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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
)
COMPLAINTS AGAINST VARIOUS ) File No. EB-04-IH-0011
TELEVISION LICENSEES1 )
CONCERNING THEIR FEBRUARY 1, ) NAL/Acct. No. 200432080212
2004, BROADCAST OF THE SUPER )
BOWL XXXVIII )
HALFTIME SHOW
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: August 31, 2004 Released: September 22, 2004
By the Commission: Chairman Powell issuing a statement;
Commissioners Copps and Martin
approving in part, concurring in part and issuing separate
statements; and Commissioner Adelstein approving in part,
dissenting in part and issuing a statement.
I. INTRODUCTION
1. In this Notice of Apparent Liability for
Forfeiture (``NAL''), issued pursuant to section 503(b) of
the Communications Act of 1934, as amended (the ``Act''),
and section 1.80 of the Commission's rules,2 we find that
the licensees of the CBS Network Stations, as defined
herein,3 aired program material on February 1, 2004, at
approximately 8:30 p.m. Eastern Standard Time, during the
halftime entertainment show of the National Football
League's Super Bowl XXXVIII, that apparently violates the
federal restrictions regarding the broadcast of indecent
material.4 Based upon our review of the facts and
circumstances of this case, Viacom Inc. (``Viacom''), as the
licensee or ultimate parent of the licensees of the Viacom
Stations, is apparently liable for a monetary forfeiture in
the aggregate amount of Five Hundred Fifty Thousand Dollars
($550,000.00), which represents the statutory maximum of
$27,500 for each Viacom Station that broadcast the material.
We propose the forfeiture for the broadcast over the Viacom
Stations of indecent material, in apparent violation of 18
U.S.C. § 1464 and section 73.3999 of the Commission's
rules.5 Although we conclude that the non-Viacom-owned CBS
Affiliate stations also aired this programming, for the
reasons discussed herein, we decline to propose a monetary
forfeiture or other sanction against the licensees of those
stations.
II. BACKGROUND
2. During the days and weeks that followed the
February 1, 2004, Super Bowl broadcast, the Commission
received an unprecedented number of complaints alleging that
the CBS Network Stations aired indecent material during the
program.6 Specifically, the complaints state that the
halftime segment, which featured musical performances by
Janet Jackson, P. Diddy, Nelly, Kid Rock and Justin
Timberlake, contained indecent material, including
``crude,'' ``inappropriate,'' ``lewd'' and ``sexually
explicit'' dancing and song lyrics, culminating in a
performance by Ms. Jackson and Mr. Timberlake that concluded
with Mr. Timberlake's removal of a portion of Ms. Jackson's
bustier, exposing her breast to the camera.7
3. On February 2, 2004, the Enforcement Bureau (the
``Bureau'') sent a letter of inquiry to CBS Broadcasting,
Inc. (``CBS''), also a subsidiary of Viacom and a Commission
licensee,8 concerning the material described above allegedly
broadcast over the CBS Network Stations.9 By letter dated
February 3, and in response to a request in the LOI, CBS
provided a videotape of the broadcast of the halftime
performance10 and, by letter dated February 10, submitted an
``interim response'' to the LOI.11 CBS provided, as Exhibit
9 to the CBS Interim Response, a videotape of January 29,
2004, rehearsals of the halftime show (the ``Rehearsal
Videotape''). On February 14, also at the request of the
Bureau,12 CBS supplied videotapes of its complete February
1, 2004, Super Bowl programming broadcast over the CBS
Network Stations, including all of the commercials aired
therein and the halftime segment (collectively, the
``Broadcast Videotape'').13
4. On March 16, CBS submitted its response to the
LOI, certified to by Susanna M. Lowy, Vice President and
Associate General Counsel of Viacom and CBS. 14 Therein,
CBS admits that the material in question was aired live over
each of the CBS Network Stations.15 Acknowledging that the
broadcast included the exposure of Ms. Jackson's breast, CBS
states:
no officer, employee or agent of Viacom Inc.. . .
CBS, or MTV Networks. . . had any advance notice
or warning that the Super Bowl halftime
performance involving Janet Jackson and Justin
Timberlake would include the exposure of Ms.
Jackson's breast. The exposure resulted from a
poorly-executed stunt that was planned by the
performers without any involvement from Viacom,
CBS, or MTV, all of whom would have forbidden the
stunt if there had been any indication that it was
planned. While CBS regrets the incident, the
Commission should acknowledge that it was
unplanned, unanticipated, and contrary to what we
intended.
CBS Response at 1.
