Com-
mission and the United States of America.
Respondents who were petitioners in the court of
appeals below are Fox Television Stations, Inc.; CBS
Broadcasting Inc.; WLS Television, Inc.; KTRK Tele-
vision, Inc.; KMBC Hearst-Argyle Television, Inc.; and
ABC Inc.
Respondents who were intervenors in the court of
appeals below are NBC Universal, Inc.; NBC Telemun-
do License Co.; NBC Television Affiliates; FBC Tele-
vision Affiliates Association; CBS Television Network
Affiliates; Center for the Creative Community, Inc., do-
ing business as Center for Creative Voices in Media,
Inc.; and ABC Television Affiliates Association.
(III)
TABLE OF CONTENTS
Page
Opinions below........................................ 1
Jurisdiction........................................... 1
Statutes and regulations involved........................ 2
Statement ............................................ 2
Reasons for granting the petition ....................... 13
A. The decision below conflicts with this Courts
decision in Pacifica .............................. 15
B. The decision below is inconsistent with settled
principles of administrative law and conflicts with a
decision of the D.C. Circuit ....................... 19
C. The question presented is important and warrants
this Courts review .............................. 26
Conclusion .......................................... 31
Appendix A ......................................... 1a
Appendix B ........................................ 61a
Appendix C ....................................... 143a
Appendix D ....................................... 145a
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, 15, 23
American Gas Assn v. FERC, 428 F.3d 255
(D.C. Cir. 2005) ................................. 26
Chevron USA Inc. v. NRDC, 467 U.S. 837 (1984) ....... 17
Euclid v. Ambler Realty Co., 272 U.S. 365 (1926) ....... 17
IV
CasesContinued: Page
FCC v. National Citizens Comm. for Broad., 436 U.S.
775 (1978) ...................................... 17
FCC v. Pacifica Found., 438 U.S. 726 (1978) ...... passim
Ginsberg v. New York, 390 U.S. 629 (1968) ............ 23
Greater Boston Television Corp. v. FCC, 444 F.2d 841
(D.C. Cir. 1970), cert. denied, 403 U.S. 923 (1971) .... 22
Motor Vehicle Mfrs. Assn v. State Farm Mut. Auto.
Ins. Co., 463 U.S. 29 (1983) ................. 20, 22, 26
NCTA v. Brand X Internet Servs., 545 U.S. 967
(2005) ....................................... 20, 22
Pacifica Found., Inc., In re, 2 F.C.C.R. 2698 (Apr. 16,
1987) ........................................... 4
Public Citizen, Inc. v. NHTSA, 374 F.3d 1251
(D.C. Cir. 1994) ................................. 26
Rust v. Sullivan, 500 U.S. 173 (1991) ................. 22
Smiley v. Citibank (S.D.), N.A., 517 U.S. 735 (1996) .... 20
Constitution, statutes and regulation:
U.S. Const. Amend. I............................ 19, 29
Administrative Procedure Act, 5 U.S.C. 551 et seq. . . 14, 21
Public Telecommunications Act of 1992, Pub. L. No.
102-356,  16(a), 106 Stat. 954 ................. 2, 148a
18 U.S.C. 1464 ........................... passim, 145a
28 U.S.C. 2343 ..................................... 30
47 U.S.C. 307....................................... 2
47 U.S.C. 309(k) .................................... 2
47 U.S.C. 503(b)(1)(B) .......................... 2, 147a
V
RegulationsContinued: Page
47 U.S.C. 503(b)(1)(D) .......................... 2, 147a
47 C.F.R. 73.3999(b) ............................ 2, 148a
Miscellaneous:
Citizens Complaint Against Pacifica Found. 
Station WBAI (FM), New York, N.Y., In re,
56 F.C.C.2d 94 (Feb. 12, 1975) ...................... 3
Complaints Against Various Broadcast Licensees
Regarding Their Airing of the Golden Globe
Awards Program, In re:
19 F.C.C.R. 4975 (Mar. 18, 2004) ........... passim
18 F.C.C.R. 19,859 (Oct. 3, 2003) ................. 5
Complaints Against Various Television Licensees
Regarding Their Broadcast on November 11, 2004,
of the ABC Television Networks Presentation of
the Film Saving Private Ryan, In re,
20 F.C.C.R. 4507 (Feb. 3, 2005) ................. 16, 28
Complaints Regarding Various Television
Broadcasts Between February 2, 2002 and March
8, 2005, In re, 21 F.C.C.R. 2664 (Feb. 21, 2006) ..... 7, 8
Industry Guidance on the Commissions Case Law
Interpreting 18 U.S.C.  1464 and Enforcement
Policies Regarding Broadcast Indecency, In re,
16 F.C.C.R. 7999 (Mar. 14, 2001) ................. 4, 5
Barbara K. Kaye and Barry S. Sapolsky, Watch Your
Mouth!  An Analysis of Profanity Uttered by
Children on Prime-Time Television, 7 J. Mass
Commcn & Socy 429 (2004) ...................... 25
(1)
In the Supreme Court of the United States
No.        
FEDERAL COMMUNICATIONS COMMISSION
AND UNITED STATES OF AMERICA, PETITIONERS
v.
FOX TELEVISION STATIONS, INC., ET AL.
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SECOND 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 Second Circuit in this case.
OPINIONS BELOW
The opinion of the court of appeals (App., infra, 1a-
60a) is reported at 489 F.3d 444.  The order of the Fed-
eral Communications Commission (App., infra, 61a-
142a) is reported at 21 F.C.C.R. 13,299.
JURISDICTION
The judgment of the court of appeals (App., infra,
143a-144a) was entered on June 4, 2007.  On August 23,
2007, Justice Ginsburg extended the time within which
2
to file a petition for a writ of certiorari to and including
October 4, 2007, and on September 24, 2007, Justice
Ginsburg further extended the time to and including
November 1, 2007.  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 an appendix to
this petition.  App., infra, 145a-148a.
STATEMENT
1.  a.  Under 18 U.S.C. 1464, it is unlawful to utter[]
any obscene, indecent, or profane language by means of
radio communication.  As directed by Congress, the
Federal Communications Commission (FCC or Commis-
sion) has adopted regulations specifying that the inde-
cency prohibition applies to radio and television broad-
casts aired between the hours of 6 a.m. and 10 p.m.  47
C.F.R. 73.3999(b) (adopted pursuant to Public Telecom-
munications Act of 1992  16(a), Pub. L. No. 102-356, 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 Commission does not
regulate indecent broadcasts outside that time period.
The FCC has authority to enforce the indecency prohibi-
tion by, among other things, imposing civil forfeitures,
see 47 U.S.C. 503(b)(1)(B) and (D), or taking violations
into account during license-renewal proceedings, see 47
U.S.C. 307, 309(k). 
b.  In FCC v. Pacifica Foundation, 438 U.S. 726
(1978) (Pacifica), this Court upheld the constitutionality
of the FCCs authority to regulate indecent broadcasts.
At issue in Pacifica was the midday radio broadcast of
George Carlins monologue Filthy Words.  Responding
to a listener complaint, the Commission determined that
3
the broadcast violated Section 1464.  In reaching that
conclusion, it applied a concept of indecent [that] is
intimately connected with the exposure of children to
language that describes, in terms patently offensive as
measured by contemporary community standards for
the broadcast medium, sexual or excretory activities and
organs, at times of the day when there is a reasonable
risk that children may be in the audience.  Id. at 731-
732 (quoting In re Citizens Complaint Against Pacifica
Found. Station WBAI (FM), New York, N.Y., 56
F.C.C.2d 94, 98 (Feb. 12, 1975)).  Under that definition,
the Court explained, context is all-important.  Id. at
750.
In rejecting a constitutional challenge to the Commis-
sions enforcement of Section 1464, the Court observed
that the broadcast media have established a uniquely
pervasive presence in the lives of all Americans in that
material presented over the airwaves confronts the
citizen, not only in public, but also in the privacy of the
home, where the individuals right to be left alone
plainly outweighs the First Amendment rights of an in-
truder.  Pacifica, 438 U.S. at 748.  The Court further
observed that, because broadcasting is uniquely acces-
sible to children, indecent language can enlarge[] a
childs vocabulary in an instant.  Id. at 749.  The Court
concluded that the governments interest in the well-
being of its youth and in supporting parents claim to
authority in their own household justified the regulation
of otherwise protected expression.  Ibid. (internal quo-
tation marks and citation omitted); see id. at 762 (Pow-
ell, J., concurring).  The Court rejected the contention
that one may avoid further offense by turning off the
radio when he hears indecent language, comparing it to
4
saying that the remedy for an assault is to run away
after the first blow.  Id. at 748-749.
c.  In subsequent orders, the Commission sought to
describe the circumstances under which non-repetitive
utterances of offensive sexual or excretory terms would
violate Section 1464.  By 1987, the Commission had de-
termined that when a complaint focuses solely on the
use of expletives,  *  *  *  repetitive use in a patently
offensive manner is a requisite to a finding of inde-
cency.  In re Pacifica Found., Inc., 2 F.C.C.R. 2698,
2699  13 (Apr. 16, 1987).  In contrast, when offensive
language 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 .
The Commission further explained the indecency
standard in a 2001 policy statement.  See In re 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, 7999  1 (Mar.
14, 2001) (Industry Guidance).  That statement set out
a two-part test for indecency.  First, the material at is-
sue must fall within the subject matter scope of [the]
indecency definitionthat is, the material must describe
or depict sexual or excretory organs or activities.  Id.
at 8002  7.  Second, the broadcast must be patently
offensive as measured by contemporary community
standards for the broadcast medium.  Id. at 8002  8.
The policy statement explained that whether a
broadcast is patently offensive turns on the full con-
text in which the material was broadcast and is there-
fore highly fact-specific.  Industry Guidance, 16
F.C.C.R. at 8002-8003  9.  Three principal factors are
5
1
The FCCs Enforcement Bureau had initially ruled that the
broadcast was not indecent because Bono used the word fucking as
an adjective or expletive to emphasize an exclamation, and because the
remarks were fleeting and isolated.  See In re Complaints Against
Various Broadcast Licensees Regarding Their Airing of the Golden
significant:  (1) the explicitness or graphic nature of
the description or depiction of sexual or excretory or-
gans or activities; (2) whether the material dwells on or
repeats at length descriptions of sexual or excretory
organs or activities; and (3) whether the material ap-
pears 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).  With re-
spect to the second factor, the policy statement noted
that [r]epetition of and persistent focus on sexual or
excretory material may exacerbate the potential offen-
siveness of broadcasts, but even relatively fleeting re-
ferences may be found indecent where other fac-
torssuch as the use of graphic or explicit lan-
guagecontribute to a finding of patent offensiveness.
Id. at 8008-8009  17, 19.
d.  In January 2003, the NBC network aired a live
broadcast of the Golden Globe Awards.  In accepting the
award for Best Original Song, the rock singer Bono
stated:  This is really, really fucking brilliant.  Really,
really great.  In re Complaints Against Various
Broadcast Licensees Regarding Their Airing of the
Golden Globe Awards Program, 19 F.C.C.R. 4975,
4976 n.4 (Mar. 18, 2004) (Golden Globe Awards Order).
The Commission concluded that the broadcast of Bonos
remark was indecent even though Bonos use of the F-
Word was not sustained or repeated.  Id. at 4980
  12.
1
  The Commission explained that, even when used
6
Globe Awards Program, 18 F.C.C.R. 19,859, 19,861  5-6 (Oct. 3,
2003).  The Golden Globe Awards Order reversed that staff decision.
as an intensifier, the F-Word falls within the subject-
matter scope of indecency regulation because, given its
core meaning, the word inherently has a sexual con-
notation.  Id. at 4978  8.  The Commission also found
that Bonos remark was patently offensive because
[t]he F-Word is one of the most vulgar, graphic and
explicit descriptions of sexual activity in the English
language; its use invariably invokes a coarse sexual
image; and its broadcast on a nationally telecast
awards ceremony[] was shocking and gratuitous.  Id. at
4979  9.  The Commission observed that NBC had not
claimed that its broadcast of the word had any political,
scientific or other independent value.  Ibid. 
Although the Commission concluded that Bonos re-
mark was indecent, it did not impose a sanction.  Be-
cause prior Commission and staff action have indicated
that isolated or fleeting broadcasts of the F-Word such
as that here are not indecent, the Commission deter-
mined that NBC did not have the requisite notice to
justify a penalty.  Golden Globe Awards Order, 19
F.C.C.R. at 4980-4982  12, 15.
2.  This case arises out of two broadcasts that aired
before the Commission released the Golden Globe
Awards Order.  On December 9, 2002, the Fox television
network broadcast the 2002 Billboard Music Awards be-
ginning at 8 p.m. eastern standard time.  During that
broadcast, the entertainer Cher received an Artist
Achievement Award.  In her acceptance speech, she
said:
Ive had unbelievable support in my life and Ive
worked really hard.  Ive had great people to work
7
with.  Oh, yeah, you know what?  Ive also had critics
for the last 40 years saying that I was on my way out
every year.  Right.  So fuck em.  I still have a job
and they dont.
App., infra, 115a-116a.
The following year, on December 10, 2003, Fox
broadcast the 2003 Billboard Music Awards beginning at
8 p.m. eastern standard time.  Nicole Richie and Paris
Hilton, the stars of Foxs show The Simple Life, pre-
sented one of the awards.  During their presentation,
they engaged in the following exchange:
Paris Hilton:  Now Nicole, remember, this is a live
show, watch the bad language.
Nicole Richie:  Okay, God.
Paris Hilton:  It feels so good to be standing here
tonight.
Nicole Richie:  Yeah, instead of standing in mud and
[audio blocked].  Why do they even call it The Sim-
ple Life?  Have you ever tried to get cow shit out of
a Prada purse?  Its not so fucking simple.  
App., infra, 69a-71a.
a.  The Commission received complaints from view-
ers about both Billboard Music Awards broadcasts.  It
addressed those and other complaints in an order in-
tended to provide guidance to broadcasters and the
public about the types of programming that are imper-
missible under our indecency standard.  In re Com-
plaints Regarding Various Television Broadcasts Be-
tween February 2, 2002 and March 8, 2005, 21 F.C.C.R.
2664, 2665  2 (Feb. 21, 2006) (Omnibus Order).  As rele-
vant here, the Omnibus Order addressed the 2002 and
8
2003 Billboard Music Awards, as well as two other pro-
grams:  (1) several NYPD Blue episodes aired by the
ABC network in which, among other things, a character
on the show used the term bullshit, and (2) an episode
of CBSs The Early Show in which a contestant on
CBSs Survivor: Vanuatu referred to another contes-
tant as a bullshitter in a live interview.  Id. at 2690-
2700  100-145.
In the Omnibus Order, the Commission concluded
that each of those four programs contained indecent
language in violation of Section 1464 and the Commis-
sions indecency regulations.  21 F.C.C.R. at 2690  24.
As in the Golden Globe Awards Order, however, the
Commission did not impose any sanction because it con-
cluded that broadcast licensees lacked adequate notice
of its new policy regarding the airing of expletives.
Ibid.; see id. at 2700  145.
b.  Respondents sought review of the Omnibus Or-
der, and the cases were consolidated in the United
States Court of Appeals for the Second Circuit.  App.,
infra, 66a.  At the Commissions request, the court of
appeals granted a remand in order to provide the agency
an opportunity to address in the first instance the broad-
casters specific challenges to the Commissions determi-
nations with regard to their programs.  Id. at 67a-68a.
c.  On remand, the Commission vacated the relevant
portions of the Omnibus Order.  App., infra, 68a.  It
dismissed the complaints against NYPD Blue on pro-
cedural grounds, id. at 129a-131a, and it concluded that
the use of the term bullshitter on The Early Show
was not indecent because it occurred in the context of a
news interview, id. at 125a-128a.
At the same time, the Commission reaffirmed its con-
clusion that the broadcast of the 2002 and 2003 Billboard
9
Music Awards violated the prohibitions against the
broadcast of indecent material.  App., infra, 69a-142a.
Applying the framework set out in the 2001 Industry
Guidance, the Commission concluded that the expletives
aired during the Billboard Music Awards were sexual or
excretory references that fell within the subject-matter
scope of the indecency definition.  Fox did not dispute
that Richies use of the S-Word referred to excrement.
Id. at 73a.  In addition, the Commission reaffirmed that
the F-Word (used by both Richie and Cher) inherently
has a sexual connotation even if the word is not used
literally because the words power to intensify and
offend derives from its implicit sexual meaning.  Id. at
73a-74a; see id. at 117a-118a.  The Commission also con-
cluded that both broadcasts were patently offensive.
Id. at 74a, 118a.  With respect to both broadcasts, the
Commission found that the language used was not only
graphic and shockingparticularly in the context of
nationally televised awards programs viewed by a sub-
stantial number of childrenbut was also gratuitous.
Id. at 75a-76a, 118a-120a.  Indeed, the Commission
noted, Fox did not argue that the expletives at issue
had any artistic merit or were necessary to convey any
message.  Id. at 76a n.44; see id. at 120a n.191.
The Commission also rejected the argument that the
isolated nature of the utterances should preclude a find-
ing that the language was indecent.  App., infra, 82a-
83a.  The Commission explained that it was artificial
to maintain a distinction between expletives, which
had to be repeated to be actionable, and literal descrip-
tions or depictions of sexual or excretory functions,
which did not.  Id. at 82a.  As the Commission observed,
[i]n evaluating whether material is patently offensive,
the Commissions approach has generally been to exam-
10
ine all factors relevant to that determination.  Id. at
83a.  The Commission accordingly found that categori-
cally requiring repeated use of expletives in order to
find material indecent would be inconsistent with our
general approach to indecency enforcement, which
stresses the critical nature of context.  Ibid.  The Com-
mission noted that Pacifica did not require it to ignore
the first blow to the television audience in the circum-
stances presented here.  Ibid.  The Commission also
observed that granting an automatic exemption for iso-
lated or fleeting expletives would allow broadcasters
to air any one of a number of offensive sexual or excre-
tory words, regardless of context, with impunity during
the middle of the afternoon provided they did not air
more than one expletive in any program segment.  Id.
at 84a-85a.  Permitting [s]uch a result, the Commis-
sion explained, would be inconsistent with [the] obliga-
tion to enforce the law responsibly.  Id. at 85a.
3.  A divided panel of the court of appeals vacated
and remanded.  App., infra, 1a-60a.  
a.  The court of appeals concluded that the Commis-
sions policy regarding isolated expletives was arbi-
trary and capricious under the Administrative Proce-
dure Act because the Commission had failed to articu-
late a reasoned basis for [its] change in policy.  App.,
infra, 2a.  Taking the view that the primary reason for
the crackdown on fleeting expletives was to protect
viewers (including children) from the first blow of an
expletive, the court of appeals stated that the Commis-
sion had failed to provide a reasonable explanation for
why it has changed its perception that a fleeting exple-
tive was not a harmful first blow for the nearly thirty
years between Pacifica and Golden Globes.  Id. at 25a.
The court faulted the Commission for failing to produce
11
2
The court also invalidated the Commissions conclusion that non-
repeated expletives could be profane.  App., infra, 33a-34a.  In the
Golden Globe Awards Order, the FCC had held that Bonos use of the
F-Word was profane within the meaning of Section 1464; in doing so,
it rejected an interpretation of profane that was limited to blasphe-
mous utterances, instead construing the term to mean language  *  *  *
so grossly offensive to members of the public who actually hear it as to
amount to a nuisance.  19 F.C.C.R. at 4981  13.  The court stated that
the Commission had failed to provide any explanation of what harm
this separate enforcement against profane speech addresses that is not
already addressed by the FCCs indecency and obscenity enforcement.
App., infra, 34a.
any evidence that suggests a fleeting expletive is harm-
ful, much less that any such harm was serious enough
to warrant government regulation.  Id. at 32a.
Even [m]ore problematic, according to the court of
appeals, was the fact that the Commission does not
take the position that any occurrence of an expletive is
indecent or profane under its rules.  App., infra, 25a -
26a.  Because the Commission did not flatly prohibit the
broadcast of vulgar expletives in every circumstance,
the court concluded that the record simply does not
support the position that the Commissions new policy
was based on its concern with the publics mere expo-
sure to this language on the airwaves.  Id. at 27a-28a.
Even though the court recognized that, under Pacifica,
any per se ban would likely raise constitutional ques-
tions above and beyond the concerns raised by the [Com-
missions] current policy, id. at 26a n.7, the court none-
theless believed that it was arbitrary for the Commis-
sion to prohibit isolated expletives only in circumstances
where their utterance would be patently offensive.
2
The court of appeals also took issue with the Commis-
sions determination that an expletive such as the F-
12
Word has an inescapably sexual connotation.  The court
stated that [t]his defies any commonsense understand-
ing of these words, which, as the general public well
knows, are often used in everyday conversation without
any sexual or excretory meaning.  App., infra, 29a.  In
addition, the court dismissed as divorced from reality
the Commissions concern that a per se exemption for
fleeting expletives would permit broadcasters to air
expletives at all hours of the day so long as they did so
one at a time.  Id. at 30a (citation omitted).
Although the court of appeals refrain[ed] from de-
ciding the various constitutional challenges to the Re-
mand Order raised by the Networks, it made certain
observations regarding the constitutionality of the
Commissions broadcast indecency policies.  App., infra,
35a.  The court question[ed] whether the FCCs inde-
cency test can survive First Amendment scrutiny, ibid.,
and it expressed doubt that by merely proffering a rea-
soned analysis for its new approach to indecency and
profanity, the Commission can adequately respond to
the constitutional and statutory challenges raised by the
Networks, id. at 45a.
b.  Judge Leval dissented.  App., infra, 46a-60a.  In
his view, the Commission had provided a sensible rea-
son for its relatively modest change of standard.  Id.
at 49a.  [T]he Commissions central explanation for the
change was essentially its perception that the F-Word
is not only of extreme and graphic vulgarity, but also
conveys an inescapably sexual connotation.  Ibid.  The
FCC therefore concluded that the use of that exple-
tive, even in a single fleeting instance without repeti-
tion, was likely to constitute an offense to the decency
standards of  1464.  Id at 50a.  In other words,
Judge Leval stated, the Commission found, contrary to
13
its earlier policy, that the word is of such graphic explic-
itness in inevitable reference to sexual activity that ab-
sence of repetition does not save it from violating the
standard of decency.  Id. at 52a.
Unlike the majority, Judge Leval was not troubled
by the Commissions decision not to follow an all-or
nothing policy.  App., infra, 53a.  Instead, he explained
that the Commission attempt[ed] to draw context-
based distinctions, with the result that no violation will
be found in circumstances where usage is considered
sufficiently justified that it does not constitute inde-
cency.  Ibid.  Far from an example of irrationality,
Judge Leval stated, the policy is an attempt on the part
of the Commission over the years to reconcile conflicting
values through standards which take account of con-
text.  Id. at 54a-55a.  As Judge Leval explained, the
Commissions context-driven approach is in no way a
consequence of the Commissions change of standard for
fleeting expletives.  It applies across the board to all
circumstances.  Id. at 53a.  Thus, the majoritys criti-
cism of inconsistency is not properly directed against
the change of standard here in question, which [i]f
anything  *  *  *  has made the Commission more consis-
tent rather than less by ensuring that the same
context-based factors will apply to all circumstances.
Id. at 54a.
REASONS FOR GRANTING THE PETITION
In vacating the FCCs order, the court of appeals
adopted an analysis that directly conflicts with the ap-
proach toward broadcast-indecency regulation that this
Court mandated in FCC v. Pacifica Foundation, 438
U.S. 726 (1978).  The court of appeals criticized the Com-
mission for taking context into account and refusing to
14
treat a single use of an expletive, no matter how graphic
or gratuitous, as per se not indecent, even though, in
Pacifica, this Court emphasized that context is all-im-
portant in evaluating indecency.  Id. at 750.  Indeed,
while the court of appeals faulted the Commission for
not having the courage of its convictions and treating
expletives as per se indecent, it also recognized that in
light of Pacificas focus on context, a blanket prohibition
on all uses of particular words would almost certainly
violate the First Amendment.  App., infra, 26a n.7.  By
faulting the Commission for exercising the contextual
judgment that Pacifica mandated, the court of appeals
appears to have put the FCC to a choice between allow-
ing one free use of any expletive no matter how graphic
or gratuitous, or else adopting a (likely unconstitutional)
across-the-board prohibition against expletives.  There
is no reason that the Commission must choose between
those per se rules.
The decision of the court of appeals is also inconsis-
tent with settled principles governing judicial review of
agency action.  The court asserted that the Commission
had not adequately explained why it reversed its policy
of categorically exempting isolated expletives from the
federal restrictions on indecent broadcasts.  In reality,
the Commission provided a thorough, reasoned explana-
tion for its change in policy.  Under the deferential stan-
dard of review required by the Administrative Proce-
dure Act (APA), 5 U.S.C. 501 et seq., the Commissions
judgment as to how best to enforce the federal prohibi-
tion on the broadcast of indecent material should have
been upheld, and the courts contrary conclusion was
erroneous.  And the courts determination that the FCC
was required to provide record evidence showing that
expletives are harmful is in direct conflict with a holding
15
of the D.C. Circuit.  See Action for Childrens Television
v. FCC, 58 F.3d 654, 662 (1995) (en banc), cert. denied,
516 U.S. 1043 (1996).
In most cases, a remand to an agency for a fuller ex-
planation of a policy would not merit this Courts review.
Here, however, the court of appeals candidly acknowl-
edged that, under its decision, the Commission probably
will be unable to adequately respond to the constitu-
tional and statutory challenges in this case even by
proffering a reasoned analysis for its new approach to
indecency.  App., infra, 45a.  The court has thus sent
the Commission back to run a Sisyphean errand while
effectively invalidating much of the Commissions au-
thority to enforce 18 U.S.C. 1464.  In the meantime, the
Commission is left in the untenable position of having a
grant of authority that the public expects it to exercise,
and that Pacifica allows it to exercise, but that the Sec-
ond Circuit has indicated cannot be meaningfully exer-
cised consistently with that courts view of the APA and
the First Amendment.  Accordingly, this Courts review
is warranted.
A. The Decision Below Conflicts With This Courts Deci-
sion In Pacifica
The reasoning of the court of appeals conflicts di-
rectly with the context-driven approach governing
broadcast indecency that this Court upheld in Pacifica.
In its analysis of the FCCs policy, the court of appeals
focused on the Commissions statement, picking up on
Pacifica, that it sought to protect broadcast audiences
from the first blow resulting from the single utterance
of an expletive.  App., infra, 84a.  The court rejected
that rationale based on its view that the first blow the-
ory bears no rational connection to the Commissions
16
actual policy regarding fleeting expletives because the
Commission does not take the position that any occur-
rence of an expletive is indecent.  Id. at 26a.  Thus, the
court emphasized that the broadcast of a vulgar exple-
tive on The Early Show was found not to be indecent
because it took place in the context of a news inter-
view, and that the expletives in Saving Private Ryan
did not make the broadcast of that movie indecent be-
cause, among other reasons, deleting the expletives
would have  *  *  *  diminished the power, realism and
immediacy of the film experience for viewers.  Id. at
26a-27a (quoting id. at 128a, and In re Complaints
Against Various Television Licensees Regarding Their
Broadcast on November 11, 2004, of the ABC Television
Networks Presentation of the Film Saving Private
Ryan, 20 F.C.C.R. 4507, 4513  14 (Feb. 3, 2005) (Sav-
ing Private Ryan Order)).  According to the court, those
outcomes demonstrated that the Commissions new
policy was [not] based on its concern with the publics
mere exposure to this language on the airwaves.  Id. at
27a-28a.  But just because the first blow theory is rele-
vant does not mean that the Commission must ignore
context and treat any first blow as a knockout punch.
Contrary to the reasoning of the court of appeals, the
Commissions consideration of context is appropriate for
three reasons.  First, the context in which a word is used
is highly relevant in determining whether the word is
offensive.  Judge Leval illustrated the point well when
he observed that the judges of the court of appeals had
used the F-Word at oral argument:  Had the case been
on another subject, such usage would surely have seem-
ed inappropriate.  Because of the issues in this case, the
word was central to the issues being discussed.  It is not
irrational to take context into account to determine
17
whether use of the word is indecent.  App., infra, 54a
n.16.
Second, when offensive language is used in certain
contextssuch as a news programcountervailing
First Amendment interests may be at stake, making it
appropriate for the Commission to proceed with the
utmost restraint.  App., infra, 127a.  Agencies are not
required to pursue their policies in complete disregard
of competing interests, nor are they prohibited from
recognizing that those interests may be greater in some
contexts than in others.  Id. at 55a (Leval, J., dissenting)
(FCC has properly reconcile[d] competing values
through standards which take account of context.); see
FCC v. National Citizens Comm. for Broad., 436 U.S.
775, 809-811 (1978); cf. Chevron USA Inc. v. NRDC, 467
U.S. 837, 865-866 (1984).
Third, and most importantly, the court of appeals
hostility to a contextual analysis is, at bottom, an attack
on this Courts decision in Pacifica.  In Pacifica, the
Court upheld the Commissions authority to regulate
broadcast indecency precisely because [t]he Commis-
sions decision rested entirely on a nuisance rationale in
which context is all-important.  438 U.S. at 750; see
ibid. (indecency determination requires consideration
of a host of variables).  [A] nuisance, the Court ob-
served, may be merely a right thing in the wrong
place,like a pig in the parlor instead of the barnyard.
Ibid. (quoting Euclid v. Ambler Realty Co., 272 U.S.
365, 388 (1926)).
As Justice Stevens explained, the constitutional pro-
tection accorded to a communication containing such
patently offensive sexual and excretory language need
not be the same in every context.  Pacifica, 438 U.S. at
747 (plurality opinion).  Instead, [i]t is a characteristic
18
of speech such as this that both its capacity to offend,
and its social value  *  *  *  vary with the circum-
stances; thus, [w]ords that are commonplace in one
setting are shocking in another.  Ibid.  Because con-
tent of that character is not entitled to absolute constitu-
tional protection under all circumstances, Justice Ste-
vens wrote, we must consider its context in order to
determine whether the Commissions action was consti-
tutionally permissible.  Id. at 747-748; see id. at 742
(indecency is largely a function of context and cannot
be adequately judged in the abstract); id. at 761
(Powell, J., concurring) (agreeing that on the facts of
this case, the Commissions order did not violate respon-
dents First Amendment rights) (emphasis added).  In
short, the FCCs contextual analysis was crucial to this
Courts endorsement of the Commissions determination
in Pacifica.
According to the court of appeals, a contextual ap-
proach to isolated expletives bears no rational connec-
tion to the goal of protecting broadcast audiences from
the first blow.  App., infra, 26a.  But there is no inher-
ent tension between a first blow theory and a consid-
eration of context.  Indeed, it was this Court in Pacifica
that first analogized the broadcast of indecent language
to the first blow of an assault, 438 U.S. at 748-749,
even as it recognized a page later that the same lan-
guage in a different contexte.g., a two-way radio con-
versation between a cab driver and a dispatcher, or a
telecast of an Elizabethan comedy, id. at 750might
not be legally indecent.  Moreover, in the discussion of
Paul Cohens famous jacket, see id. at 747 n.25, 749, Jus-
tice Stevens made clear that context could matter in
analyzing a single use of an expletive.  See also id. at 750
n.29.
19
Consistent with Pacifica, the Commission in this
case reasonably concluded that Chers and Richies re-
marks constituted a first blow that could be redressed,
not only because of the words that were used but also
because of the context in which they were uttered:  The
language was vulgar and graphic; the words were ut-
tered without any warning to parents during a live, na-
tionally broadcast awards program watched by millions
of children, App., infra, 76a, 119a; and it was undisputed
that Chers and Richies remarks were gratuitous and
unjustified by any artistic purpose, id. at 76a n.44, 120a
n.191.  Nothing in the Administrative Procedure Act
required the Commission to prohibit the use of the same
words in all other contexts in order to reach the reason-
able conclusion that Chers and Richies comments were
indecent as broadcast.  While the court of appeals be-
lieved that consideration of countervailing First Amend-
ment interests on a case-by-case basis undermined the
reasonableness of the Commissions decision to abandon
the per se exemption for isolated expletives, the courts
position cannot be reconciled with Pacifica.  Once it is
recognized that (1) a particularly graphic utterance can
serve as a first blow that can cause immediate damage,
and (2) context matters, it follows logically that there is
no mandate for a per se rule of either prohibition or li-
cense.
B. The Decision Below Is Inconsistent With Settled Princi-
ples Of Administrative Law And Conflicts With A Deci-
sion Of The D.C. Circuit
The court of appeals gave several additional reasons
for its conclusion that the FCC has failed to articulate
a reasoned basis for [its] change in policy regarding
isolated expletives.  App., infra, 2a.  None withstands
20
scrutiny, and one is in direct conflict with a decision of
the D.C. Circuit.
1.  The scope of review under the arbitrary and ca-
pricious standard is narrow and a court is not to substi-
tute its judgment for that of the agency.  Motor Vehicle
Mfrs. Assn v. State Farm Mut. Auto. Ins. Co., 463 U.S.
29, 43 (1983).  Under that standard, if the agency ade-
quately explains the reasons for a reversal of policy,
change is not invalidating, since the whole point of
Chevron is to leave the discretion provided by the ambi-
guities of a statute with the implementing agency.
NCTA v. Brand X Internet Servs., 545 U.S. 967, 981-982
(2005) (quoting Smiley v. Citibank (S.D.), N.A., 517 U.S.
735, 742 (1996)).
The Commission here gave a reasonable explanation
for reaffirming its determination, first made in the
Golden Globe Awards Order, 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.  App., infra, 82a (quoting Golden Globe
Awards Order, 19 F.C.C.R. at 4980  12).  The Commis-
sion explained that, [i]n evaluating whether material is
patently offensive, [its] approach has generally been to
examine all factors relevant to that determination.  Id.
at 83a.  Accordingly, the Commission reasoned, to sug-
gest[] that one of these factorswhether material had
been repeatedwould always be decisive in a certain
category of cases would be at odds with the Commis-
sions overall enforcement policy.  Ibid.  As Judge
Leval explained, the Golden Globe Awards Order elimi-
nated the nearly automatic pass that the Commission
had previously given to isolated expletives, and recog-
nized that a brief sexual or excretory reference could be
21
3
The court of appeals found it significant that broadcasters had
relied on the exemption that the Commission had provided for isolated
expletives.  App., infra, 2a, 32a.  The Commission, however, has consis-
tently declined to sanction broadcasters for isolated expletives that
were aired before the Commission announced its revised policy in the
Golden Globe Awards Order.  Accordingly, the Commissions change in
policy does not undermine any reliance interests.
patently offensive if uttered in certain contexts.  Id. at
49a; see 19 F.C.C.R. at 4980  12.  That change in policy
made the Commission more consistent rather than less,
because under the new rule, the same context-based
factors will apply to all circumstances.  App., infra, 54a.
The panel majoritys refusal to accept the Commissions
reasoned and reasonable explanation for its change of
policy is inconsistent with the deferential standard man-
dated by State Farm.
2.  The court of appeals refused to defer to the Com-
missions justifications for its policy because, in the
courts view, the Commission was required to explain
why it has changed its perception that a fleeting exple-
tive was not a harmful first blow for the nearly thirty
years between Pacifica and Golden Globes.  App., in-
fra, 25a; see id. at 32a (The agency asserts the same
interest in protecting children as it asserted thirty years
ago, but until the Golden Globes decision, it had never
banned fleeting expletives.).  In this regard, the court
repeatedly insisted that the agency should have pro-
vided record evidence to support its changed view of
the broadcast of single expletives.  Id. at 29a n.10; see id.
at 29a n.11, 32a.  The hurdles that the court of appeals
erected to the Commissions ability to make a change in
policy find no support in the Administrative Procedure
Act.
3
22
The court of appeals failed to appreciate that [a]n
agencys view of what is in the public interest may
change, either with or without a change in circum-
stances, State Farm, 463 U.S. at 57 (quoting Greater
Boston Television Corp. v. FCC, 444 F.2d 841, 852 (D.C.
Cir. 1970), cert. denied, 403 U.S. 923 (1971)).  Thus, an
agency has an obligation to reconsider the wisdom of its
policy on a continuing basis and may make adjust-
ments, whether in response to changed factual circum-
stances, or a change in administrations.  Brand X, 545
U.S. at 981 (citation omitted).  And an agency may ratio-
nally alter its policy for the straightforward reason that
its prior policy failed to implement properly the stat-
ute.  Rust v. Sullivan, 500 U.S. 173, 187 (1991).
Here, the Commission explained that its prior policy
on isolated expletives had failed to implement Section
1464 properly, Rust, 500 U.S. at 173, because it rested
on an artificial distinction between expletives and
descriptions or depictions of sexual or excretory activ-
ity that ignored the fact that an expletives power to
offend derives from its sexual or excretory meaning.
App., infra, 82a-83a (internal quotation marks and cita-
tion omitted).  The Commission also explained that
treating isolated expletives as automatically permissible
in every circumstance was inconsistent with the critical
nature of context in evaluating whether a sexual or ex-
cretory reference is patently offensive.  Id. at 83a.
The court of appeals, however, believed that the
Commission was required to adduce evidence that sug-
gests a fleeting expletive is harmful, and that this
harm is serious enough to warrant government regula-
tion.  App., infra, 32a.  That argument is inconsistent
with Pacifica, in which this Court upheld the Commis-
sions indecency determination even though there was
23
no record evidence of any harm caused by the Carlin
monologue.  Instead, the Court found a sufficient basis
for regulation in the commonsense observation that
broadcasting is uniquely accessible to children, even
those too young to read, and that written messages
incomprehensible to a first grader, when broadcast,
can enlarge[] a childs vocabulary in an instant.  Pacif-
ica, 438 U.S. at 749.
In addition, the reasoning of the court of appeals is
in direct conflict with that of the D.C. Circuit in Action
for Childrens Television v. FCC, 58 F.3d 654 (1995) (en
banc), cert. denied, 516 U.S. 1043 (1996).  That decision
affirmed the Commissions authority to regulate broad-
cast indecency, holding that the government has an in-
terest in protecting children from material that would
have an adverse impact on their ethical and moral de-
velopment.  Id. at 662.  The court explained that Con-
gress does not need the testimony of psychiatrists and
social scientists in order to take note of the coarsening
of impressionable minds that can result from a persis-
tent exposure to sexually explicit material just this side
of legal obscenity.  Ibid.  To the contrary, the Supreme
Court has never suggested that a scientific demonstra-
tion of psychological harm is required in order to estab-
lish the constitutionality of measures protecting minors
from exposure to indecent speech.  Id. at 661-662; cf.
Ginsberg v. New York, 390 U.S. 629, 641 (1968) (uphold-
ing statute prohibiting sale of material obscene as to
minors, even though the harmfulness of such material
was not an accepted scientific fact).  Here, the applica-
ble statute prohibits the broadcast of any obscene, in-
decent, or profane language.  18 U.S.C. 1464.  Section
1464 does not require the Commission to show that the
24
language to which it applies is otherwise harmful; harm
has already been presumed by Congress.
3.  The court of appeals also took issue with the Com-
missions conclusion that in certain cases, it is difficult
(if not impossible) to distinguish whether a word is being
used as an expletive or as a literal description of sexual
or excretory functions, App., infra, 83a (emphasis
added), because, in the courts view, the general public
well knows that offensive sexual or excretory words
are often used in everyday conversation without any
sexual or excretory meaning, id. at 29a.  But the Com-
mission made that statement in the context of its
broader observation that an expletives power to offend
derives from its sexual or excretory meaning.  Id. at
83a (internal quotation marks omitted).  Moreover,
Chers reference to her critics is an example of a use of
an expletive in a way that at a minimum draws force
from its sexual or excretory origins, even if she was not
literally suggesting that people engage in sexual activi-
ties with her critics.  Id. at 120a; see id. at 58a (Leval,
J., dissenting) (It is surely not irrational for the Com-
mission to conclude that  *  *  *  the F-Word is never
completely free of an offensive, sexual connotation).
The court deemed the Commissions conclusion unsup-
ported by record evidence, id. at 30a n.10, but that
assessment overlooks the evidence cited in the order, id.
at 74a & nn.39-40.  Moreover, the courts analysis is in-
consistent with Pacifica, in which the Court upheld the
Commissions conclusion that the Carlin monologue de-
picted sexual and excretory activities, 438 U.S. at 732,
even though one of Carlins principal themes was that
many of the expletives he used had non-literal meanings,
see, e.g., id. at 754.
25
4
In the Golden Globe Awards Order, the Commission cited an
academic study that found that offensive language had increased
significantly on broadcast television between 1990 and 2001.  19
F.C.C.R. at 4979  9 n.26; see Barbara K. Kaye and Barry S. Sapolsky,
Watch Your Mouth!  An Analysis of Profanity Uttered by Children on
Prime-Time Television, 7 J. Mass Commcn & Socy 429, 441 (2004)
(finding that offensive language was used 98 times on major broad-
cast networks between 8 and 9 p.m. in 1990, but 216 times on the same
networks during the same hour in 2001).
4.  Finally, the court of appeals exceeded the proper
scope of its review when it concluded that the Commis-
sion had not shown that its revised policy was necessary.
The Commission had observed that a blanket exemption
for isolated expletives would as a matter of logic permit
broadcasters to air expletives at all hours of a day so
long as they did so one at a time, App., infra, 84a-
85aa result that would seriously undermine the objec-
tives of Section 1464.  But the court asserted that
broadcasters have never barraged the airwaves with
expletives even prior to Golden Globes, and it sug-
gested that the prediction that they might do so was
both unsupported by any evidence and directly contra-
dicted by prior experience.  Id. at 30a & n.11.
As an initial matter, the Commissions point was less
a prediction than a consideration of the logic of provid-
ing a per se exemption for isolated expletives.  A poli-
cymaker is well-served to consider where the logic of an
argument would extend, even if the regulated commu-
nity might exercise self-restraint in the short run.
In any event, there is substantial support for the no-
tion that the failure to regulate isolated and gratuitous
uses of [vulgar] language on broadcasts when children
were expected to be in the audience  *  *  *  would likely
lead to more widespread use of the offensive language.
Golden Globe Awards Order, 19 F.C.C.R. at 4979  9.
4
26
As Judge Leval explained, there was good reason to
expect that a marked increase in the broadcast of ex-
pletives would occur if the old policy were continued.
App., infra, 57a.  The court erred in substitut[ing] its
judgment for that of the agency, State Farm, 463 U.S.
at 43, and its decision is in tension with decisions of the
D.C. Circuit recognizing that [p]redictions regarding
the actions of regulated entities are precisely the type of
policy judgments that courts routinely and quite cor-
rectly leave to administrative agencies.  Public Citizen,
Inc. v. NHTSA, 374 F.3d 1251, 1260-1261 (1994); see
American Gas Assn v. FERC, 428 F.3d 255, 264 (2005)
([I]t is within the scope of the agencys expertise to
make  .  .  .  a prediction about the market it regulates,
and a reasonable prediction deserves our deference.)
(brackets in original).
C. The Question Presented Is Important And Warrants
This Courts Review
On its face, the decision of the court of appeals does
nothing more than remand the case to the FCC to pro-
vide a new explanation for its change in policy.  App.,
infra, 45a.  In an ordinary case, such a decision would
not merit this Courts review.  Here, however, the Com-
mission has already fully explained its policy, and the
opinion of the court of appeals makes clear that the
Commission is unlikely to be able to say anything on
remand that the court would deem satisfactory to justify
that policy.  On the one hand, the court of appeals found
the Commissions regulation of isolated expletives un-
justified because it takes account of context, rather than
adopting a per se rule of prohibition.  On the other hand,
the alternativea flat ban on any use of expletives, re-
gardless of contextwould almost certainly violate the
27
First Amendment.  See Pacifica, 438 U.S. at 746 (plural-
ity opinion) (Some uses of even the most offensive
words are unquestionably protected.).  Indeed, the
court of appeals recognized that a per se ban would
likely raise constitutional questions above and beyond
the concerns raised by the current policy.  App., infra,
26a n.7.  Having established those parameters for the
remand, it is no wonder that the court predicted that the
FCC would be unable to adequately respond to the con-
stitutional and statutory challenges in this case even by
proffering a reasoned analysis for its new approach to
indecency.  App., infra, 45a.  As a result, the courts
decision has an immediate and significant effect that
warrants review.
Nor can the consequences of the decision below be
confined to the FCCs disposition of the complaints re-
garding the 2002 and 2003 Billboard Music Awards pro-
grams.  Rather, the decision effectively reinstitutes an
automatic per se exemption for the broadcast of isolated
expletivesan exemption that the Commission has ex-
pressly disavowed as inconsistent with its obligation to
enforce responsibly the prohibition on broadcast inde-
cency.  Indeed, the decision calls into serious question
the Commissions authority to regulate even repeated
uses of offensive sexual or excretory language.  In dis-
agreeing with the Commissions treatment of non-lit-
eral uses of expletives such as the F-Word, the court
of appeals opined that such expletives are often used in
everyday conversation without any sexual or excretory
meaning.  App., infra, 29a.  But the Commission has
sensibly held that both literal and non-literal uses of
the F-Word come within the subject matter scope of
[its] indecency definition because the core meaning of
the F-Word has an inescapably sexual connotation,
28
and the words power to insult and offend derives from
its sexual meaning.  Id. at 118a; see Golden Globe
Awards Order, 19 F.C.C.R. at 4979  9 (any use of the
word invariably invokes a coarse sexual image).  Be-
cause the Commissions authority to regulate broadcast
indecency has long been interpreted to depend upon a
connection to sexual or excretory matters, see, e.g.,
Pacifica, 438 U.S. at 732, if, under the court of appeals
reasoning, non-literal uses of even the most highly
offensive sexual expletives have no such connection, then
they would fall outside the Commissions regulatory
powerno matter how many times those non-literal
uses are deliberately repeated.
More broadly, the court of appeals rejection of the
Commissions contextual analysis strikes at the heart of
broadcast indecency regulatory framework.  As Judge
Leval recognized, the FCCs focus on context is in no
way a consequence of the Commissions change of stan-
dard with respect to isolated expletives.  App., infra,
53a.  Instead, the contextual approach applies across
the board to all circumstances, whether or not the ma-
terial in question was repeated.  Ibid.  The adoption of
a contextual approach to expletives is really just an ef-
fort to conform the treatment of expletives to the rest of
the regulatory regime.  Id. at 54a.  As a result, the major-
itys criticism of the Commissions approach was in real-
ity directed against the entire structure of Section 1464.
Id. at 54a.
For example, the Commission took account of context
in finding that the repeated use of expletives in Carlins
monologue was indecent, but that the repeated use of
some of the same expletives in Saving Private Ryan was
not.  Compare Pacifica, 438 U.S. at 732, with Saving
Private Ryan Order, 20 F.C.C.R. at 4512-4513  14-15
29
(noting that, in context, the expletives were integral to
the films objective of conveying the horrors of war and
were neither gratuitous nor in any way intended or
used to pander, titillate or shock).  According to the
logic of the court of appeals, considering context in this
manner would make it irrational to find the Carlin
monologue (or a present-day expletive-filled rant by a
radio shock jock) indecent.
Thus, the courts approach is difficult to square with
Pacifica, and effectively nullifies the prohibition on in-
decent language found in Section 1464, which was up-
held as constitutional in that decision.  That result would
not be surprising, since the court of appeals made little
effort to hide its hostility to Pacificas reasoning.  Com-
pare, e.g., Pacifica, 438 U.S. at 748-749 (describing the
broadcast media as uniquely pervasive and uniquely
accessible to children), with App., infra, 40a (question-
ing the accuracy of Pacificas holding to that effect).  If
the Commissions contextual analysis cannot survive the
courts view of the FCCs obligation to provide a rea-
soned explanationand if, as the court of appeals sug-
gested, a per se prohibition on particular words is also
not permissiblethe FCC may find itself unable to ful-
fill a large portion of its broadcast indecency enforce-
ment obligations.
The court of appeals decision places the Commission
in an untenable position.  Although it orders a remand,
the decision signals that there is no way for the Commis-
sion to regulate isolated expletives consistent with the
parameters the court of appeals established.  But Con-
gress gave the Commission authority to regulate; Pacif-
ica suggests that contextual regulation is not forbidden
by the First Amendment; and the public rightfully ex-
pects the Commission to exercise what authority it has
30
to keep broadcast television suitable for children during
certain hours.  The court of appeals decision suggests
that the Commission retains some authority, but denies
the Commission any permissible scope to exercise it, and
leaves the Commission accountable for the coarsening of
the airwaves while simultaneously denying it effective
tools to address the problem.
At a minimum, the decision of the court of appeals is
likely to generate considerable confusion for the Com-
missionwhich has pending before it hundreds of thou-
sands of complaints regarding the broadcast of exple-
tives, both isolated and repeatedand for broadcasters,
leaving them uncertain as to the standards that are to
govern the Commissions enforcement of the statutory
prohibition on broadcast indecency.  That confusion is
unlikely to be resolved by allowing further percolation
in the courts of appeals, because the possibility of fur-
ther development of a circuit conflict is limited, at least
as far as the major television networks are concerned.
All of the network respondents appear to have their cor-
porate headquarters in New York City, allowing them to
confine any future challenges to the Second Circuit.  See
28 U.S.C. 2343 (providing for venue in the D.C. Circuit
and in the circuit in which the petitioner resides or has
its principal office).  Review by this Court is therefore
warranted.
31
CONCLUSION
The petition for a writ of certiorari should be
granted.
Respectfully submitted.
MATTHEW B. BERRY
Acting General Counsel
JOSEPH R. PALMORE
Deputy General Counsel
DANIEL M. ARMSTRONG
JACOB M. LEWIS
Associate General Counsels
NANDAN M. JOSHI
Counsel
Federal Communications 
Commission
PAUL D. CLEMENT
Solicitor General
JEFFREY S. BUCHOLTZ
Acting Assistant Attorney
General
THOMAS G. HUNGAR
Deputy Solicitor General
ERIC D. MILLER
Assistant to the Solicitor 
General
THOMAS M. BONDY
Attorney
NOVEMBER 2007
(1a)
APPENDIX A
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
Docket Nos. 06-1760-ag (L), 06-2750-ag (CON), 
06-5358-ag (CON)
FOX TELEVISION STATIONS, INC., CBS
BROADCASTING, INC., WLS TELEVISION, INC., KTRK
TELEVISION, INC., KMBC HEARST-ARGYLE
TELEVISION, INC., ABC, INC., PETITIONERS
v.
FEDERAL COMMUNICATIONS COMMISSION,
UNITED STATES OF AMERICA, RESPONDENTS
NBC UNIVERSAL, INC., NBC TELEMUNDO LICENSE
CO., NBC TELEVISION AFFILIATES, FBC TELEVISION
AFFILIATES ASSOCIATION, CBS TELEVISION
NETWORK AFFILIATES, CENTER FOR THE CREATIVE
COMMUNITY, INC., DOING BUSINESS AS CENTER FOR
CREATIVE VOICES IN MEDIA, INC., ABC TELEVISION
AFFILIATES ASSOCIATION, INTERVENORS
Decided:  June 4, 2007
Before:  LEVAL, POOLER, and HALL, Circuit Judges.
POOLER, Cicuirt Judge.
Fox Television Stations, Inc., along with its affiliates
FBC Television Affiliates Association (collectively
Fox), petition for review of the November 6, 2006, or-
2a
2
The petitions for review filed by Fox and CBS in Docket No. 06-
1760 and ABC in Docket No. 06-2750 pertain to portions of a prior
order by the FCC that has since been vacated.  Accordingly, those peti-
tions for review are denied as moot.  The remainder of this opinion
addresses the petition for review filed by Fox in Docket No. 06-5358.
der of the Federal Communications Commission
(FCC) issuing notices of apparent liability against two
Fox broadcasts for violating the FCCs indecency and
profanity prohibitions.
2
  Fox, along with other broadcast
networks and numerous amici, raise administrative,
statutory, and constitutional challenges to the FCCs
indecency regime.  The FCC, also supported by several
amici, dispute each of these challenges.  We find that the
FCCs new policy regarding fleeting expletives repre-
sents a significant departure from positions previously
taken by the agency and relied on by the broadcast in-
dustry.  We further find that the FCC has failed to artic-
ulate a reasoned basis for this change in policy.  Accord-
ingly, we hold that the FCCs new policy regarding
fleeting expletives is arbitrary and capricious under
the Administrative Procedure Act.  The petition for re-
view is therefore granted, the order of the FCC is va-
cated, and the matter is remanded to the Commission
for further proceedings consistent with this opinion.
Because we vacate the FCCs order on this ground, we
do not reach the other challenges to the FCCs inde-
cency regime raised by petitioners, intervenors, and
amici.
BACKGROUND
The FCCs policing of indecent speech stems from
18 U.S.C. 1464, which provides that [w]hoever utters
any obscene, indecent, or profane language by means of
3a
radio communication shall be fined under this title or
imprisoned not more than two years, or both.  The
FCCs authority to regulate the broadcast medium is
expressly limited by Section 326 of the Communications
Act, which prohibits the FCC from engaging in censor-
ship.  See 47 U.S.C.  326.  In 1960, Congress authorized
the FCC to impose forfeiture penalties for violations of
Section 1464.  See 47 U.S.C.  503(b)(1)(D).  The FCC
first exercised its statutory authority to sanction inde-
cent (but non-obscene) speech in 1975, when it found
Pacifica Foundations radio broadcast of comedian
George Carlins Filthy Words monologue indecent and
subject to forfeiture.  See Citizens Complaint Against
Pacifica Found. Station WBAI(FM), N.Y, N.Y., 56
F.C.C.2d 94 (1975).  True to its title, the Filthy Words
monologue contained numerous expletives in the course
of a 12-minute monologue broadcast on the radio at 2:00
in the afternoon.  In ruling on this complaint, the FCC
articulated the following description of indecent con-
tent:
[T]he concept of indecent is intimately connected
with the exposure of children to language that de-
scribes, in terms patently offensive as measured by
contemporary community standards for the broad-
cast medium, sexual or excretory activities and or-
gans, at times of the day when there is a reasonable
risk that children may be in the audience.  Obnox-
ious, gutter language describing these matters has
the effect of debasing and brutalizing human beings
by reducing them to their mere bodily functions, and
we believe that such words are indecent within the
meaning of the statute and have no place on radio
when children are in the audience.
4a
Id. at  11 (internal footnote omitted).
Pacifica appealed the FCCs order to the Court of
Appeals for the D.C. Circuit.  While that appeal was
pending, the FCC issued a clarification order in which
it specifically noted that its prior order was intended to
address only the particular facts of the Carlin mono-
logue as broadcast, and acknowledged the concern that
in some cases, public events likely to produce offensive
speech are covered live, and there is no opportunity for
journalistic editing.  Petition for Clarification or Re-
consideration of a Citizens Complaint against Pacifica
Foundation, Station WBAI(FM), N.Y., N.Y., 59
F.C.C.2d 892, at  4 n.1 (1976) (Pacifica Clarification
Order).  The FCC stated that in such a situation, we
believe that it would be inequitable for us to hold a li-
censee responsible for indecent language.  Id.
Although acknowledging the FCCs additional clarifi-
cation, the D.C. Circuit nevertheless concluded that the
FCCs indecency regime was invalid.  See Pacifica
Found. v. FCC, 556 F.2d 9 (D.C. Cir. 1977).  Labeling
the Commissions actions censorship, the court found the
FCCs order both vague and overbroad, noting that it
would prohibit the uncensored broadcast of many of the
great works of literature including Shakespearian plays
and contemporary plays which have won critical acclaim,
the works of renowned classical and contemporary poets
and writers, and passages from the Bible.  Id. at 14.
The Commission appealed this decision to the Su-
preme Court, which reversed in a plurality opinion.  In
its brief to the Supreme Court, the FCC stressed that
its ruling was a narrow one applying only to the specific
facts of the Carlin monologue.  See Br. of FCC at 41-49,
FCC v. Pacifica Found.,  No. 77-528 (U.S. Mar. 3, 1978),
5a
available at 1978 WL 206838.  The Court took the Com-
mission at its word and confined its review to the spe-
cific question of whether the Commission could find in-
decent the Carlin monologue as broadcast.  See FCC v.
Pacifica Found., 438 U.S. 726, 732-35, 98 S. Ct. 3026, 57
L. Ed. 2d 1073 (1978).  The Court first rejected Paci-
ficas statutory argument that indecent in Section 1464
could not be read to cover speech that admittedly did
not qualify as obscenity.  Id. at 739, 98 S. Ct. 3026.  Fin-
ding that obscene, indecent, and profane have distinct
meanings in the statute, the Court held that the FCC is
permitted to sanction speech without showing that it
satisfied the elements of obscenity.  Id. at 739-41, 98 S.
Ct. 3026.  The Court then rejected Pacificas constitu-
tional challenges.  The Court stated that of all forms of
communication, it is broadcasting that has received the
most limited First Amendment protection because the
broadcast medium is a uniquely pervasive presence in
the lives of all Americans that extends into the privacy
of the home and is uniquely accessible to children, even
those too young to read.  Id. at 748-749, 98 S. Ct. 3026.
The Court therefore found that the FCC could, consis-
tent with the First Amendment, regulate indecent mate-
rial like the Carlin monologue.  The Court then once ag-
ain emphasize[d] the narrowness of our holding  .  .  .
We simply hold that when the Commission finds that a
pig has entered the parlor, the exercise of its regulatory
power does not depend on proof that the pig is obscene.
Id. at 750-51, 98 S. Ct. 3026.
Justices Powell and Blackmun, who concurred in the
judgment and supplied two of the votes necessary for
6a
3
The four dissenting justices would have held invalid any attempt by
the FCC to prohibit indecent (non-obscene) speech.  See Pacifica, 438
U.S. at 762-80, 98 S. Ct. 3026.
4
At the time, the Commission interpreted Pacifica as involving a
situation about as likely to occur again as Halleys Comet.  Br. of
Amici Curiae Former FCC Officials at 6 (quoting FCC Chairman
Charles D. Ferris, Speech to New England Broad. Assoc., Boston,
Mass. (July 21, 1978)).
the 5-4 majority,
3
 also emphasized in their concurring
opinion that the Courts holding was a narrow one lim-
ited to the facts of the Carlin monologue as broadcast.
Id. at 755-56, 98 S. Ct. 3026 (Powell J., concurring).
Foreshadowing the question now before us, they explic-
itly noted that [t]he Commissions holding, and cer-
tainly the Courts holding today, does 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., concur-
ring).  Furthermore, citing the FCCs brief to the Court,
Justice Powell stated that he did not foresee an undue
chilling effect on broadcasters by the FCCs decision
because the Commission may be expected to proceed
cautiously, as it has in the past.  Id. at 761 n.4, 98 S. Ct.
3026 (Powell J., concurring).
 The FCC took the Pacifica Courts admonitions seri-
ously in its subsequent decisions.
4
  Shortly after the
Pacifica ruling, the FCC stated the following in an opin-
ion rejecting a challenge to a broadcasters license re-
newal on the basis that the broadcaster had aired inde-
cent programming:
7a
With regard to indecent or profane utterances, the
First Amendment and the no censorship provision
of Section 326 of the Communications Act severely
limit any role by the Commission and the courts in
enforcing the proscription contained in Section 1464.
The Supreme Courts decision in FCC v. Pacifica
Foundation, 46 U.S.L.W. 5018 (1978), No. 77-528,
decided July 3, 1978, affords this Commission no
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.
We intend strictly to observe the narrowness of the
Pacifica holding.  In this regard, the Commissions
opinion, as approved by the Court, relied in part
on the repetitive occurrence of the indecent words
in question.  The opinion of the Court specifically
stated that it was not ruling that an occasional ex-
pletive  .  .  .  would justify any sanction  .  .  .  Fur-
ther, Justice Powells concurring opinion emphasized
the fact that the language there in issue had been re-
peated over and over as a sort of verbal shock treat-
ment.  He specifically distinguished the verbal
shock treatment [in Pacifica] from the isolated use
of a potentially offensive word in the course of a ra-
dio broadcast.
Application of WGBH Educ. Found., 69 F.C.C.2d 1250,
at  10 (1978) (emphasis added) (ellipses in original; in-
ternal footnotes and citations omitted).  The FCC also
specifically held that the single use of an expletive in a
program that aired at 5:30pm should not call for us to
act under the holding of Pacifica.  Id. at  10 n.6.  A few
years later, the Commission again rejected a challenge
to a license renewal that complained the broadcaster
8a
had aired indecent programming in violation of Section
1464.  The FCC acknowledged the complaint that the
broadcaster on three separate occasions had aired pro-
gramming during the morning hours containing lan-
guage such as motherfucker, fuck, and shit, but
nevertheless concluded that it is clear that the peti-
tioner has failed to make a prima facie case that [the
broadcaster] has violated 18 U.S.C. 1464 since the lan-
guage did not amount to verbal shock treatment
and the complainant had failed to show this was more
than isolated use.  Application of Pacifica Found., 95
F.C.C.2d 750, at  16, 18 (1983).
It was not until 1987 that the FCC would find anoth-
er broadcast indecent under Section 1464.  See Infin-
ity Broad. Corp., et al., 3 F.C.C.R. 930 (1987) (Infinity
Order).  The Commission explained:
In cases decided subsequent to the Supreme Courts
ruling [in Pacifica ], the Commission took a very lim-
ited approach to enforcing the prohibition against in-
decent broadcasts.  Unstated, but widely assumed,
and implemented for the most part through staff rul-
ings, was the belief that only material that closely re-
sembled the George Carlin monologue would satisfy
the indecency test articulated by the FCC in 1975.
Thus, no action was taken unless material involved
the repeated use, for shock value, of words similar or
identical to those satirized in the Carlin Filthy
Words monologue  .  .  .   As a result, the Commis-
sion, since the time of its ruling in 1975, has taken no
action against any broadcast licensee for violating
the prohibition against indecent broadcasts.
Id. at  4 (internal footnotes omitted).  The Infinity Or-
der affirmed on reconsideration three decisions issued
9a
simultaneously by the FCC in April 1987 that found cer-
tain programs indecent.  See Pacifica Found., Inc., 2
F.C.C.R. 2698 (1987); The Regents of the Univ. of Cal.,
2 F.C.C.R. 2703 (1987); Infinity Broad. Corp., 2
F.C.C.R. 2705 (1987).  The FCC explained in the Infinity
Order that it would no longer take the narrow view that
a finding of indecency required the use of one of the
seven dirty words used in Carlins monologue.  See
Infinity Order, at  5.  The FCC instead would use the
generic definition of indecency it had articulated in con-
nection with its prior decision in Pacifica.  Id.  Under
the Commissions definition, indecent speech is lan-
guage that describes, in terms patently offensive as
measured by contemporary community standards for
the broadcast medium, sexual or excretory activities and
organs.  Such indecent speech is actionable when broad-
cast at times of the day when there is a reasonable risk
that children may be in the audience.  Regents of the
Univ. of Cal., 2 F.C.C.R. 2703, at  3 (internal footnote
omitted).  The FCC also reaffirmed, however, the pre-
vailing view that a fleeting expletive would not be action-
able.  See id. (Speech that is indecent must involve
more than an isolated use of an offensive word.); Paci-
fica Found., Inc., 2 F.C.C.R. 2698, at  13 (If a com-
plaint focuses solely on the use of expletives, we believe
that under the legal standards set forth in Pacifica, de-
liberate and repetitive use in a patently offensive man-
ner is a requisite to a finding of indecency.).  Notably,
in Pacifica Foundation, the Commission declined to
make a finding of indecency against a radio broadcast of
the program Shocktime America, which had contained
words and phrases such as eat shit, mother-fucker
and fuck the U.S.A, in part because, without a tran-
script or tape of the program, the FCC was unable to
10a
determine whether the use of patently offensive speech
was isolated.  Id. at  3, 17.
Broadcasters appealed the Infinity Order to the D.C.
Circuit, challenging the FCCs definition of indecency
as unconstitutionally vague.  See Action for Child-
rens Television v. FCC, 852 F.2d 1332 (D.C. Cir. 1988)
(ACT I), superseded in part by Action for Childrens
Television v. FCC, 58 F.3d 654 (D.C. Cir. 1995) (in banc).
The D.C. Circuit rejected this argument on the basis
that the definition at issue was virtually the same defi-
nition the Commission articulated in the order reviewed
by the Supreme Court in the Pacifica case.  Id. at 1338.
The court concluded that Pacifica implicitly rejected
any vagueness challenge to the FCCs definition of in-
decent, which therefore foreclosed its ability to revisit
any such argument.  Id. at 1339.  The court then invited
correction from Higher Authority if its reading of
Pacifica was incorrect.  Id.  Before leaving the First
Amendment issue, however, the court explicitly noted
that the FCC has assured this court, at oral argument,
that it will continue to give weight to reasonable licensee
judgments when deciding whether to impose sanctions
in a particular case.  Thus, the potential chilling effect of
the FCCs generic definition of indecency will be tem-
pered by the Commissions restrained enforcement pol-
icy.  Id. at 1340 n.14 (citing Pacifica, 438 U.S. at 761, 98
S. Ct. 3026 (Powell J., concurring)).
This restrained enforcement policy would continue.
In 2001, pursuant to a settlement agreement by which
the FCC agreed to clarify its indecency standards, the
Commission issued a policy statement to provide guid-
ance to the broadcast industry regarding our case law
interpreting 18 U.S.C.  1464 and our enforcement poli-
cies with respect to broadcast indecency.  Industry
11a
Guidance on the Commissions Case Law Interpreting
18 U.S.C.  1464, 16 F.C.C.R. 7999, at  1 &  30 n.23
(2001) (Industry Guidance).  The FCC first noted that
indecent speech is protected by the First Amendment,
and thus, the government must both identify a compel-
ling interest for any regulation it may impose on inde-
cent speech and choose the least restrictive means to
further that interest.  Id. at  3.
The FCC then explained that an indecency finding
involves the following two determinations:  (1) whether
the material falls within the subject matter scope of
[the] indecency definitionthat is, the material must
describe or depict sexual or excretory organs or activi-
ties; and (2) whether the broadcast is patently offen-
sive as measured by contemporary community stan-
dards for the broadcast medium.  Id. at  7-8.  The
FCC considers the following three factors in determin-
ing whether the material is patently offensive:  (1) the
explicitness or graphic nature of the description or de-
piction of sexual or excretory organs or activities; (2)
whether the materials 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.  The policy
statement contained numerous examples of prior FCC
decisions evaluating whether certain material was inde-
cent in an attempt to provide guidance to broadcasters.
In discussing the second factor in the patently offen-
sive analysis, the FCC cited examples distinguishing
between material that dwells on the offensive content
(indecent) and material that was fleeting and isolated
(not indecent).  Id. at  17-18.
12a
This restrained enforcement policy would soon
change.  During NBCs January 19, 2003, live broadcast
of the Golden Globe Awards, musician Bono stated in his
acceptance speech this is really, really, fucking bril-
liant. Really, really, great.  Complaints Against Vari-
ous Broadcast Licensees Regarding Their Airing of the
Golden Globe Awards Program, 19 F.C.C.R. 4975, at
 3 n.4 (2004) (Golden Globes).  Individuals associated
with the Parents Television Council filed complaints that
the material was obscene and indecent under FCC regu-
lations.  Id. at  3.  The FCCs Enforcement Bureau,
however, denied the complaints on the basis that the
expletive as used in context did not describe sexual or
excretory organs or activities and that the utterance was
fleeting and isolated.  See Complaints Against Various
Broadcast Licensees Regarding Their Airing of the
Golden Globe Awards Program, 18 F.C.C.R. 19859, at
 5-6 (Enforcement Bureau 2003) (Golden Globes (Bu-
reau Decision)).  The Bureau accordingly found that the
speech does not fall within the scope of the Commis-
sions indecency prohibition, and reaffirmed FCC pol-
icy that fleeting and isolated remarks of this nature do
not warrant Commission action.  Id. at  6.
Five months later, the full Commission reversed the
Bureaus decision.  First, the FCC held that any use of
any variant of the F-Word inherently has sexual con-
notation and therefore falls within the scope of the inde-
cency definition.  Golden Globes, at  8.  The FCC then
held that the F-Word is one of the most vulgar, grap-
hic, and explicit descriptions of sexual activity in the
English language and therefore the use of that word
was patently offensive under contemporary community
standards.  Id. at  9.  The Commission found the fleet-
ing and isolated use of the word irrelevant and overruled
13a
all prior decisions in which fleeting use of an expletive
was held not indecent.  Id. at  12 (While prior Commis-
sion and staff action have indicated that isolated or fleet-
ing 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.).
The FCC then held that the material in question was
also profane under Section 1464.  Id. at  13.  The
Commission acknowledged that prior decisions inter-
preting profane had defined that term as blasphemy,
but found that nothing in its prior decisions limited the
definition of profane in such a manner.  Id. at  14.  The
Commission, however, declined to impose a forfeiture
because existing precedent would have permitted this
broadcast and therefore NBC and its affiliates neces-
sarily did not have the requisite notice to justify a pen-
alty.  Id. at  15.  The Commission emphasized, though,
that licensees were now on notice that any broadcast of
the F-Word could subject them to monetary penalties
and suggested that implementing delay technology
would ensure future compliance with its policy.  Id. at
 17.
NBC, along with several other parties including Fox,
filed petitions for reconsideration of the Golden Globes
order, raising statutory and constitutional challenges to
the new policy.  NBC, Fox, and Viacom Inc. also filed a
joint petition to stay the effect of the Golden Globes or-
der.  These petitions have been pending for more than
two years without any action by the FCC.  Nevertheless,
the FCC has applied the policy announced in Golden
Globes in subsequent cases.
14a
On February 21, 2006, the FCC issued an order re-
solving various complaints against several television
broadcasts.  See Complaints Regarding Various Televi-
sion Broadcasts Between February 2, 2002 and March
8, 2005, 21 F.C.C.R. 2664 (2006) (Omnibus Order).
Through this order, the FCC intended to provide sub-
stantial guidance to broadcasters and the public about
the types of programming that are impermissible under
our indecency standard.  Id. at  2.  In Section III.B of
the Omnibus Order, the Commission found four pro-
gramsFoxs broadcast of the 2002 Billboard Music
Awards, Foxs broadcast of the 2003 Billboard Music
Awards, various episodes of ABCs NYPD Blue, and
CBSs The Early Showindecent and profane under the
policy announced in Golden Globes.  The factual situa-
tions at issue are as follows:
 2002 Billboard Music Awards:  In her acceptance
speech, Cher stated: People have been telling me
Im on the way out every year, right?  So fuck em.
 2003 Billboard Music Awards:  Nicole Richie, a pre-
senter on the show, stated:  Have you ever tried to
get cow shit out of a Prada purse?  Its not so fucking
simple.
 NYPD Blue:  In various episodes, Detective Andy
Sipowitz and other characters used certain exple-
tives including bullshit, dick, and dickhead.
 The Early Show:  During a live interview of a con-
testant on CBSs reality show Survivor:  Vanuatu,
the interviewee referred to a fellow contestant as a
bullshitter.
15a
Id. at  101, 112 n.64, 125, 137.  In finding these pro-
grams indecent and profane, the FCC reaffirmed its
decision in Golden Globes that any use of the word
fuck is presumptively indecent and profane.  Id. at
 102, 107.  The Commission then concluded that any
use of the word shit was also presumptively indecent
and profane.  Id. at  138, 143.  Turning to the second
part of its indecency test, the FCC found that each of
the programs were patently offensive because the ma-
terial was explicit, shocking, and gratuitous.  Id. at
 106, 120, 131, 141.  Citing Golden Globes, the Com-
mission dismissed the fact that the expletives were fleet-
ing and isolated and held that repeated use is not neces-
sary for a finding of indecency.  Id. at  104, 116, 129,
140.  The FCC, however, declined to issue a forfeiture in
each case for the express reason that the broadcasts in
question occurred before the decision in Golden Globes,
and thus existing precedent would have permitted this
broadcast.  Id. at  111, 124, 136, 145.
Fox and CBS filed a petition for review of the Omni-
bus Order in this court.  ABC filed a petition for review
in the D.C. Circuit, which was then transferred to this
court and consolidated with the petition for review filed
by Fox and CBS.  Before any briefing took place, how-
ever, the FCC moved for a voluntary remand in order to
give the Commission the first opportunity to address
petitioners arguments and ensure that all licensees are
afforded a full opportunity to be heard before the Com-
mission issues a final decision.  See FCC Mot. for Vol-
untary Remand at 2, No. 06-1760 (July 6, 2006).  On
September 7, 2006, this court granted the FCCs request
for remand and stayed enforcement of the Omnibus Or-
der.  The Commission was given sixty days to issue a
16a
5
The Commission dismissed the complaint against NYPD Blue be-
cause the only person who complained of the material resided in
the Eastern time zone, where NYPD Blue aired during the safe
harbor period after 10pm.  Remand Order, at  75; see also 47 C.F.R.
 73.3999(b) (providing that broadcasting of indecent material is pro-
hibited only between the hours of 6am and 10pm);  Action for Chil-
drens Television v. FCC, 932 F.2d 1504 (D.C. Cir. 1991) (ACT II)
(safe harbor period is constitutionally required), superseded in part
by Action for Childrens Television v. FCC, 58 F.3d 654 (D.C. Cir. 1995)
(in banc).  In light of the FCCs revised decision regarding NYPD Blue,
ABC is no longer participating in this appeal.
final or appealable order, at which time the pending ap-
peal would be automatically reinstated.
The FCC promptly issued a public notice soliciting
comments on its decision in the Omnibus Order.  Nu-
merous parties, including those who have participated in
the briefing in this appeal, submitted comments raising
various statutory and constitutional arguments against
the FCCs indecency regime.  The FCC then issued a
new order on November 6, 2006.  See Complaints Re-
garding Various Television Broadcasts Between Febru-
ary 2, 2002 and March 8, 2005, FCC 06-166 (Nov. 6,
2006) (Remand Order).  The Remand Order vacated
Section III.B of the Omnibus Order in its entirety and
replaced it with the Remand Order.  Id. at  11.  In the
Remand Order, the FCC reaffirmed its finding that the
2002 and 2003 Billboard Music Award programs were
indecent and profane, but reversed its finding against
The Early Show.  It also dismissed on procedural
grounds the complaint against NYPD Blue.
5
 
