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                                  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

   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
   watershed decision.

   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
   at stake.

   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
   2004)  .

   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
   constitutes profanity).

   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")
   (emphasis added).