5. CBS claims to have taken ``advance precautions to
ensure that the telecast would not contain any material
inconsistent with CBS standards and practices or in
violation of the FCC rules. Such measures included, for
example, implementation of a five-second audio delay to
allow editing out of any unacceptable utterances in the
audio of the live entertainment portions of the Super Bowl
broadcast . . . .''16 CBS states further that the exposure
of Ms. Jackson's breast was ``unexpected,'' that Viacom
subsidiaries, the CBS Television Network and MTV, ``issued
prompt apologies'' and that ``CBS also acted quickly to
prevent any similar situation on future telecasts'' by
``instituting a five-minute audio and video delay to ensure
that no unexpected or unplanned video images would be
broadcast'' during its televising of the Grammy Awards on
February 8, 2004.17 CBS has also provided the declarations
of Ms. Jackson and Mr. Timberlake. Ms. Jackson states, ``I
did not tell anyone who was a representative, officer,
director or agent of Viacom, CBS, MTV or the NFL of any
possible costume reveal in my performance. . . Further,
there was no costume reveal during any rehearsal for the
Halftime Show.''18 Mr. Timberlake similarly indicates ``I
did not communicate the plan to do the costume reveal to any
officers, employees or representatives of Viacom, CBS, MTV
or the NFL.''19
6. The CBS Response also includes the script of the
halftime segment,20 which was approximately 15 minutes in
duration and was produced by MTV Networks (``MTV''), also a
Viacom subsidiary.21 Our review of the Broadcast Videotape
and the script, which CBS represents to depict the content
of the actual broadcast,22 reveals that the halftime segment
consisted of a series of musical performances on a stage
situated on the playing field. Included was a performance
by Janet Jackson, in which she wore a black leather and
studded outfit, similar to those worn by the male and female
dancers who participated in her performance. She was soon
joined by Justin Timberlake for a duet of ``Rock Your
Body,'' during which he urged her in the song to allow him
to ``rock your body'' and ``just let me rock you `til the
break of day'' while following her around the stage and, on
several occasions, grabbing and rubbing up against her. At
the close of the song, immediately after singing the lyrics,
``gonna have you naked by the end of this song,'' Mr.
Timberlake pulled off the right portion of Ms. Jackson's
bustier, exposing her breast.23
III. DISCUSSION
7. The Federal Communications Commission is
authorized to license radio and television broadcast
stations and is responsible for enforcing the Commission's
rules and applicable statutory provisions concerning the
operation of those stations. The Commission's role in
overseeing program content is very limited. The First
Amendment to the United States Constitution and section 326
of the Act prohibit the Commission from censoring program
material and from interfering with broadcasters' freedom of
expression.24 The Commission does, however, have the
authority to enforce statutory and regulatory provisions
restricting indecency. Specifically, it is a violation of
federal law to broadcast obscene, indecent or profane
programming. Title 18 of the United States Code, Section
1464 prohibits the utterance of ``any obscene, indecent or
profane language by means of radio communication.''25 In
addition, section 73.3999 of the Commission's rules, which
was promulgated for the civil enforcement of that statute
and section 16(a) of the Public Telecommunications Act of
1992,26 provides that radio and television stations shall
not broadcast obscene material at any time, and shall not
broadcast indecent material during the period 6 a.m. through
10 p.m.
8. Under section 503(b)(1) of the Act, any person who
is determined by the Commission to have willfully or
repeatedly failed to comply with any provision of the Act or
any rule, regulation, or order issued by the Commission
shall be liable to the United States for a forfeiture
penalty. In order to impose such a penalty, the Commission
must issue a notice of apparent liability, the notice must
be received, and the person against whom the notice has been
issued must have an opportunity to show, in writing, why no
such forfeiture penalty should be imposed.27 The Commission
will then issue a forfeiture if it finds, by a preponderance
of the evidence, that the person has violated the Act or a
Commission rule.28 As set forth in greater detail below, we
conclude under this standard that Viacom, as the licensee or
the ultimate parent of the licensees of the Viacom Stations,
is apparently liable for a forfeiture for its apparent
willful violation of 18 U.S.C. § 1464 and section 73.3999 of
the Commission's rules.
A. Indecency Analysis
9. Any consideration of government action against
allegedly indecent programming must take into account the
fact that such speech is protected under the First
Amendment.29 The federal courts consistently have upheld
Congress's authority to regulate the broadcast of indecent
material, as well as the Commission's interpretation and
implementation of the governing statute.30 Nevertheless,
the First Amendment is a critical constitutional limitation
that demands, in indecency determinations, that we proceed
cautiously and with appropriate restraint.31
10. The Commission defines indecent speech as language
that, in context, depicts or describes sexual or excretory
activities or organs in terms patently offensive as measured
by contemporary community standards for the broadcast
medium.32
Indecency findings involve at least two
fundamental determinations. First, the material
alleged to be indecent must fall within the
subject matter scope of our indecency
definition¾that is, the material must describe or
depict sexual or excretory organs or activities. .