With regard to the 2003 Billboard Music Awards, the
Commission found that it would have been actionably
indecent even prior to the decision in Golden Globes be-
cause the potentially offensive material was repeated,
17a
since Nicole Richie used two extremely graphic and of-
fensive words, and was deliberately uttered because
of Ms. Richies confident and fluid delivery of the
lines.  Id. at  22.  With regard to the 2002 Billboard
Music Awards, the Commission acknowledge[d] that it
was not apparent that Fox could be penalized for Chers
comment at the time it was broadcast.  Id. at  60.  In
both cases, the FCC rejected Foxs argument that fleet-
ing expletives were not actionable, now characterizing
its prior decisions on that issue as staff letters and
dicta.  Id. at  20.  The Commission, however, declined
to impose a forfeiture for either broadcast.  Id. at  53,
66.
Turning to The Early Show, the FCC reversed its
finding that the expletive used was indecent or profane
because it occurred in the context of a bona fide news
interview.  Id. at  68.  The Commission stated that
in light of First Amendment concerns, it is imperative
that we proceed with the utmost restraint when it
comes to news programming, and found it appropriate
.  .  . to defer to CBSs plausible characterization of
its own programming as a news interview.  Id. at  71-
72.  Given this context, the FCC declined to find the
comment indecent or profane.  Id. at  73.
In accordance with our September 6th order, this
appeal was automatically reinstated on November 8,
2006.  Fox then filed a petition for review of the Remand
Order and moved to consolidate that appeal with the one
already pending before this court.  We granted the mo-
tion for consolidation as well as motions to intervene by
CBS Broadcasting Inc. (CBS) and NBC Universal Inc.
and NBC Telemundo License Co. (collectively, NBC).
We have also received several briefs from various amici.
18a
DISCUSSION
Fox, CBS, and NBC (collectively, the Networks),
supported by several amici, raise a variety of arguments
against the validity of the Remand Order, including:
(1) the Remand Order is arbitrary and capricious be-
cause the Commissions regulation of fleeting exple-
tives represents a dramatic change in agency policy
without adequate explanation; (2) the FCCs commu-
nity standards analysis is arbitrary and meaningless;
(3) the FCCs indecency findings are invalid because the
Commission made no finding of scienter; (4) the FCCs
definition of profane is contrary to law; (5) the FCCs
indecency regime is unconstitutionally vague; (6) the
FCCs indecency test permits the Commission to make
subjective determinations about the quality of speech in
violation of the First Amendment; and (7) the FCCs
indecency regime is an impermissible content-based
regulation of speech that violates the First Amendment.
The FCC, also supported by several amici, dispute each
of these contentions.  We agree with the first argument
advanced by the Networks, and therefore do not reach
any other potential problems with the FCCs decision.
I.  Scope of Review
Before turning to the merits of the Networks argu-
ments, we first note that we reject the FCCs contention
that our review here is narrowly confined to the specific
question of whether the two Fox broadcasts of the Bill-
board Music Awards were indecent and/or profane.  The
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
19a
Globes and applied in the Remand Order is a question
properly before us on this petition for review.  As the
D.C. Circuit explained in rejecting this precise argu-
ment in another proceeding, the agency may not resort
to adjudication as a means of insulating a generic stan-
dard from judicial review.  ACT I, 852 F.2d at 1337.
II.  Administrative Procedure Act
Courts will set aside agency decisions found to be
arbitrary, capricious, an abuse of discretion, or other-
wise not in accordance with law.  5 U.S.C.  706(2)(A).
As the Supreme Court has explained:  The scope of re-
view under the arbitrary and capricious standard is
narrow and a court is not to substitute its judgment for
that of the agency.  Nevertheless, the agency must exa-
mine the relevant data and articulate a satisfactory ex-
planation for its action including a rational connection
between the facts found and the choice made.  Motor
Vehicle Mfrs. Assn of U.S., Inc. v. State Farm Mut.
Auto. Ins. Co., 463 U.S. 29, 43, 103 S. Ct. 2856, 77 L. Ed.
2d 443 (1983).  Agency action is arbitrary and capricious
if 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 explanation
for its decision that runs counter to the evidence before
the agency, or is so implausible that it could not be as-
cribed to a difference in view or the product of agency
expertise.  Id.  Reviewing courts may not supply a
reasoned basis for the agencys action that the agency
itself has not given.  Id. (quoting SEC v. Chenery Corp.,
332 U.S. 194, 196, 67 S. Ct. 1575, 91 L. Ed. 1995 (1947)).
The Networks contend that the Remand Order is arbi-
trary and capricious because the FCC has made a 180-
degree turn regarding its treatment of fleeting exple-
20a
tives without providing a reasoned explanation justify-
ing the about-face.  We agree.
First, there is no question that the FCC has changed
its policy.  As outlined in detail above, prior to the
Golden Globes decision the FCC had consistently taken
the view that isolated, non-literal, fleeting expletives did
not run afoul of its indecency regime.  See, e.g., Pacifica
Clarification Order, 59 F.C.C.2d 892, at  4 n.1 (advising
broadcasters that it would be inequitable for us to hold
a licensee responsible for indecent language that oc-
curred during a live broadcast without an opportunity
for journalistic editing); Application of WGBH Educ.
Found., 69 F.C.C.2d 1250, at  10 & n.6 (distinguishing
between the verbal shock treatment of the George
Carlin monologue and the isolated use of a potentially
offensive word and finding that the single use of an
expletive in a program should not call for us to act un-
der the holding of Pacifica); Pacifica Foundation, Inc.,
2 F.C.C.R. 2698, at  13 (If a complaint focuses solely
on the use of expletives, we believe that under the legal
standards set forth in Pacifica, deliberate and repetitive
use in a patently offensive manner is a requisite to a
finding of indecency. (emphasis added)); Industry
Guidance, 16 F.C.C.R. 7999, at  17-18 (distinguishing
between material that is repeated or dwelled on and
material that is fleeting and isolated) (citing L.M.
Communications of S.C., Inc., 7 F.C.C.R. 1595 (Mass
Media Bureau 1992) (finding the single utterance of
mother-fucker not indecent because it was a fleeting
and isolated utterance which, within the context of live
and spontaneous programming, does not warrant a Com-
mission sanction); Lincoln Dellar, For Renewal of the
Licenses of Stations KPRL(AM) and KDDB(FM),
8 F.C.C.R. 2582 (Audio Serv. Div. 1993) (news an-
21a
nouncers remark that he fucked that one up not inde-
cent because the use of a single expletive did not war-
rant further review in light of the isolated and acciden-
tal nature of the broadcast)).  This consistent enforce-
ment policy changed with the issuance of Golden Globes:
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.  .  .  .  The staff has since found that the
isolated or fleeting use of the F-Word is not inde-
cent in situations arguably similar to that here.  We
now depart from this portion of the Commissions
1987 Pacifica decision as well as all of the cases cited
in notes 31 and 32 and any similar cases holding that
isolated or fleeting use of the F-Word or a variant
thereof in situations such as this is not indecent and
conclude that such cases are not good law to that ex-
tent.
Golden Globes, 19 F.C.C.R. 4975, at  12 (internal foot-
note omitted); see also id. at  14 (providing new defini-
tion of profane speech).  The Commission declined to
issue a forfeiture in Golden Globes precisely because its
decision represented a departure from its prior rulings.
See id. at  15 (Given, however, that Commission and
staff precedent prior to our decision today permitted the
broadcast at issue, and that we take a new approach to
profanity, NBC and its affiliates necessarily did not
have the requisite notice to justify a penalty. (emphasis
added)).  The Omnibus Order similarly declined to issue
a forfeiture because existing precedent would have per-
22a
6
In the Remand Order, the FCC reject[s] Foxs suggestion that
Nicole Richies comments would not have been actionably indecent
prior to our Golden Globe decision, and would only concede that it was
not apparent that Chers comment at the 2002 Billboard Music
Awards would have been actionably indecent at the time it was broad-
cast.  Remand Order, at  22, 60.  Decisions expressly 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 for the first time in an enforce-
ment action whether a single use of an expletive could be indecent.).
mitted this broadcast.  Omnibus Order, 21 F.C.C.R.
2664, at  111, 124, 136, 145.
Although the Remand Order backpedals somewhat
on this clear recognition that the Commission was de-
parting from prior precedent,
6
  in its brief to this court,
the FCC now concedes that Golden Globes changed the
landscape with regard to the treatment of fleeting exple-
tives.  See Br. of Respondent FCC at 33 (In the Golden
Globe Order, the Commission made clear that it was
changing course with respect to the treatment of iso-
lated expletives.); see also Br. of Amici Curiae Former
FCC Officials at 9 (noting that the extraordinary and
unprecedented decision in Golden Globes represented
a radical change in policy that greatly expanded the
scope of what constituted indecency).
Agencies are of course free to revise their rules and
policies.  See 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) (An initial agency interpretation is
not instantly carved in stone.).  Such a change, how-
ever, must provide a reasoned analysis for departing
from prior precedent.  As this court has explained:
23a
[W]hen an agency reverses its course, a court must
satisfy itself that the agency knows it is changing
course, has given sound reasons for the change, and
has shown that the rule is consistent with the law
that gives the agency its authority to act.  In addi-
tion, the agency must consider reasonably obvious
alternatives and, if it rejects those alternatives, it
must give reasons for the rejection, sufficient to al-
low for meaningful judicial review.  Although there
is not a heightened standard of scrutiny  .  .  .  the
agency must explain why the original reasons for
adopting the rule or policy are no longer disposi-
tive.  Even in the absence of cumulative experience,
changed circumstances or judicial criticism, an
agency is free to change course after reweighing the
competing statutory policies.  But such a flip-flop
must be accompanied by a reasoned explanation of
why the new rule effectuates the statute as well as or
better than the old rule.
N.Y. Council, Assn of Civilian Technicians v. Fed. La-
bor Relations Auth., 757 F.2d 502, 508 (2d Cir. 1985)
(second emphasis added; internal citations omitted); see
also State Farm, 463 U.S. at 41-42, 103 S. Ct. 2856 (A
settled course of behavior embodies the agencys in-
formed judgment that, by pursuing that course, it will
carry out the policies committed to it by Congress.
There is, then, at least a presumption that those policies
will be carried out best if the settled rule is adhered to.
(internal quotation marks omitted)); Huntington Hosp.
v. Thompson, 319 F.3d 74, 79 (2d Cir. 2003) (While an
agency is not locked into the first interpretation of a
statute it embraces, it cannot simply adopt inconsistent
positions without presenting some reasoned analysis.);
Mr. Sprout, Inc. v. United States, 8 F.3d 118, 129 (2d
24a
Cir. 1993) (When the Commission departs from its own
settled precedent, as here, it must present a reasoned
analysis that justifies its change of interpretation so as
to permit judicial review of its new policies.).  An
agencys failure to come to grips with conflicting prece-
dent constitutes an inexcusable departure from the es-
sential requirement of reasoned decision making.
Ramaprakash v. FAA., 346 F.3d 1121, 1125 (D.C. Cir.
2003) (internal quotation marks omitted).  Accordingly,
agency action will be set aside as arbitrary and capri-
cious if the agency fails to provide a reasoned explana-
tion for its decision.  See, e.g., Massachusetts v. EPA,
U.S., 127 S. Ct. 1438, 1463, 167 L. Ed. 2d 248 (2007)
(EPA has offered no reasoned explanation for its re-
fusal to decide whether greenhouse gases cause or con-
tribute to climate change.  Its action was therefore arbi-
trary, capricious,  .  .  .  or otherwise not in accordance
with law.) (ellipses in original; internal quotation marks
omitted); State Farm, 463 U.S. at 34, 103 S. Ct. 2856
(agencys rescinding of rule requiring passive restraints
in automobiles was arbitrary and capricious for failure
to provide a reasoned explanation justifying revocation);
see also Yale-New Haven Hosp. v. Leavitt, 470 F.3d 71,
72 (2d Cir. 2006) (agency action based on new rule gov-
erning Medicare reimbursement was arbitrary and ca-
pricious because the Secretary did not satisfactorily
explain his reasons for changing historical practice);
ANR Pipeline Co. v. Fed. Energy Regulatory Commn,
71 F.3d 897, 901 (D.C. Cir. 1995) ([W]here an agency
departs from established precedent without a reasoned
explanation, its decision will be vacated as arbitrary and
capricious.).
25a
Our evaluation of the agencys reasons for its change
in policy is confined to the reasons articulated by the
agency itself.  See State Farm, 463 U.S. at 50, 103 S. Ct.
2856 ([C]ourts may not accept appellate counsels post
hoc rationalizations for agency action.  It is well-estab-
lished that an agencys action must be upheld, if at all,
on the basis articulated by the agency itself. (internal
citation omitted)); Yale-New Haven Hosp., 470 F.3d at
81 (Generally speaking, after-the-fact rationalization
for agency action is disfavored.).  The primary reason
for the crackdown on fleeting expletives advanced by the
FCC is the so-called first blow theory described in the
Supreme Courts Pacifica decision.  In Pacifica, the
Supreme Court justified the FCCs regulation of the
broadcast media in part on the basis that indecent mate-
rial on the airwaves enters into the privacy of the home
uninvited and without warning.  438 U.S. at 748, 98 S.
Ct. 3026.  The Court rejected the argument that the au-
dience could simply tune-out: To say that one may
avoid further offense by turning off the radio when he
hears indecent language is like saying that the remedy
for an assault is to run away after the first blow.  Id. at
748-49, 98 S. Ct. 3026.  Relying on this statement in
Pacifica, the Commission attempts to justify its stance
on fleeting expletives on the basis that granting an au-
tomatic exemption for isolated or fleeting expletives
unfairly forces viewers (including children) to take the
first blow.  Remand Order, at  25.
We cannot accept this argument as a reasoned basis
justifying the Commissions new rule.  First, the Com-
mission provides no reasonable explanation for why it
has changed its perception that a fleeting expletive was
not a harmful first blow for the nearly thirty years
between Pacifica and Golden Globes.  More problematic,
26a
7
Such a per se ban would likely raise constitutional questions above
and beyond the concerns raised by the current policy.  See Pacifica, 438
U.S. at 746, 98 S. Ct. 3026 (plurality opinion) (Although these words
ordinarily lack literary, political, or scientific value, they are not entirely
outside the protection of the First Amendment.  Some uses of even the
most offensive words are unquestionably protected.).
however, is that the first blow theory bears no rational
connection to the Commissions actual policy regarding
fleeting expletives.  As the FCC itself stressed during
oral argument in this case, the Commission does not
take the position that any occurrence of an expletive is
indecent or profane under its rules.
7
  For example, al-
though there is no outright news exemption from our
indecency rules, Remand Order, at  71, the Commis-
sion will apparently excuse an expletive when it occurs
during a bona fide news interview, id. at  72-73 (de-
ferring to CBSs plausible characterization of a seg-
ment of The Early Show interviewing a contestant on its
reality show Survivor:  Vanuatu as news programming
and finding expletive uttered during that part of the
show not indecent or profane). Certainly viewers (in-
cluding children) watching the live broadcast of The
Early Show were force[d]  .  .  .  to take the first blow
of the expletive uttered by the Survivor:  Vanuatu con-
testant.  Yet the Commission emphasized during oral
argument that its news exception is a broad one and the
Commission has never found a broadcast to be indecent
on the basis of an isolated expletive in the face of some
claim that the use of that language was necessary for
any journalistic or artistic purpose.  The Commission
further explained to this court that a broadcast of oral
argument in this case, in which the same language used
in the Fox broadcasts was repeated multiple times in the
27a
courtroom, would plainly not be indecent or profane
under its standards because of the context in which it
occurred.  The Commission even conceded that a re-
broadcast of precisely the same offending clips from the
two Billboard Music Award programs for the purpose of
providing background information on this case would
not result in any action by the FCC, even though in
those circumstances viewers would be subjected to the
same first blow that resulted from the original airing
of this material.  Furthermore, the Commission has also
held that even repeated and deliberate use of numerous
expletives is not indecent or profane under the FCCs
policy if the expletives are integral to the work.  See
Complaints Against Various Television Licensees Re-
garding Their Broadcast on November 11, 2004, of the
ABC Televison Networks Presentation of the Film
Saving Private Ryan, 20 F.C.C.R. 4507, at  14 (2005)
(Saving Private Ryan) (finding numerous expletives
uttered during film Saving Private Ryan not indecent or
profane because deleting the expletives would have
altered the nature of the artistic work and diminished
the power, realism and immediacy of the film experience
for viewers).  In all of these scenarios, viewers, includ-
ing children who may have no understanding of whether
expletives are integral to a program or whether the
interview of a contestant on a reality show is a bona
fide news interview, will have to accept the alleged
first blow caused by use of these expletives.  Thus, the
record simply does not support the position that the
Commissions new policy was based on its concern with
the publics mere exposure to this language on the air-
28a
8
Thus, our rejection of the agencys proffered rationale as the
required reasoned explanation is not that the Commissions change
of standard is irrational because it is inconsistent as the dissent sug-
gests, dissent op. at 471, but that the Commissions proffered rationale
is disconnected from the actual policy implemented by the Commission.
See State Farm, 463 U.S. at 43, 103 S. Ct. 2856 (Agency action is arbi-
trary and capricious if the agency fails to articulate a satisfactory
explanation for its action including a rational connection between the
facts found and the choice made.) (emphasis added).
9
The dissent takes the position that the reasoned analysis underly-
ing the FCCs change in policy is its statement in Golden Globes that
given the core meaning of the F-Word, any use of that word or a
variation, in any context, inherently has a sexual connotation.  .  .  .  The
F-Word is one of the most vulgar, graphic and explicit descriptions of
sexual activity in the English language.  Its use invariably invokes a
coarse sexual image.  Dissent Op. at 468-69 (quoting Golden Globes, at
 8-9).  Much like the first-blow theory, however, this cannot provide
the requisite reasoned analysis because it is not consistent with the
Commissions actual policy.  The FCCs change in policy cannot be
based on a categorical view that any use of that word or a variation, in
any context, inherently has a sexual connotation, Golden Globes, at  8
(emphasis added), because, as discussed above, the Commission permits
even numerous and deliberate uses of that word in certain contexts.
Notably, the FCC did not rely on this statement from Golden Globes in
waves.
8
  The first blow theory, therefore, fails to pro-
vide the reasoned explanation necessary to justify the
FCCs departure from established precedent.
9
  
