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                        STATEMENT OF 
             COMMISSIONER JONATHAN S. ADELSTEIN,
          APPROVING IN PART AND DISSENTING IN PART

     Re:  Complaints Against Various Television Licensees 
     Concerning Their February 1, 2004, Broadcast of the 
     Super Bowl XXXVIII Halftime Show
     
     Based on a careful review of the record, I find today's 
remedy totally inadequate.  After all the bold talk, it's a 
slap on the wrist that can be paid with just 7 seconds of 
Super Bowl ad time.  The $550,000 fine measures up to only 
about a dollar per complaint for the more than 542,000 
complaints that flooded into the FCC after the broadcast.  

     The Commission is required by Congress to enforce 
federal restrictions against the broadcast of indecent 
material, and I agree with the indecency finding here.  We 
were deluged with a record number of complaints about the 
Super Bowl halftime show, and took the unusual step of 
launching an investigation.  But after a major announcement 
and months of investigation, today's enforcement action goes 
out of its way to focus narrowly on the exposure of Janet 
Jackson's breast on twenty CBS-owned stations.    

     Most troubling, this decision sets a puzzling precedent 
by failing to hold all licensees responsible for the 
material broadcast over their stations.  Why announce such a 
thorough investigation if we just let some of the stations 
that broadcast this material completely off the hook?  It is 
true that the CBS affiliates are as much the innocent 
victims as the families who were stunned to see such 
gratuitous nudity during a family viewing event.  In this 
case CBS affiliates - like the general public - had no idea 
what was coming, but this is true for most live programming.  
This aspect of today's action shows the lack of a coherent 
long-term framework that should form the basis of all our 
indecency enforcement efforts.  

     Compliance with federal broadcast decency restrictions 
is the responsibility of the station that chooses to air the 
programming, not the performers.  Less than a week before 
the Super Bowl, the Commission fined a television station 
for a similar case of gratuitous brief on-camera nudity.  
Since the Super Bowl outcry, Viacom has acted responsibly by 
apologizing, by instituting measures such as time delays to 
keep indecency off the airwaves, and by cooperating fully 
with our investigation.  Viacom should be commended for 
these steps.  Nevertheless, subsequent actions cannot excuse 
the fact that indecent material was broadcast to 100 million 
viewers, including one in five American children.    

     While the Commission must always proceed cautiously in 
broadcast decency cases, this type of graphic and gratuitous 
nudity is not a close call.  The millions of our nation's 
children who were ambushed by the Super Bowl halftime show 
deserve better protection.  A fine of 7 seconds of ad time 
is scarcely any deterrent.  The shockwaves are still being 
felt by this shameful episode.  I fear that today we're 
responding to a ``wardrobe malfunction'' with a regulatory 
malfunction.