. . Second, the broadcast must be patently
offensive as measured by contemporary community
standards for the broadcast medium.33
11. As an initial matter, CBS does not dispute that
the CBS Network Stations, the Viacom Stations listed in
Appendix A and the CBS Affiliates listed in Appendix B, each
aired the material described in paragraph 2, supra, during
the February 1, 2004, telecast, during the period between 6
a.m. and 10 p.m.34 Because the broadcast material
contained, inter alia, a performance by Ms. Jackson and Mr.
Timberlake that culminated in on-camera partial nudity, Ms.
Jackson's exposed breast, the material warrants further
scrutiny to determine whether or not it was patently
offensive as measured by contemporary community standards
for the broadcast medium.35
12. In our assessment of whether broadcast material is
patently offensive, ``the full context in which the material
appeared is critically important.''36 Three principal
factors are significant to this contextual analysis: (1) the
explicitness or graphic nature of the description; (2)
whether the material dwells on or repeats at length
descriptions of sexual or excretory organs or activities;
and (3) whether the material appears to pander or is used to
titillate or shock.37 In examining these three factors, we
must weigh and balance them to determine whether the
broadcast material is patently offensive because ``[e]ach
indecency case presents its own particular mix of these, and
possibly, other factors.''38 In particular cases, one or
two of the factors may outweigh the others, either rendering
the broadcast material patently offensive and consequently
indecent,39 or, alternatively, removing the broadcast
material from the realm of indecency.40 Here, we examine
all three factors and determine that, in context and on
balance, the on-camera exposure of Ms. Jackson's breast is
patently offensive as measured by contemporary community
standards for the broadcast medium.
13. At the outset, review of the Broadcast Videotape
leaves no doubt that the Jackson/Timberlake segment is both
explicit and graphic. The joint performance by Ms. Jackson
and Mr. Timberlake culminated in Mr. Timberlake pulling off
part of Ms. Jackson's bustier and exposing her bare breast.
CBS admits that the CBS Network Stations broadcast this
material, including the image of Ms. Jackson's bared breast,
but argues that the exposure of her breast was unexpected
and the duration of the exposure was for only 19/32 of a
second.41 Although the exposure was brief, it was clearly
graphic.42 Assertions that the exposure was fleeting and
unintentional are more appropriate to the analysis under the
second and third factors, as discussed below.
14. As to those factors, throughout the
Jackson/Timberlake segment, the performances, song lyrics
and choreography discussed or simulated sexual activities,
concluding with the exposure of Ms. Jackson's breast. In
particular, we note that Mr. Timberlake pulled off part of
Ms. Jackson's clothing to reveal her breast after he sang,
``gonna have you naked by the end of this song.''43
Therefore, we find the nudity here was designed to pander
to, titillate and shock the viewing audience. 44 The fact
that the exposure of Ms. Jackson's breast was brief is thus
not dispositive.45
15. Based upon the preceding analysis, we find, in
context, that the exposure of Ms. Jackson's breast was
apparently indecent, and, therefore, is legally
actionable.46 By airing this material, the licensee of each
of the CBS Network Stations apparently violated the
prohibitions in 18 U.S.C. § 1464 and section 73.3999 of the
Commission's rules, the rule against broadcast indecency.
B. Proposed Forfeiture
16. Based upon our review of the record in this case,
we conclude that the licensee of each Viacom Station is
apparently liable for the willful violation of our rules.
The Commission's Forfeiture Policy Statement establishes a
base forfeiture amount of $7,000 for transmission of
indecent or obscene materials.47 The Forfeiture Policy
Statement also specifies that the Commission shall adjust a
forfeiture based upon consideration of the factors
enumerated in section 503(b)(2)(D) of the Act, 47 U.S.C. §
503(b)(2)(D), such as ``the nature, circumstances, extent
and gravity of the violation, and, with respect to the
violator, the degree of culpability, any history of prior
offenses, ability to pay, and such other matters as justice
may require.''48
17. Significant to our consideration of these
statutory factors are the respective roles of CBS and MTV in
the preparation, execution and promotion of the halftime
segment. We note that, in the wake of the uproar
precipitated by this broadcast, in the CBS Response and
elsewhere, officials of CBS and MTV have each expressed
their surprise at and regret over their Super Bowl broadcast
of this material.49 For her part, Ms. Jackson has assumed
personal responsibility, representing that she did not
advise Viacom, CBS or MTV ``of any possible costume
reveal,'' although notably failing to represent that the
costume reveal was inadvertent.50 Similarly, Mr. Timberlake
has stated, ``I did not communicate the plan to do the
costume reveal to any officers, employees or representatives
of Viacom, CBS, MTV or the NFL.''51 However, whether or not
officials of these companies had advance knowledge of Ms.
