Separate Statement of Commissioner Harold W. Furchtgott-Roth
In the Matter of Guidance on the Commission's Case Law Interpreting 
18 U.S.C. Section 1464 and Enforcement Policies Regarding Broadcast Indecency

The Commission is obliged, under a settlement agreement, to issue guidance on its broadcast indecency
policies. As the courts have noted, there is a certain "vagueness inherent in [this] subject matter."  I find
that the policy statement establishes necessary boundaries for this elusive and highly subjective area of
the law. 

I must note, however, that Commission action to enforce the indecency guidelines would set the stage for
a new constitutional challenge regarding our authority to regulate content.  To be sure, Red Lion v. FCC
and its progeny, FCC v. Pacifica, have not yet been overruled.  Nevertheless, their continuing validity is
highly doubtful from both an empirical and jurisprudential point of view.

If rules regulating broadcast content were ever a justifiable infringement of speech, it was because of the
relative dominance of that medium in the communications marketplace of the past. As the Commission
has long recognized, the facts underlying this justification are no longer true. Today, the video
marketplace is rife with an abundance of programming, distributed by several types of content
providers. A competitive radio marketplace is evolving as well, with dynamic new outlets for speech on
the horizon.  Because of these market transformations, the ability of the broadcast industry to corral
content and control information flow has greatly diminished. In my judgment, as alternative sources of
programming and distribution increase, broadcast content restrictions must be eliminated.

For these reasons, I believe that the lenient constitutional standard for reviewing broadcast speech,
formally announced in Red Lion, rests on a shaky empirical foundation.   Technology, especially digital
communications, has advanced to the point where broadcast deregulation is not only warranted, but long
overdue. In my view, the bases for challenging broadcast indecency has been well laid, and the issue is
ripe for court review.

I must note my amazement that it has taken over seven years for the Commission to fulfill its obligation
to issue this item.  While broadcast indecency is a delicate issue to discuss, it has not benefited the
industry or the Commission to ignore the matter.  I commend the Chairman for taking the initiative to
move this item.  Norm Goldstein and others staff members deserve special credit for crafting a document
that makes the best of a difficult situation for the Commission.

With these observations in mind, I vote to adopt this policy statement.