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                        STATEMENT OF 
             COMMISSIONER KATHLEEN Q. ABERNATHY

Re:  Complaints Against Various Broadcast Licensees 
Regarding Their Airing of the ``Golden Globe Awards'' 
Program, File No. EB-03-IH-0110

     Today, we take a strong stand against indecency on our 
public airwaves and a significant step in protecting our 
children.  Indeed, use of the ``f-word'' on a nationally 
telecast awards ceremony is shocking, gratuitous, and 
offensive.  I am pleased that the Commission has signaled 
that such language will no longer be tolerated.   

     I do recognize, however, that today's decision is a 
departure from prior Commission's precedent and policy.  
That is why I could not support a fine in this case.  Prior 
Commissions not only failed to take action against an 
isolated use of the f-word, but in fact sanctioned such 
behavior.  The Commission stated in the past that ``[i]f a 
complaint focuses solely on the use of expletives, we 
believe that  . . . deliberate and repetitive use in a 
patently offensive manner is a requisite to a finding of 
indecency.''1  A series of prior Commission and staff 
decisions, moreover, have indicated that isolated or 
fleeting broadcasts of the f-word, such as the case here, 
are not indecent.2  

     Nor do I believe it is reasonable to suggest that 
broadcasters should have been on notice that we would find 
this incident to be profane.  Although I support applying 
the definition of ``profane'' as discussed in Tallman3 to 
this particular incident, this too is a new finding by the 
Commission.  The courts never applied the standard in 
Tallman to an isolated broadcast of the f-word and the FCC 
has never used this definition in any analysis of 
``profane'' content, let alone the use of expletives.  
Rather, ``profane language'' has historically been 
interpreted in a legal sense to mean blasphemy.4  Moreover, 
the Mass Media Bureau in a document entitled ``The Public 
and Broadcasting'' stated that ``[p]rofanity that does not 
fall under one of the above two categories [indecency or 
obscenity] is fully protected by the First Amendment and 
cannot be regulated.''5  


     It is a fundamental principle of due process that a 
licensee must be on notice that its actions would be in 
violation of our rules before this Commission may impose 
sanctions.6  Given that prior Commission statements and 
staff action in fact permitted the broadcast at issue here, 
retroactive application of our new policy to these 
broadcasters would have been fundamentally unfair, not to 
mention unlawful.  I emphasize, however, that the law has 
now changed and all licensees are on notice that even 
isolated and fleeting broadcasts of the f-word may violate 
our restrictions on indecency and profanity.

_________________________

1 Pacifica Foundation, Inc., 2 FCC Rcd 2698, 2699 (1987) 
(subsequent history omitted); see also Infinity Broadcasting 
Corporation of Pennsylvania, 2 FCC Rcd 2705 (1987) (``Speech 
that is indecent must involve more than the isolated use of 
an offensive word.'').

2 See, e.g. Industry Guidance on the Commission's Case Law 
Interpreting 18 U.S.C.  1464 and Enforcement Policies 
Regarding Broadcast Indecency, 16 FCC Rcd 7999 (2001) and 
cases cited in note 32 of this decision.

3 Tallman v. United States, 465 F.2d 282, 286 (7th Cir. 
1972).

4 See, e.g., Duncan v. U.S.,  48 F.2d 128, 133-134 (9th Cir. 
1931) (``[T]he defendant having referred to an individual as 
`damned,' having used the expression `By God' irreverently, 
and having announced his intention to call down the curse of 
God upon certain individuals, was properly convicted of 
using profane language within the meaning of that term as 
used in the act of Congress prohibiting the use of profane 
language in radio broadcasting.''), cert. denied,  383 U.S. 
863 (1931).

5 I recognize that the document itself states that ``[t]his 
manual provides only a general review of our broadcast rules 
and policies.  It is not intended to be a comprehensive or 
controlling statement of these rules and policies.''  Yet, 
if the Mass Media Bureau was clearly unaware that the 
Commission would find any language to be profane, I fail to 
see how licensees are supposed to be on notice that we would 
find the isolated use of an expletive to be profane.

6 See Trinity Broadcasting of Florida, Inc. v. FCC, 211 F.3d 
618 (D.C. Cir. 2000).