Jackson's breast-baring finale to the halftime program is
not dispositive. The materials provided in the CBS
Response, including the final broadcast script,52 the
Rehearsal Videotape and the Broadcast Videotape, establish
that officials of both CBS and MTV were well aware of the
overall sexual nature of the Jackson/Timberlake segment, and
fully sanctioned it¾indeed, touted it as ``shocking'' to
attract potential viewers.53 The record here demonstrates
that CBS failed to take reasonable precautions to ensure
that no actionably indecent material was broadcast.54
18. In this regard, CBS acknowledges that its
officials and those of MTV conducted substantial review of
the content of the halftime show before the broadcast,
including the Jackson/Timberlake finale.55 The January 29
Rehearsal Videotape confirms that, three days before the
Sunday national broadcast, officials of CBS and MTV, as well
as members of the CBS Broadcast Standards Department and
Program Practices Department, had full advance notice of the
sexually provocative nature of the segment, including the
choreography, the songs and their lyrics (albeit apparently
not the exposure of Ms. Jackson's breast).56 According to
the CBS Response, these officials sought only to: (i)
instruct a dancer to change her costume to one that was not
as ``revealing;'' and (ii) have Kid Rock remove his
reference in his performance to ``bastards from the IRS,''57
a line that he, in fact, delivered during the broadcast.58
19. Furthermore, materials provided by CBS from the
MTV website establish that MTV aggressively promoted the
program in such a light for days before the telecast. In
response to a question in the LOI, CBS provided a copy of a
news item with its Response that MTV posted on January 28 on
its website, entitled ``Janet Jackson's Super Bowl Show
Promises `Shocking Moments.'''59 The item states, ``As the
big game approaches, one of the top questions along with
`Who's going to win?' is `What will Janet Jackson be doing
at the halftime show?''' It quotes Jackson choreographer
Gil Dulduleo as saying, ``I don't think the Super Bowl has
ever seen a performance like this. The dancing is great.
She's more stylized, she's more feminine, she's more a woman
as she dances this time around. There are some shocking
moments in there too.''60
20. An hour after CBS broadcast the halftime show, its
MTV corporate affiliate posted an item on its website
entitled ``Janet Gets Nasty,'' promoting its planned replay
of the halftime segment. 61 One hour later, it revised the
item to include the following language:
Jaws across the country hit the carpet at exactly
the same time. You know what we're talking
about...Janet Jackson, Justin Timberlake and a
kinky finale that rocked the Super Bowl to its
core. P. Diddy, Kid Rock, & Nelly rounded out the
halftime show in the midst of the greatest game on
earth. MTV was Super Bowl central, so armchair
quarterbacks, fair weather fanatics and fans of
Janet Jackson and her pasties were definitely in
the right place. So strap on those pads, keep
your head down and get the full recap of The AOL
Super Bowl XXXVIII Halftime Show produced by
MTV.62
21. In its Response to the LOI, CBS states that the
January 28 item ``was based on an interview with Mr.
Duldulao by an MTV news reporter who flew to Houston to
cover the Super Bowl week (including both MTV-sponsored
events and those sponsored by others). Both the Executive
Vice President of MTV News and the Managing Editor of online
news for MTV Networks reviewed the article before it was
posted. They and the reporter believed that the `shocking
moment' quote referred to. . . Justin Timberlake's
appearance, especially since other media outlets were
playing up the `surprise guest' angle, and reporters had
been asking about it repeatedly throughout the week.'' CBS
goes on to explain, ``On Monday morning following the Super
Bowl, MTV executives decided to remove the `shocking
moments' article from the website because, in the wake of
the halftime performance, it was being taken out of context.
However, because MTV News and its online complement are news
outlets, the removal of newsworthy content is generally
disfavored, and MTV reposted the article later on February
2, 2004 with an editor's note designed to prevent readers
from misinterpreting the article.''63
22. Even if we accepted CBS's explanation that it was
Mr. Timberlake's surprise appearance to which MTV was
referring in its continual pre-broadcast promotion of the
``shocking nature'' of the halftime show, an assertion that
reasonably could be called into question,64 the fact that
MTV executives reviewed the January 28 item before it was
placed on the site and apparently did not think to inquire
further of Mr. Duldulao, at a minimum, portrayed an attitude
of willful indifference to the content and tone of what was
ultimately broadcast. Under the circumstances, we do not
believe that CBS exercised sufficient control to ensure that
actionably indecent material would not be aired, and we hold
it responsible for the indecent programming broadcast to an
average of over 90 million people,65 including the millions
of children watching, whom CBS could reasonably expect to be
included in the viewing audience. 66
23. In sum, even assuming that neither CBS nor MTV had
advance knowledge that Ms. Jackson's breast would be exposed
during her broadcast performance, the record clearly
establishes that officials of CBS and MTV did have prior
knowledge of, indeed were intricately involved in the
planning process for, and tacitly approved, the sexually
provocative nature of the Jackson/Timberlake segment.