29a
arguing that it provided a reasoned explanation for its decision.  See Br.
of Respondent FCC, at 36-37.
The Remand Order makes passing reference to other
reasons that purportedly support its change in policy,
none of which we find sufficient.  For instance, the Com-
mission states that even non-literal uses of expletives
fall within its indecency definition because it is difficult
(if not impossible) to distinguish whether a word is being
used as an expletive or as a literal description of sexual
or excretory functions.  Remand Order, at  23.  This
defies any commonsense understanding of these words,
which, as the general public well knows, are often used
in everyday conversation without any sexual or excre-
tory meaning.  Bonos exclamation that his victory at
the Golden Globe Awards was really, really fucking
brilliant is a prime example of a non-literal use of the
F-Word that has no sexual connotation.  See Golden
Globes (Bureau Decision), 18 F.C.C.R. 19859, at  5
(As a threshold matter, the material aired during the
Golden Globe Awards program does not describe or
depict sexual and excretory activities and organs.  .  .  .
Rather, the performer used the word fucking as an ad-
jective or expletive to emphasize an exclamation.), revd
by Golden Globes, 19 F.C.C.R. 4975 (2004).  Similarly, as
NBC illustrates in its brief, in recent times even the top
leaders of our government have used variants of these
expletives in a manner that no reasonable person would
believe referenced sexual or excretory organs or activi-
ties.  See Br. of Intervenor NBC at 31-32 & n.3 (citing
President Bushs remark to British Prime Minister Tony
Blair that the United Nations needed to get Syria to
get Hezbollah to stop doing this shit and Vice President
Cheneys widely-reported Fuck yourself comment to
30a
10
Contrary to the dissents view, our rejection of this proffered
rationale is not merely a difference of opinion with the agency.  Dis-
sent op. at 473-74.  We reject this reason not because we disagree with
it, but because it is both unsupported by any record evidence as well as
contradicted by evidence submitted by the Networks.  Thus, we need
not consider whether the FCCs statement that any use of [the F-
Word] or a variation, in any context, inherently has a sexual connota-
tion, in actuality means, even when the speaker does not intend a
sexual meaning, a substantial part of the community, and of the tele-
vision audience, will understand the word as freighted with an offensive
sexual connotation, as the dissent suggests.  Id.  Even if we accept the
dissents reading, the FCC still has failed to set forth the required
reasoned explanation because its proffered rationale remains unsup-
ported by any record evidence and contradicted by the evidence
submitted by the Networks.  See Bowen v. Am. Hosp. Assn, 476 U.S.
610, 626, 106 S. Ct. 2101, 90 L. Ed. 2d 584 (1986) (Agency deference
has not come so far that we will uphold regulations whenever it is pos-
sible to conceive a basis for administrative action.) (plurality op). 
11
We agree with the dissent that this proffered rationale is at most
a small part of the agencys justification for its action, dissent op. at
473, but because it is one of the reasons advanced by the agency, we
address it here.  We disagree with the dissent, however, that our
rejection of this proffered rationale is a mere difference of opinion with
the agency in predicting the future.  The FCCs obligation to provide a
reasoned analysis for its change in policy is not satisfied when the
proffered rationalethat without its new policy the airwaves will be
overtaken by fleeting expletivesis both unsupported by any evidence
and directly contradicted by prior experience.  We further note while
Senator Patrick Leahy on the floor of the U.S. Senate).
10
Similarly, the Commissions warning that a per se ex-
emption for fleeting expletives would permit broadcast-
ers to air expletives at all hours of the day so long as
they did so one at a time, Remand Order, at  25, is
equally divorced from reality because the Commission
itself recognizes that broadcasters have never barraged
the airwaves with expletives even prior to Golden
Globes, see Remand Order, at  29.
11
  Finally, the Com
31a
the dissent attempts to provide support for the agencys prediction, in-
cluding broadcasters need to compete with cable which increasingly
make liberal use of their freedom to fill programming with such exple-
tives, dissent op. at 472, no evidence supporting this proposition is
contained in the record that was considered by the FCC when ren-
dering its decision.  See, e.g., State Farm, 463 U.S. at 43, 103 S. Ct. 2856
(The reviewing court should not attempt itself to make up for [the
agencys] deficiencies:  We may not supply a reasoned basis for the
agencys action that the agency itself has not given.) (quoting SEC v.
Chenery Corp., 332 U.S. 194, 196, 67 S. Ct. 1575, 91 L. Ed. 1995 (1947)).
missions claim that categorically requiring repeated
use  .  .  .  is inconsistent with our general approach to
indecency enforcement, which stresses the critical na-
ture of context, Remand Order, at  23, also does not
provide sufficient justification for its departure from
prior precedent.  First, the Commissions own policy of
treating all variants of certain expletives as presump-
tively indecent and profane, whether used in a literal or
non-literal sense, also fails to comport with this general
approach that stresses the critical nature of context.
See, e.g., Golden Globes, 19 F.C.C.R. 4975, at  8 (declar-
ing that any use of [the F-Word] or a variation, in any
context, inherently has a sexual connotation, and there-
fore falls within the first prong of our indecency defini-
tion) (emphasis added).  In addition, the Commissions
indecency test itself remains unchanged, but the Com-
mission fails to provide a reasoned explanation for why
a single, isolated expletive now should fit within the ar-
ticulation of that test set forth in Golden Globes, see
Pacifica Found., Inc., 2 F.C.C.R. 2698, at  13 (If a
complaint focuses solely on the use of expletives, we be-
lieve that under the legal standards set forth in Pacifica,
deliberate and repetitive use in a patently offensive
manner is a requisite to a finding of indecency.).
32a
For decades broadcasters relied on the FCCs re-
strained approach to indecency regulation and its consis-
tent rejection of arguments that isolated expletives were
indecent.  The agency asserts the same interest in pro-
tecting children as it asserted thirty years ago, but until
the Golden Globes decision, it had never banned fleeting
expletives.  While the FCC is free to change its previ-
ously settled view on this issue, it must provide a rea-
soned basis for that change.  Cf. State Farm, 463 U.S. at
42, 103 S. Ct. 2856 ([A]n agency changing its course by
rescinding a rule is obligated to supply a reasoned anal-
ysis for the change beyond that which may be required
when an agency does not act in the first instance.) (em-
phasis added).  The FCCs decision, however, is devoid
of any evidence that suggests a fleeting expletive is
harmful, let alone establishes that this harm is serious
enough to warrant government regulation.  Such evi-
dence would seem to be particularly relevant today
when children likely hear this language far more often
from other sources than they did in the 1970s when the
Commission first began sanctioning indecent speech.
Yet the Remand Order provides no reasoned analysis of
the purported problem it is seeking to address with its
new indecency policy from which this court can conclude
that such regulation of speech is reasonable.  See, e.g.,
United States v. Playboy Enter. Group, Inc., 529 U.S.
803, 822-23, 120 S. Ct. 1878, 146 L. Ed. 2d 865 (2000)
(rejecting indecency regulation of cable television in
part because [t]he question is whether an actual prob-
lem has been proved in this case.  We agree that the
Government has failed to establish a pervasive, nation-
wide problem justifying its nationwide daytime speech
ban.); Turner Broad. Sys. v. FCC, 512 U.S. 622, 664,
114 S. Ct. 2445, 129 L. Ed. 2d 497 (1994) (remanding for
33a
additional fact finding to determine whether speech reg-
ulation justified because government had failed to dem-
onstrate that the recited harms are real, not merely
conjectural, and that the regulation will in fact alleviate
these harms in a direct and material way); Quincy Ca-
ble TV, Inc. v. FCC, 768 F.2d 1434, 1463 (D.C. Cir. 1985)
(invalidating FCC regulation because the Commission
has failed entirely to determine whether the evil the
rules seek to correct is a real or merely a fanciful
threat); Home Box Office, Inc. v. FCC, 567 F.2d 9, 36
(D.C. Cir. 1977) ([A] regulation perfectly reasonable
and appropriate in the face of a given problem may be
highly capricious if that problem does not exist.  (inter-
nal quotation marks omitted)).  The Commission has
similarly failed to explain how its current policy would
remedy the purported problem or to point to support-
ing evidence.
The Commissions new approach to profanity is sup-
ported by even less analysis, reasoned or not.  The Com-
mission sets forth no independent reasons that would
justify its newly-expanded definition of profane
speech, aside from merely stating that its prior prece-
dent does not prevent it from setting forth a new defini-
tion, see Golden Globes, 19 F.C.C.R. 4975, at  14.  To
the extent the Commission believes its arguments for
expanding its indecency enforcement support its new
policy regarding profanity, those arguments are re-
jected for the reasons stated above.  Furthermore, the
Commission fails to provide any explanation for why this
separate ban on profanity is even necessary.  Prior to
2004, the Commission never attempted to regulate pro-
fane speech.  In fact, the Commission took the view that
a separate ban on profane speech was unconstitutional.
See 122 Cong. Rec. 33359, 33359, 33364-65 (1976) (rec-
34a
ommending Congress delete profane from Section
1464 [b]ecause of the serious constitutional problems
involved); FCC, The Public and Broadcasting, 1999
WL 391297 (June 1999) (Profanity that does not fall
under one of the above two categories [indecent or ob-
scene] is fully protected by the First Amendment and
cannot be regulated.).  The Commission again has not
provided this court with a reasoned analysis of why it
has undertaken this separate regulation of speech.  Fi-
nally, the Commission provides no explanation of what
harm this separate enforcement against profane speech
addresses that is not already addressed by the FCCs
indecency and obscenity enforcement.  Particularly con-
sidering that the scope of the FCCs new profanity defi-
nition appears to be largely (if not completely) redun-
dant with its indecency prohibition, see infra Part IV,
this would seem to be an important question for the
Commission to consider.  The Remand Order, however,
provides no indication that the Commission has engaged
in any such analysis.
Accordingly, we find that the FCCs new policy re-
garding fleeting expletives fails to provide a reasoned
analysis justifying its departure from the agencys es-
tablished practice.  For this reason, Foxs petition for
review is granted, the Remand Order is vacated, and the
matter is remanded to the FCC for further proceedings
consistent with this opinion.  Because we have found
that the FCCs new indecency regime, announced in
Golden Globes and applied in the Remand Order, is in-
valid under the Administrative Procedure Act, the stay
35a
12
 We recognize that what follows is dicta, but we note that dicta
often serve extremely valuable purposes.  They can help clarify a com-
plicated subject.  They can assist future courts to reach sensible, well-
reasoned results.  They can help lawyers and society to predict the
future course of the courts rulings.  They can guide future courts to
adopt fair and efficient procedures.  What is problematic is not the
utterance of dicta, but the failure to distinguish between holding and
dictum.  The Honorable Pierre N. Leval, Judging Under the Constitu-
tion:  Dicta About Dicta, 81 N.Y.U.L. Rev. 1249, 1253 (2006).
of enforcement previously granted by this court in our
September 6th order is vacated as moot.
12
 
