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                                  STATEMENT OF

                       Commissioner Jonathan S. Adelstein


   Re: Complaints Against Various Television Licensees Concerning Their
   December 31, 2004 Broadcast of the Program "Without A Trace," Notice of
   Apparent Liability for Forfeiture

   I have sworn an oath to uphold the Constitution and to carry out the laws
   adopted by Congress. Trying to find a balance between these obligations
   has been challenging in many of the indecency cases that I have decided. I
   believe it is our duty to regulate the broadcast of indecent material to
   the fullest extent permissible by the Constitution because safeguarding
   the well-being of our children is a compelling national interest. I
   therefore have supported efforts to step up our enforcement of indecency
   laws since I joined the Commission.

   The Commission's authority to regulate indecency over the public airwaves
   was narrowly upheld by the Supreme Court with the admonition that we
   should exercise that authority with the utmost restraint, lest we inhibit
   constitutional rights and transgress constitutional limitations on
   government regulation of protected speech. Given the Court's guidance in
   Pacifica, the Commission has repeatedly stated that we would judiciously
   walk a "tightrope" in exercising our regulatory authority. Hence, within
   this legal context, a rational and principled "restrained enforcement
   policy" is not a matter of mere regulatory convenience. It is a
   constitutional requirement.

   Accordingly, I concur with the instant decision, but concur in part and
   dissent in part with the companion Omnibus Order because, while in some
   ways the Omnibus decision does not go far enough, in other ways it goes
   too far. Significantly, it abruptly departs from our precedents by
   adopting a new, weaker enforcement mechanism that arbitrarily fails to
   assess fines against broadcasters who have aired indecent material.
   Additionally, while the Omnibus Order appropriately identifies violations
   of our indecency laws, not every instance determined to be indecent meets
   that standard.

   We have previously sought to identify all broadcasters who have aired
   indecent material and hold them accountable. In the Omnibus Order,
   however, the Commission inexplicably fines only the licensee whose
   broadcast of indecent material was the subject of a viewer's complaint,
   even though we know millions of other Americans were exposed to the
   offending broadcast. I cannot find anywhere in the law that Congress told
   us to apply indecency regulations only to those stations against which a
   complaint was specifically lodged. The law requires us to prohibit the
   broadcast of indecent material, period. This means that we must enforce
   the law anywhere we determine it has been violated. It is willful
   blindness to decide, with respect to network broadcasts we know aired
   nationwide, that we will only enforce the law against the local station
   that happens to be the target of viewer complaints. How can we impose a
   fine solely on certain local broadcasters, despite having repeatedly said
   that the Commission applies a national indecency standard - not a local

   The failure to enforce the rules against some stations but not others is
   not what the courts had in mind when they counseled restraint. In fact,
   the Supreme Court's decision in Pacifica was based on the uniquely
   pervasive characteristics of broadcast media. It is patently arbitrary to
   hold some stations but not others accountable for the same broadcast. We
   recognized this just two years ago in Married By America. The Commission
   simply inquired who aired the indecent broadcast and fined all of those
   stations that did so.

   In the Super Bowl XXXVIII Halftime Show decision, we held only those
   stations owned and operated by the CBS network responsible, under the
   theory that the affiliates did not expect the incident and it was
   primarily the network's fault. I dissented in part to that case because I
   believed we needed to apply the same sanction to every station that aired
   the offending material. I raise similar concerns today, in the context of
   the Omnibus Order.

   The Commission is constitutionally obligated to decide broadcast indecency
   and profanity cases based on the "contemporary community standard," which
   is "that of the average broadcast viewer or listener." The Commission has
   explained the "contemporary community standard," as follows:

   We rely on our collective experience and knowledge, developed through
   constant interaction with lawmakers, courts, broadcasters, public interest
   groups and ordinary citizens, to keep abreast of contemporary community
   standards for the broadcast medium.

   I am concerned that the Omnibus Order overreaches with its expansion of
   the scope of indecency and profanity law, without first doing what is
   necessary to determine the appropriate contemporary community standard.

   The Omnibus Order builds on one of the most difficult cases we have ever
   decided, Golden Globe Awards,  and stretches it beyond the limits of our
   precedents and constitutional authority. The precedent set in that case
   has been contested by numerous broadcasters, constitutional scholars and
   public interest groups who have asked us to revisit and clarify our
   reasoning and decision. Rather than reexamining that case, the majority
   uses the decision as a springboard to add new words to the pantheon of
   those deemed to be inherently sexual or excretory, and consequently
   indecent and profane, irrespective of their common meaning or of a
   fleeting and isolated use. By failing to address the many serious concerns
   raised in the reconsideration petitions filed in the Golden Globe Awards
   case, before prohibiting the use of additional words, the Commission falls
   short of meeting the constitutional standard and walking the tightrope of
   a restrained enforcement policy.

   This approach endangers the very authority we so delicately retain to
   enforce broadcast decency rules. If the Commission in its zeal oversteps
   and finds our authority circumscribed by the courts, we may forever lose
   the ability to protect children from the airing of indecent material,
   barring an unlikely constitutional amendment setting limitations on the
   First Amendment freedoms.