Moreover, they extensively promoted this aspect of the
broadcast in a manner designed to pander, titillate and
shock. Viacom made a calculated and deliberate decision to
air the Jackson/Timberlake segment containing material that
would shock Super Bowl viewers, and to accurately promote it
as such.67
24. In this case, taking into account all of the
factors enumerated in section 503(b)(2)(D) of the Act,
because of the particular culpability here of Viacom,
through its subsidiaries the CBS Television Network and MTV,
and the history of recent indecent broadcasts by Viacom-
owned radio stations,68 we find that the licensee of each of
the Viacom Stations is apparently liable for a forfeiture of
$27,500, the statutory maximum, per station that broadcast
the subject material, for a total forfeiture to Viacom, as
licensee or ultimate parent of each of those licensees, of
$550,000 ($27,500 times 20 stations). Based upon our review
of the entire record, we believe that this upward adjustment
to the statutory maximum is warranted.
25. In contrast, we have no evidence that the licensee
of any of the non-Viacom-owned CBS Affiliate was involved in
the selection, planning or approval of the apparently
indecent material. Moreover, we find that the licensee of
each such station could not have reasonably anticipated that
the CBS Network production of a prestigious national event
such as the Super Bowl would contain material that included
the on-camera exposure of Ms. Jackson's breast.
Nevertheless, we urge each such licensee to take reasonable
precautions in the future, such as employing such delay
technology to independently prescreen the network feed to
prevent the broadcast of indecent programming over its
licensed station.
C. Conclusion
26. Over twenty-five years ago, in Pacifica,69 the
Supreme Court concluded that, notwithstanding the dictates
of the First Amendment and the statutory prohibition imposed
by section 326 of the Act on Commission censorship of
broadcast content or interference with the right of free
speech by means of radio communication, the Commission's
regulation of broadcast indecency is constitutional. In so
holding, the Court observed that ``the broadcast media have
established a uniquely pervasive presence in the lives of
all Americans. Patently offensive, indecent material
presented over the airwaves confronts the citizen, not only
in public, but also in the privacy of the home, where the
individual's right to be left alone plainly outweighs the
First Amendment rights of an intruder.''70 The Court also
noted that ``broadcasting is uniquely accessible to
children, even those too young to read.'' Citing the
government's interest in the ``well-being of its youth'' and
in supporting ``parents' claim to authority in their own
household,'' the Court concluded that ``the ease with which
children may obtain access to broadcast material, coupled
with concerns [as to the well-being of youth]. . .amply
justify special treatment of indecent broadcasting.''71
27. In subsequently upholding the Commission's
broadcast indecency definition against constitutional
challenges, the United States Court of Appeals for the
District of Columbia Circuit also stressed the importance of
the Commission's indecency enforcement to the significant
societal objective of empowering parents to control what
broadcast material to which their children would be exposed.
Thus, the Court concluded that ``the Government's own
interest in the well-being of minors provides an independent
justification for the regulation of broadcast indecency,
noting that ``[a] democratic society rests, for its
continuance, upon the healthy, well-rounded growth of young
people into full maturity as citizens.''72 The Court cited
Pacifica for the proposition that ``[s]ociety may prevent
the general dissemination of [indecent] speech to children,
leaving to parents the decision as to what speech of this
kind their children shall hear and repeat.''73 It observed
further:
[P]arents who wish to expose their children to the
most graphic depictions of sexual acts will have
no difficulty in doing so through the use of
subscription and pay-per-view cable channels,
delayed-access viewing using VCR equipment, and
the rental or purchase of readily available audio
and video cassettes. Thus the goal of supporting
``parents' claim to authority in their own
household to direct the rearing of their
children,'' is fully consistent with the
Government's own interest in shielding minors from
being exposed to indecent speech by persons other
than a parent.74
The Court concluded, ``[i]t is fanciful to believe that the
vast majority of parents who wish to shield their children
from indecent material can effectively do so without
meaningful restrictions on the airing of broadcast
indecency.''75
28. Through the federally granted authorizations,
issued for its owned stations and those of its other network
affiliates, with its Super Bowl broadcast, CBS obtained
access to the households of, by its own
``preliminary''count, over 140 million people. Throughout
the country, the game started in the late afternoon or early
evening, at a time when parents and their children gathered
in homes across the nation to enjoy the broadcast. 76
29. As the ultimate controlling entity of numerous
television licensees, Viacom betrayed its trust, not only to
the FCC arising from its obligation to operate its stations
in the public interest and in a manner consistent with the
Commission's rules, but to each parent who reasonably
assumed that the national network broadcast of a major
sporting event on a Sunday evening would not contain
offensive sexual material unsuitable for children, the very
class of viewers that the Commission's indecency rule was
designed to protect. With its delivery into those homes of
the Jackson/Timberlake duet, Viacom wrenched away from
parents the ability to control the exposure of their
children to the type of objectionable sexual material in
which that performance culminated.