III. Constitutional Challenges
A fundamental and longstanding principle of judicial
restraint requires that courts avoid reaching constitu-
tional questions in advance of the necessity of deciding
them.  Lyng v. N.W. Indian Cemetery Protective Assn,
485 U.S. 439, 445, 108 S. Ct. 1319, 99 L. Ed. 2d 534
(1988).  Thus, we refrain from deciding the various con-
stitutional challenges to the Remand Order raised by
the Networks.  We note, however, that in reviewing
these numerous constitutional challenges, which were
fully briefed to this court and discussed at length during
oral argument, we are skeptical that the Commission
can provide a reasoned explanation for its fleeting ex-
pletive regime that would pass constitutional muster.
Because we doubt that the Networks will refrain from
further litigation on these precise issues if, on remand,
the Commission merely provides further explanation
with no other changes to its policy, in the interest of ju-
dicial economy we make the following observations.
As an initial matter, we note that all speech covered
by the FCCs indecency policy is fully protected by the
36a
First Amendment.  See Sable Commcns v. FCC, 492
U.S. 115, 126, 109 S. Ct. 2829, 106 L. Ed. 2d 93 (1989)
(noting that speech which is indecent but not obscene
is protected by the First Amendment); Industry Guid-
ance, 16 F.C.C.R. 7999, at  3 ([I]ndecent speech is pro-
tected by the First Amendment, and thus, the govern-
ment must both identify a compelling interest for any
regulation it may impose on indecent speech and choose
the least restrictive means to further that interest.).
With that backdrop in mind, we question whether the
FCCs indecency test can survive First Amendment
scrutiny.  For instance, we are sympathetic to the Net-
works contention that the FCCs indecency test is unde-
fined, indiscernible, inconsistent, and consequently, un-
constitutionally vague.  Although the Commission has
declared that all variants of fuck and shit are pre-
sumptively indecent and profane, repeated use of those
words in Saving Private Ryan, for example, was nei-
ther indecent nor profane.  And while multiple occur-
rences of expletives in Saving Private Ryan was not
gratuitous, Saving Private Ryan, 20 F.C.C.R. 4507, at
 14, a single occurrence of fucking in the Golden
Globe Awards was shocking and gratuitous, Golden
Globes, 19 F.C.C.R. 4975, at  9.  Parental ratings and
advisories were important in finding Saving Private
Ryan not patently offensive under contemporary com-
munity standards, Saving Private Ryan, 20 F.C.C.R.
4507, at  15, but irrelevant in evaluating a rape scene in
another fictional movie, see Omnibus Order, 21 F.C.C.R.
2664, at  38 (issuing maximum forfeiture penalty
against NBC Telemundo for movie Con el Corazn en
la Mano).  The use of numerous expletives was inte-
gral to a fictional movie about war, Saving Private
Ryan, 20 F.C.C.R. 4507, at  14, but occasional exple-
37a
13
 Section 223(d) of the of the Communications Decency Act pro-
hibited material that in context, depicts or describes, in terms patently
offensive as measured by contemporary community standards, sexual
or excretory activities or organs.  Reno, 521 U.S. at 860, 117 S. Ct. 2329.
tives spoken by real musicians were indecent and pro-
fane because the educational purpose of the documen-
tary could have been fulfilled and all viewpoints ex-
pressed without the repeated broadcast of expletives,
Omnibus Order, 21 F.C.C.R. 2664, at  82 (finding Mar-
tin Scorseses PBS documentary The Blues:  Godfa-
thers and Sons indecent).  The S-Word on The Early
Show was not indecent because it was in the context of
a bona fide news interview, but there is no outright
news exemption from our indecency rules, Remand
Order, at  68, 71-73.  We can understand why the Net-
works argue that the FCCs patently offensive as mea-
sured by contemporary community standards inde-
cency test coupled with its artistic necessity exception
fails to provide the clarity required by the Constitution,
creates an undue chilling effect on free speech, and re-
quires broadcasters to steer far wider of the unlawful
zone, Speiser v. Randall, 357 U.S. 513, 526, 78 S. Ct.
1332, 2 L. Ed. 2d 1460 (1958).
The Networks position is further buttressed by the
Supreme Courts decision in Reno v. ACLU, 521 U.S.
844, 117 S. Ct. 2329, 138 L. Ed. 2d 874 (1997), which
struck down as unconstitutionally vague a similarly-
worded indecency regulation of the Internet.
13
  The
Court found that the statutes use of the general, unde-
fined terms indecent and patently offensive cover
large amounts of nonpornographic material with serious
educational or other value.  Moreover, the community
38a
standards criterion as applied to the Internet means
that any communication available to a nation wide audi-
ence will be judged by the standards of the community
most likely to be offended by the message.  Id. at 877-
78, 117 S. Ct. 2329.  Because of the vague contours of
the regulation, the Court held that it unquestionably
silences some speakers whose messages would be enti-
tled to constitutional protection, and thus violated the
First Amendment.  Id. at 874, 117 S. Ct. 2329.  Because
Reno holds that a regulation that covers speech that in
context, depicts or describes, in terms patently offensive
as measured by contemporary community standards,
sexual or excretory activities or organs is unconstitu-
tionally vague, we are skeptical that the FCCs iden-
tically-worded indecency test could nevertheless provide
the requisite clarity to withstand constitutional scrutiny.
Indeed, we are hard pressed to imagine a regime that is
more vague than one that relies entirely on consider-
ation of the otherwise unspecified context of a broad-
cast indecency.
We also note that the FCCs indecency test raises the
separate constitutional question of whether it permits
the FCC to sanction speech based on its subjective view
of the merit of that speech.  It appears that under the
FCCs current indecency regime, any and all uses of an
expletive is presumptively indecent and profane with the
broadcaster then having to demonstrate to the satisfac-
tion of the Commission, under an unidentified burden of
proof, that the expletives were integral to the work.
In the licensing context, the Supreme Court has cau-
tioned against speech regulations that give too much
discretion to government officials.  See, e.g., Forsyth
County, Ga. v. Nationalist Movement, 505 U.S. 123, 130,
112 S. Ct. 2395, 120 L. Ed. 2d 101 (1992) (A government
39a
regulation that allows arbitrary application is inherently
inconsistent with a valid time, place, and manner regula-
tion because such discretion has the potential for becom-
ing a means of suppressing a particular point of view.);
City of Lakewood v. Plain Dealer Publg Co., 486 U.S.
750, 758, 108 S. Ct. 2138, 100 L. Ed. 2d 771 (1988) (find-
ing a permit scheme facially unconstitutional because
post hoc rationalizations by the licensing official and
the use of shifting or illegitimate criteria are far too
easy, making it difficult for courts to determine in any
particular case whether the licensor is permitting favor-
able, and suppressing unfavorable, expression).  In suc-
ceeding on this challenge, the Networks need not prove
that the FCC has exercised [its] discretion in a content-
based manner, but whether there is anything in [its pol-
icy] preventing [it] from doing so.  Forsythe, 505 U.S.
at 133 n.10, 112 S. Ct. 2395 (It is not merely the spo-
radic abuse of power by the censor but the pervasive
threat inherent in its very existence that constitutes the
danger to freedom of discussion.).
Finally, we recognize there is some tension in the law
regarding the appropriate level of First Amendment
scrutiny.  In general, restrictions on First Amendment
liberties prompt courts to apply strict scrutiny.  FCC v.
League of Women Voters, 468 U.S. 364, 376, 104 S. Ct.
3106, 82 L. Ed. 2d 278 (1984).  Outside the broadcasting
context, the Supreme Court has consistently applied
strict scrutiny to indecency regulations.  See, e.g., Play-
boy, 529 U.S. at 811-813, 120 S. Ct. 1878 (holding that
regulation proscribing indecent content on cable televi-
sion was content-based restriction of speech subject to
strict scrutiny); Sable, 492 U.S. at 126, 109 S. Ct. 2829
(holding that indecency regulation of telephone mes-
sages was content-based restriction subject to strict
40a
scrutiny); Reno, 521 U.S. at 868, 117 S. Ct. 2329 (holding
that indecency regulation of Internet was a content-
based restriction subject to strict scrutiny).  At the same
time, however, the Supreme Court has also considered
broadcast media exceptional.  [B]ecause broadcast reg-
ulation involves unique considerations, our cases  .  .  .
have never gone so far as to demand that such regula-
tions serve compelling governmental interests.  Lea-
gue of Women Voters, 468 U.S. at 376, 104 S. Ct. 3106.
Restrictions on broadcast speech have been upheld
when we [are] satisfied that the restriction is narrowly
tailored to further a substantial governmental interest.
Id. at 380, 104 S. Ct. 3106.
The Networks contend that the bases for treating
broadcast media different[ly] have eroded over time,
particularly because 86 percent of American households
now subscribe to cable or satellite services, Remand
Order, at  49.  As the Networks argue, this and other
realities have eviscerated the notion that broadcast
content is, as it was termed in Pacifica, 438 U.S. at 748-
49, 98 S. Ct. 3026, uniquely pervasive and uniquely
accessible to children.  Whatever merit these argu-
ments may have, they cannot sway us in light of Su-
preme Court precedent.  See, e.g., Reno, 521 U.S. at 867,
117 S. Ct. 2329 (noting that as a matter of history
broadcast television has enjoyed less First Amendment
protection than other media, including the internet);
Pacifica, 438 U.S. at 748-50, 98 S. Ct. 3026.
Nevertheless, we would be remiss not to observe that
it is increasingly difficult to describe the broadcast me-
dia as uniquely pervasive and uniquely accessible to chil-
dren, and at some point in the future, strict scrutiny may
properly apply in the context of regulating broadcast
41a
television.  In light of this possibility, the Networks
rightly rest their constitutional argument in part on the
holding of Playboy, which involved a challenge to a stat-
ute requiring cable operators who provide channels pri-
marily dedicated to sexually explicit or otherwise inde-
cent programming to either fully scramble these chan-
nels or limit their transmission to the 10 pm to 6 am safe
harbor period.  529 U.S. at 806, 120 S. Ct. 1878.  The
Supreme Court, applying strict scrutiny, invalidated the
statute because a less restrictive alternative to the pro-
hibition existed:  One plausible, less restrictive alterna-
tive could be found in another section of the [Telecom-
munications] Act [of 1996]:   504, which requires a
cable operator, upon request by a cable service sub-
scriber  .  .  .  without charge, [to] fully scramble or oth-
erwise fully block any channel the subscriber does not
wish to receive.  Id. at 809-10, 120 S. Ct. 1878.  The
Court held:  This targeted blocking is less restrictive
than banning, and the Government cannot ban speech if
targeted blocking is a feasible and effective means of
furthering its compelling interests.  Id. at 815, 120 S.
Ct. 1878.  In so holding, the Court suggested its decision
might go beyond the mechanistic application of strict
scrutiny, and rely in part on a notional pillar of free
speechnamely, choice:
When a student first encounters our free speech ju-
risprudence, he or she might think it is influenced by
the philosophy that one idea is as good as any other,
and that in art and literature objective standards of
style, taste, decorum, beauty, and esthetics are
deemed by the Constitution to be inappropriate, in-
deed unattainable.  Quite the opposite is true.  The
Constitution no more enforces a relativistic philoso-
phy or moral nihilism than it does any other point of
42a
14
 In 1996, Congress mandated that every television, 13 inches or
larger, sold in the United States, come equipped with blocking tech-
nology commonly known as the V-chip.  See 47 U.S.C.  303(x) (stating
that in the case of an apparatus designed to receive television signals,
such apparatus [shall] be equipped with a feature designed to enable
viewers to block display of all programs with a common rating).  To
implement V-chip technology, Congress also required a television
ratings system.  The industry developed the TV Parental Guidelines
rating system, which was approved by the FCC.  See In the Matter of
Implementation of Section 551 of the Telecommunications Act of 1996,
13 F.C.C.R. 8232, at  2.
view.  The Constitution exists precisely so that opin-
ions and judgments, including esthetic and moral
judgments about art and literature, can be formed,
tested, and expressed.  What the Constitution says is
that these judgments are for the individual to make,
not for the Government to decree, even with the
mandate or approval of a majority.  Technology ex-
pands the capacity to choose; and it denies the poten-
tial of this revolution if we assume the Government
is best positioned to make these choices for us.
Id. at 818, 120 S. Ct. 1878.  The Court specifically re-
jected the arguments that parents ignorance of this
option, its underutilization, or its inability to be 100%
effective rendered targeted blocking an ineffective alter-
native:  It is no response that voluntary blocking re-
quires a consumer to take action, or may be inconve-
nient, or may not go perfectly every time.  A court
should not assume a plausible, less restrictive alterna-
tive would be ineffective; and a court should not pre-
sume parents, given full information, will fail to act.  Id.
at 824, 120 S. Ct. 1878.
The Networks argue that the advent of the V-chip
and parental ratings system
14
 similarly provide a less
43a
restrictive alternative to the FCCs indecency ban.  The
FCC counters that the V-chip is an ineffective alterna-
tive because, in its view, few televisions feature a V-chip,
most parents do not know how to use it, programs are
often inaccurately rated, and fleeting expletives, such as
those witnessed at the programs at issue here, could
elude V-chip blocking even if the show during which
they occurred was otherwise accurately labeled.  See
Remand Order, at  51 & n.162.  The FCCs arguments
are not without merit, but they must be evaluated in the
context of todays realities.  The proliferation of satellite
and cable television channelsnot to mention internet-
based video outletshas begun to erode the unique-
ness of broadcast media, while at the same time, block-
ing technologies such as the V-chip have empowered
viewers to make their own choices about what they do,
and do not, want to see on television.  Playboy distin-
guished Pacifica on the grounds that [c]able systems
have the capacity to block unwanted channels on a
household-by-household basis and thus [t]he option to
block reduces the likelihood, so concerning to the Court
in Pacifica, that traditional First Amendment scrutiny
would deprive the Government of all authority to ad-
dress this sort of problem.  529 U.S. at 815, 120 S. Ct.
1878 (internal citation omitted).  The FCC is free to reg-
ulate indecency, but its regulatory powers are bounded
by the Constitution.  If the Playboy decision is any
guide, technological advances may obviate the constitu-
tional legitimacy of the FCCs robust oversight.
IV. The FCCs Construction of Profane
The Networks also argue that the FCC employed an
improper definition of profane under Section 1464.
Although we need not reach this argument to dispose of
44a
this appeal, on remand, the FCC may desire to explain
its gloss on the definition of profane.  In the Remand
Order, the FCC applied its new definition of profane
as set forth in Golden Globes.  The FCC now defines
profane as those personally reviling epithets natu-
rally tending to provoke violent resentment or denoting
language which under contemporary community stan-
dards is so grossly offensive to members of the public
who actually hear it as to amount to a nuisance.  Golden
Globes, 19 F.C.C.R. 4975, at  13 (quoting Tallman v.
United States, 465 F.2d 282, 286 (7th Cir. 1972)).  The
FCC, noting that shit and fuck fall within this defini-
tion, ruled that Chers and Nicole Richies fleeting ex-
pletives were profane, as well as indecent.  Most dic-
tionaries interpret the term profane to denote some-
thing that pertains to the irreligious, and since 1927,
courtsas well as the FCC itselfhave assumed that
profane in the broadcast context refers to sacrilege,
and nothing more.  See, e.g. Duncan v. United States, 48
F.2d 128, 134 (9th Cir. 1931) (collecting cases and hold-
ing defendant was properly convicted of using profane
language where he referred to an individual as
damned,  .  .  .  used the expression By God irrever-
ently, and  .  .  .  announced his intention to call down the
curse of God); Gagliardo v. United States, 366 F.2d
720, 725 (9th Cir. 1966) (the only words attributed to
appellants which could even remotely be considered as
being profane  .  .  .  were God damn it); In re Com-
plaint by Warren B. Appleton, Brockton, Mass., 28
F.C.C.2d 36 (1971) (analyzing the word damn as a
matter of profanity).  As the FCC notes, the Seventh
Circuits 1972 Tallman decision, 465 F.2d at 286, sug-
gested an alternate definition for this term, but we do
not believe the FCC can find refuge in this case. Tall-
45a
man concerned a prosecution for obscenity, not profan-
ity, and thus the Tallman court had no occasion to de-
termine conclusively how profane should be interpreted.
See id. (The trial judge did not undertake to define the
terms indecent and profane, but he had no occasion to
do so because he determined that petitioners utterances
were properly classifiable as obscene.).  The Tallman
courts brief reference to profane served only to dem-
onstrate that there may be a construction of profane
that could pass constitutional scrutiny.
But the FCCs definition of profane here, would
substantially overlap with the statutory term indecent.
This overlap would be so extensive as to render the stat-
utory term indecent superfluous.  Because our canons
of statutory construction do not permit such an interpre-
tation, see TRW Inc. v. Andrews, 534 U.S. 19, 31, 122 S.
Ct. 441, 151 L. Ed. 2d 339 (2001), we do not believe the
FCC has proffered a reasonable construction of the
term profane.  While we may owe Chevron deference
to the FCCs construction, the FCC must still demon-
strate that its construction is reasonable, particularly in
light of Congressional intent, the canons of statutory
construction, and the historical view of the plain mean-
ing of this term.
CONCLUSION
As the foregoing indicates, we are doubtful that by
merely proffering a reasoned analysis for its new ap-
proach to indecency and profanity, the Commission can
adequately respond to the constitutional and statutory
challenges raised by the Networks.  Nevertheless, be-
cause we can decide this case on this narrow ground, we
vacate and remand so that the Commission can set forth
that analysis.  While we fully expect the Networks to
46a
raise the same arguments they have raised to this court
if the Commission does nothing more on remand than
provide additional explanation for its departure from
prior precedent, we can go no further in this opinion.
Accordingly, we grant the petition for review, vacate the
order of the FCC, and remand the case for further pro-
ceedings consistent with this opinion.  The stay previ-
ously granted by this court is vacated as moot.
LEVAL, Circuit Judge, dissenting.
I respectfully dissent from my colleagues ruling be-
cause I believe the Federal Communications Commis-
sion (FCC or Commission) gave a reasoned explana-
tion for its change of standard and thus complied with
the requirement of the Administrative Procedures Act,
5 U.S.C.  706(2)(A).
A television broadcaster, Fox Television Stations,
Inc., challenges the lawfulness of a small change made
by the FCC in its standards for adjudicating complaints
of indecency over the airwaves.  The Commission exer-
cises the responsibility of determining, upon receipt of
public complaints, whether a licensed broadcaster has
violated 18 U.S.C.  1464 by disseminating indecent ma-
terial over the airwaves.  Beginning with its adjudication
of complaints arising from the broadcast of the Golden
Globe Awards in 2002, the Commission instituted a
change in its manner of dealing with fleeting, i.e. un-
repeated, expletives.  During this broadcast, rock-musi-
cian Bono expressed delight over his receipt of an award
by saying, [T]his is really, really, fucking brilliant.  In
a lengthy tradition of previous FCC rulings, absence of
repetition of an expletive had been virtually conclusive
against finding an indecency violation.  The staff there-
fore recommended in Bonos case, largely because the
47a
expletive was unrepeated, that no violation be found.
See Complaints Against Various Broadcast Licensees
Regarding Their Airing of the Golden Globe Awards
Program, 18 F.C.C.R. 19859, at  6 (Enforcement Bu-
reau 2003).  The Commission reversed the recommenda-
tion of its staff.  Adopting a new altered standard, which
diminished the significance of the fact that the poten-
tially offensive expletive was not repeated, the Commis-
sion concluded that the broadcast of Bonos expletive
constituted indecency in violation of  1464.  See Com-
plaints Against Various Broadcast Licensees Regard-
ing Their Airing of the Golden Globe Awards Pro-
gram, 19 F.C.C.R. 4975, at  12, 17 (2004) (Golden
Globes).
The occurrences under review in this case followed
soon after the Bono incident, during live broadcasts by
Fox of Billboard Music Awards shows in 2002 and 2003.
In the 2002 Billboard Music Awards, the actress and
singer Cher, expressing triumphant delight upon her
receipt of an award, said, People have been telling me
Im on the way out every year, right?  So fuck em.  The
incident during the 2003 Billboard Music Awards in-
volved Nicole Richie and Paris Hilton, the co-stars of a
serialized televised comedy show entitled, The Simple
Life, as presenters of awards.  In The Simple Life,
Richie and Hilton play themselves as two spoiled, rich
young women from Beverly Hills who cope with life on
a farm.  In joking reference to their own show, Richie
said, Why do they even call it The Simple Life?  Have
you ever tried to get cow shit out of a Prada purse?  Its
not so fucking simple.  The Commission received com-
plaints about each incident. Referring to its newly
changed policy developed in response to the Bono inci-
dent in Golden Globes, the Commission found that the
48a
two Billboard Music incidents were violations.  See Com-
plaints Regarding Various Television Broadcasts Be-
tween February 2, 2002 and March 8, 2005, 21 F.C.C.R.
13299 (2006) (Remand Order).  Fox brought this ac-
tion seeking to invalidate the Commissions rulings.
In adjudicating indecency complaints the Commis-
sion generally employs a context-based evaluation to
determine whether the particular utterance is patently
offensive as measured by contemporary community stan-
dards.  Industry Guidance on the Commissions Case
Law Interpreting 18 U.S.C.  1464, 16 F.C.C.R. 7999, at
 8 (2001) (Industry Guidance) (emphasis in original).
Factors weighing in favor of a finding of indecency are:
(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 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.  Industry Guidance, at
 10 (emphasis in original).  Especially in relation to the
pandering factor, a finding of violation is less likely if
the broadcast of the utterance involved a genuine news
report, or if censorship of the expletive would harm or
distort artistic integrity.  Prior to the Bono incident, the
Commission attached great importance to the second
factor, which focuses on whether an expletive was re-
peated.  Under the pre-Golden Globes rulings, the fact
that an utterance was fleeting was virtually conclusive
in assuring it would not be deemed a violation (unless it
breached special barriers, such as by referring to sexual
activities with children).  With its Golden Globes adjudi-
cation, however, the Commission adopted a less permis-
sive stance.  It announced that henceforth fleeting exple-
49a
tives would be judged according to a standard more
closely aligned with repeated utterances of expletives.
Thus, the Commission has declared that it remains un-
likely to find a violation in an expletive that is broadcast
in the context of a genuine news report, or where cen-
sorship by bleeping out the expletive would compromise
artistic integrity, but it will no longer give a nearly auto-
matic pass merely because the expletive was not re-
peated.  See Remand Order, at  23.
The Commission explained succinctly why lack
of repetition of the F-Word would no longer result in a
virtual free pass.  [W]e believe that, given the core-
meaning of the F-Word, any use of that word or a vari-
ation, in any context, inherently has a sexual connota-
tion.  .  .  .  The F-Word is one of the most vulgar,
graphic and explicit descriptions of sexual activity in the
English language. Its use invariably invokes a coarse
sexual image.  Golden Globes, at  8-9.  [A]ny use of
that word has a sexual connotation even if the word is
not used literally.  Remand Order, at  16.
My colleagues find that in so altering its standards
the Commission has acted illegally.  They rule that the
Commission failed to give a reasoned analysis explaining
the change of rule.  They accordingly find that the
change of standard was arbitrary and capricious and
therefore violated the Administrative Procedure Act. I
disagree.  In explanation of this relatively modest
change of standard, the Commission gave a sensible,
although not necessarily compelling, reason.  In relation
to the word fuck, the Commissions central explana-
tion for the change was essentially its perception that
the F-Word is not only of extreme and graphic vulgar-
ity, but also conveys an inescapably sexual connotation.
50a
The Commission thus concluded that the use of the F-
Wordeven in a single fleeting instance without repeti-
tionis likely to constitute an offense to the decency
standards of  1464.
The standards for judicial review of administrative
actions are discussed in a few leading Supreme Court
opinions from which the majority quotes.  Agencies op-
erate with broad discretionary power to establish rules
and standards, and courts are required to give deference
to agency decisions.  See Chevron U.S.A., Inc. v. Natu-
ral Res. Def. Council, Inc., 467 U.S. 837, 844, 104 S. Ct.
2778, 81 L. Ed. 2d 694 (1984).  A court must not substi-
tute its judgment for that of the agency.  Motor Vehicle
Mfrs. Assn of U.S., Inc. v. State Farm Mut. Auto. Ins.
Co., 463 U.S. 29, 43, 103 S. Ct. 2856, 77 L. Ed. 2d 443
(1983); see also Vermont Yankee Nuclear Power Corp.
v. Natural Res. Def. Council, Inc., 435 U.S. 519, 558, 98
S. Ct. 1197, 55 L. Ed. 2d 460 (1978) (Administrative
decisions should [not] be set aside  .  .  .  because the
court is unhappy with the result reached.).  In general,
an agencys determination will be upheld by a court un-
less found to be arbitrary and capricious.  See 5 U.S.C.
706(2)(A).
An agency is free furthermore to change its stan-
dards.  See Chevron, 467 U.S. at 863, 104 S. Ct. 2778
(An initial agency interpretation is not instantly carved
in stone.); Huntington Hosp. v. Thompson, 319 F.3d 74,
79 (2d Cir.2003) ([A]n agency is not locked into the first
interpretation of a statute it embraces.); Ramaprakash,
346 F.3d at 1125 (Agencies are free to change course as
their expertise and experience may suggest or re-
quire.).   The Supreme Court has made clear that when
an agency changes its standard or rule, it is obligated
51a
15
 Judge Friendly noted:
What gives concern is the manner, alas not atypical of the agencies,
in which [a] change was madeslipped into an opinion in such a
way that only careful readers would know what had happened,
without articulation of reasons, and with prior authorities not
overruled, so that the opinion writers remain free to pull them out
of the drawer whenever the agency wishes to reach a result
supportable by the old rule but not the new.
Henry J. Friendly, The Federal Administrative Agencies 63 (1962).
to supply a reasoned analysis for the change.  State
Farm, 463 U.S. at 42, 103 S. Ct. 2856.  If an agency with-
out explanation were to make an adjudication which is
not consistent with the agencys previously established
standards, the troubling question would arise whether
the agency has lawfully changed its standard, or
whether it has arbitrarily failed to adhere to its stan-
dard, which it may not lawfully do.
15
  Accordingly our
court has ruled that an agency  .  .  .  cannot simply
adopt inconsistent positions without presenting some
reasoned analysis.  Huntington Hosp., 319 F.3d at 79.
Such explanation, we have said, is necessary so that the
reviewing court may be able to understand the basis of
the agencys action so that it may judge the consistency
of that action with the agencys mandate.  Mr. Sprout,
Inc. v. United States, 8 F.3d 118, 129 (2d Cir. 1993).  The
District of Columbia Circuit has similarly reasoned that
an agencys failure to come to grips with conflicting
precedent constitutes an inexcusable departure from the
essential requirement of reasoned decision making.
Ramaprakash, 346 F.3d at 1125 (quotation marks omit-
ted).  In changing course, an agency must provide a
reasoned analysis indicating that prior policies and stan-
52a
dards are being deliberately changed, not casually ig-
nored.  Id. at 1124 (quotation marks omitted).
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 Remand Order rulings were not con-
sistent with its prior standard regarding lack of repeti-
tion.  It announced the adoption of a new standard.  And
it furnished a reasoned explanation for the change.  Al-
though one can reasonably disagree with the Commis-
sions new position, its explanationat least with re-
spect to the F-Wordis not irrational, arbitrary, or ca-
pricious.  The Commission thus satisfied the standards
of the Administrative Procedures Act.
The Commission explained that the F-Word is one
of the most vulgar, graphic and explicit descriptions of
sexual activity in the English language [whose] use in-
variably invokes a coarse sexual image.  Golden Globes,
at  9.  In other words, the Commission found, contrary
to its earlier policy, that the word is of such graphic ex-
plicitness in inevitable reference to sexual activity that
absence of repetition does not save it from violating the
standard of decency.
My colleagues offer several arguments in support of
their conclusion that the Commissions explanation was
not reasonable and therefore arbitrary and capricious.
They argue (i) the Commissions position is irrational
because of inconsistency resulting from the Commis-
sions willingness to allow viewers to be subjected to a
first blow if it comes in the context of a genuine news
broadcast; (ii) the Commissions prediction that allow-
ance of fleeting expletives will result in a great increase
in their incidence is irrational because prior experience
53a
was to the contrary; and (iii) the Commission is di-
vorced from reality believing that the F-Word invari-
ably invokes a sexual connotation.  I respectfully dis-
agree.
The majority argues that the Commissions change
of standard is irrational because it is inconsistent.  The
opinion goes on to explain:
[T]he Commission does not take the position that
any occurrence of an expletive is indecent.  .  .  .
[T]he Commission will apparently excuse an exple-
tive when it occurs during a bona fide news inter-
view.  .  .  .  The Commission even conceded that a
rebroadcast of precisely the same offending clips
of the two Billboard Music Award programs for
the purpose of providing background information on
this case would not result in any action by the FCC.
.  .  . [E]ven repeated and deliberate use of numerous
expletives is not indecent  .  .  .  if the expletives are
integral to the work [as in the case of the film
Saving Private Ryan].
Majority op. at pages 458-59.  The majority is of course
correct that the Commission does not follow an all-or-
nothing policy.  Its standards do attempt to draw
context-based distinctions, with the result that no viola-
tion will be found in circumstances where usage is con-
sidered sufficiently justified that it does not constitute
indecency.
This, however, is in no way a consequence of the Com-
missions change of standard for fleeting expletives.  It
applies across the board to all circumstances.  Regard-
less of whether the expletive was repeated or fleeting,
the Commission will apply context-based standards to
54a
16
 Spectators in the courtroom observing the argument of this case
would have heard the judges and the lawyers saying fuck in open
court.  Had the case been on another subject, such usage would surely
determine whether the incident constituted indecency.
A bona fide news context and recognition of artistic in-
tegrity favor a finding of no violation.  The majoritys
criticism of inconsistency is not properly directed
against the change of standard here in question, which
has done nothing to increase the inconsistency.  If any-
thing, the change of standard has made the Commission
more consistent rather than less, because under the new
rule, the same context-based factors will apply to all
circumstances.  If there is merit in the majoritys argu-
ment that the Commissions actions are arbitrary and
capricious because of irrationality in its standards for
determining when expletives are permitted and when
forbidden, that argument must be directed against the
entire censorship structure.  It does not demonstrate
that the Commissions change of standard for the fleet-
ing expletive was irrational.
Furthermore, while the Commission will indeed allow
the broadcast of the same material in some circum-
stances but not in others, I do not see why this differen-
tiation should be considered irrational.  It rather seeks
to reconcile conflicting values. On the one hand, it recog-
nizes, as stressed by the Supreme Court in Pacifica, the
potential for harm to children resulting from exposure
to indecency.  On the other hand, the Commission has
historically recognized that categorical prohibition of
the broadcast of all instances of usage of a word gener-
ally considered indecent would suppress material of
value, which should not be deemed indecent upon consid-
eration of the context.  This is not irrationality.
16
  It is an
55a
have seemed inappropriate.  Because of the issues in this case, the word
was central to the issues being discussed.  It is not irrational to take
context into account to determine whether use of the word is indecent.
attempt on the part of the Commission over the years to
reconcile conflicting values through standards which
take account of context.
The majority then argues that the Commission rea-
soned irrationally when in its Remand Order, as a part
of its explanation for its change of position, the Commis-
sion observed:
[G]ranting an automatic exemption for isolated or
fleeting expletives  .  .  .  would as a matter of logic
permit broadcasters to air expletives at all hours of a
day so long as they did so one at a time.  For exam-
ple, broadcasters would be able to air  .  .  .  offen-
sive .  .  .  words, regardless of context, with impunity
.  .  .  provided that they did not air more than one
expletive in any program segment.
Remand Order, at  25.  The majority asserts that this
concern was divorced from reality.  Majority op. at
page 460.  On the majoritys view, because broadcasters
did not barrage[ ] the airwaves with expletives during
the period prior to Golden Globes when fleeting exple-
tives received a free pass, they would not do so in the
future.
The agency has one prediction of what would likely
occur in the future under the pre-Golden Globes policy.
The majority has another.  The majority may be right in
speculating that the Commissions concern is exagger-
ated.  Who knows?  As a matter of law, it makes no dif-
ference. The court is obligated to give deference to
agency judgment and may not substitute its judgment
56a
17
 See, e.g., Gail Pennington, Kingpin There Are More Things in
Heaven and Earth Than Sopranos, NBC Insists, St. Louis Post-Dis-
patch, Feb. 2, 2003, at F1 (Although they tried at first to feign in-
difference, broadcasters have seethed for years over the critical acclaim
and abundant awards handed to cable series like The Sopranos. The
complaint: that the playing field isnt level. Broadcasters are strained
by FCC rules about contentnudity and sex, violence and language
that dont apply to cable.); Jim Rutenberg, Few Viewers Object as Un-
bleeped Bleep Words Spread on Network TV, N.Y. Times, Jan. 25, 2003,
at B7 (Broadcast television, under intensifying attack by saltier cable
for that of the agency, or set aside an agency action
merely because the court believes the agency is wrong.
See State Farm, 463 U.S. at 43, 103 S. Ct. 2856 (court
must not substitute its judgment for that of the
agency); Vermont Yankee, 435 U.S. at 558, 98 S. Ct.
1197 (Administrative decisions should [not] be set aside
.  .  .  because the court is unhappy with the result.).
Only if the agencys action is arbitrary and capricious
may the court nullify it. 5 U.S.C.  706(2)(A).
Furthermore, if obligated to choose, I would bet my
money on the agencys prediction.  The majoritys view
presupposes that the future would repeat the past.  It
argues that because the networks were not flooded with
discrete, fleeting expletives when fleeting expletives had
a free pass, they would not be flooded in the future.
This fails to take account of two facts.  First, the words
proscribed by the Commissions decency standards are
much more common in daily discourse today than they
were thirty years ago.  Second, the regulated networks
compete for audience with the unregulated cable chan-
nels, which increasingly make liberal use of their free-
dom to fill programming with such expletives.  The me-
dia press regularly reports how difficult it is for net-
works to compete with cable for that reason.
17
  It seems
57a
competitors, is pushing the limits of decorum further by the year, and
hardly anyone is pushing back.); Jim Rutenberg, Hurt by Cable,
Networks Spout Expletives, N.Y. Times, Sept. 2, 2001, at 11 (Broad-
cast television is under siege by smaller cable competitors that are win-
ning audiences while pushing adult content.  In that climate, broadcast
is fighting the perception that its tastes are lagging behind those of a
media-saturated culture whose mores have grown more permissive.).
to me the agency has good reason to expect that a
marked increase would occur if the old policy were con-
tinued.
In any event, even if the majority could reasonably
label this aspect of the Commissions reasoning arbi-
trary and capricious, it still would not matter.  The
agencys action in changing the standard for fleeting
expletives did not depend on the defensibility of this
prediction. It is at most a small part of the agencys jus-
tification for its action.
Finally the majority disagrees with the Commissions
view that the word fuck communicates an inherently
.  .  .  sexual connotation [and] invariably invokes a
coarse sexual image.  Golden Globes, at  8-9.  The
majority notes that the F-Word is often used in every-
day conversation without any sexual meaning.  Majority
op. at page 459.  I agree with the majority that the word
is often used without a necessary intention on the part
of the speaker to refer to sex.  A student who gets a dis-
appointing grade on a test, a cook who burns the roast,
or a driver who returns to his parked car to find a park-
ing ticket on the windshield, might holler out the F-
Word to express anger or disappointment.  The word is
also sometimes used to express delight, as with Bonos
exhilarated utterance on his receipt of his award.  Some
use it more as a declaration of uncompromising tough-
58a
ness, or of alignment on the side of vulgarity against
prissy manners, without necessarily intending to evoke
any sexual meaning.  Some use it to intensify whatever
it is they may be saying, and some sprinkle the word
indiscriminately throughout their conversation with no
apparent meaning whatsoever.
The majority, however, misunderstands the Commis-
sions reasoning, or in any event interprets it in the man-
ner least favorable to the Commission.  In observing
that fuck invariably invokes a coarse sexual image,
Golden Globes, at  9, that this is so even if the word is
not used literally, Remand Order, at  16, and that its
power to offend derives from its sexual  .  .  .  meaning,
id. at  23, the Commission did not mean that every
speaker who utters the word invariably intends to com-
municate an offensive sexual meaning.  The Commission
explicitly recognized that the word can be used in a man-
ner that does not intend a sexual meaning.  A fairer
reading of the Commissions meaning is that, even when
the speaker does not intend a sexual meaning, a sub-
stantial part of the community, and of the television au-
dience, will understand the word as freighted with an
offensive sexual connotation.  It is surely not irrational
for the Commission to conclude that, according to the
understanding of a substantial segment of the commu-
nity, the F-Word is never completely free of an offen-
sive, sexual connotation.  It is no accident that in many
languages, the equivalent of the F-Word finds usage, as
in English, to express anger, disgust, insult, and con-
frontation.
What we have is at most a difference of opinion be-
tween a court and an agency.  Because of the deference
courts must give to the reasoning of a duly authorized
59a
18
As each of the instances under review in this case involved the use
of the F-Word, and because I find that the Commission has given a
rational justification for its rule as applied to use of the F-Word, I do
not consider the Commissions standard which makes it a decency vio-
lation to use the word shit.  In Pacifica, in upholding the constitution-
ality of censorship under  1464, the Supreme Court stressed the acces-
sibility of broadcasting to children.  See Pacifica, 438 U.S. at 749, 98 S.
Ct. 3026; Remand Order, at  51.  The potential for harm to children
resulting from indecent broadcasting was clearly a major concern
justifying the censorship scheme.  In this regard, it seems to me there
is an enormous difference between censorship of references to sex and
censorship of references to excrement.  For children, excrement is a
main preoccupation of their early years.  There is surely no thought
that children are harmed by hearing references to excrement.
Nicole Richies script called for her to say it was not easy to get
pig crap out of a Prada purse.  In delivering the line, Richie changed
pig crap to cow shit.  Had she stuck with pig crap, that reference
would not have been a violation, but her change to cow shit could have
resulted in forfeitures and perhaps even the loss of Foxs license to
broadcast.  In another instance, the Commission found a violation
(which was later vacated on other grounds) because someone was de-
scribed as a bullshitter.  See Complaints Regarding Various Tele-
vision Broadcasts Between February 2, 2002 and March 8, 2005, 21
F.C.C.R. 2664 (2006); Remand Order, at  73.  The justification is surely
not that children will be harmed by hearing shit but not by hearing
crap.  It appears that at least some of the Commissions prohibitions
are not justified at all by the risk of harm to children but only by
concern for good manners.  When the censorship is exercised only to
administrative agency in matters within the agencys
competence, a courts disagreement with the Commis-
sion on this question is of no consequence.  The Commis-
sions position is not irrational; it is not arbitrary and
capricious.
I believe that in changing its standard, the Commis-
sion furnished a reasoned explanation, and thus satisfied
the requirements of the Administrative Procedures
Act.
18
60a
protect polite manners and not by reason of risk of harm, I question
whether it can survive scrutiny.  Because each instance of censorship
at stake in this case involved the F-Word, which in the Commissions
view inherently retains a sexual reference, the question does not arise
in this case.
19
I express neither agreement nor disagreement with my colleagues
added discussion of Foxs other challenges to the Commissions actions
because, as the majority opinion recognizes, it is dictum and therefore
not an authoritative precedent in our Circuits law.  In subsequent
adjudications, the respect accorded to dictum depends on its persuasive
force and not on the fact that it appears in a court opinion.
I therefore respectfully dissent.
19
61a
APPENDIX B
Before the 
Federal Communications Commission 
Washington, D.C. 20554
IN THE MATTER OF COMPLAINTS REGARDING VARI-
OUS TELEVISION BROADCASTS BETWEEN FEBRUARY
2, 2002 AND MARCH 8, 2005
Released: Nov. 6, 2006
Adopted:  Nov. 6, 2006
ORDER
By the Commission:  Commissioner Adelstein con-
curring in part, dissenting in
part, and issuing a statement. 
TABLE OF CONTENTS
Heading Paragraph #
I. INTRODUCTION ........................ [1]
II. BACKGROUND .......................... [2]
III. DISCUSSION ........................... [11]
A. The 2003 Billboard Music Awards . . . [12]
B. The 2002 Billboard Music Awards . . . [55]
C. The Early Show .................... [67]
D. NYPD Blue ........................ [74]
IV. ORDERING CLAUSES .................. [78]
62a
1
For purposes of this Order, we refer to all of the complained-about
episodes of NYPD Blue as a single program. 
2
Complaints Regarding Various Television Broadcasts Between
February 2, 2002 and March 8, 2005, Notices of Apparent Liability and
Memorandum Opinion and Order, 21 FCC Rcd 2664 (2006) (Omnibus
Order), pets. for review pending, Fox Television Stations, Inc. v. FCC,
No. 06-1760-AG (2d Cir. filed Apr. 13, 2006), remanded and partially
stayed, Sept. 7, 2006 (Remand Order).
 