   The perilous course taken today is evident in the approach to the
   acclaimed Martin Scorsese documentary, "The Blues: Godfathers and Sons."
   It is clear from a common sense viewing of the program that coarse
   language is a part of the culture of the individuals being portrayed. To
   accurately reflect their viewpoint and emotions about blues music requires
   airing of certain material that, if prohibited, would undercut the ability
   of the filmmaker to convey the reality of the subject of the documentary.
   This contextual reasoning is consistent with our decisions in Saving
   Private Ryan and Schindler's List.

   The Commission has repeatedly reaffirmed, and the courts have consistently
   underscored, the importance of content and context. The majority's
   decision today dangerously departs from those precedents. It is certain to
   strike fear in the hearts of news and documentary makers, and broadcasters
   that air them, which could chill the future expression of constitutionally
   protected speech.

   We should be mindful of Justice Harlan's observation in Cohen v.
   California. Writing for the Court,  he observed:

   [W]ords are often chosen as much for their emotive as their cognitive
   force. We cannot sanction the view that the Constitution, while solicitous
   of the cognitive content of individual speech, has little or no regard for
   that emotive function which, practically speaking, may often be the more
   important element of the overall message sought to be communicated.

   Given all of these considerations, I find that the Omnibus Order, while
   reaching some appropriate conclusions both in identifying indecent
   material and in dismissing complaints, is in some ways dangerously off the
   mark. I cannot agree that it offers a coherent, principled long-term
   framework that is rooted in common sense. In fact, it may put at risk the
   very authority to protect children that it exercises so vigorously.

   U.S. Const., amend. I.

   Congress has specifically forbidden the broadcast of obscene, indecent or
   profane language. 18 U.S.C. S 1464. It has also forbidden censorship. 47
   U.S.C. S 326.

   See, e.g., N.Y. v. Ferber, 458 U.S. 747, 756-57 (1982).

   See FCC v. Pacifica Foundation, 438 U.S. 726, 750 (1978) (emphasizing the
   "narrowness" of the Court's holding); Action for Children's Television v.
   FCC, 852 F.2d 1332, 1344 (D.C. Cir. 1988) ("ACT I") ("Broadcast material
   that is indecent but not obscene is protected by the [F]irst

   See Brief for Petitioner, FCC, 1978 WL 206838 at *9.

   ACT I, supra note 4, at 1344 ("the FCC may regulate [indecent] material
   only with due respect for the high value our Constitution places on
   freedom and choice in what the people say and hear."); Id. at 1340 n.14
   ("[T]he potentially chilling effect of the FCC's generic definition of
   indecency will be tempered by the Commission's restrained enforcement

   Complaints Regarding Various Television Broadcasts Between February 2,
   2002 and March 8, 2005, Notices of Apparent Liability and Memorandum
   Opinion and Order (decided March 15, 2006) (hereinafter "Omnibus Order").

   See, e.g., In re Sagittarius Broadcasting Corporation, Memorandum Opinion
   and Order, 7 FCC Rcd 6873, 6876 (1992) (subsequent history omitted).

   See Pacifica Found., 438 U.S. at 748-49 (recognizing the "uniquely
   pervasive presence" of broadcast media "in the lives of all Americans").
   In today's Order, paragraph 10, the Commission relies upon the same

   See Complaints Against Various Licensees Regarding Their Broadcast of the
   Fox Television Network Program "Married by America" on April 7, 2003,
   Notice of Apparent Liability for Forfeiture,19 FCC Rcd 20191, 20196 (2004)
   (proposing a $7,000 forfeiture against each Fox Station and Fox Affiliate
   station); reconsideration pending. See also Clear Channel Broadcast
   Licenses, Inc., 19 FCC Rcd 6773, 6779 (2004) (proposing a $495,000 fine
   based on a "per utterance" calculation, and directing an investigation
   into stations owned by other licensees that broadcast the indecent
   program). In the instant Omnibus Order, however, the Commission
   inexplicably fines only the licensee whose broadcast of indecent material
   was actually the subject of a viewer's complaint to the Commission. Id. at
   P  71.

   See Complaints Against Various Television Licensees Concerning Their
   February 1, 2004, Broadcast of the Super Bowl XXXVIII Halftime Show,
   Notice of Apparent Liability, 19 FCC Rcd 19230 (2004).

   In re Infinity Radio License, Inc., Memorandum Opinion and Order, 19 FCC
   Rcd 5022, 5026 (2004).

   In re Complaints Against Broadcast Licensees Regarding Their Airing of the
   "Golden Globe Awards" Program, Memorandum Opinion and Order, 19 FCC Rcd
   4975 (2004); petitions for stay and reconsideration pending.

   In the Matter of Complaints Against Various Television Licensees Regarding
   Their Broadcast on November 11, 2004, of the ABC Television Network's
   Presentation of the Film, "Saving Private Ryan,"  Memorandum Opinion and
   Order, 20 FCC Rcd 4507, 4513 (2005) ("Deleting all [indecent] language or
   inserting milder language or bleeping sounds into the film would have
   altered the nature of the artistic work and diminished the power, realism
   and immediacy of the film experience for viewers."). See also Peter
   Branton, Letter by Direction of the Commission, 6 FCC Rcd 610 (1991)
   (concluding that repeated use of the f-word in a recorded news interview
   program not indecent in context).

   In the Matter of WPBN/WTOM License Subsidiary, Inc., 15 FCC Rcd 1838

   403 U.S. 15 (1971).

   Id. at 26 ("We cannot indulge the facile assumption that one can forbid
   particular words without also running a substantial risk of suppressing
   ideas in the process.").