IV. ORDERING CLAUSES
30. ACCORDINGLY, IT IS ORDERED, pursuant to section
503(b) of the Communications Act of 1934, as amended, and
section 1.80 of the Commission's rules,77 that Viacom Inc.
is hereby NOTIFIED of its APPARENT LIABILITY FOR FORFEITURE
in the amount of Five Hundred Fifty Thousand Dollars
($550,000.00) for willfully violating 18 U.S.C. § 1464 and
section 73.3999 of the Commission's rules.
31. IT IS FURTHER ORDERED, pursuant to section 1.80 of
the Commission's rules, that within thirty (30) days of the
release of this NAL, Viacom Inc. each SHALL PAY the full
amount of the proposed forfeiture or SHALL FILE a written
statement seeking reduction or cancellation of the proposed
forfeiture.
32. Payment of the forfeiture must be made by check or
similar instrument, payable to the order of the Federal
Communications Commission. Payment by check or money order
may be mailed to Forfeiture Collection Section, Finance
Branch, Federal Communications Commission, P.O. Box 73482,
Chicago, Illinois 60673-7482. Payment by overnight mail may
be sent to Bank One/LB 73482, 525 West Monroe, 8th Floor
Mailroom, Chicago, IL 60661. Payment by wire transfer may
be made to ABA Number 071000013, receiving bank Bank One,
and account number 1165259. The payment MUST INCLUDE the
FCC Registration Number (``FRN'') and also should note the
NAL/Acct. Number referenced above.
33. The response, if any, must be mailed to William H.
Davenport, Chief, Investigations and Hearings Division,
Enforcement Bureau, Federal Communications Commission, 445
12th Street, S.W, Room 4-C330, Washington D.C. 20554, and
MUST INCLUDE the NAL/Acct. Number referenced above.
34. The Commission will not consider reducing or
canceling a forfeiture in response to a claim of inability
to pay unless the respondent submits: (1) federal tax
returns for the most recent three-year period; (2) financial
statements prepared according to generally accepted
accounting practices (``GAAP''); or (3) some other reliable
and objective documentation that accurately reflects the
respondent's current financial status. Any claim of
inability to pay must specifically identify the basis for
the claim by reference to the financial documentation
submitted.
35. Requests by a respondent for payment of the full
amount of the forfeiture proposed against it in this NAL
under an installment plan should be sent to: Chief, Revenue
and Receivables Operations Group, 445 12th Street, S.W.,
Washington, D.C. 20554.78
36. Under the Small Business Paperwork Relief Act of
2002, Pub L. No. 107-198, 116 Stat. 729 (June 28, 2002), the
FCC is engaged in a two-year tracking process regarding the
size of entities involved in forfeitures. If a respondent
against which a forfeiture has been proposed herein
qualifies as a small entity and if it wishes to be treated
as a small entity for tracking purposes, it should so
certify to us within thirty (30) days of this NAL, either in
its response to the NAL or in a separate filing to be sent
to the Investigations and Hearings Division. The
certification should indicate whether the respondent,
including its parent entity and its subsidiaries, meets one
of the definitions set forth in the list provided by the
FCC's Office of Communications Business Opportunities
(``OCBO'') set forth in Appendix C to this NAL. This
information will be used for tracking purposes only. A
respondent's response or failure to respond to this question
will have no effect on its rights and responsibilities
pursuant to Section 503(b) of the Communications Act. If a
respondent has questions regarding any of the information
contained in Appendix C, it should contact OCBO at (202)
418-0990.
37. Accordingly, IT IS ORDERED, that the complaints
filed against the licensees listed in Appendices A and B
regarding their broadcasts on February 1, 2004, ARE GRANTED
to the extent indicated herein, AND ARE OTHERWISE DENIED,
and the complaint proceeding IS HEREBY TERMINATED.79
38. IT IS FURTHER ORDERED, that copies of this NAL
shall be sent by Certified Mail Return Receipt Requested to
Viacom Inc., 2000 K Street, N.W., Suite 725, Washington,
D.C. 20006, and to its counsel, Robert Corn-Revere, Esquire,
Davis Wright Tremaine LLP, 1500 K Street, N.W., Washington,
D.C. 20005.
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
Secretary
APPENDIX A
VIACOM OWNED
CBS TELEVISION NETWORK AFFILIATES
Licensee FCC Call Sign Community Facil-
Registra- of License ity ID
tion No.
Number
CBS Stations 00017670- KEYE-TV Austin, TX 33691
Group of Texas 78
L.P.
Viacom Inc. 00036124- WJZ-TV Baltimore, 25455
47 MD
Viacom Inc. 00036124- WBZ-TV Boston, MA 25456
47
CBS 00034821- WBBM-TV Chicago, IL 9617
Broadcasting 89
Inc.