I. INTRODUCTION 
1.  In this Order, we address complaints alleging that
four television programs (The 2002 Billboard Music
Awards, The 2003 Billboard Music Awards, NYPD
Blue, and The Early Show) contained indecent and/or
profane material.
1
  After considering the comments sub-
mitted by broadcasters as well as other interested par-
ties, we find that comments made by Nicole Richie dur-
ing The 2003 Billboard Music Awards and by Cher
during the The 2002  Billboard Music Awards are in-
decent and profane as broadcast but that the
complained-of material aired on The Early Show is
neither indecent nor profane.  In addition, we dismiss on
procedural grounds the complaints involving NYPD
Blue as inadequate to trigger enforcement action. 
II. BACKGROUND 
2.  On March 15, 2006, the Commission released No-
tices of Apparent Liability and a Memorandum Opinion
and Order (Omnibus Order) resolving numerous com-
plaints that television broadcasts aired between Febru-
ary 2, 2002, and March 8, 2005, contained indecent, pro-
fane, and/or obscene material.
2
  Section III.A of the Om-
nibus Order proposed monetary forfeitures against six
63a
3
Id. at 2670-90  22-99. 
4
Id. at 2700-20  146-232. 
5
Id. at 2690  101.  See Letter from Lara Mahaney, Director of
Corporate and Entertainment Affairs, PTC to David Solomon, Chief,
Enforcement Bureau, Federal Communications Commission (August
22, 2003). 
6
Id.  The Enforcement Bureau obtained a videotape of the broadcast
that confirmed the allegation in the complaint.  Omnibus Order, 21
FCC Rcd at 2690  101. 
7
Id. at 2692  112. 
different television broadcasts for apparent violations of
our prohibitions against indecency and/or profanity.
3
Section III.C addressed twenty-eight broadcasts that
we concluded did not violate indecency, profanity, and/or
obscenity restrictions for various reasons.
4
  In the por-
tion of the Omnibus Order at issue here, Section III.B,
the Commission considered complaints filed against four
programs. 
3.  The 2002 Billboard Music Awards.  The Com-
mission received a complaint concerning The 2002 Bill-
board Music Awards program that aired on Station
WTTG(TV), Washington, DC, beginning at 8:00 p.m.
Eastern Standard Time on December 9, 2002.
5
  The com-
plaint specifically alleged that during the broadcast
Cher, an award winner, stated, People have been tell-
ing me Im on the way out every year, right?  So fuck
em.
6
 
4.  The 2003 Billboard Music Awards.  The Com-
mission received a number of complaints about the The
2003 Billboard Music Awards program that aired on
Fox Television Network stations beginning at 8:00 p.m.
Eastern Standard Time on December 10, 2003.
7
  The
complaints concerned a segment in which Nicole Richie,
64a
8
Id. at  112 and n. 164. 
9
Id. at 2696  125.  The Commission provided the following descrip-
tions of the complained-of portions of the broadcasts: 
1/14/03 episode (Det. Sipowitz in response to his partners arrest by
Internal Affairs):  Alright, this is Bullshit! 
2/4/03 episode (Det. Sipowitz to street officer regarding that
officers partner framing Sipowitzs partner):  Over timeover
whatbullshit, a beef! 
2/18/03 episode (stated by a suspect who bragged about, but now
denies, killing his daughter):  I told people I killed Samia to try
and get respect back.  She had ashamed me and my community
look at me as a fool.  Det. 1:  You took credit for killing your
daughter?!  Bullshit! 
4/15/03 episode (Det. harassing suspect who had harassed prosecu-
tor):  Im hoping this bullshit about you trying to get under ADA
Haywoods skin is a misunderstanding. 
5/6/03 episode (Captain to Det. who harassed suspect in 4/15
episode):  He said you nearly assaulted his client last night.  Det.:
Well, thats a bunch of bullshit. 
Id. at n. 187. 
an award presenter, stated, Have you ever tried to get
cow shit out of a Prada purse?  Its not so fucking sim-
ple.
8
 
5.  NYPD Blue.  The Commission received com-
plaints concerning the use of the term bullshit in sev-
eral NYPD Blue episodes that aired on KMBC-TV,
Kansas City, Missouri, beginning at 9:00 p.m. Central
Standard Time on various dates between January 14 and
May 6, 2003.
9
6.  The Early Show.  The Commission received a
viewer complaint that Station KDKA-TV, Pittsburgh,
Pennsylvania, licensed to CBS Broadcasting, Inc.
65a
10
  Id. at 2698-99  137. 
11
 Id.  See id. at 2699 n.199 (In commenting on the strategy
employed by the fellow contestant, Ms. Tanner stated:  I knew he was
a bullshitter from Day One.  The interviewer, Julie Chen, recognized
the inappropriateness of the language, stating:  I hope we had the cue
ready on that one  .  .  .  We cant say that word  .  .  .  There is a
delay.). 
12
 Id. at 2690-2700  100-45.  See 18 U.S.C.  1464; 47 C.F.R.
 73.3999.  However, with respect to complaints regarding the use of the
words dick and dickhead in episodes of NYPD Blue, the Commis-
sion found that in context the broadcasts of these terms were not
patently offensive under its contextual analysis and based on FCC
precedent.  Omnibus Order, 21 FCC Rcd at 2696-97  127. 
13
  Omnibus Order, 21 FCC Rcd at 2690  100. 
14
 Complaints Against Various Broadcast Licensees Regarding
Their Airing of the Golden Globe Awards Program, Memorandum
Opinion and Order, 18 FCC Rcd 19859 (Enf. Bur. 2003), review granted,
19 FCC Rcd 4975, 4981  13-14 (2004) (Golden Globe Awards Order),
petitions for stay and recon. pending. 
(CBS), aired the word bullshit during The Early
Show at approximately 8:10 a.m. Eastern Standard
Time on December 13, 2004.
10
  A videotape obtained
from CBS showed that during a live interview with
Twila Tanner, a contestant on the CBS program Survi-
vor: Vanuatu, Ms. Tanner referred to another contes-
tant as a bullshitter.
11
 
7. In Section III.B of the Omnibus Order, the Com-
mission found that the broadcasts at issue apparently
violated the statutory and regulatory prohibitions
against airing indecent and profane material.
12
  In light
of the circumstances, however, the Commission did not
initiate forfeiture proceedings against the relevant li-
censees.
13
  All of the broadcasts discussed in Section
III.B, except for the The Early Show, preceded the
Golden Globe Awards Order,
14
 in which the Commission
66a
15
  See Omnibus Order, 21 FCC Rcd at 2692  111, 2695  124, 2698
 136.  
16
  Id. at 2700  145. 
17
  Id. at 2690  100. 
18
  See supra n. 2 (noting pending petitions for review). 
19
  The Second Circuit also granted motions to intervene in the Fox-
CBS case by NBC Universal, Inc., NBC Telemundo License Co., NBC
Television Affiliates, FBC Television Affiliates Association, CBS
Television Network Affiliates Association, and the Center for Creative
Community, Inc.  Before transferring the ABC-Hearst case, the D.C.
Circuit granted ABC Television Affiliates Associations motion to inter-
vene. 
made clear that the isolated use of an offensive expletive
could be actionably indecent.
15
   The FCC also stated
that its precedent at the time of The Early Show
broadcast did not clearly indicate that the Commission
would take enforcement action against an isolated use
of shit (the S-Word) or its variants.
16
  Accordingly,
consistent with its commitment to proceed with caution
and restraint in this area, the Commission decided that
it would not take any adverse action against any licensee
as a result of these apparent violations.
17
 
8.  Following release of the Omnibus Order, several
parties petitioned for judicial review of Section III.B,
asserting a variety of constitutional and statutory chal-
lenges.  Fox Television Stations, Inc. (Fox) and CBS
filed a joint petition for review in the United States
Court of Appeals for the Second Circuit.
18
  ABC Televi-
sion Network (ABC) and Hearst-Argyle Television,
Inc. (Hearst) filed a joint petition for review in the
United States Court of Appeals for the D.C. Circuit,
which later transferred the petition to the Second Cir-
cuit.  The Second Circuit consolidated the petitions on
June 14, 2006.
19
   
67a
20
  See 47 U.S.C.  503(b)(4)(A); Industry Guidance on the Commis-
sions Case Law Interpreting 18 U.S.C.  1464 and Enforcement
Policies Regarding Broadcast Indecency, Policy Statement, 16 FCC
Rcd 7999, 8015-16  26-27 (2001) (Indecency Policy Statement). 
21
 The Commission did send a narrow Letter of Inquiry (LOI)
regarding The 2003 Billboard Music Awards broadcast, receiving a
limited response from Fox on January 30, 2004.  Fox also responded to
a supplemental LOI without presenting new legal arguments.  The
Commission did not send LOIs regarding the complained-of broadcasts
of The 2002 Billboard Music Awards, NYPD Blue, and The Early
Show prior to the courts remand.  
9.  At the same time, several parties complained to
the Commission about the process the Commission fol-
lowed in formulating Section III.B of the Omnibus Or-
der. The Commission ordinarily provides broadcasters
with an opportunity to file responses and raise argu-
ments before imposing forfeiture liability.
20
  With one
exception, however, the FCC did not seek the views of
the licensees affected by Section III.B of the Omnibus
Order because the Commission did not impose any sanc-
tions on them.
21
  Following the release of the Omnibus
Order, broadcasters complained that they should have
had an opportunity to present their views before the
Commission reached its decisions in Section III.B.
Upon reflection, the Commission agreed and stated that
it wanted to ensure that all of the affected licensees
were afforded a full opportunity to be heard before the
Commission issued a final decision with respect to the
broadcasts at issue. Accordingly, on July 5, 2006, the
Commission asked the Second Circuit for a voluntary
remand of the case and stay of the briefing schedule.
The Commission asked the court to remand the case for
60 days in order to afford interested parties an opportu-
68a
22
 Remand Order at 2. 
23
 See Public Notice, FCC Announces Filing Procedures In Connec-
tion With Court Remand of Section III.B of the Commissions March
15, 2006 Omnibus Order Resolving Numerous Broadcast Television
Indecency Complaints, DA 06-1739 (rel. Sept. 7, 2006). 
nity to file responses and the Commission an opportu-
nity to give the issues further consideration. 
10.  The Second Circuit granted the Commissions
motion on September 7, 2006, remanding for a period of
60 days for the entry of a further final or appealable
order of the FCC following such further consideration as
the FCC may deem appropriate in the circumstances.
22
On the same day, the Commission announced a two-
week filing period for interested parties wishing to sub-
mit comments concerning the four cases.
23
  The Enforce-
ment Bureau separately issued Letters of Inquiry
(LOIs) to Fox, CBS, and KMBC Hearst-Argyle Tele-
vision, Inc. on September 7, 2006, and to those broad-
casters as well as other parties to the Second Circuit
proceeding on September 18, 2006. 
III. DISCUSSION 
11.  Consistent with our commitment to consider the
comments and LOI responses filed following the Second
Circuits Remand Order and to take a fresh look at the
issues raised by the four programs at issue on remand,
we vacate Section III.B of the Omnibus Order in its en-
tirety and replace it with the decisions below. 
69a
24
  FCC File Nos. EB-03-IH-0617, EB-04-IH-0295, EB-04-IH-0091.
25
  See Letter from William D. Freedman, Deputy Chief, Investiga-
tions and Hearings Division, Enforcement Bureau, to Fox Television
Stations, Inc. (January 7, 2004). 
26
  See Letter from John C. Quale, Counsel, Fox Television Stations,
Inc., to Investigations and Hearings Division, Enforcement Bureau,
FCC, File No. EB-03-IH-0617 (January 30, 2004) (Response). 
27
  The Simple Life, which debuted on December 2, 2003, followed
Ms. Hiltons and Ms. Richies fish-out-of-water adventures upon being
transplanted from Beverly Hills, California to an Arkansas farm for 30
days.  A New York Times review described the show as [a]n updated
A.  The 2003 Billboard Music Awards 
12.  The Programming.  The Commission, Fox, sta-
tions licensed to Fox or its affiliated companies, and af-
filiates of the Fox Television Network all received a
number of complaints from individual viewers and orga-
nizations alleging that Fox stations aired indecent mate-
rial during The 2003 Billboard Music Awards program
on December 10, 2003 between 8 p.m. and 10 p.m. East-
ern Standard Time.
24
  The complainants alleged that
Nicole Richie, who with Paris Hilton presented an award
on the program, uttered language that was indecent and
profane in violation of 18 U.S.C.  1464 and the Commis-
sions rule restricting the broadcast of indecent mate-
rial.  The complainants requested that the Commission
impose sanctions against each station that aired the re-
marks. 
13. The Bureau sent Fox a letter of inquiry on Janu-
ary 7, 2004.
25
  Fox responded on January 30, 2004, at-
taching a transcript of the material at issue.
26
  According
to Fox, the program announcer introduced Paris Hilton
and Nicole Richie, stars of the Fox Television Network
show The Simple Life,
27
 as follows: To pre-
70a
Green Acres featuring Ms. Hilton, 22, of the hotel fortune, and Ms.
Richie, also 22, daughter of the pop singer Lionel Richie.  Alessandra
Stanley, With a Rich Girl Here and a Rich Girl There, N.Y. Times,
Dec. 2, 2003, at E1.  The cover of the Simple Life DVD describes Ms.
Hilton and Ms. Richie in the following manner:  Theyre Rich.  Theyre
Sexy.  Theyre TOTALLY-OUT-OF-CONTROL!  Discussing Fox exe-
cutives original idea for the show in an interview, one executive touched
on the same excretory theme as The 2003 Billboard Awards script,
stating that [t]hey wanted to see stilettos in cow shit.  http://web.
archive.org/web/20040215040316/http://www.tvweek.com/topstorys/11
2403simplelife.html.   Daily Varietys review of the premiere episode
also described Ms. Richies penchant for bad language, labeling her
as potty-mouthed.  Brian Lowry, The Simple Life, Daily Variety,
Nov. 25, 2003 at 4.
sent the award for Top 40 Mainstream Track, here are
two babes whose lives are anything but mainstream.
From their hit TV series, The Simple Life, please wel-
come Nicole Richie and Paris Hilton. Following that
introduction, Paris Hilton and Nicole Richie walked on-
stage to present the award.  Fox-owned stations and Fox
affiliates in the Eastern and Central Time Zones then
broadcast the following exchange between them: 
Paris Hilton: Now Nicole, remember, this is a live
show, watch the bad language. 
Nicole Richie: Okay, God. 
Paris Hilton: It feels so good to be standing here
tonight. 
Nicole Richie: Yeah, instead of standing in mud
and [audio blocked].  Why do they
even call it The Simple Life?
Have you ever tried to get cow shit
71a
28
  See Response at 3-4. 
29
  Id. at 12-13. 
30
  Id.
31
  Infinity Broadcasting Corporation of Pennsylvania, Memoran-
dum Opinion and Order, 2 FCC Rcd 2705 (1987) (subsequent history
omitted) (citing Pacifica Foundation, Memorandum Opinion and
Order, 56 FCC 2d 94, 98 (1975), affd sub nom. FCC v. Pacifica Foun-
dation, 438 U.S. 726 (1978)). 
out of a Prada purse?  Its not so
fucking simple.
28
 
14. Fox contends that this broadcast was not action-
ably indecent.  Although Fox concedes that it broadcast
the F-Word, it argues that the word, in context, did not
depict or describe sexual activities but rather, at most,
was a vulgar expletive used to express emphasis, and
thus is outside the scope of the Commissions indecency
definition.
29
  As for the use of the S-Word, Fox does not
deny that it was used in the excretory sense.  It argues,
however, that the dialogue contained at most a passing
reference to an excretory by-product (i.e., cow shit) and
an expletive used for emphasis, that the dialogue lasted
only 22 seconds, and that it was not pandering, titillating
or shocking.
30
  Therefore, Fox contends that the dia-
logue is not actionably indecent. 
15.  Indecency Analysis.  The Commission defines
indecent speech as material that, in context, depicts or
describes sexual or excretory activities or organs in
terms patently offensive as measured by contemporary
community standards for the broadcast medium.
31
  Thus,
indecency findings require two primary determinations.
First, the material alleged to be indecent must fall
within the subject matter scope of our indecency defi-
72a
32
  Indecency Policy Statement, 16 FCC Rcd at 8002  8 (emphasis
in original); see Omnibus Order, 21 FCC Rcd at 2667  12. 
33
  Indecency Policy Statement, 16 FCC Rcd at 8002  9 (emphasis
in original).
34
  Id. at 8002-15  8-23. 
35
  Id. at 8003  10. 
36
  Id. at 8009  19 (citing Tempe Radio, Inc. (KUPD-FM), Notice of
Apparent Liability for Forfeiture, 12 FCC Rcd 21828 (Mass Media Bur.
1997) (forfeiture paid) (extremely graphic or explicit nature of refer-
ences to sex with children outweighed the fleeting nature of the
references); EZ New Orleans, Inc. (WEZB(FM)), Notice of Apparent
Liability for Forfeiture, 12 FCC Rcd 4147 (Mass Media Bur. 1997)
(forfeiture paid) (same)). 
nitionthat is, the material must describe or depict sex-
ual or excretory organs or activities.  Second, the mate-
rial must be patently offensive as measured by contem-
porary community standards for the broadcast me-
dium.
32
   In our assessment of whether broadcast mate-
rial is patently offensive, the full context in which the
material appeared is critically important.
33
  Three prin-
cipal factors are significant to this contextual analysis:
(1) the explicitness or graphic nature of the description;
(2) whether the material dwells on or repeats at length
the descriptions; and (3) whether the material panders
to, titillates or shocks the audience.
34
  In examining
these three factors, we must weigh and balance them to
determine whether the broadcast material is patently
offensive because [e]ach indecency case presents its
own particular mix of these, and possibly other, fac-
tors.
35
  In particular cases, one or two of the factors
may outweigh the others, either rendering the broadcast
material patently offensive and consequently indecent,
36
73a
37
  Indecency Policy Statement, 16 FCC Rcd at 8010  20 (the man-
ner and purpose of a presentation may well preclude an indecency
determination even though other factors, such as explicitness, might
weigh in favor of an indecency finding). 
38
  See, e.g., Grant Broadcasting System II, Inc. Licensee WJPR-TV,
12 FCC Rcd 8277, 8279 (Mass Media Bur. 1997) (NAL issued for non-
literal uses of the F-Word and the S-Word, such as this fucking
place is going to blow up); Pacifica Foundation, Inc., Memorandum
Opinion and Order, 2 FCC Rcd 2698, 2699  12-13 (1987) (subsequent
history omitted) (distinguishing between the use of expletives and
speech involving the description or depiction of sexual  .  .  .  functions
but indicating that both fall within the subject matter scope of our
indecency definition).  The Enforcement Bureaus departure from this
precedent in its Golden Globe Awards decision, Complaints Against
Various Broadcast Licensees Regarding Their Airing of the Golden
Globe Awards, Memorandum Opinion and Order, 18 FCC Rcd 19859
(Enf. Bur. 2003), was contrary to this precedent and thus appropriately
overturned by the Commission.  While the Bureau cited two cases for
the proposition that the use of the F-Word did not necessarily fall
within the subject matter scope of our indecency definition, both cases
were inapposite.  First, the F-Word was not even an issue in Enter-
com, which addressed the words prick and piss, and, in any event,
or, alternatively, removing the broadcast material from
the realm of indecency.
37
 
16.  With respect to the first determination, Fox does
not dispute that Ms. Richies commentHave you ever
tried to get cow shit out of a Prada purse?refers to
excrement, and we conclude that it is clearly within the
scope of our indecency definition.  Fox does contend that
Ms. Richies use of the F-Wordin the statement
[i]ts not so fucking simpledoes not describe sexual
activities and thus falls outside the scope of our inde-
cency definition, but we disagree.  A long line of prece-
dent indicates that the use of the F-Word for emphasis
or as an intensifier comes within the subject matter
scope of our indecency definition.
38
  Given the core
74a
was a Bureau rather than a Commission decision.  See Entercom
Buffalo License, LLC (WGR(AM)), Order, 17 FCC Rcd 11997 (Enf.
Bur. 2002).  Second, in Peter Branton, the Commission did not rule that
the some uses of the F-Word fell outside the subject matter scope of
our indecency definition.  Rather, we decided that the uses of the F-
Word there were not patently offensive in the context of the news
programming at issue in that case.  See Peter Branton, 6 FCC Rcd 610
(1991), appeal dismissed, 993 F.2d 906 (D.C. Cir. 1993), cert. den. 511
U.S. 1052 (1994). 
39
  See, e.g., American Heritage College Dictionary 559 (4th ed. 2002)
(defining the F-Word as 1: to have sexual intercourse with). 
40
 See Robert F. Bloomquist, The F-Word: A Jurisprudential
Taxonomy of American Morals (In a Nutshell), 40 Santa Clara L. Rev.
65, 98 (1999) (all F-word usage has at least an implicit sexual mean-
ing). 
41
  See Golden Globe Awards Order, 19 FCC Rcd at 4979  8. 
meaning of the F-Word, any use of that word has a
sexual connotation even if the word is not used literally.
Indeed, the first dictionary definition of the F-Word
is sexual in nature.
39
    Moreover, it hardly seems debat-
able that the words power to intensify and offend de-
rives from its implicit sexual meaning.
40
  Accordingly, we
conclude that, as we stated in Golden Globe,
41
  its use
inherently has a sexual connotation and thus falls within
the scope of our indecency definition.  The material thus
warrants further scrutiny to determine whether it is
patently offensive as measured by contemporary com-
munity standards for the broadcast medium.  Looking at
the three principal factors in our contextual analysis, we
conclude that it is. 
17. We will first address the first and third principal
factors in our contextual analysisthe explicitness or
graphic nature of the material and whether the material
panders to, titillates, or shocks the audience. The com-
75a
42
  See id. 
43
  To the extent that Fox argues that it did not present Ms. Richies
comment for shock value, see, e.g., Response at 13, it fundamentally
misunderstands the contextual analysis employed by the Commission.
In evaluating whether material is indecent, we examine the material
itself and the manner in which it is presented, not the subjective state
of mind of the broadcaster.  Complaints Against Various Television
Licensees Concerning Their February 1, 2004 Broadcast of the Super
Bowl XXXVIII Halftime Show, Order on Reconsideration, 21 FCC Rcd
6653, 6657-58  12 (2006) (Super Bowl Order on Reconsideration),
pet. for review pending, CBS Corp. v. FCC, No. 06-3575 (3d Cir. filed
July 28, 2006). 
plained-of material is quite graphic and explicit.  Ms.
Richies comment referring to excrement conveys a
graphic image of Ms. Richie trying to scrape cow excre-
ment out of her designer hand bag.  Because of her use
of the S-Word, Ms. Richies description also contained
quite vulgar language.  Furthermore, the vulgar de-
scription of excrement was coupled with the use of the
F-Word. As we have previously concluded, the F-
Word is one of the most vulgar, graphic, and explicit
words for sexual activity in the English language.
42
Here, Ms. Richies use of the F-Word coupled with her
graphic and explicit description of the handling of excre-
ment during a live broadcast of a popular music awards
ceremony when children were expected to be in the au-
dience was vulgar and shocking.
43
  Her comments were
also presented in a pandering manner.  As part of their
dialogue, Ms. Hilton reminded Ms. Richie to watch the
bad language, a comment that served to preview and
highlight for the viewing audience Ms. Richies remarks.
76a
44
  For example, Fox does not argue that Ms. Richies remarks had
any artistic merit or were necessary to convey any message. 
45
  See Pacifica, 438 U.S. at 749-51. 
46
  See Action for Childrens Television v. FCC, 58 F.3d 654, 665
(D.C. Cir. 1995) (en banc) (ACT III) (holding that the Commission
could rely on bright-line time channeling rule and rejecting contention
that it was required to use station-specific and program-specific data
in assessing whether children are at risk of being exposed to broadcast
indecency), cert. denied, 516 U.S. 1072 (1996). 
Moreover, Fox does not argue that there was any justifi-
cation for Ms. Richies comments.
44
  
18.  We note that when the Supreme Court stressed
the importance of context in Pacifica, it mentioned as
relevant contextual factors the time of day of the broad-
cast, program content as it affects the composition of
the audience, and the nature of the medium.
45
  All of
these factors support the conclusion that the dialogue
here was patently offensive in context.  The complained-
of material was broadcast early in prime time.  The pro-
grams content was, as discussed above, graphic, explicit
and vulgar, both in its excretory description and its use
of the F-Word.  The program was designed to draw a
large nationwide audience that could be expected to in-
clude many children interested in seeing their favorite
music stars.  Although there is no requirement that we
document the presence of children in the audience for a
program that is subject to an indecency complaint and
is aired between 6 a.m. and 10 p.m.,
46
 we note that in this
case a significant portion of the viewing audience for this
program was under 18.  According to Nielsen ratings
data, during an average minute of The 2003 Billboard
Music Awards broadcast, 2,312,000 (23.4%) of the
9,871,000 people watching the program were under 18,
77a
47
 Fox notes that its policy is to rate any programming containing the
F-Word TV-MA. See Letter from John C. Quale to Marlene H.
Dortch, Secretary, FCC, in FCC File Nos. EB-03-IH-0460, EB-03-IH-
0617, EB-04-IH-0295, EB-04-IH-0091 at 4 (filed Sept. 29, 2006) (Fox
Response to 9/18/2006 LOI).  The TV-MA rating (mature audience
only) signifies that the program is specifically designed to be viewed by
adults and therefore may be unsuitable for children under 17.  In the
context of a TV-MA rated program, an L would signify crude inde-
cent language.  The TV-PG rating (parental guidance suggested), by
contrast, merely signifies that the program contains material that
parents may find unsuitable for younger children, and that parents may
want to watch the program with their younger children.  TV-PG is the
most common rating, covering a majority of the programs that are
rated.  See Nancy Signorielli, Age-Based Ratings, Content Designa-
tions, and Television Content: Is There a Problem?, 8 Mass Comm. &
Socy 277, 293 (2005) (six in ten rated programs are rated TV-PG).  The
D signifies that the program may contain some suggestive dialogue,
and the L signifies that the program may contain some infrequent
coarse language.  Moreover, we note that the TV-PG(DL) rating
appeared only at the beginning and once in the middle of the program;
thus, a viewer tuning into this 2-hour broadcast at another time may not
even have been aware that it was rated TV-PG(DL).  See Pacifica, 438
U.S. at 748 (Because the broadcast audience is constantly tuning in
and out, prior warnings cannot completely protect the listener or viewer
from unexpected program content.). 
and 1,089,000 (11%) were between the ages of 2 and 11.
In addition, we note that this program was rated TV-
PG(DL).  Such a rating would not have put parents or
others on notice of such vulgar language, and the broad-
cast contained no other warnings to viewers that it
might contain material highly unsuitable for children.
47
This no doubt helps explain the strong feelings that
many of the complainants, particularly those who were
watching the program with their children, expressed
78a
48
 See, e.g., e-mail complaint from individual to Fox station
KMSP(TV), Minneapolis, dated December 10, 2003 (I would appreci-
ate it if you would pass on my intense opinion of the Billboard Awards
and Nicole Ritchie (sic).  We teach our kids that people like her have a
potty mouth.  My children were watching part of this program and
happened to catch her vulgarity.  We will not finish watching the
awards nor will we continue to watch fox network in this household.);
e-mail complaint from individual to Fox station WTVT(TV), Tampa,
dated January 21, 2004 (Fox insults my ears and those of my wife and
children with the f word, etc. and we leave you for good  .  .  .); e-mail
complaint from individual to Fox station KMSP(TV), Minneapolis,
dated December 10, 2003 (Why are you allowing that kind of language
at 8:00 p.m. for all ages of people to hear?  .  .  .  It was disgusting and
very disturbing  .  .  .); e-mail complaint from individual to Fox station
KMSP(TV), Minneapolis, dated December 13, 2003 (I was watching
the event with my 12 and 13 y/o daughters  .  .  .  the amount of swear-
ing that was done and the severity of some of the words was horrible
.   .  .  Watching TV has become very unpredictable these days  .  .  .  I
do not feel it is a safe source of entertainment for our children.  .  .  .);
complaint from individual to David Solomon, Chief of Enforcement
Bureau, dated December 12, 2003 (I was horrified to learn that some
of the young children in the school that I teach in viewed the program.
Several of these children are among those children who have social
problems and are often in trouble.  Is this what our children have to
look toward for example on how to live?  Would you want your children
or grandchildren to mimic these entertainers ?????) All of these
complaints except for the last one to the FCCs Enforcement Bureau
are attached to Foxs January 30, 2004 Response. 
regarding the unexpectedly vulgar content.
48
  In light of
all of these factors, we conclude that the first and third
factors in our contextual analysis both weigh heavily in
favor of a finding that the material is patently offensive.
19.  With respect to the second factor in our contex-
tual analysiswhether the complained-of material was
sustained or repeatedFox argues that the dialogue
79a
49
  Response at 12, 13. 
50
 Pacifica Foundation, Inc., 2 FCC Rcd at 2699.  See also New
Indecency Enforcement Standards To Be Applied to All Broadcast and
Amateur Radio Licensees, Public Notice, 2 FCC Rcd 2726 (1987). 
51
 See Pacifica Foundation, Inc., 2 FCC Rcd at 2699 (emphasis
added). 
52
  Id. 
here was a fleeting and isolated utterance and that
such material is not actionably indecent.
49
  We disagree.
20.  Foxs argument that a fleeting and isolated ut-
terance is not actionably indecent is based largely on
staff letters and dicta in decisions predating the Commis-
sions Golden Globe Awards Order.  For example, in a
1987 decision clarifying that our indecency definition
was not restricted only to the seven words contained in
the George Carlin monologue determined to be indecent
in Pacifica, the Commission distinguished in dicta be-
tween expletiveswords such as the F-Word or the
S-Word used outside of their core sexual or excretory
meaningsand descriptions of sexual or excretory func-
tions.  And, in so doing, the Commission suggested:  If
a complaint focuses solely on the use of expletives, we
believe that  .  .  .  deliberate and repetitive use in a pa-
tently offensive manner is a requisite to a finding of in-
decency.
50
  The Commission made clear, however, that
repetition was not required when speech involv[es] a
description or depiction of sexual or excretory func-
tions and that [t]he mere fact that specific words or
phrases are not repeated does not mandate a finding
that material that is otherwise patently offensive to the
broadcast medium is not indecent.
51
   In this case, Ms.
Richies use of the S-Word clearly involved a descrip-
tion of excretory functions.
52
 
