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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
Today's Order is pursuant to a grant from the United States Court of
Appeals for the Second Circuit of the Commission's voluntary remand
request to reconsider portions of the March 15, 2006, Omnibus Order. In
that decision, I concurred in part and dissented in part because 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 remand to clarify and rationalize our indecency regime, but
regulatory convenience and avoidance have prevailed instead. I am,
therefore, compelled again to concur in part and dissent in part.
The proverbial "elephant in the room" looming over today's decision is the
Golden Globe Awards Order, which inexplicably has been pending
reconsideration for more than two and one-half years. While the Commission
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 Commission's decision in the
cases involved in this remand, we should review and finalize this
As I stated in the Omnibus Order, "by failing to address the many serious
concerns raised in the Golden Globe Awards case, before prohibiting the
use of additional words, we fall short of meeting the [appropriate]
constitutional standard and walking the tightrope of a restrained
enforcement policy." Today, we fail again. Litigation strategy should not
be the dominant factor guiding policy when First Amendment protections are
In its remand request, the Commission asked the Second Circuit for an
opportunity to consider the concerns 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 address the
Enforcement Bureau's December 18, 2002, decision letter, which denied the
same complaint on the merits. No one filed either a petition for
reconsideration or an application for review and, consequentially, the
decision letter became a final order. It seems patently 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 today's Order. The Supreme Court has
held that the principle of res judicata applies to an adjudicative
administrative proceeding where the agency has properly resolved disputes
of fact and the parties have had an adequate opportunity to litigate. The
Commission should not have re-adjudicated this complaint a second time in
the Omnibus Order. Certainly today, the third time around, this complaint
should be dismissed, or the Commission should reverse the Enforcement
Bureau's decision letter and the resultant final order.
More broadly, today's Order notes that the Supreme Court in Pacifica
stressed context and we have repeatedly said "the full context in which
the material appeared is critically important." Yet the Commission's
analyses of the 2002 and 2003 broadcasts of "The Billboard Music Awards"
are limited exclusively to a few seconds of a two-hour program. No
consideration whatsoever is given to the entirety of the program. While it
is perfectly reasonable to conclude that, after considering the entire
program, the vulgarity and shock value of a particular scene permeated and
dominated the program, the Commission should consider the totality of the
program, rather than limit our consideration to an isolated programming
Similarly, the Commission's 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 Commission's decision-making. In
the Omnibus Order, the Commission concluded that the use of the s-word was
shocking "particularly during a morning news interview," and that this
"vulgarity in a morning television interview is of particular concern and
weighs heavily in our analysis." Today, without any legal support found in
American jurisprudence, the Commission, sua sponte, creates a new
"plausible" standard to determine the threshold question of whether a
particular program segment qualifies as a "bona fide news interview."
While the Commission admits that "there is no outright news exemption from
our indecency rules," it will nevertheless defer to a broadcaster's
"plausible characterization of its own programming." I not only fail to
find a legal basis for the Commission's latest invention, 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
broadcaster's plausible characterization" may be convenient in this order
today, it will surely create unintended consequences in future cases.
Even as applied, this new "plausible" standard is problematic. In this
case, the CBS "Early Show" interview of contestants from the CBS program
"Survivor: Vanuatu" was a cross promotion of a network's primetime
entertainment programming on the same network's 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 "you're fired" or even "come on
down" is "serious public affairs programming." The network creates its own
"reality" on a reality show, and we are somehow to believe that
developments within its own artificial world are news? The only news here
is how far this Commission is willing to stretch the definition of "news."
I also dissent in part from the Commission's decision to dismiss numerous
complaints against several nationally televised episodes of the ABC
network program "NYPD Blue" because the complaints did not come from
viewers who resided in the station's media market. While the Commission
has not changed its decision on the merits of the complaints, it has
relied on an arbitrary 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 today's Order, the
Commission observes that the broadcast medium has a "special nature" and
"a uniquely pervasive presence in American life." 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." Yet, the Commission's 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 Commission's
reasoning in other sections of today's 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 Commission
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.
The consequences of this new policy reveal its lack of logic. When the
Commission determines a national network broadcast violates our national
community standards, we will only fine the local station that has a
complaint 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 misguided
because a sufficient and valid complaint is truly the first, and an
important, step in our indecency enforcement 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 allegedly indecent material to our
According to the new enforcement policy, even after we have determined the
complained-of material is indecent, 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 coverage area. Other stations will
essentially be "sitting ducks," waiting for an in-market viewer to file a
complaint about the same program, in order for the Commission to act. I do
not understand how we can say we are faithfully enforcing the law when we
are aware of violations of the law that we simply choose to ignore.
This is not the restrained enforcement policy encouraged by the Supreme
Court in Pacifica. Restraint applies to the standard we use in our
decision-making and the manner in which we decide what constitutes
actionable, indecent material. Restraint applies to the development of a
coherent framework that is based on rational and principled distinctions.
The power to limit speech should be exercised responsibly, and with the
utmost caution. While I agree with some aspects of today's Order, I
respectfully cannot support our reasoning. For that reason, I concur in
part and dissent in part.
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").
Today's decision presumes that the general statement that the Commission's
"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").
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
Golden Globe Awards Order at PP 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
Omnibus Order, Statement of Commissioner Jonathan S. Adelstein, concurring
in part, dissenting in part, 21 FCC Rcd at 2726.
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.
United States v. Utah Constr. & Min. Co., 384 U.S. 394, 422 (1966).
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 circumstances, and such circumstances are
clearly not present here." Omnibus Order, P 144.
See Omnibus Order, 21 FCC Rcd at 2699 P 141 [emphasis added].
Id. [emphasis added].
P 72, supra.
Id. [emphasis in original].
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 P 139.
Peter Branton, 6 FCC Rcd 610 (1991).
FCC v. Pacifica Foundation, 438 U.S. 726, 748 (1978).
See id., citing Rowan v. Post Office Dept., 397 U.S. 728 (1970).
Order, PP 18, 59 and 65.
Pacifica, 438 U.S. at 763, POWELL J, concurring in part and concurring in
The Commission claims that "the sufficiency of a complaint is the first
step rather that the last step in the Commission's analysis." Order, P 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
Commission's reasoning in today's Order and the Golden Globe Awards Order,
this complaint does not state a prima facie case to justify Commission
action. See Order, PP 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, P 75 (stating that complaints against "NYPD Blue" are justifiably
dismissed because "none of the complaints contains any claim that the
out-of market complainant actually viewed the complained-of broadcasts")