CBS Stations 00017670- KTVT Ft. Worth, 23422
Group of Texas 78 TX
L.P.
CBS Television 00034821- KCNC-TV Denver, CO 47903
Stations Inc. 89
CBS 00034821- WFRV-TV Green Bay, 9635
Broadcasting 89 WI
Inc.
CBS 00034821- WJMN-TV Escanaba, 9630
Broadcasting 89 MI
Inc.
CBS 00034821- WWJ-TV Detroit, MI 72123
Broadcasting 89
Inc.
CBS 00034821- KCBS-TV Los 9628
Broadcasting 89 Angeles, CA
Inc.
CBS Television 00034821- WFOR-TV Miami, FL 47902
Stations Inc. 89
CBS 00034821- WCCO-TV Min- 9629
Broadcasting 89 neapolis,
Inc. MN
CBS 00034821- KCCO-TV Alexandria, 9632
Broadcasting 89 MN
Inc.
CBS 00034821- KCCW-TV Walker, MN 9640
Broadcasting 89
Inc.
CBS 00034821- KDKA-TV Pittsburgh, 25454
Broadcasting 89 PA
Inc.
CBS 00034821- KYW-TV Philadel- 25453
Broadcasting 89 phia, PA
Inc.
CBS 00034821- WCBS-TV New York, 9610
Broadcasting 89 NY
Inc.
KUTV Holdings, 00044992- KUTV Salt Lake 35823
Inc. 73 City, UT
KUTV Holdings, 00044992- KUSG St. George, 35822
Inc. 73 UT
CBS 00034821- KPIX-TV San 25452
Broadcasting 89 Francisco,
Inc. CA
APPENDIX B
NON-VIACOM OWNED
CBS TELEVISION NETWORK AFFILIATES
Licensee Call Community of
Sign License
Nexstar Broadcasting, Inc. KTAB-TV Abilene, TX
Pacific Telestations, Inc. K20EU Dededo, Guam
Freedom Broadcasting Of New York WRGB Schenectady,
Licensee, L.L.C. NY
Emmis Television License Corporation KRQE Albuquerque,
NM
Emmis Television License Corporation KREZ-TV Durango, CO
Emmis Television License Corporation KBIM-TV Roswell, NM
Thunder Bay Broadcasting Corporation WBKB-TV Alpena, MI
Television Station Group License WTAJ-TV Altoona, PA
Subsidiary, L.L.C.
Panhandle Telecasting Company KFDA-TV Amarillo, TX
Alaska Broadcasting Company, Inc. KTVA Anchorage, AK
Meredith Corporation WGCL-TV Atlanta, GA
Gray Television Licensee, Inc. WRDW-TV Augusta, GA
Westwind Communications L.L.C. KBAK-TV Bakersfield,
CA
Community Broadcasting Service WABI-TV Bangor, ME
WAFB, L.L.C. WAFB Baton Rouge,
LA
Freedom Broadcasting Of Texas Licensee, KFDM-TV Beaumont, TX
L.L.C.
KTVQ Communications, Inc. KTVQ Billings, MT
Television Station Group License WBNG-TV Binghamton, NY
Subsidiary, L.L.C.
Media General Communications, Inc. WIAT Birmingham, AL
Reiten Television Inc. KXMB-TV Bismarck, ND
Fisher Broadcasting-Idaho TV, L.L.C. KBCI-TV Boise, ID
Gray Television Licensee, Inc. KBTX-TV Bryan, TX
WIVB Broadcasting, L.L.C. WIVB-TV Buffalo, NY
Mt. Mansfield Television, Inc. WCAX-TV Burlington, VT
KXLF Communications, Inc. KXLF-TV Butte, MT
KCTZ Communications, Inc. KBZK Bozeman, MT
Heritage Broadcasting Company Of Michigan WWTV Cadillac, MI
Heritage Broadcasting Company Of Michigan WWUP-TV Sault Ste
Marie, MI
Raycom America, Inc. KFVS-TV Cape
Girardeau, MO
Chelsey Broadcasting Company Of Casper, KGWC-TV Casper, WY
L.L.C.
Chelsey Broadcasting Company Of Casper, KGWR-TV Rock Springs,
L.L.C. WY
KGAN Licensee, L.L.C. KGAN Cedar Rapids,
IA
Nexstar Broadcasting, Inc. WCIA Champaign, IL
WCSC, Inc. WCSC-TV Charleston, SC
Jefferson-Pilot Communications/WBTV, Inc. WBTV Charlotte, NC
Media General Communications, Inc. WDEF-TV Chattanooga,
TN
Sagamorehill Broadcasting Of Wyoming/ KGWN-TV Cheyenne, WY
Northern Colorado, L.L.C.
Sagamorehill Broadcasting Of Wyoming/ KSTF Scottsbluff,
Northern Colorado, L.L.C.