80a
53
   See, e.g., Golden Globe Awards Order, 19 FCC Rcd at 4981  12
n. 32 (listing Bureau-level decisions). 
54
  Indecency Policy Statement, 16 FCC Rcd at 8008-09  17-19. 
55
  Id. at 8008  17. 
56
  Id. at 8009  19. 
21.  Subsequent to this 1987 guidance, there were
several Bureau-level decisions finding the isolated use
of an expletive not to be actionably indecent.
53
  In no
case, however, did the Commission itself, when evaluat-
ing an actual program, find that the isolated use of an
expletive, such as the F-Word, as broadcast was not
indecent or could not be indecent.  In our 2001 Inde-
cency Policy Statement,
54
 we explained that where sex-
ual or excretory references have been made once or
have been passing or fleeting in nature, this characteris-
tic has tended to weigh against a finding of indecency,
55
but also noted even relatively fleeting references may
be found indecent where other factors contribute to a
finding of patent offensiveness.
56
  Then, in 2004, the
Commission itself considered for the first time in an en-
forcement action whether a single use of an expletive
could be indecent.  And in evaluating the broadcast of
the F-Word during The Golden Globe Awards, we
overturned the Bureau-level decisions holding that an
isolated expletive could not be indecent and disavowed
our 1987 dicta on which those decisions were based. 
22.  While it is important to understand the history
of the Commissions decisions in this area, we reject
Foxs suggestion that Nicole Richies comments would
not have been actionably indecent prior to our Golden
81a
57
  In this respect, our decision differs from our suggestion in Section
III.B of the Omnibus Order, now vacated, that prior to the Commis-
sions decision in Golden Globe this broadcast would not have warranted
enforcement action because it involved an isolated use of expletives.
See Omnibus Order, 21 FCC Rcd at 2695  124.  For the reasons dis-
cussed above, we do not believe that our prior suggestion accurately
reflected the context of this broadcast or Commission precedent.  
58
  Pacifica Foundation, Inc., 2 FCC Rcd at 2699. 
59
  See id. (discussing  deliberate use of expletives). 
Globe decision.
57
  Rather, Ms. Richies remarks would
have been actionably indecent prior to our Golden Globe
decision for three separate reasons.  First, even under
our pre-Golden Globe dicta, the offensive material here
does not consist solely of the use of expletives; as dis-
cussed above, the S-Word was used here in its excre-
tory sense and was integral to a graphic and vulgar de-
scription that clearly falls within the scope of our inde-
cency rule.  As we stated in our 1987 guidance, repeti-
tive use was not required under such circumstances.
58
Second, the offensive language was repeated in that it
included not one but two extremely graphic and offen-
sive words.  Third, there seems to be little doubt that
Ms. Richies comments were deliberately uttered and
that she planned her comments in advance.
59
   Ms.
Hiltons opening remark to Ms. Richie that this was a
live show and she should watch the bad language
strongly suggests that the offensive language that fol-
lowed was not spontaneous.  Further, there is nothing in
Ms. Richies confident and fluid delivery of the lines, and
her use of multiple offensive words, that suggests that
any of the language was a spontaneous slip of the
tongue.  Thus, given the presence of a graphic descrip-
tion of excretory functions, the presence of multiple of-
82a
60
  For these reasons, Ms. Richies comments differ significantly from
the language involved in the two Bureau-level decisions finding fleeting
expletives not to be indecent that were cited in the Indecency Policy
Statement.  See Indecency Policy Statement, 16 FCC Rcd at 8008-09
 18.  Rather, they are more similar to the material in the LBJS Broad-
casting Company Notice of Apparent Liability cited in the Indecency
Policy Statement because they combine a graphic and vulgar descrip-
tion of sexual or excretory material with an expletive.  Id. at 8009  19,
citing LBJS Broadcasting Company, 13 FCC Rcd 20956 (Mass Media
Bur. 1998) (forfeiture paid) (finding broadcast apparently indecent for
use of phrase [s]uck my dick you fucking cunt).  
61
  See Golden Globe Awards Order, 19 FCC Rcd at 4980  12. 
62
  Id. 
fensive words, and the deliberate nature of Ms. Richies
comments, we conclude that this broadcast would have
been actionably indecent consistent with prior Commis-
sion guidance even in the absence of our Golden Globe
decision.
60
  
23.  In addition, this broadcast is actionably indecent
under the Golden Globe Awards Order.
61
   In that Order,
we stated that the mere fact that specific words or
phrases are not sustained or repeated does not mandate
a finding that material that is otherwise patently offen-
sive to the broadcast medium is not indecent.
62
  While,
as explained above, Commission dicta and Bureau-level
decisions issued before Golden Globe had suggested that
expletives had to be repeated to be indecent but de-
scriptions or depictions of sexual or excretory functions
did not need to be repeated to be indecent, we believe
that this guidance was seriously flawed.  We thus reaf-
firm that it was appropriate to disavow it.  To begin
with, any strict dichotomy between expletives and
descriptions or depictions of sexual or excretory func-
tions is artificial and does not make sense in light of the
83a
63
  See supra para. 16. 
64
  Pacifica, 438 U.S. at 742. 
65
  Indecency Policy Statement, 16 FCC Rcd at 8002-03  9. 
66
  Id. at  9-10.  
67
  Pacifica, 438 U.S. at 748-49.
fact that an expletives power to offend derives from
its sexual or excretory meaning.
63
  Indeed, this is why it
has long been clear that such words fall within the sub-
ject matter scope of our indecency definition, which
since Pacifica has involved the description of sexual or
excretory organs or activities.
64
   Moreover, in certain
cases, it is difficult (if not impossible) to distinguish
whether a word is being used as an expletive or as a lit-
eral description of sexual or excretory functions.  Fi-
nally, and perhaps most importantly, categorically re-
quiring repeated use of expletives in order to find mate-
rial indecent is inconsistent with our general approach
to indecency enforcement, which stresses the critical
nature of context.
65
  In evaluating whether material is
patently offensive, the Commissions approach has gen-
erally been to examine all factors relevant to that deter-
mination.
66
  To the extent that Commission dicta had
previously suggested that one of these factorswhether
material 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. 
24.  Turning back to The 2003 Billboard Music Aw-
ards broadcast, we believe that we need not ignore the
first blow to the television audience in the circumstan-
ces presented here.
67
  Nor do we think that Pacifica re-
quires that approach.  The major broadcast networks
84a
68
 Joint Comments of Fox, CBS, NBC Universal, Inc. and NBC
Telemundo License Co. in DA 06-1739 at 3 (filed Sept. 21, 2006) (Joint
Comments). 
69
  Pacifica, 438 U.S. at 742, 750. 
70
  Id. at 750. 
71
  Id. at 748-49. 
(Networks) argue that the Pacifica Court would have
never approved an indecency enforcement regime that
applied to isolated and fleeting expletives.
68
  But this
claim finds no support in Pacifica, in which the Court
specifically reserved the question of an occasional ex-
pletive and noted that it addressed only the particular
broadcast at issue in that case.
69
   Indeed, we think it
significant that the occasional expletive contemplated
by the Court was one that occurred in a two-way radio
conversation between a cab driver and a dispatcher,a
conversation not broadcast to a wide audienceor a
telecast of an Elizabethan comedy, settings far re-
moved from the broadcast at issue here.
70
  
25.  In explaining the special nature of the broadcast
medium, the Supreme Court emphasized the pervasive
presence [of the broadcast medium] in the lives of all
Americans and that indecent broadcasts invade the
privacy of the home.  It rejected the argument that one
could protect oneself by turning off the broadcast upon
hearing indecent language:  To say that one may avoid
further offense by turning off the radio when he hears
indecent language is like saying that the remedy for an
assault is to run away after the first blow.
71
  We believe
that granting an automatic exemption for isolated or
fleeting expletives unfairly forces viewers (including
children) to take the first blow.  Indeed, it would as a
85a
72
  Such words could include grossly offensive sexual terms such as
cunt. 
73
 See complaints listed in note 48 supra. Like the broadcast in
Pacifica, Ms. Richies statements could have enlarged a childs
vocabulary in an instant.  Pacifica, 438 U.S. at 749. 
74
  Indecency Policy Statement, 16 FCC Rcd at 8009  19.  
75
 See id. (listing examples of isolated utterances found to be
actionably indecent). 
matter of logic permit broadcasters to air expletives at
all hours of a day so long as they did so one at a time.
For example, broadcasters would be able to air any one
of a number of offensive sexual or excretory words, re-
gardless of context, with impunity during the middle of
the afternoon provided that they did not air more than
one expletive in any program segment.
72
  Such a result
would be inconsistent with our obligation to enforce the
law responsibly.  We do not believe that viewers of free
television broadcasts utilizing the public airwaves should
feel, as so many of the complaining viewers of The 2003
Billboard Music Awards clearly do, that they cannot
safely allow their families to watch prime-time broad-
casts.
73
 
26.  Nor, as discussed above, are the Networks cor-
rect in their suggestion that fleeting utterances have
never before been regulated.  On the contrary, our
Golden Globe Awards decision was not the first time
that a fleeting utterance had been found to be indecent.
74
We have long recognized that even relatively fleeting
references may be found indecent if the context makes
them patently offensive.
75
  
86a
76
  Joint Comments at 10-11. 
77
  Infinity Radio License, Inc., Memorandum Opinion and Order,
19 FCC Rcd 5022, 5026  12 (2004).  
27.  We thus conclude that the fact that the offensive
dialogue here was relatively brief is not dispositive un-
der these particular circumstances.  This is not a case
involving a single, spontaneously uttered expletive.
Rather, it was two sentences, one of which contained a
graphic excretory description and the other a vulgar
expletive used to heighten the effect of the excretory
description.  And, as noted above, these statements were
not spontaneous slips of the tongue, but rather were
planned by the speaker and presaged by the introduc-
tory remark to watch the bad language. 
28.  With respect to our analysis of the complained-
of material, we emphatically reject the argument made
by Fox and other broadcasters that the contemporary
community standards employed by the Commission
merely reflect the subjective opinions or the tastes of
the individuals with seats on the Commission.
76
  Rather,
as we have previously stated, in evaluating material, we
rely on the Commissions collective experience and
knowledge, developed through constant interaction with
lawmakers, courts, broadcasters, public interest groups,
and ordinary citizens.
77
  
29.  In this case, moreover, our assessment of con-
temporary community standards for the broadcast me-
dium is strongly bolstered by broadcasters own prac-
tices.  As mentioned above, during the 10:00 p.m.-6:00
a.m. safe harbor, broadcasters are permitted to air
indecent and profane material.  Nevertheless, with rare
exceptions, they do not allow the F-Word or the S-
87a
78
  Fox Response to 9/18/2006 LOI at 4 (emphasis added). 
79
  Letter from F. William LeBeau to Marlene H. Dortch, Secretary,
FCC, File Nos. EB-03-IH-0355, EB-03-IH-0460, EB-03-IH-0617, EB-
04-IH-0295, EB-04-IH-0091, EB-05-IH-0007 at 4-5 (Sept. 29, 2006)
(NBC Response to 9/18/2006 LOI). 
80
  Letter from John W. Zucker, Senior Vice President, ABC, Inc. to
Marlene H. Dortch, Secretary, FCC, File No. EB-03-IH-0355 at 2
(Sept. 29, 2006) (ABC Response to 9/18/2006 LOI). 
81
  Nightline, Sept. 29, 2006. 
82
  Letter from Anne Lucey, Senior Vice President, CBS Corp. to
Marlene H. Dortch, Secretary, FCC, File No. EB-05-IH-0007 at 2
(Sept. 29, 2006) (CBS Response to 9/18/2006 LOI) (emphasis added).
Word to be broadcast during that time period.  Fox, for
example, generally prohibit[s] use of any form of the F-
word or S-word during any day part, including late-
night programming.
78
  NBC also does not broadcast
the F-Word and the S-Word during the safe harbor
except in unusual circumstances and generally does
not allow such language to be broadcast on its flagship
late-night program The Tonight Show with Jay Leno.
79
Similarly, ABC, even during safe harbor hours, gener-
ally has not approved the broadcast of the f-word and
the s-word.
80
  For instance, during a recent broadcast
of Nightline, ABC deleted uses of the F-Word in a
piece on actor Mark Wahlberg.
81
  CBS, likewise, indi-
cates that [g]enerally speaking, broadcast[s] of the F-
word and S-word are not permitted under CBSs Tele-
vision Network Standards at any time of [the] day.
82
Hearst also reports that its general policy, which ap-
plies at all times, is that vulgar language such as the F-
Word and the S-Word [is] not to be knowingly broad-
88a
83
  Response of Hearst-Argyle Television, Inc., File No. EB-03-IH-
0355 at 3 (Sept. 29, 2006) (Hearst Response to 9/18/2006 LOI)
(emphasis added). 
84
  See ABC Response to 9/18/2006 LOI at 2; CBS Response to
9/18/2006 LOI at 2-3; Hearst Response to 9/18/2006 LOI at 4-5; NBC
Response to 9/18/2006 LOI at 3-4; Fox Response to 9/18/2006 LOI at 4.
85
  H.R. 3717, the Broadcast Decency Enforcement Act of 2004:
Hearing Before the Subcommittee on Telecommunications and the
Internet of the House Comm. on Energy & Commerce, 107th Congress,
(Feb. 26, 2004) (statement of Gail Berman). 
cast.
83
  To be sure, each of the broadcasters avers that
in certain contexts, such as the motion picture Saving
Private Ryan, they do permit the broadcast of the F-
Word and the S-Word.  However, none of these ex-
amples bears even the slightest resemblance to Nicole
Richies comments during The 2003 Billboard Music
Awards.
84
  Indeed, in Congressional testimony, Foxs
President of Entertainment recognized that the very
comments at issue hereMs. Richies remarkscon-
tained inappropriate language.
85
  Moreover, Fox ed-
ited out her comments in its broadcasts to the Mountain
and Pacific Time Zones. 
30.  Taken as a whole, broadcasters practices with
respect to programming aired during the safe harbor
reflect their recognition that airing the F-Word and
the S-Word on broadcast television is generally offen-
sive to the viewing audience and, in the usual case, not
consistent with contemporary community standards for
the broadcast medium.  They also reinforce our conclu-
sion that Nicole Richies comments during The 2003
Billboard Music Awards were patently offensive under
contemporary community standards.  For all of these
reasons, we conclude that, given the explicit, graphic,
89a
86
  The Networks also complain about the Commissions analysis of
contemporary community standards in other pending proceedings, such
as The Blues: Godfathers and Sons. See Joint Comments at 10.  In the
case of The Blues, the Commission has issued only a Notice of Apparent
Liability for Forfeiture, see Omnibus Order at 2683-87  7285, and we
will address such issues in further proceedings in that case. 
87
  See Response at 13. 
88
  Id. at 6. 
vulgar, and shocking nature of Ms. Richies comments,
they were patently offensive under contemporary com-
munity standards for the broadcast medium and thus
indecent as broadcast.
86
 
31.  We also disagree that it would be inequitable to
hold Fox responsible for airing offensive language dur-
ing The 2003 Billboard Music Awards due to the live,
unscripted nature of the material.
87
  In disclaiming re-
sponsibility, Fox states that Nicole Richies and Paris
Hiltons scripted dialogue did not contain the F-Word
or S-Word.  Rather, Ms. Richies first scripted line
read:  Yeahinstead of standing in mud and pig crap.
When she spoke, she substituted cow shit (which was
blocked out in the audio feed) for pig crap in that line.
In the sentences at issue here, Ms. Richie was scripted
to say Have you ever tried to get cow manure out of a
Prada purse?   Its not so freaking simple.
88
 
32.  Fox also describes the measures it employed to
delete objectionable material from the broadcast. It says
that as in previous yearsincluding during The 2002
Billboard Music Awards broadcast when it aired Chers
use of the phrase fuck emit utilized a five-second
delay that it normally used during the production of live
entertainment programming.  A Broadcast Standards
90a
89
  Id. at 8-9.  Following this broadcast, Fox implemented a longer
delay mechanism and a second delay button for all live broadcasts to
serve as a back-up.  Id. at 9.  In its recent response to a LOI relating to
the broadcast of The 2002 Billboard Music Awards, Fox states that
it now uses a total of four delay buttons for all live broadcasts of
entertainment programming.  In addition, it recognizes that certain
performers may present more risk of spontaneous objectionable con-
tent during live performances than others and thus has begun to tape
in advance certain performances to air during otherwise live broad-
casts.  See Letter from John C. Quale to Marlene H. Dortch, Secre-
tary, FCC, File No. EB-03-IH-0460 at 6 (Sept. 21, 2006) (Fox
Response to 9/7/06 LOI). 
90
  Pacifica, 438 U.S. at 733 n.7, quoting Pacifica Foundation, 59
FCC 2d at 893 n.1.  See Response at 12. 
employee monitored the broadcast and operated a de-
lay button that enables an employee to edit out objec-
tionable content before it airs.  Fox also assigned a
Broadcast Standards representative to the event to re-
view the script, attend dress rehearsals and be present
at the event, as it normally did for the production of live
entertainment events.  During The 2003 Billboard Mu-
sic Awards program, the employee operating the delay
button edited out the vulgar phrase cow shit the first
time Ms. Richie said it, but failed to edit out the remain-
ing offensive language discussed above.  The program
aired several hours later on stations in the Mountain and
Pacific time zones, and Fox did remove the offensive
language before it aired on those stations.
89
   
33.  As Fox points out, the FCC has long recognized
that it may be inequitable to hold a licensee responsible
for airing offensive speech during live coverage of a pub-
lic event under some circumstances.
90
  But the Commis-
sion has not hesitated to enforce its indecency standard
where, as here, a licensee fails to exercise reasonable
91a
91
  Pacifica Foundation, Inc., 2 FCC Rcd at 2700  18.  See Liability
of San Francisco Century Broadcasting, L.P., Memorandum Opinion
and Order, 8 FCC Rcd 498, 499  7 (1993) (the mere fact that a show
is live does not excuse a station from exercising its editorial responsibil-
ities, especially where commonly available screening techniques can
eliminate the element of surprise.), citing Sound Broadcasting Corp.,
Notice of Apparent Liability, 6 FCC Rcd 2174 (Mass Media Bur. 1991);
Radio Station KFMH-FM, Muscatine, Iowa, Notice of Apparent
Liability, 9 FCC Rcd 1681, 1681-82 (Mass Media Bur. 1994) (rejecting
contention that licensee should not be held responsible for broadcasting
live and unscripted offensive material from an outside source where the
broadcaster suspected that the caller involved was the same person
who had told the objectionable joke only eight minutes earlier but
chose to place the call on the air rather than to discontinue the broad-
cast or to use precautions such as a delay device.); L.M. Communica-
tions, Notice of Apparent Liability, 7 FCC Rcd 1595 (Mass Media Bur.
1992) (rejecting argument that broadcaster should not be sanctioned for
airing indecent material within live and unscripted programming where
the scatological material as broadcast involved a deliberate and
repetitive use of the word crap to heighten the audiences awareness
of and attention to the subsequent use of the term shit by the an-
nouncer.). 
92
  See Response at 6; see also Complaints Against Various Televi-
sion Licensees Concerning Their February 1, 2004 Broadcast of the
Super Bowl XXXVIII Halftime Show, Forfeiture Order, 21 FCC Rcd
2760, 2769  19 (2006) (citing evidence that there is always a risk that
performers will ad-lib remarks or take unscripted actions, and that the
risk level varies according to the nature of the performance.) (subse-
quent history omitted). 
judgment, responsibility and sensitivity to the publics
needs and tastes to avoid patently offensive broad-
casts.
91
 Here, the original script for The 2003 Bill-
board Music Awards increased the likelihood that Ms.
Richie would ad-lib offensive remarks; as noted above,
it called for her to make excretory references to pig
crap and cow manure, and to substitute the euphe-
mism freaking for the F-Word.
92
  Such a script
92a
93
  See supra note 27.  As discussed above, Fox advertised Ms. Hilton
and Ms. Richie as being totally-out-ofcontrol on the cover of the
Simple Life DVD.  Additionally, The Los Angeles Times review of the
first episode of The Simple Life describes Ms. Hilton and Ms. Richie
as out-of-control.  Carina Chocano, Work for a Living? What a Con-
cept, L.A. Times, Dec. 2, 2003, at 1 (Calendar Section). 
94
 The Simple Life, Season 1, Episodes 1-3.  In addition, Ms.
Richies penchant for cursing is highlighted in a scene during the first
episode in which their host, reviewing the house rules with them, states
no cussing or bad language, at which point the camera focuses on Ms.
Richie giggling helplessly at Ms. Hilton.  Their penchant for vulgarity
is also illustrated during the third episode in two scenes at a local fast
food franchise where Ms. Richie and Ms. Hilton are working for the
day.  Directed to change the letters of a sign out front to read Half
Price Burgers All Day, they instead arrange the letters to read 1/2
Price Anal Salty Weiner Bugers.  Later, standing on the curb in cos-
tumes of the restaurants mascot, an animated milkshake, they stick up
their respective middle fingers (which are pixilated) to passersby. 
might have posed minimal risk in the hands of some per-
formers.  Relying on Ms. Hilton and Ms. Richie to avoid
vulgar language, however, involved a substantially
greater risk.
93
  As Fox well knew, Ms. Richie frequently
used indecent language in inappropriate contexts.  For
example, during the three episodes of The Simple Life
that it broadcast in the days leading up to the The 2003
Billboard Music Awards, Fox felt it necessary to bleep
expletives (the F-Word or S-Word) uttered by Ms.
Richie no fewer than nine times.
94
  Yet Ms. Richie was
still selected as a presenter for the live, prime-time
awards show, and Fox has not claimed it made any effort
to caution Ms. Richie about its broadcast standards for
the program or that it took any special precautions (be-
yond its standard five-second delay) to guard against
her use of expletives on the air.  Indeed, Fox does not
93a
95
  See infra para. 56. 
96
  See Fox Response to 9/7/06 LOI at 5. 
97
  See Response at 5. 
98
  See, e.g., id. at 8-9. 
99
  Fox Response to 9/18/2006 LOI at 10 n. 21. 
even contend that it took any action against Ms. Richie
after this episode. 
34.  Even more significant, the particular five-second
delay and editing system that Fox used in this case had
already proved inadequate to delete Chers offensive
language during Foxs broadcast of The 2002 Billboard
Music Awards the previous year.  During that broad-
cast, Cher, when accepting an award, had stated, Peo-
ple have been telling me Im on the way out every year,
right?  So fuck em.
95
  According to Fox, the employee
in charge of deleting objectionable material did not act
quickly enough and ended up editing out dialogue that
aired after Chers comment.
96
  Despite this failure, Fox
took no additional precautions to avoid airing such mate-
rial the next year.
97
  The record also demonstrates that
steps may be taken, such as adding delay buttons or
lengthening the delay, that allow for far more effective
editing of potentially objectionable content.
98
 Here, Fox
itself contends that the time delay and editing system
that it used for The 2003 Billboard Music Awards was
inadequate, maintaining that it imposed on the operator
a Herculean task because he was essentially trying to
watch two programs at oncethe live version occurring
in real-time and the delayed version that was broadcast
seconds later.
99
  Then, if he heard or saw objectionable
content, he was required to press the appropriate audio
94a
100
Id.  By contrast, Fox states that its current time delay and editing
system relies upon technology to ensure that once an edit button is
pressed, the potentially objectionable content is edited at the right time
during the delayed feed.  Id.  As stated above, Foxs current system
also utilizes more than one employee to provide redundancy.  Id. at
10. 
101
See Joint Comments at 12-16. 
and/or video delay buttons at the precise instant neces-
sary to eliminate the objectionable content from the de-
layed feed while at the same time staying abreast of
the continuing live feed.
100
  In short, under these cir-
cumstances, Fox should have recognized the high risk
that The 2003 Billboard Music Awards broadcast
raised of airing indecent material.  Nevertheless, Fox
chose to rely on the same delay and editing system that
had proved inadequate the previous year to delete an
expletive during the same show.  We are not persuaded,
therefore, that Foxs efforts to edit out the offensive
language were diligent or reasonable. 
35.  We recognize that no delay and editing system is
foolproof and that there is always a possibility of human
error in using delay equipment to edit live program-
ming.  The Commission can and will consider these facts
in deciding what, if any, remedy is appropriate.  In this
case, however, as discussed above, we conclude that
Foxs efforts to prevent and edit out Ms. Richies com-
ments were not diligent or reasonable. 
36.  Holding Fox responsible for airing indecent ma-
terial in this case does not place live broadcasts at risk
or impose undue burdens on broadcasters.
101
  This case
does not involve breaking news coverage that Fox and
other broadcasters have traditionally presented in so-
95a
102
Since this case does not involve breaking news or sports program-
ming, we do not address issues involving such programming here.  But
as we recognize elsewhere in this Order, in light of the important First
Amendment interests at stake as well as the crucial role that context
plays in our indecency determinations, it is imperative that we proceed
with the utmost restraint when it comes to news programming.  See
infra,  III.C. 
103
 See Joint Comments, Appendix X (Declaration of Peter Ligouri)
at  2. 
104
Of the 32 awards shows that were broadcast by the major
networks and are discussed in the record, only the Academy Awards
aired live in all time zones.  See ABC Response to 9/18/2006 LOI at 2;
NBC Response to 9/18/2006 LOI at 4 and Exh. C.; Fox Response to
9/18/2006 LOI at 3-4; CBS Response to 9/18/2006 LOI at 7. 
called real time.
102
  Nevertheless, Fox argues that
[t]he live presentation of awards shows  .  .  .  is what
makes this content so compelling.
103
  Fox, however, did
not even decide to air the program live in much of the
country. Rather, viewers in the Mountain Time Zone
saw the program with a one-hour delay, and those in the
Pacific Time Zone experienced a three-hour delay.  We
find it difficult to understand why viewers on the East
Coast would no longer find live programming to be
compelling with a ten-second delay while it is evi-
dently acceptable to provide this programming to view-
ers in the western half of the country with a one-hour or
three-hour delay. Moreover, with respect to awards
shows as a whole, the record reflects that the vast ma-
jority of awards shows are not aired by major networks
live in the Pacific Time Zone.
104
  Rather, they are gener-
ally broadcast with a three-hour delay, thus undermin-
ing any assertion that it is important that viewers see
the presentation of the awards without the compara-
96a
105
 Fox Response to 9/18/2006 LOI at 11. 
106
 Id. 
107
 Id.  See ABC Response to 9/18/2006 LOI at 7-8 (reporting that
transmitting signals from ABCs New York Broadcast Center to
affiliates results in less than a two second delay, that feeding live
material from remote locations to ABCs New York Broadcast Center
may cause an additional delay of up to a second, and that distribution
of the signals to the consumers through cable and satellite systems may
cause an additional delay). 
tively minimal delay required to remove indecent lan-
guage. 
37.  Under the circumstances, we fail to see how a
delay of five, ten, or even fifteen seconds meaningfully
affects the value of this programming or significantly
implicates First Amendment values.  In this vein, we
note that so-called live programming is not literally
liveviewers at home do not see an event at the very
time that it is actually occurring.  Rather, there is a nat-
ural delay caused by the time that it takes a signal to
reach viewers.  The record shows that digital signals, for
example, may take up to 1.3 to 3.3 seconds to reach view-
ers over-the-air.
105
 And, if viewers are receiving such
signals through a cable operator or satellite provider,
there may be an additional delay of up to 3 seconds.
106
Finally, if a viewer has a digital video recorder, there is
another additional delay of approximately another half-
second.
107
  Thus, using a conservative estimate, a viewer
may be watching an event more than three seconds after
it occurs, even in the absence of any delay technology.
In light of this, we fail to see how there is a meaningful
adverse impact on a viewers experience because he or
she learns the winner of the Billboard Award for Top 40
Mainstream Track some eight to eighteen seconds after
97a
108
 See Response at 8; see also Fox Response to 9/7/06 LOI at 5.  In
addition, Fox uses delays for live entertainment broadcasts even after
10 p.m.  See id. at 5-7.  The Commissions indecency regulation does not
apply at that time, see 47 C.F.R.  73.3999(b), so Fox obviously has
reasons apart from regulatory compulsion for using a delay. 
109
 Joint Comments at 15. 
110
 Action for Childrens Television v. FCC, 59 F.3d 1249, 1261 (D.C.
Cir. 1995), cert. denied, 516 U.S. 1072 (1996) (ACT IV), citing Pacifica,
438 U.S. at 743.  See ACT III, 58 F.3d at 666 (Whatever chilling effects
may be said to inhere in the regulation of indecent speech, these have
existed ever since the Supreme Court first upheld the FCCs enforce-
ment of section 1464 of the Radio Act.).  
the winner is announced on stage in Las Vegas (with a
delay) as opposed to after the normal three to six sec-
onds (without one). 
38.  Finally, we note that our decision here will not
deprive Fox of the ability to present such programming
in substantially the same way that it has in the past.
Fox has utilized a time delay and other procedures to
avoid airing patently offensive material during live en-
tertainment broadcasts such as The 2003 Billboard Mu-
sic Awards for years before the Commissions decision
in the Golden Globe Awards Order.
108
  We also disagree
that delaying live broadcasts to edit potentially offen-
sive language inevitably results in overbroad censorship
of appropriate material.
109
  As the D.C. Circuit ob-
served, some degree of self-censorship is inevitable and
not necessarily undesirable so long as proper standards
are available.
110
  The possibility that an over-zealous
broadcast standards employee may dump material
that is not actionably indecent during the live presenta-
tion of an awards show does not outweigh the compelling
98a
111
 18 U.S.C.  1464.
112
 Golden Globe Awards Order, 19 FCC Rcd at 4981  13, quoting
Tallman v. United States, 465 F.2d 282, 286 (7th Cir. 1972). 
113
 Omnibus Order, 21 FCC Rcd at 2686  81 (Like the F-Word,
[the S-Word] is one of the most offensive words in the English langu-
age, the broadcast of which is likely to shock the viewer and disturb the
peace and quiet of the home.). 
interest in preventing patently offensive broadcasts
such as the one that occurred in this case. 
39.  For all of these reasons, we conclude that Foxs
broadcast of The 2003 Billboard Music Awards vio-
lated the prohibitions in 18 U.S.C.  1464 and the Com-
missions rules against broadcast indecency and that it
is not inequitable to hold Fox responsible for these viola-
tions.  
40.  Profanity Analysis.  Consistent with our deci-
sions in the Golden Globe Awards Order and the Omni-
bus Order, we also find that the complained-of language
in the program at issue violated Section 1464s prohibi-
tion on the broadcast of profane utterances.
111
  In the
Golden Globe Awards Order, the Commission concluded
that the F-Word was profane within the meaning of
Section 1464 because, in context, it constituted vulgar
and coarse language so grossly offensive to members
of the public who actually hear it as to amount to a nui-
sance.
112
  Similarly, we concluded in the Omnibus Or-
der that the S-Word is a vulgar excretory term so
grossly offensive to members of the public that it
amounts to a nuisance and is presumptively profane.
113
In certain cases, language that is presumptively profane
will not be found to be profane where it is demonstrably
essential to the nature of an artistic or educational work
99a
114
Id. at 2669  19, citing Complaints Against Various Television
Licensees Regarding Their Broadcast on November 11, 2004 of the
ABC Television Networks Presentation of the Film Saving Private
Ryan, Memorandum Opinion and Order, 20 FCC Rcd 4507, 4512-14
 13-18 (2005). 
115
Response at 8.
116
See Omnibus Order, 21 FCC Rcd at 2666  8. 
117
See supra para. 18 (noting that, according to Nielsen ratings data,
23.4% of the people watching an average minute of The 2003 Billboard
Music Awards broadcast were under 18, and 11% were between the
ages of 2 and 11). 
118
See Joint Comments at 28-32; Thomas Jefferson Center For the
Protection of Free Expression Comments at 11-15 (Sept. 21, 2006). 
or essential to informing viewers on a matter of public
importance.
114
  However, such circumstances are not
present here:  Fox does not contend that Ms. Richies
profane language was essential to informing viewers on
a matter of public importance or that modifying the lan-
guage would have had a material impact on its function
as a source of news and information.  On the contrary,
Fox sought (albeit unsuccessfully) to delete the profane
language, and did remove it before the program aired on
time delay in the Mountain and Pacific Time Zones.
115
  It
is undisputed that the complained-of material, including
the F-Word and the S-Word, was broadcast within
the 6 a.m. to 10 p.m. time frame relevant to a profanity
determination.
116
  Because there was a reasonable risk
that children may have been in the audience at the time
of the broadcast on December 10, 2003,
117
 the broadcast
is legally actionable. 
41.  Contrary to the Networks Joint Comments, we
believe that our interpretation of profane as used in
Section 1464 is appropriate.
118
  The word has long car-
ried a variety of meanings, including non-religious
100a
119
The 1891 edition of the Century Dictionary includes this defini-
tion of profane:  2. To put to a wrong use; employ basely or unwor-
thily.  Century Dictionary 4754 (1891 ed.).  In an appendix to his con-
curring opinion in Burstyn v. Wilson, 343 U.S. 495, 533-40 (1952),
Justice Frankfurter collected definitions of sacrilege, blasphemy,
and profane dating to 1651.  The earliest of these definitions of pro-
fane is to apply any thing sacred to common use.  To be irreverent to
sacred persons or things.  To put to a wrong use.  Id. at 536, quoting
Rider, A New Universal English Dictionary (London, 1759).  The next
is To violate; to pollute.To put to wrong use.  Id. at 537, quoting
Kenrick, A New Dictionary of the English Language (London, 1773).
Frankfurters concurring opinion also notes that Funk & Wagnalls
New Standard Dictionary of the English Language, first copyrighted
in 1913, includes a definition of to profane as 3.  To vulgarize; give
over to the crowd.  Id. at 527 n. 48.  Thus, we disagree that Congress
clearly would have understood the term in 1927 to mean only blasphe-
mous or sacrilegious.  Joint Comments at 28. 
120
See Tallman v. United States, 465 F.2d at 286; State v. Richards,
896 P.2d 357, 364 (Id. App. 1995) (in rejecting a vagueness challenge
to state statute proscribing telephone harassment through, inter
alia, obscene, lewd or profane language, construing profane to
mean characterized by abusive language  .  .  .  cursing or vituperation
.  .  .); see also United States v. Hicks, 980 F.2d 963, 970 n.9 (5th Cir.
1992) (angry reference to flight attendant as a bitch and angry
admonition that she should get her ass to the planes kitchen qualified
as profane).  We disagree with the Networks that Tallman addressed
the words meaning in dicta, and that the case actually refutes the Com-
missions interpretation because the Court cited with approval Duncan
v. United States, 48 F.2d 128 (9th Cir.), cert. denied, 383 U.S. 863
(1931), and Gagliardo v. United States, 366 F.2d 720 (9th Cir. 1966).
See Joint Comments at 31.  Tallman held that the word profane in
Section 1464 must be interpreted narrowly as, inter alia, denoting
language which under contemporary community standards is so grossly
offensive to members of the public who actually hear it as to amount to
meanings.
119
  Several courts have interpreted the word
in a non-religious sense, consistent with the established
rule that a court should construe a statute, if reasonably
possible, to avoid constitutional problems.
120
  Further,
101a
a nuisance to preserve its validity in response to a facial constitutional
challenge.  Tallman, 465 F.2d at 286.  The Court cited Duncan and
Gagliardo solely as examples of prior judicial interpretations available
to the trial judge had jury instructions on the words meaning been
necessary, without approving or even identifying such interpretations.
Id.  We also reject the Networks argument that the rule of lenity
counsels against the Commissions interpretation of profane.  See
Joint Comments at 30, n.34.  Among other things, the Networks make
no showing that their preferred construction of the term is any nar-
rower than the Commissions.  Indeed, we think it likely that more
broadcast speech would be considered profane under the Networks
interpretation of the term than under ours.  See also infra para. 54
(explaining that the Pacifica Court squarely rejected the argument that
the FCCs civil authority to enforce Section 1464 must be interpreted
in accordance with rules that apply to criminal statutes, such as the rule
of lenity). 
121
See State v. Richards, 896 P.2d at 364 (when words appear in a
list or are otherwise associated, they should be given related mean-
ings.), citing Schreiber v. Burlington Northern, Inc., 472 U.S. 1 (1985),
Jarecki v. G.D. Searle & Co., 367 U.S. 303 (1961), 2A Norman J. Singer,
Southerlands Statutes and Statutory Construction  47.16 at 183 (5th
ed. 1992); United States v. Hicks, 980 F.2d at 970 n.9 (By profanity or
vulgarity, we refer to words that, while not obscene, nevertheless are
considered generally offensive by contemporary community stan-
dards.).  The fact that the words indecent and profane in Section
1464 have separate meanings does not render our interpretation of
profane implausible. See Joint Comments at 31, quoting Pacifica, 438
U.S. at 739-40.  We recognize that the two words have separate mean-
ings, and the Commission interprets the two words differently.  Our
enforcement policy limiting the regulation of profane language to words
that are sexual or excretory in nature or are derived from such terms
stems from First Amendment considerations rather than the meaning
of the word.  See Omnibus Order, 21 FCC Rcd at 2669  18. 
when viewed in its statutory context with the words ob-
scene and indecent, both of which have vulgar over-
tones, we believe that the word profane is reasonably
interpreted in the related sense of grossly offensive.
121
102a
122
 Duncan, 48 F.2d at 133-34 (the phrase God damn it uttered in
anger was not profane under Section 1464). 
123
 Id. at 134.  Duncan was decided before constitutional law evolved
to the point that such language could not be proscribed.  See Burstyn
v. Wilson, 343 U.S. 495 (1952) (holding unconstitutional a New York
statute authorizing state officials to license films for public exhibition
unless the films are sacrilegious). 
124
 Gagliardo, 366 F.2d at 725 (God damn it uttered in anger not
legally profane).  The FCC did not address whether profane could be
interpreted in a non-religious sense in Raycom America, Inc., Memo-
randum Opinion and Order, 18 FCC Rcd 4186 (2003) (portions of The
West Wing in which a character scream[ed] at God, and made ir-
reverent references toward the deity[y]oure a sonofabitch, you know
that?, and have I displeased you, you feckless thug? not actionably
profane), and Warren B. Appleton, 28 FCC 2d 36 (Broadcast Bur. 1971)
(damn not actionably profane), because those cases involved language
with religious connotations. 
125
47 C.F.R.  73.3999. 
We do not read the cases cited by the Networks as pre-
cluding a non-religious interpretation.  Duncan upheld
a conviction for broadcasting profanity where the defen-
dant referred to an individual as damned, used the
expression By God irreverently, and announced his
intention to call down the curse of God upon certain indi-
viduals.
122
  But the court held only that this language
was within the meaning of that term as used in the
Radio Act of 1927, not that the provision only covered
such language.
123
  Gagliardo addressed the meaning of
profane in Section 1464 only in dicta, because the gov-
ernment in that case did not contend that the words at
issue were profane.
124
  Finally, the fact that the Commis-
sion has a specific rule addressing obscene and inde-
cent programming
125
 plainly does not foreclose the
agency from exercising in an adjudication its express
103a
126
 47 U.S.C.  1464; 47 U.S.C.  503(b)(1)(D).  See Joint Comments
at 32. 
127
See, e.g., Joint Comments at 7-8.
128
Pacifica, 438 U.S. at 732.
129
See id. at 739, 741.
130
Action for Childrens Television v. FCC, 852 F.2d 1332, 1339
(D.C. Cir. 1988) (ACT I); accord ACT III, 58 F.3d at 659.
131
521 U.S. 844 (1997).
132
Joint Comments at 7.
statutory authority to take enforcement action against
broadcasts that are profane.
126
 
