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Commissioner Jonathan S. Adelstein
Re: Complaints Against Various Television Licensees Concerning Their
February 1, 2004 Broadcast of the Super Bowl XXXVIII Halftime Show,
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
Accordingly, I concur with today's Super Bowl Order, but concur in part
and dissent in part with the companion Omnibus Order because, while in
some ways today's Omnibus decision goes too far, in other ways it does not
go far enough. 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 today's Omnibus decision 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, the Golden Globe Awards case, 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
proceeding, 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 Ryanand 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
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
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 Broad. 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.").