42.  Constitutional Issues.  The Networks offer a
variety of arguments attacking the constitutionality of
the Commissions indecency framework as it relates to
The 2003 Billboard Music Awards broadcast.  We do
not find any of these arguments to be persuasive. 
43.  First, the Networks argue that our definition of
indecency is unconstitutionally vague.
127
  However, that
definition is essentially the same as the one that we ar-
ticulated in the order under review in FCC v. Pacifica
Foundation.
128
  The Supreme Court had no difficulty in
applying that definition and using it to conclude that the
broadcast at issue in that case was indecent.
129
  We
agree with the D.C. Circuit that implicit in Pacifica is
an acceptance of the FCCs generic definition of inde-
cent as capable of surviving a vagueness challenge.
130
44.  The Networks suggest that the Supreme Courts
more recent decision in Reno v. ACLU
131
 has under-
mine[d] any constitutional defense of the Commissions
current approach to indecency.
132
  In Reno, the Court
considered the constitutionality of the Communications
Decency Act of 1996 (CDA), a statute that regulated
104a
133
See 47 U.S.C.  223(d) (1994 Supp. II).
134
Reno, 521 U.S. at 870.
135
Id. at 867.
136
Id.
137
See id. at 867, 872; see also Pacifica, 438 U.S. at 750 (declining to
decide whether an indecent broadcast would justify a criminal prose-
cution). 
138
Reno, 521 U.S. at 867 (quoting Pacifica, 438 U.S. at 748). 
indecency on the Internet and that contained a defini-
tion similar to ours.
133
  Though the Court did not hold
that the statute was so vague that it violates the Fifth
Amendment, it concluded that the many ambiguities
concerning the scope of its coverage render it problem-
atic for purposes of the First Amendment.
134
 
45.  Reno in no way undermines Pacifica.  On the
contrary, the Court in Reno expressly distinguished
Pacifica, and it gave three different reasons for doing
so.  First, the Court noted that the Commission is an
agency that [has] been regulating radio stations for de-
cades, and that the Commissions regulations simply
designate whenrather than whetherit would be
permissible to air indecent material.
135
  The CDA, in
contrast, was not administered by an expert agency, and
it contained broad categorical prohibitions that were
not limited to particular times.
136
  Second, the CDA
was a criminal statute, whereas the Commission has no
power to impose criminal sanctions for indecent broad-
casts.
137
  Third, unlike the Internet, the broadcast me-
dium has traditionally received the most limited First
Amendment protection.
138
  Thus, far from casting doubt
on Pacificas vagueness holding, Reno recognizes its
continuing vitality. 
105a
139
Joint Comments at 22. 
140
In any event, the Commission has no authority to overrule
Pacifica.  Cf. Rodriguez de Quijas v. Shearson/American Express,
Inc., 490 U.S. 477, 484 (1989). 
141
Pacifica, 438 U.S. at 748.
142
Id.
143
Id. at 749. 
46.  The Networks also argue that the more relaxed
level of First Amendment scrutiny discussed in Pacifica
should no longer apply to broadcasting in light of
changes in the media marketplace. Specifically, they
contend that because of the prevalence of other media,
such as the Internet and cable and satellite television,
it is fanciful to believe that aggressive enforcement of
 1464 against broadcasters will be effective in prevent-
ing children from being exposed to potentially offensive
words.
139
 
47.  We disagree that technological changes have un-
dermined the validity of the reasoning in Pacifica.
140
  In
Pacifica, the Court identified two reasons why broad-
casting has received the most limited First Amendment
protection.
141
  First, the broadcast media have estab-
lished a uniquely pervasive presence in the lives of all
Americans.  Patently offensive, indecent material pre-
sented over the airwaves confronts the citizen, not only
in public, but also in the privacy of the home.
142
  Second,
broadcasting is uniquely accessible to children, even
those too young to read.
143
 
48.  Notwithstanding the growth of other communica-
tions media, courts have recognized the continuing valid-
ity of these rationales.  In 1994, the Supreme Court reaf-
firmed that our cases have permitted more intrusive
106a
144
Turner Broadcasting Sys., Inc. v. FCC, 512 U.S. 622, 637 (1994);
see also Reno, 521 U.S. at 868 (recognizing special justifications for
regulation of the broadcast media). 
145
ACT III, 58 F.3d at 660.  See also Prometheus Radio Project v.
FCC, 373 F.3d 372, 401-02 (3d Cir. 2004) (rejecting argument that
broadcast ownership regulations should be subjected to higher level of
scrutiny in light of the rise of non-broadcast media). 
146
Turner Broadcasting Sys., Inc. v. FCC, 520 U.S. 180, 190 (1997)
(quoting U.S. v. Southwestern Cable Co., 392 U.S. 157, 177 (1968)).  
147
Id. at 194. 
148
U.S. Census Bureau, Statistical Abstract of the United States 737
(2006). 
regulation of broadcast speakers than of speakers in
other media.
144
  And the D.C. Circuit has rejected pre-
cisely the argument advanced by the Networks here:
Despite the increasing availability of other means of
receiving television, such as cable, . . . there can be no
doubt that the traditional broadcast media are properly
subject to more regulation than is generally permissible
under the First Amendment.
145
49.  The broadcast media continue to have a unique-
ly pervasive presence in American life.  The Supreme
Court has recognized that [d]espite the growing impor-
tance of cable television and alternative technologies,
broadcasting is demonstrably a principal source of in-
formation and entertainment for a great part of the Na-
tions population.
146
  Though broadcast television is
but one of many means for communication, by tradition
and use for decades now it has been an essential part of
the national discourse on subjects across the whole
broad spectrum of speech, thought, and expression.
147
In 2003, 98.2% of households had at least one television,
and 99% had at least one radio.
148
  The Networks cor-
rectly point out that almost 86% of households with tele-
107a
149
Joint Comments at 21 (citing Annual Assessment of the Status
of Competition in the Market for the Delivery of Video Programming,
Twelfth Annual Report, 21 FCC Rcd 2503,  8 (2006) (Annual
Assessment)). 
150
Annual Assessment, 21 FCC Rcd at 2508  15; see also Com-
ments of the Walt Disney Co. in MB Docket No. 04-210 at 2 (filed Aug.
11, 2004) (Disney/ABC stresses that these customers [relying on
broadcast only] represent a significant portion of our potential viewing
audience.). 
151
Media Bureau Staff Report Concerning Over-the-Air Broadcast
Television Viewers, No. 04-210,  9 (MB Feb. 28, 2005), available at
2005 WL 473322, at *2.  
152
Annual Assessment, 21 FCC Rcd at 2508  15. 
153
Id. at 2552  97.  The NAB has properly characterized this
number as enormous.  Reply Comments of the National Association
of Broadcasters and the Association for Maximum Service Television,
Inc. in MB Docket No. 04-210 at i (filed Sept. 7, 2004). 
vision subscribe to a cable or satellite service.
149
  That
still leaves 15.4 million households that rely exclusively
on broadcast television, hardly an inconsequential num-
ber.
150
  In addition, it has been estimated that almost
half of direct broadcast satellite subscribers receive
their broadcast channels over the air,
151
 and many sub-
scribers to cable and satellite still rely on broadcast for
some of the televisions in their households.
152
  All told,
the National Association of Broadcasters (NAB) esti-
mates that there are an estimated 73 million broadcast-
only television sets in American households.
153
  More-
over, many of those broadcast-only televisions are in chil-
drens bedrooms. According to a 2005 Kaiser Family
Foundation report, 68 percent of children aged eight to
18 have a television set in their bedrooms, and nearly
108a
154
See Kaiser Family Foundation, Generation M: Media in the
Lives of 8-18 Year-olds 77 (2005). 
155
See Nielsen Media Research, Top 10 Broadcast TV Programs for
the Week of September 18, 2006; Nielsen Media Research, Top 10
Cable TV Programs for the Week of September 18, 2006. 
156
See Television Bureau of Advertising, Season-to-Date Broadcast
vs. Subscription TV Primetime Ratings: 2004-2005, available at  http://
www.tvb.org/rcentral/ViewerTrack/FullSeason/fs-b-c.asp?ms=2004-
2005.asp. 
half of those sets do not have cable or satellite connec-
tions.
154
 
50.  In addition, the bare number of cable and satel-
lite service subscribers does not reflect the large dispar-
ity in viewership that still exists between broadcast and
cable television programs.  For example, during the
week of September 18, 2006, each of the top ten pro-
grams on broadcast television had more than 15 million
viewers, while only one program on cable television that
week managed to attract more than 5 million viewers.
155
Similarly, of the 495 most-watched television programs
during the 2004-2005 season, 485 appeared on broadcast
television, and the highest-rated program on cable tele-
vision was only the 257th most-viewed program of the
season.
156
 
51.  The broadcast media are also uniquely accessi-
ble to children.  In this respect, broadcast television
differs from cable and satellite television.  Parents who
subscribe to cable exercise some choice in their selection
of a package of channels, and they may avoid subscrib-
ing to some channels that present programming that, in
their judgment, is inappropriate for children.  Indeed,
upon the request of a subscriber, cable providers are
required by statute to fully block the audio and video
109a
157
47 U.S.C.  560 (2000); see also United States v. Playboy
Entertainment Group, Inc., 529 U.S. 803 (2000). 
158
ACT III, 58 F.3d at 660. 
159
See Super Bowl Order on Reconsideration, 21 FCC Rcd at 6667
 37. In Congressional testimony shortly after the 2003 Billboard Music
Awards, Foxs President of Entertainment acknowledged that the V-
chip and television ratings were underutilized.  H.R. 3717, the Broad-
cast Decency Enforcement Act of 2004:  Hearing Before the Subcom-
mittee on Telecommunications and the Internet of the House Comm.
On Energy & Commerce, 107th
 
Congress, (Feb. 26, 2004) (statement of
Gail Berman).  According to a 2003 study, parents low level of V-chip
use is explained in part by parents unawareness of the device and the
multi-step and often confusing process necessary to use it.  Annen-
berg Public Policy Center, Parents Use of the V-Chip to Supervise
Childrens Television Use 3 (2003). Only 27 percent of mothers in the
study group could figure out how to program the V-Chip, and many
mothers who might otherwise have used the V-Chip were frustrated by
an inability to get it to work properly.  Id. at 4. 
160
 See supra para. 18, n. 46; Super Bowl Order on Reconsideration,
21 FCC Rcd at 6667-68  37.
programming of each channel carrying such program-
ming so that one not a subscriber does not receive it.
157
In contrast, as the D.C. Circuit has observed, broadcast
audiences have no choice but to subscribe to the entire
output of traditional broadcasters.
158
  The V-chip pro-
vides parents with some ability to control their chil-
drens access to broadcast programming.  But most tele-
visions do not contain a V-chip, and most parents who
have a television set with a V-chip are unaware of its
existence or do not know how to use it.
159
  In addition,
the effectiveness of a V-chip depends on the accuracy of
program ratings; a V-chip is of little use when, as here,
the rating does not reflect the material that is broad-
cast.
160
  In light of the TV-PG rating given to The 2003
Billboard Music Awards, even an informed use of a V-
110a
161
See supra para. 18, n.46.
162
Henry J. Kaiser Family Foundation, Parents, Media and Public
Policy: A Kaiser Family Foundation Survey 5 (2004) (Kaiser
Survey).  Likewise in a study published in the journal Pediatrics,
parents concluded that half of television shows the industry had rated
as appropriate for teenagers were in fact inappropriate, a finding the
study authors called a signal that the ratings are misleading.  David
A. Walsh & Douglas A. Gentile, A Validity Test of Movie, Television,
and Video-Game Ratings, 107 Pediatrics 1302, 1306 (2001). 
Academics who have studied the television rating system share
parents assessment that the ratings are often inaccurate.  A 2002 study
found that many shows that should carry content descriptors do not,
therefore leaving parents unaware of potentially objectionable material.
See Dale Kunkel, et al., Deciphering the V-Chip:  An Examination of
the Television Industrys Program Rating Judgments, 52 Journal of
Communications 112 (2002).  For example, the study found that 68
percent of prime-time network shows without an L descriptor con-
tained adult language, averaging nearly three scenes with such lan-
guage per show.  See id. at 132; see also id. at 131 (finding that 20 per-
cent of shows rated TV-Gsupposedly appropriate for all ages
included objectionable language, including bastard, bitch, shit,
and whore).  In fact, in all four areas of sensitive materialviolence,
sexual behavior, sexual dialogue, and adult languagethe large
majority of programs that contain such depictions are not identified by
a content descriptor.  Id. at 136.  The studys authors concluded that
[p]arents who might rely solely on the content-based categories to
block their childrens exposure to objectionable portrayals would be
making a serious miscalculation, as the content descriptors actually
identify only a small minority of the full range of violence, sex, and adult
language found on television. Id. 
chip would not necessarily have protected children from
Ms. Richies vulgar comments,
161
 and studies demon-
strate that inaccurate ratings are far from an isolated
problem.  In a Kaiser Family Foundation survey, for
example, nearly 4 in 10 parents of children aged 2-17
stated that most television programs are not rated accu-
rately.
162
 
111a
A 2004 study also raised serious questions about the accuracy of
television ratings.  It found that there was more coarse language
broadcast during TV-PG programs than those rated TV-14, just the
opposite of what these age-based ratings would lead a viewer to believe.
Barbara K. Kaye & Barry S. Sapolsky, Offensive Language in Prime-
Time Television:  Four Years After Television Age and Content Rat-
ings, 48 Journal of Broadcasting & Electronic Media 554, 563-64 (2004);
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); Effectiveness of Media Rating
Systems:  Subcommittee of Science, Technology, and Space of the
Senate Comm. On Commerce, Science & Transp., 107
th
 Congress (2004)
(statement of Ms. Patti Miller, director, Children and the Media
Program for Children Now) (Can parents depend on the accuracy of
the ratings systems?  Sadly, the answer is no.). 
An economist studying the question of why broadcasters consistently
underlabel their programs concluded that they are likely responding
to economic incentives.  See James T. Hamilton, Who Will Rate the
Ratings?, in The V-Chip Debate: Content Filtering from Television to
the Internet 133, 143, 149 (Monroe E. Price, ed. 1998).  He found that
programs with more restrictive ratings command lower advertising
revenues.  See id. at 143.  The desire to charge more for commercials
and fear of advertiser backlash over shows with more restrictive
ratings means that networks have incentives to resist the provision of
content-based information.  Id. at 149; see also Kunkel, 52 Journal of
Communications at 114 ([T]he prospect that applying higher ratings
to a program could reduce audience size raises a self-interest concern
regarding the accuracy with which judgments about program ratings
are determined.). 
Finally, even assuming arguendo that the content descriptors were
accurately applied, they would not assist the majority of parents
because they are not sufficiently understood.  The Kaiser Survey found
that only 51% of parents understand that V stands for violence; only
40% understand L stands for language; only 37% understand S
stands for sex; and only 4% understand that D stands for suggestive
or sexual dialogue.  Kaiser Survey at 6. 
52.  Broadcast television is also significantly different
from the Internet.  The Internet, unlike television, is not
112a
163
Pacifica, 438 U.S. at 749.  See, e.g., Youth, Pornography, and the
Internet, ed. by Dick Thornburgh and Herbert S. Lin, p. 115 (National
Academy Press 2002) (As a general rule, young children do not have
the cognitive skills needed to navigate the Internet independently.
Knowledge of search strategies is limited if not nonexistent, and typing
skills are undeveloped.). 
164
See Reno, 521 U.S. at 877.  Filtering software, for example, can
block access to a website based on the softwares evaluation of the sites
content.  The V-chip, in contrast, does not evaluate television programs
itself and therefore is only effective if the programs have been given
accurate ratings.  However, to the extent that filtering software is
ineffective and children are still able to access indecent material on the
Internet, we note that Congress has sought to address this problem
through the Child Online Protection Act, a statute whose validity is still
being litigated.  See Ashcroft v. ACLU, 542 U.S. 656 (2004) (affirming
preliminary injunction).  We note that the Networks also refer to the
availability of video game consoles as another medium that, in their
view, is as pervasive as television.  See Joint Comments at 21-22.  Video
games differ from broadcast television in that games must be pur-
chased individually, so a parent who purchases a video game console for
a child retains the ability to determine which games the child will play.
165
See supra para. 51 and nn. 159-162. 
accessible to children too young to read.
163
  And par-
ents who wish to control older childrens access to inap-
propriate material can use widely available filtering
softwarean option that, whatever its flaws, lacks an
effective analog in the context of broadcast television
164
in light of the numerous problems with the V-chip and
program ratings discussed above.
165
 
53.  No Sanction Proposed.  For the reasons stated
above, we conclude that The 2003 Billboard Music
Awards contained indecent and profane material in
violation of Section 1464 and our rules.  Fox stations
broadcast indecent and profane language in an awards
show that aired between 6 a.m. and 10 p.m. and was
watched by people of all ages.  Under the circumstances,
113a
166
Remand Order at 2.  See 47 U.S.C.  503(b)(4)(C); ACT IV, 59
F.3d at 1254, citing Pleasant Broadcasting Co. v. FCC, 564 F.2d 496
(D.C. Cir. 1977).  
167
In light of recent legislation, the Networks raise the prospect of
future fines in excess of $65 million for a single, fleeting instance of
indecent speech. Joint Comments at 16.  We do not believe, however,
that a case similar to The 2003 Billboard Music Awards arising in the
future would merit the maximum fine permitted under the Broadcast
Decency Enforcement Act.  See Pub. L. 109-235, 102 Stat. 491 (June 15,
2006), to be codified at 47 U.S.C.  503(b)(2)(C)(ii).  While that Act, once
we adopt implementing regulations, will provide the Commission with
the flexibility to impose appropriate fines in egregious cases, the
Commission will continue to follow a restrained enforcement policy in
imposing forfeitures in this area. 
however, we propose no forfeiture here. We originally
declined to propose a sanction in this case because the
broadcast occurred prior to the Golden Globe Awards
Order.  As discussed above, we believe on further con-
sideration that the complained-of language was action-
able under Commission decisions preceding the Golden
Globe Awards Order. Nevertheless, we still decline to
propose a forfeiture here.  To begin with, proposing a
sanction would require issuance of a notice of apparent
liability, which would not be a further final or appeal-
able order of the FCC, as required by the Remand Or-
der.
166
  In addition, even absent the requirement that we
issue a final or appealable order, we would not exer-
cise our enforcement discretion to propose a forfeiture
here given the limited remand under which we are pro-
ceeding.  Accordingly, we find that no forfeiture is war-
ranted in this case.
167
  In light of our decision not to im-
pose a forfeiture, we will not require the licensees of any
of the stations that broadcast the material to report our
finding here to us as part of their renewal applications,
and we will not consider the broadcast to have an ad-
114a
168
See 47 U.S.C.  503(b)(1)(B) & (D).  We also need not address
whether responsibility would lie with independent Fox affiliates in
addition to the licensees owned by Fox.  Cf.  Complaints Against Va-
rious Television Licensees Concerning Their February 1, 2004 Broad-
cast of the Super Bowl XXXVIII Halftime Show, Notice of Apparent
Liability for Forfeiture, 19 FCC Rcd 19230, 19240-41  25 (2004). 
169
Joint Comments at 24-26.  We also reject, as contrary to the
plain meaning of the Act, the Networks contention that we may
not impose forfeitures for violations of our indecency rule under section
503(b)(1)(B). While the Networks suggest that the Commissions
indecency rule, 47 C.F.R.  73.3999, merely represents a decision by the
Commission to restate 18 U.S.C.  1464, the indecency rule was adopted
by the Commission pursuant to the direction of Congress.  See Public
Telecommunications Act of 1992, Pub. L. No. 102-356, 106 Stat. 949,
Section 16 (1992). 
verse impact upon such licensees as part of the renewal
process or in any other context. 
54.  In light of our decision not to impose a forfeiture,
we need not address whether the violations of Section
1464 and our rule were willful within the meaning of
Section 503(b).
168
  We disagree with the Networks, how-
ever, that Section 1464 is not violated unless a broad-
caster acts with the state of mind required for a criminal
conviction.
169
  The Supreme Court has squarely rejected
the argument that the FCCs civil authority to enforce
Section 1464 must be interpreted in accordance with
rules that apply to criminal statutes, explaining: The
legislative history of the provisions establishes their
independence.  As enacted in 1927 and 1934, the prohibi-
tion on indecent speech was separate from the provi-
sions imposing civil and criminal penalties for violating
the prohibition  .  .  .  Although the 1948 codification of
the criminal laws and the addition of new civil penalties
115a
170
Pacifica, 438 U.S. at 739 n.13. 
171
The Networks reliance on FCC v. ABC, 347 U.S. 284, 296 (1954),
for the proposition that [t]here cannot be one construction for the
Federal Communications Commission and another for the Department
of Justice is misplaced.  Joint Comments at 24.  In that case, the
Court rejected the broad construction urged by the Commission of a
statutory prohibition against a lottery, gift enterprise, or similar
scheme in part because the same construction would likewise apply
in criminal cases.  FCC v. ABC, 347 U.S. at 296.  In contrast, the intent
required to impose civil penalties for Section 1464 violations has no
impact on its possible application as a criminal statute.  See Pacifica,
438 U.S. at 739 n. 13. 
172
FCC File No. EB-03-IH-0460.  See Letter from Lara Mahaney,
Director of Corporate and Entertainment Affairs, PTC to David Solo-
mon, Chief, Enforcement Bureau, Federal Communications Commis-
sion (August 22, 2003).  As noted in the Golden Globe Awards Order,
the Commissions Enforcement Bureau had dismissed an earlier com-
plaint concerning the same broadcast on the same station eight months
earlier.  See Letter from Charles Kelley, Chief, Investigations and
Hearings Division, Enforcement Bureau, FCC to RadioEsq@aol.com,
EB-02-IH-0861-MT (December 18, 2002), cited in Golden Globe
Awards Order, 19 FCC Rcd at 4980  12 n.32 (noting Bureau dismissal
changed the statutory structure, no substantive change
was apparently intended  .  .  .  Accordingly, we need not
consider any question relating to the possible applica-
tion of  1464 as a criminal statute.
170
  Thus, the mens
rea necessary for a criminal conviction is not a prerequi-
site to the Commissions finding a Section 1464 viola-
tion.
171
 
B. The 2002 Billboard Music Awards 
55.  The Programming.  The Commission received a
complaint alleging that WTTG(TV), Washington, DC,
broadcast indecent material during The 2002 Billboard
Music Awards program which aired at 8 p.m. Eastern
Standard Time on December 9, 2002.
172
  Specifically, the
116a
of complaint).  However, Fox has raised no claim of administrative res
judicata, and thus, because that defense has been waived, we need not
consider it.  Cf. Kern Oil & Ref. Co. v. Tenneco Oil Co., 840 F.2d 730,
735 (9th Cir. 1988). 
173
See Letter from Lara Mahaney, Director of Corporate and
Entertainment Affairs, PTC to David Solomon, Chief, Enforcement
Bureau, Federal Communications Commission (August 22, 2003). 
174
See Press Release, Cher to Receive the Artist Achievement
Award on the 2002 Billboard Music Awards Monday, Dec. 9 on Fox
(Nov. 14, 2002), attached to Letter from John C. Quale, Counsel of Fox,
to Benigno E. Bartolome, Deputy Chief, Investigations and Hearings
Division, Enforcement Bureau, File No. EB-03-IH-0460 (September
21, 2006) (Fox Response to 9/7/2006 LOI). 
complainant alleged that while accepting an award, Cher
stated:  People have been telling me Im on the way out
every year, right? So fuck em.
173
  The 2002 Billboard
Music Awards was broadcast nationwide on the Fox
Television Network. 
56.  Examination of a videotape of the broadcast re-
veals that Cher, a singer and actress, was presented
with an Artist Achievement Award during The 2002
Billboard Music Awards program.  Cher had been se-
lected to receive this award at least three weeks before
the broadcast.
174
  In the course of her remarks accepting
the award, she stated as follows:  Ive had unbelievable
support in my life and Ive worked really hard.  Ive had
great people to work with.  Oh, yeah, you know what?
Ive also had critics for the last 40 years saying that I
was on my way out every year.  Right.  So fuck em.  I
still have a job and they dont. 
57.  Following the Second Circuits remand, the Bu-
reau sent Fox a letter of inquiry on September 7, 2006
concerning The 2002 Billboard Music Awards broad-
117a
175
See Letter from Benigno E. Bartolome, Deputy Chief, Investiga-
tions and Hearings Division, Enforcement Bureau, to Fox Television
Stations, Inc., File No. EB-03-IH-0460 (September 7, 2006).
176
See Fox Response to 9/7/2006 LOI.
177
Id. at 2.
178
Id. at 10.
179
Id.
180
Fox also suggests that the complaint should be dismissed because
it fails to specifically allege that the complainant viewed The 2002
Billboard Music Awards.  See id. at 2. We disagree.  Our practice has
never been to require such an allegation in order for a complaint to be
considered.  It is sufficient that the complaint originated from within
the market of the station against which the complaint is filed.  See
Indecency Policy Statement, 16 FCC Rcd at 8015  24; see also Super
Bowl Order on Reconsideration, 21 FCC Rcd at 6665  30. 
cast.
175
  Fox responded on September 21, 2006.
176
  Foxs
response confirms that it broadcast the material de-
scribed in the complaint.
177
  Nevertheless, Fox argues
that its broadcast of the F-Word, in context, did not
depict or describe sexual activities but rather, at most,
was a vulgar expletive directed as an insult toward an
individual or group against whom the speaker held deep-
seated feelings of ill-will, and thus is outside the scope
of the Commissions indecency definition.
178
  Further,
Fox argues that the complained-of material was not ac-
tionably indecent because it contained at most the pass-
ing use of an expletive used to convey an insult, it
lasted only a couple of seconds out of a two-hour pro-
gram, and Fox did not present it to pander to or titil-
late the audience, or for shock value.
179
  Therefore, Fox
contends that the dialogue is not actionably indecent.
180
58.  Indecency Analysis.  With respect to the first
prong of the indecency test, Fox contends that Chers
118a
181
See supra note 38.
182
See supra para. 16.
183
See supra note 40.
184
 See Andrew Koppelman, Why Discrimination Against Lesbians
and Gay Men Is Sex Discrimination, 69 N.Y.U. L. Rev. 197, 224 (1994)
(explaining the sexual meaning of the metaphorical use of the F-Word
as a verb). 
185
See Golden Globe Awards Order, 19 FCC Rcd at 4979  8. 
statement fuck em does not describe sexual activities
and thus falls outside the scope of our indecency defini-
tion.  We disagree.  As discussed above, a long line of
precedent indicates that both literal and non-literal uses
of the F-Word come within the subject matter scope of
our indecency definition.
181
  Given the core meaning of
the F-Word, any use of that word has a sexual conno-
tation.
182
  Moreover, it hardly seems debatable that the
words power to insult and offend derives from its sexual
meaning.
183
  Here, for example, Chers use of the F-
Word to reference a sexual act as a metaphor to ex-
press hostility to her critics is inextricably linked to the
sexual meaning of the term.
184
  Accordingly, we conclude
that, as we stated in Golden Globe,
185
 its use falls within
the scope of our indecency definition.  The material thus
warrants further scrutiny to determine whether it is
patently offensive as measured by contemporary com-
munity standards for the broadcast medium.  Looking at
the three principal factors in our contextual analysis, we
conclude that it is. 
59.  We will first address the first and third principal
factors in our contextual analysisthe explicit or
graphic nature of the material and whether the material
panders to, titillates, or shocks the audience.  As we
119a
186
See id.
187
See Pacifica, 438 U.S. at 749-51 (identifying as relevant contex-
tual factors the time of day of the broadcast, program content as it
affects the composition of the audience, and the nature of the
medium).  See also supra para. 18. 
188
See supra para. 18.
189
Fox Response to 9/7/2006 LOI at 6.
190
See supra n. 47.  In the context of a broadcast rated TV-PG, an
L content description warning would not have alerted parents to the
use of the F-word.  See id.  Nonetheless, the 2002 Billboard Music
Award, unlike the 2003 version of the same show, did not include even
that inadequate L content descriptor.  So parents relying on the
have previously concluded, the F-Word is one of the
most vulgar, graphic, and explicit words for sexual activ-
ity in the English language.
186
  Moreover, the gratuitous
use of this language during a live broadcast of a popular
music awards ceremony when children were expected to
be in the audience was vulgar and shocking.  The
complained-of material was broadcast in prime time, and
the program was designed to draw a large nationwide
audience that could be expected to include many chil-
dren interested in seeing their favorite music stars.
187
As in the case of The 2003 Billboard Music Awards,
188
a significant portion of the viewing audience for this pro-
gram was under 18.  According to Nielsen ratings data,
during an average minute of The 2002 Billboard Music
Awards broadcast, 2,608,000 (27.9%) of the 9,361,000
people watching the program were under 18, and
1,186,000 (12.7%) were between the ages of 2 and 11.  In
addition, the programs TV-PG rating
189
 would not have
put parents or others on notice of such vulgar language,
and the broadcast contained no other warnings to view-
ers that it might contain material highly unsuitable for
children.
190
  Furthermore, Fox does not argue that there
120a
ratings would not have expected even mild coarse language, much
less the F-Word. 
191
For instance, Fox does not contend that Chers comment had any
artistic merit or was necessary to convey any message. 
192
Foxs argument that it did not present Chers comment for shock
value misunderstands the contextual analysis employed by the
Commission, under which we examine the material itself and the
manner in which it is presented, not the subjective state of mind of the
broadcaster.  Super Bowl Order on Reconsideration, 21 FCC Rcd at
6657-58  12. 
was any justification for Chers comment.
191
  In light of
all of these factors, we conclude that the first and third
factors in our contextual analysis weigh in favor of a
finding that the material is patently offensive.
192
 
60.  We next turn to the second factor in our contex-
tual analysiswhether the complained-of material was
sustained or repeated.  Fox argues that this factor pre-
cludes a finding of indecency.  As reviewed above, Com-
mission dicta and Bureau-level decisions issued before
our Golden Globe decision had suggested that expletives
had to be repeated to be indecent but that such a repeti-
tion requirement would not apply to descriptions or
depictions of sexual or excretory functions.  In this
case, Cher did more than use the F-Word as a mere
interjection or intensifier.  Rather, she used the word to
describe or reference a sexual act as a metaphor to ex-
press hostility to her critics.  The fact that she was not
literally suggesting that people engage in sexual activi-
ties does not necessarily remove the use of the term
from the realm of descriptions or depictions.  This case
thus illustrates the difficulty in making the distinction
between expletives on the one hand and descriptions or
depictions on the other.  Particularly in light of this lack
121a
193
See Golden Globe Awards Order, 19 FCC Rcd at 4980  12.
194
Id.
195
See supra para. 59.
of clarity, we acknowledge that it was not apparent that
Fox could be penalized for Chers comment at the time
it was broadcast.  This case also shows that the inquiry
into whether a word is used an expletive rather than a
description or depiction is wholly artificial.  Whether
used as an expletive, or as a description or depiction, the
offensive nature of the F-Word is inherently tied to
the terms sexual meaning. 
61.  In any event, under our Golden Globe precedent,
the fact that Cher used the F-Word once does not re-
move her comment from the realm of actionable inde-
cency.
193
  We stated in Golden Globe that the mere fact
that specific words or phrases are not sustained or re-
peated does not mandate a finding that material that is
otherwise patently offensive to the broadcast medium is
not indecent.
194
  To be sure, the fact that material is not
repeated does weigh against a finding of indecency, and
in certain cases, when all of the relevant factors are con-
sidered together, this factor may tip the balance in a
decisive manner.  This, however, is not one of those
cases. 
62. We believe that Chers use of the F-Word here
during a program aired in prime time was patently of-
fensive under contemporary community standards for
the broadcast medium.  The patent offensiveness is com-
pounded by the fact that the warnings accompanying the
broadcast were inadequate and misleading.
195
  We do not
believe that the Commission should ignore the first
blow to the television audience in the particular circum-
122a
196
Pacifica, 438 U.S. at 748-49.
197
See supra para. 29.
198
See Fox Response to 9/7/06 LOI at 4-6, 10.
199
See supra para. 60; see also Golden Globe Awards Order, 19 FCC
Rcd at 4982  15. 
stances presented here.
196
  Our determination, more-
over, is consistent with the networks own broadcast
standards during the safe harbor, which would not
allow the broadcast of a single use of the F-Word un-
der these circumstances.
197
  Such standards reflect the
networks recognition that even a single use of the F-
Word under most circumstances is not consistent with
contemporary community standards for the broadcast
medium.  Indeed, Fox edited out Chers comment in its
broadcasts to the Mountain and Pacific Time Zones. 
63.  In sum, we conclude that, given the explicit, gra-
phic, vulgar, and shocking nature of Chers use of the
F-Word, Foxs broadcast was patently offensive under
contemporary community standards for the broadcast
medium. 
64.  Fox also argues that it should not be held re-
sponsible for airing Chers comment.  In particular, Fox
argues that Chers remarks were unscripted and that
the five-second delay and editing system that it used for
The 2002 Billboard Music Awards previously had been
effective in preventing the airing of objectionable mate-
rial.
198
  We need not address these arguments, however,
because we decide that it would not be equitable to sanc-
tion Fox for a different reason.  Specifically, as dis-
cussed above, it was not clear at the time that broadcast-
ers could be punished for the kind of comment at issue
here.
199
 
123a
200
18 U.S.C.  1464.
201
Golden Globe Awards Order, 19 FCC Rcd at 4981  13, quoting
Tallman, 465 F.2d at 286.
202
Omnibus Order at 2669  19, citing Complaints Against Various
Television Licensees Regarding Their Broadcast on November 11, 2004
of the ABC Television Networks Presentation of the Film Saving
Private Ryan, Memorandum Opinion and Order, 20 FCC Rcd 4507,
4512-14  13-18 (2005). 
203
Fox Response to 9/7/2006 LOI at 10. 
65.  Profanity Analysis.  Consistent with our deci-
sions in the Golden Globe Awards Order and the Omni-
bus Order, we also find that Chers use of the F-Word
in the program at issue violated Section 1464s prohibi-
tion on the broadcast of profane utterances.
200
  In the
Golden Globe Awards Order, the Commission concluded
that the F-Word was profane within the meaning of
Section 1464 because, in context, it constituted vulgar
and coarse language so grossly offensive to members
of the public who actually hear it as to amount to a nui-
sance.
201
  In certain cases, language that is presump-
tively profane will not be found to be profane where it is
demonstrably essential to the nature of an artistic or
educational work or essential to informing viewers on a
matter of public importance.
202
  However, such circum-
stances are not present here:  Fox does not contend that
Chers profane language was essential to informing
viewers on a matter of public importance or that modify-
ing the language would have had a material impact on its
function as a source of news and information.  On the
contrary, Fox maintains that it attempted to delete the
profane language, and did remove it before the program
aired on time delay in the Mountain and Pacific Time
Zones.
203
  It is undisputed that the F-Word was broad-
cast within the 6 a.m. to 10 p.m. time frame relevant to
124a
204
See Omnibus Order, 21 FCC Rcd at 2666  8. 
205
See supra para. 59 (noting that, according to Nielsen ratings data,
27.9% of the people watching an average minute of The 2002 Billboard
Music Awards broadcast were under 18, and 12.7% were between the
ages of 2 and 11); see also Pacifica, 438 U.S. at 749-50 (discussing
governments interest in protecting children from offensive expres-
sion) 
206
See supra para. 64.  In light of our decision not to impose a
forfeiture, we need not address whether the violations of Section 1464
and our rule were willful within the meaning of Section 503(b). 
207
The constitutional arguments raised by the Networks relating to
the application of our indecency framework to The 2002 Billboard
Music Awards are the same as the constitutional arguments that we
a profanity determination.
204
  Because it was broadcast
at a time of day when there was a reasonable risk of chil-
drens presence in the audience (indeed, as detailed
above, over two-and-a-half million viewers of the broad-
cast were under the age of 18),
205
 the broadcast is legally
actionable.  
66.  No Sanction Proposed.  For the reasons stated
above, we conclude that The 2002 Billboard Music
Awards contained indecent and profane material in
violation of Section 1464 and our rules. Fox stations
broadcast indecent and profane language in an awards
show that aired between 6 a.m. and 10 p.m. and was
watched by people of all ages. Under the circumstances,
however, we find that no forfeiture is warranted in this
case for the reason set forth above.
206
  In light of our
decision not to impose a forfeiture, we will not require
the licensees of any of the stations that broadcast the
material to report our finding here to us as part of their
renewal applications, and we will not consider the broad-
cast to have an adverse impact upon such licensees as
part of the renewal process or in any other context.
207
 
125a
have already addressed with respect to the 2003 Billboard Music
Awards broadcast.  We reject those arguments for the same reasons
given above.  See supra para. 42-52. 
208
FCC File No. EB-05-IH-0007. 
209
See Letter From Robert Corn-Revere, Counsel to CBS, to
Marlene H. Dortch, Secretary, FCC, File No. EB-05-IH-0007 (Sept. 21,
2006), at 1 (CBS Response to 9/7/2006 LOI). 
C. The Early Show 
67.  The Early Show is a two-hour morning pro-
gram that airs weekdays on the CBS Television Net-
work.  On December 13, 2004, the program devoted sig-
nificant coverage to discussion of the CBS program
Survivor: Vanuatu, which had crowned its winner the
prior evening.  As part of that coverage, The Early
Show co-host Julie Chen conducted a live interview
with the final four contestants from Survivor: Van-
uatu.  During that interview, Ms. Chen asked runner-
up Twila Tanner whether she agreed with fourth-place
finisher Eliza Orlins that Chris Daugherty, the winner
of the program, would have prevailed had he been
matched up in the finals against Ms. Orlins.  Ms. Tanner
then responded, Not necessarily.  I knew he was a
bullshitter from Day One. 
68.  A viewer subsequently filed a complaint with the
Commission that Station KDKA-TV, Pittsburgh, Penn-
sylvania, which is licensed to CBS Broadcasting Inc.,
aired Ms. Tanners comment at approximately 8:10 a.m.
Eastern Standard Time, on December 13, 2004, and al-
leged that the comment was indecent and profane.
208
  In
response to the Commissions letter of inquiry, CBS
does not deny that the comment in question was broad-
cast on KDKA-TV.
209
  However, CBS argues, among
126a
210
See id. at 4. 
211
Omnibus Order, 21 FCC Rcd at 2668  15. 
212
 Id. at 2717  218. 
213
Peter Branton, 6 FCC Rcd at 610.  See Infinity Broadcasting
Corp. of Pennsylvania, Memorandum Opinion and Order, 3 FCC Rcd
930, 937 n. 31 (1987), vacated on other grounds sub nom.  ACT I, (noting
that context will always be critical to an indecency determination and
.  .  .  the context of a bona fide news program will obviously be different
from the contexts of the three broadcasts now before us, and, therefore,
would probably be of less concern.); Indecency Policy Statement, 16
FCC Rcd at 8002-03 (stating that [e]xplicit language in the context of
a bona fide newscast might not be patently offensive. ). 
other things, that the material is not actionable because
it was spoken during a bona fide news interview.
210
 
69.  In the Omnibus Order, we recognize[d] the
need for caution with respect to complaints implicating
the editorial judgment of broadcast licensees in present-
ing news and public affairs programming, as these mat-
ters are at the core of the First Amendments free press
guarantee.
211
  Indeed, when we denied an indecency
complaint regarding material that was aired during
The Today Show, which is a competitor of The Early
Show, we reiterated the need for the Commission to
exercise caution with respect to news programming.
212
70.  This restrained approach is consistent with a
long line of Commission precedent.  For example, in Pe-
ter Branton, the Commission held that an NPR news
story on John Gotti, which included a wiretap of a con-
versation in which Gotti repeatedly used variations of
the F-Word, was not indecent because it was an inte-
gral part of a bona fide news story.
213
  The Commission
explained that we traditionally have been reluctant to
intervene in the editorial judgments of broadcast licens-
127a
214
Peter Branton, 6 FCC Rcd at 610. 
215
See, e.g., Evergreen Media Corporation of Chicago AM, Memo-
randum Opinion and Order, 6 FCC Rcd 5950, 5951 (Mass Media Bur.
1991) (finding talk show segment discussing pornographic photographs
of Vanessa Williams to be indecent and concluding that [e]ven if it had
been argued that the [show] in question was comparable to a news
program, the Vanessa Williams segment contained vulgar material
presented in a pandering and titillating manner unlike anything found
in the Branton case.); Pacific and Southern Company Inc. (KSD-
FM), Notice of Apparent Liability, 6 FCC Rcd 3689 (Mass Media Bur.
1990) (forfeiture paid) (finding that exceptionally explicit and vulgar
material that was presented in a pandering manner was indecent
even though it arguably concerned an incident that was at the time in
the news.). 
216
See, e.g., Howard Rosenberg, The Fact Is, the Joke is the News,
Broadcasting & Cable, Nov. 1, 2004, at 32 (Even more common is the
venerable, widespread practice of cross-promotion, as on The Early
Show, a production of CBS News, which each Friday devotes a lengthy
segment to covering the previous nights Survivor episode on the
ees on how best to present serious public affairs pro-
gramming to their listeners.
214
 
71.  In todays Order, we reaffirm our commitment to
proceeding with caution in our evaluation of complaints
involving news programming.  To be sure, there is no
outright news exemption from our indecency rules.
215
Nevertheless, in light of the important First Amend-
ment interests at stake as well as the crucial role that
context plays in our indecency determinations, it is im-
perative that we proceed with the utmost restraint when
it comes to news programming. 
72.  Some critics have questioned whether the seg-
ments of The Early Show devoted to Survivor:
Vanuatu are legitimate news programming or instead
are merely promotions for CBSs own entertainment
programming.
216
  CBS nevertheless maintains in its LOI
128a
network, as if who got bumped off was an actual news story.  As a
bonus, The Early Show folds itself into this fantasy from a special set
outfitted to resemble Survivor.). 
response that its interview of the Survivor: Vanuatu
contestants was a bona fide news interview.  The
Early Show is produced by CBS News and addressed
a variety of other topics that morning, including a sui-
cide bombing in Iraq, the withdrawal of Bernard Kerik
as a candidate to serve as Secretary of Homeland Secu-
rity, and the apparent poisoning of then-Ukrainian oppo-
sition leader Viktor Yushchenko, which clearly fall un-
der the rubric of news programming.  In light of these
factors and our commitment to exercising caution in this
area, we believe it is appropriate in these circumstances
to defer to CBSs plausible characterization of its own
programming.  Accordingly, we find that, in the Omni-
bus Order, we did not give appropriate weight to the
nature of the programming at issue (i.e., news program-
ming). 
73.  Turning to the specific material that is the sub-
ject of the complaint, we can certainly understand that
viewers may have been offended by Ms. Tanners coarse
language.  Nevertheless, given the nature of her com-
ment and our decision to defer to CBSs characterization
of the program segment as a news interview, we con-
clude, regardless of whether such language would be
actionable in the context of an entertainment program,
that the complained-of material is neither actionably
indecent nor profane in this context.  Accordingly, we
deny the complaint. 
129a
217
FCC File No. EB-03-IH-0355.
218
Omnibus Order, 21 FCC Rcd at 2696-98  125-36. 
219
KMBC Hearst-Argyle Television, Inc. Response to Letter of
Inquiry and Memorandum of Law, File No. EB-03-IH-0355 at 8 (Sept.
21, 2006) (Hearst Response to 9/7/2006 LOI). 
220
See Letters from Lara Mahaney, Director of Corporate and
Entertainment Affairs, PTC, to David Solomon, Chief, Enforcement
Bureau, dated July 1 and July 3, 2003. 
D. NYPD Blue 
74.  As discussed above, the Commission received
complaints regarding several NYPD Blue episodes
that aired on KMBC-TV, Kansas City, Missouri, and
other unidentified ABC Television Network affiliates
beginning at 9:00 p.m. Central Standard Time, in which
the S-Word was used.
217
 In the Omnibus Order, the
Commission found those broadcasts containing the S-
Word to be apparently indecent and profane.
218
  In its
response to the Commissions letter of inquiry, KMBC
Hearst-Argyle Television, Inc. (Hearst), licensee of
KMBC-TV, does not dispute that it aired the
complained-of material.  Hearst argues, however, that
the complaints should either be dismissed on procedural
grounds or denied on the merits. 
75.  Raising an argument that we did not previously
consider, Hearst contends that the Commission should
dismiss the complaints as insufficient under the enforce-
ment policy set forth in the Omnibus Order.
219
  One com-
plaint was filed against each of the NYPD Blue broad-
casts at issue, and each of these complaints was filed by
the same person.  All of these complaints stated that the
complained-of broadcast originally aired at 9:00 p.m.
CST on Kansas City affiliate KMBC and was also seen
in homes across the country on ABC affiliates.
220
  How-
130a
221
Hearst Response to 9/7/2006 LOI at 11, n.9.
222
See supra note 217 and accompanying text.  The letterhead of
each complaint identified contact information for PTCs office in
Alexandria, Virginia, as well as a PTC office in Los Angeles, California.
223
See id.
ever, as Hearst accurately maintains, none of the com-
plaints was filed by anyone residing in the market
served by KMBC-TV.  Nor were any of the complaints
filed by anyone residing in a market where the com-
plained-of material aired outside of the 10:00 p.m.-6:00
a.m. safe harbor.  Instead, each complaint was filed by
the same individual from Alexandria, Virginia, where, as
Hearst points out,
221
 the material was aired during the
safe harbor.
222
  In addition, none of the complaints con-
tains any claim that the out-of-market complainant actu-
ally viewed the complained-of broadcasts on KMBC-TV
or any other ABC affiliate where the material was aired
outside of the safe harbor.
223
  Thus, there is nothing in
the record either to tie the complaints to Station KMBC-
TVs local viewing area (or the local viewing area of any
station where the material was aired outside of the safe
harbor), or to suggest that the broadcast programming
at issue was the subject of complaints from anyone who
viewed the programming on any station that aired the
material outside of the safe harbor. 
76.  We therefore agree with Hearst that we should
dismiss the complaints regarding NYPD Blue pursu-
ant to the enforcement policy that we announced in the
Omnibus Order. There, the Commission stated that it
would propose forfeitures only against licensees and
stations whose broadcasts of actionable material were
the subject of a viewer complaint filed with the Commis-
131a
224
Omnibus Order, 21 FCC Rcd at 2673  32, 2676  42, 2687  86.
225
Id. at 2687  86.  See Super Bowl Order on Reconsideration, 21
FCC Rcd at 6665  30 (under the enforcement policy announced in the
Omnibus Order, 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.). 
226
Hearst Response to 9/7/2006 LOI at 11. 
sion,
224
  explaining that [i]n the absence of complaints
concerning the program filed by viewers of other sta-
tions, it is appropriate that we sanction only the licensee
of the station whose viewers complained about that pro-
gram.
225
  In addition to demonstrating appropriate re-
straint in light of First Amendment values, this enforce-
ment policy preserves limited Commission resources,
while still vindicating the interests of local residents who
are directly affected by a stations airing of indecent and
profane material. 
77.  Based on consideration of Hearsts arguments,
we agree that consistent application of our restrained
enforcement policy requires us to apply the same ap-
proach to this case that we applied to the notices of ap-
parent liability in the Omnibus Order.  While this case
does not involve the imposition of forfeitures against
KMBC-TV or any other licensee, the sufficiency of a
complaint is the first step rather than the last step in the
Commissions analysis.  Thus, as Hearst puts it, [o]nly
the dismissal of the NYPD Blue complaints will bring
[this case] into harmony with the Commissions an-
nounced enforcement policy.
226
  Accordingly, we dismiss
these complaints. 
132a
IV. ORDERING CLAUSES 
78. Accordingly, IT IS ORDERED that Section
III.B of the Omnibus Order is VACATED in its en-
tirety.
79. IT IS FURTHER ORDERED that the com-
plaints referenced in this Order involving The 2003
Billboard Music Awards and The 2002 Billboard Music
Awards are GRANTED to the extent set forth herein
and OTHERWISE DENIED.  
80. IT IS FURTHER ORDERED that the com-
plaints referenced in this Order involving The Early
Show are DENIED. 
81. IT IS FURTHER ORDERED that the com-
plaints referenced in this Order involving NYPD Blue
are DISMISSED. 
82.  IT IS FURTHER ORDERED that a copy of this
Order shall be sent Certified Mail, Return Receipt Re-
quested, to Susan L. Fox, Esq., Vice President, Govern-
ment Relations, The Walt Disney Company, 1150 17th
Street, N.W., Suite 400, Washington, D.C. 20036. 
83. IT IS FURTHER ORDERED that a copy of this
Order shall be sent Certified Mail, Return Receipt Re-
quested, to John W. Zucker, Esq., Senior Vice Presi-
dent, Law-Regulation, ABC, Inc., 77 West 66th Street,
New York, N.Y. 10024. 
84. IT IS FURTHER ORDERED that a copy of this
Order shall be sent Certified Mail, Return Receipt Re-
quested, to Seth Waxman, Esq., Counsel to The Walt
Disney Company, Wilmer, Cutler, Pickering, Hale &
Dorr, LLP, 2445 M Street, N.W., Washington, D.C.
20037. 
133a
85.  IT IS FURTHER ORDERED that a copy of this
Order shall be sent Certified Mail, Return Receipt Re-
quested, to Anne Lucey, Esq., Senior Vice President,
Regulatory Policy, CBS Corporation, 601 Pennsylvania
Ave., N.W., Suite 540, Washington, DC 20004. 
86. IT IS FURTHER ORDERED that a copy of this
Order shall be sent Certified Mail, Return Receipt Re-
quested, to Robert Corn-Revere, Counsel to CBS Corp.,
Davis Wright Tremaine, LLP, 1500 K Street, N.W.,
Suite 450, Washington, D.C. 20005-1272. 
87. IT IS FURTHER ORDERED that a copy of this
Order shall be sent Certified Mail, Return Receipt Re-
quested, to Mark J. Prak, Esq., Counsel to Hearst-
Argyle Television, Inc., Brooks, Pierce, McLendon,
Humphrey & Leonard, LLP, 150 Fayetteville Street,
Suite 1600 Wachovia Capitol Center, Raleigh, North
Carolina 27601. 
88. IT IS FURTHER ORDERED that a copy of this
Order shall be sent Certified Mail, Return Receipt Re-
quested, to Maureen A. OConnell, Esq., News Corpora-
tion, 444 North Capitol Street, N.W., Suite 740, Wash-
ington, D.C. 20001. 
89.  IT IS FURTHER ORDERED that a copy of this
Order shall be sent Certified Mail, Return Receipt Re-
quested, to John Quale, Esq., Counsel to Fox Television
Stations, Inc., Skadden, Arps, Slate, Meagher & Flom,
LLP, 1440 New York Ave., N.W., Washington, D.C.
20005. 
FEDERAL COMMUNICATIONS COMMISSION 
Marlene H. Dortch 
Secretary 
134a
1
Complaints Regarding Various Television Broadcasts Between
February 2, 2002 and March 8, 2005, Notices of Apparent Liability and
Memorandum Opinion and Order, 21 FCC Rcd 2664 (2006) (Omnibus
Order). 
2
Todays decision presumes that the general statement that the
Commissions collective experience and knowledge, developed through
constant interaction with lawmakers, courts, broadcasters, public
interest groups, and ordinary citizens, and nothing more, is sufficient
to inform the public and broadcasters what we believe are the national,
contemporary community standards of the broadcast medium.  In re
Infinity Radio License, Inc., Memorandum Opinion and Order, 19 FCC
Rcd 5022, 5026 (2004); compare, Reno v. ACLU, 521 U.S. 844 (1997)
(finding the terms indecent, patently offensive and in context
were so vague that criminal enforcement would violate the fundamental
constitutional principles, but while recognizing the history of extensive
government regulation of broadcasting).  
STATEMENT OF  
COMMISSIONER JONATHAN S. ADELSTEIN  
CONCURRING IN PART, DISSENTING IN PART
Re: Complaints Regarding Various Television
Broadcasts Between February 2, 2002 and
March 8, 2005, Order 
Todays Order is pursuant to a grant from the United
States Court of Appeals for the Second Circuit of the
Commissions voluntary remand request to reconsider
portions of the March 15, 2006, Omnibus Order.
1
  In that
decision, I concurred in part and dissented in part be-
cause I believed the Commission had failed to develop a
consistent and coherent indecency enforcement policy.
It was my hope that the Commission would use this re-
mand to clarify and rationalize our indecency regime,
2
but regulatory convenience and avoidance have pre-
vailed instead.  I am, therefore, compelled again to con-
cur in part and dissent in part. 
135a
3
Complaints Against Various Broadcast Licensees Regarding
Their Airing of the Golden Globe Awards Program, Memorandum
Opinion and Order, 18 FCC Rcd 19859 (Enf. Bur. 2003), reversed, 19
FCC Rcd 4975 (2004) (Golden Globe Awards Order), petitions for
stay and recon. pending (since April 2004).
4
Golden Globe Awards Order at  9, 12 and 14 (eviscerating our
longstanding standard for isolated or fleeting expletives, establishing
that any use of the F-word or a variation, in any context, invariably
invokes a coarse sexual image, and changing our 30-year standard of
what constitutes profanity).
5
Omnibus Order, Statement of Commissioner Jonathan S.
Adelstein, concurring in part, dissenting in part, 21 FCC Rcd at 2726.
The proverbial elephant in the room looming over
todays decision is the Golden Globe Awards Order,
3
which inexplicably has been pending reconsideration for
more than two and one-half years. While the Commis-
sion has simply refused to review the Golden Globe case,
we have relied upon, expanded and applied it more than
any other indecency case in the past two years.  As the
foundational basis for the Commissions decision in the
cases involved in this remand, we should review and fi-
nalize this watershed decision.
4
 
As I stated in the Omnibus Order, by failing to ad-
dress the many serious concerns raised in the Golden
Globe Awards case, before prohibiting the use of addi-
tional words, we fall short of meeting the [appropriate]
constitutional standard and walking the tightrope of a
restrained enforcement policy.
5
  Today, we fail again.
Litigation strategy should not be the dominant factor
guiding policy when First Amendment protections are
at stake. 
In its remand request, the Commission asked the
Second Circuit for an opportunity to consider the con-
136a
6
The decision letter dismissing a complaint against the December 9,
2002, broadcast of The Billboard Music Awards by WTTG (TV),
Washington, D.C., was referenced in footnote 32 of the Golden Globe
Awards Order, and in footnote 9 of my Statement in that Order. 
7
United States v. Utah Constr. & Min. Co., 384 U.S. 394, 422 (1966).
cerns of broadcasters before issuing a final decision.
Yet squandering this opportunity, the Commission fails
to consider fully all concerns relating to an August 22,
2003, complaint against the December 9, 2002, broadcast
of The Billboard Music Awards by WTTG(TV) in
Washington, D.C.  This Order does not adequately ad-
dress the Enforcement Bureaus December 18, 2002,
decision letter, which denied the same complaint on the
merits.
6
 No one filed either a petition for reconsidera-
tion or an application for review and, consequentially,
the decision letter became a final order.  It seems pa-
tently unfair for the Commission to re-adjudicate the
same complaint, involving the same parties on the same
cause of action, first in the initial decision letter, then in
the Omnibus Order, and then again in todays Order.
The Supreme Court has held that the principle of res
judicata applies to an adjudicative administrative pro-
ceeding where the agency has properly resolved dis-
putes of fact and the parties have had an adequate op-
portunity to litigate.
7
  The Commission should not have
re-adjudicated this complaint a second time in the Om-
nibus Order.  Certainly today, the third time around,
this complaint should be dismissed, or the Commission
should reverse the Enforcement Bureaus decision letter
and the resultant final order. 
More broadly, todays Order notes that the Supreme
Court in Pacifica stressed context and we have repeat-
edly said the full context in which the material ap-
137a
8
In the Omnibus Order, with respect to The Early Show, the
Commission said:  In rare contexts, language that is presumptively
profane will not be found to be profane where it is demonstrably
essential to the nature of an artistic or educational work or essential to
informing viewers on a matter of public importance. We caution,
however, that we will find this to be the case only in unusual circum-
stances, and such circumstances are clearly not present here.
Omnibus Order,  144. 
9
See Omnibus Order, 21 FCC Rcd at 2699  141 [emphasis added].
10
 Id. [emphasis added]. 
peared is critically important.  Yet the Commissions
analyses of the 2002 and 2003 broadcasts of The Bill-
board Music Awards are limited exclusively to a few
seconds of a two-hour program.  No consideration what-
soever is given to the entirety of the program.  While it
is perfectly reasonable to conclude that, after consider-
ing the entire program, the vulgarity and shock value of
a particular scene permeated and dominated the pro-
gram, the Commission should consider the totality of the
program, rather than limit our consideration to an iso-
lated programming segment. 
Similarly, the Commissions justification for denying
the complaint against the December 12, 2004, broadcast
of The Early Show, and reversing its indecency and
profanity findings reflect the arbitrary, subjective and
inconsistent nature of the Commissions decision-mak-
ing.
8
  In the Omnibus Order, the Commission concluded
that the use of the s-word was shocking particularly
during a morning news interview,
9
 and that this vul-
garity in a morning television interview is of particular
concern and weighs heavily in our analysis.
10
  Today,
without any legal support found in American jurispru-
dence, the Commission, sua sponte, creates a new plau-
138a
11
  72, supra. 
12
 Id. [emphasis in original]. 
13
 Looking at this contorted reasoning one must wonder whether the
Commission is attempting to avoid reconsideration of its policy
enunciated in the Omnibus Order that, consistent with Golden Globe,
any variant, of the S-word is inherently excretory.  Omnibus Order at
2699  139. 
14
 Peter Branton, 6 FCC Rcd 610 (1991).
sible
11
 standard to determine the threshold question of
whether a particular program segment qualifies as a
bona fide news interview.
12
  While the Commission
admits that there is no outright news exemption from
our indecency rules, it will nevertheless defer to a
broadcasters plausible characterization of its own pro-
gramming.  I not only fail to find a legal basis for the
Commissions latest invention,
13
 I also fail to understand
the justification for such a shift in reasoning.  While the
creation of this infotainment exception that can be
invoked by a broadcasters plausible characterization
may be convenient in this order today, it will surely cre-
ate unintended consequences in future cases. 
Even as applied, this new plausible standard is
problematic.  In this case, the CBS Early Show inter-
view of contestants from the CBS program Survivor:
Vanuatu was a cross promotion of a networks prime-
time entertainment programming on the same networks
morning show.  It stretches the bounds to argue this is
legitimate news or public affairs programming.  It is
unreasonable to say that the latest contestant to be
voted off the island or the latest contestant to hear
youre fired or even come on down is serious public
affairs programming.
14
  The network creates its own
reality on a reality show, and we are somehow to be-
139a
15
 FCC v. Pacifica Foundation, 438 U.S. 726, 748 (1978). 
16
 See id., citing Rowan v. Post Office Dept., 397 U.S. 728 (1970). 
lieve that developments within its own artificial world
are news?  The only news here is how far this Commis-
sion is willing to stretch the definition of news.  
I also dissent in part from the Commissions decision
to dismiss numerous complaints against several nation-
ally televised episodes of the ABC network program
NYPD Blue because the complaints did not come from
viewers who resided in the stations media market.
While the Commission has not changed its decision on
the merits of the complaints, it has relied on an arbi-
trary procedural change in our enforcement policy that
creates an unnecessary disconnect between the basis of
our indecency authority and our enforcement policy, and
encourages letter-writing campaigns, which will further
burden Commission resources.  
The Commission has long maintained, and does not
now dispute, that we enforce a national, contemporary
community standard, not a local one.  For instance, in an
effort to justify its authority in todays Order, the Com-
mission observes that the broadcast medium has a spe-
cial nature and a uniquely pervasive presence in
American life.
15
  The Commission points out the the
Supreme Court emphasized the pervasive presence [of
the broadcast medium] in the lives of all Americans and
that indecent broadcasts invade the privacy of the
home.
16
  Yet, the Commissions new enforcement policy
is inconsistent with the national standard we impose and
the pervasiveness of the medium we regulate. 
This new enforcement policy is also inconsistent with
the Commissions reasoning in other sections of todays
140a
17
 Order,  18, 59 and 65. 
Order.  For example, as an important factor weighing in
support of its finding that the 2002 and 2003 broadcasts
of The Billboard Music Awards are indecent, the Com-
mission cites Nielsen rating data on the total number of
children under 18 and children between ages 2 and 11
who watched the programs, nationally.  Yet based on our
enforcement policy, the Commission will actually only
protect children in the particular local media market
where there is a complaint.
17
The consequences of this new policy reveal its lack of
logic.  When the Commission determines a national net-
work broadcast violates our national community stan-
dards, we will only fine the local station that has a com-
plaint filed against it by a viewer in its media market.
Although our obligation is to enforce the law to protect
all children, we will only fine a local station that has the
misfortune of being in a market where a parent or an
adult made the effort to complain.  This policy is mis-
guided because a sufficient and valid complaint is truly
the first, and an important, step in our indecency en-
forcement regime.  The complaint and the complainant
serve an important role, but the real party in interest is
the Commission, acting on behalf the public, rather than
the specific individual or organization that brings alleg-
edly indecent material to our attention. 
According to the new enforcement policy, even after
we have determined the complained-of material is inde-
cent, we will willfully blind ourselves to the potentially
millions of children and households that watched the
indecent program.  The new policy would fine only the
local station and only if the complainant is in its cover-
141a
18
 Pacifica, 438 U.S. at 763, POWELL J, concurring in part and
concurring in judgment. 
19
  The Commission claims that the sufficiency of a complaint is the
first step rather that the last step in the Commissions analysis. Order,
 77.  However, in the single complaint filed against the The 2002
Billboard Music Awards, for example, the complainant does not even
aver that she watched the program.  Quite the contrary, the complaint
was filed on behalf of the Parents Television Council and its over
800,000 members.  The complainant alleges, the broadcast was seen
in homes across the country on the Fox network, and in Washington
DC. Based on the Commissions reasoning in todays Order and the
Golden Globe Awards Order, this complaint does not state a prima
facie case to justify Commission action.  See Order,  40 and 65
(stating that [i]n the Golden Globe Awards Order, the Commission
concluded that the F-Word was profane within the meaning of Section
1464 because, in context, it contained vulgar and coarse language so
grossly offensive to members of the public who actually hear it as to
amount to a nuisance) (emphasis added).   See also Order,  75 (stat-
ing that complaints against NYPD Blue are justifiably dismissed
because none of the complaints contains any claim that the out-of mar-
ket complainant actually viewed the complained-of broadcasts) (em-
phasis added). 
age area.  Other stations will essentially be sitting
ducks, waiting for an in-market viewer to file a com-
plaint about the same program, in order for the Commis-
sion to act.  I do not understand how we can say we are
faithfully enforcing the law when we are aware of viola-
tions of the law that we simply choose to ignore. 
This is not the restrained enforcement policy encour-
aged by the Supreme Court in Pacifica.
18
  Restraint ap-
plies to the standard we use in our decision-making and
the manner in which we decide what constitutes action-
able, indecent material.
19
  Restraint applies to the devel-
opment of a coherent framework that is based on ratio-
nal and principled distinctions. 
142a
The power to limit speech should be exercised re-
sponsibly, and with the utmost caution.  While I agree
with some aspects of todays Order, I respectfully cannot
support our reasoning.  For that reason, I concur in part
and dissent in part. 
143a
APPENDIX C
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
DOCKET NUMBERS:  06-1760-ag (L), 
06-2750-ag (CON), 06-5358-ag (CON)
FOX TELEVISION STATIONS, INC., CBS 
BROADCASTING, INC., WLS TELEVISION, INC., KTRK
TELEVISION, INC., KMBC HEARST-ARGYLE 
TELEVISION, INC., ABC, INC., PETITIONERS
v.
FEDERAL COMMUNICATIONS COMMISSION,
UNITED STATES OF AMERICA, RESPONDENTS,
NBC UNIVERSAL, INC., NBC TELEMUNDO LICENSE
CO., NBC TELEVISION AFFILIATES, FBC TELEVISION
AFFILIATES ASSOCIATION, CBS TELEVISION NET-
WORK AFFILIATES, CENTER FOR THE CREATIVE 
COMMUNITY, INC., DOING BUSINESS AS CENTER FOR
CREATIVE VOICES IN MEDIA, INC., ABC TELEVISION
AFFILIATES ASSOCIATION, INTERVENORS
[Filed:  June 4, 2007]
[Issued as Mandate: July 7, 2007]
JUDGMENT
144a
Before:  Hon. PIERRE N. LEVAL, Hon. ROSEMARY S.
POOLER, Hon. PETER W. HALL, Circuit Judges.
At a stated Term of the United States Court of Ap-
peals for the Second Circuit, held at the Daniel Pat-
rick Moynihan United States Courthouse, 500 Pearl
Street, in the City of New York, on the 4th day of
June, two thousand and seven.
Petitions for review of an order from the Federal
Communications Commission.
This cause came on to be heard on the transcript of
record from the Board of Immigration Appeals and
was submitted by counsel.
On consideration whereof, it is hereby ORDERED,
ADJUDGED and DECREED that the petitions for
review of said Federal Communications Commission
be and they hereby are GRANTED, the order of the
FCC is VACATED, and the matter is REMANDED
for further proceedings in accordance with the opinion
of this Court.
        FOR THE COURT:
      CATHERINE OHAGAN WOLFE,
Clerk
       by
/s/ TRACY W. YOUNG                       
TRACY W. YOUNG
Motions Staff Attorney
145a
APPENDIX D
 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 per-
mit
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 refus-
ing to grant a license or permit on an original appli-
cation;
(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
146a
authorized by this chapter or by a treaty ratified by
the United States;
(5) for violation of or failure to observe any final
cease and desist order issued by the Commission un-
der 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
station, 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.
*   *   *   *   *
147a
3. 47 U.S.C. 503 provides in relevant part:
Forfeitures
*   *   *   *   *
(b) Activities constituting violations authorizing impo-
sition of forfeiture penalty;  amount of penalty; 
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
subsection, 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 pen-
alty.  A forfeiture penalty under this subsection shall be
148a
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 sub-
chapter II of this chapter, part II or III of subchapter
III of this chapter, or section 507 of this title.
*   *   *   *   *
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.
149a
 
(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.