NE
Catamount Broadcasting Of Chico-Redding, KHSL-TV Chico, CA
Inc.
Citicasters Co. WKRC-TV Cincinnati, OH
Raycom National Inc. WOIO Shaker
Heights, OH
Gray Television Licensee, Inc. KKTV Colorado
Springs, CO
Pacific And Southern Company, Inc. WLTX Columbia, SC
Media General Broadcasting Of So. WRBL Columbus, GA
Carolina Holdings, Inc.
WCBI-TV, L.L.C. WCBI-TV Columbus, MS
WBNS-TV, Inc. WBNS-TV Columbus, OH
Eagle Creek Broadcasting Of Corpus KZTV Corpus
Christi, L.L.C. Christi, TX
Eagle Creek Broadcasting Of Laredo, KVTV Laredo, TX
L.L.C.
WHIO-TV Holdings, Inc. WHIO-TV Dayton, OH
Des Moines Hearst-Argyle TV, Inc. KCCI Des Moines, IA
Gray Television Licensee, Inc. WTVY Dothan, AL
NVG-Duluth II, L.L.C. KDLH Duluth, MN
KDBC License, L.L.C. KDBC-TV El Paso, TX
Initial Broadcasting Of Pennsylvania WSEE-TV Erie, PA
License Subsidiary, L.L.C.
Fisher Broadcasting-Oregon TV, L.L.C. KVAL-TV Eugene, OR
Fisher Broadcasting-Oregon TV, L.L.C. KCBY-TV Coos Bay, OR
South West Oregon TV Broadcasting Corp. KPIC Roseburg, OR
Ackerley Media Group, Inc. KVIQ Eureka, CA
Comcorp Of Indiana License Corp. WEVV Evansville, IN
Tanana Valley Television Company K13XD Fairbanks, AK
Catamount Broadcasting Of Fargo L.L.C. KXJB-TV Valley City,
ND
Meredith Corporation WNEM-TV Bay City, MI
Media General Broadcasting Of So. WBTW Florence, SC
Carolina Holdings, Inc.
Fort Myers Broadcasting Company WINK-TV Fort Myers, FL
New York Times Management Services KFSM-TV Fort Smith, AR
Indiana Broadcasting, L.L.C. WANE-TV Fort Wayne, IN
Ackerley Broadcasting - Fresno, L.L.C. KGPE Fresno, CA
WGFL License Corporation WGFL High Springs,
FL
Glendive Broadcasting Corporation KXGN-TV Glendive, MT
Hoak Media Of Colorado, L.L.C. KREX-TV Grand
Junction, CO
Hoak Media Of Colorado, L.L.C. KREG-TV Glenwood
Springs, CO
Hoak Media Of Colorado, L.L.C. KREY-TV Montrose, CO
KRTV Communications, Inc. KRTV Great Falls,
MT
WFMY Television Corporation WFMY-TV Greensboro, NC
Saga Broadcasting, L.L.C. WXVT Greenville, MS
Media General Communications, Inc. WNCT-TV Greenville, NC
Libco, Inc. KGBT-TV Harlingen, TX
Clear Channel Broadcasting Licenses, Inc. WHP-TV Harrisburg, PA
Meredith Corporation WFSB Hartford, CT
Media General Communications, Inc. WHLT Hattiesburg,
MS
Emmis Television License Corporation KGMB Honolulu, HI
Emmis Television License Corporation KGMD-TV Hilo, HI
Emmis Television License Corporation KGMV Wailuku, HI
KHOU-TV, L.P. KHOU-TV Houston, TX
West Virginia Media Holdings, L.L.C. WOWK-TV Huntington, WV
New York Times Management Services WHNT-TV Huntsville, AL
Fisher Broadcasting-S.E. Idaho TV, L.L.C. KIDK Idaho Falls,
ID
Indiana Broadcasting, L.L.C. WISH-TV Indianapolis,
IN
Media General Communications, Inc. WJTV Jackson, MS
Clear Channel Broadcasting Licenses, Inc. WTEV-TV Jacksonville,
FL
Mel Wheeler, Inc. KRCG Jefferson
City, MO
Media General Communications, Inc. WJHL-TV Johnson City,
TN
Freedom Broadcasting Of Michigan WWMT Kalamazoo, MI
Licensee, L.L.C.
Meredith Corporation KCTV Kansas City,
MO
Gray Television Licensee, Inc. WVLT-TV Knoxville, TN
QueenB Television, LLC WKBT La Crosse, WI
Primeland Television, Inc. WLFI-TV Lafayette, IN
KLFY, L.P. KLFY-TV Lafayette, LA
Young Broadcasting Of Lansing, Inc. WLNS-TV Lansing, MI
KLAS Inc.,(A Nevada Corp.) KLAS-TV Las Vegas, NV
West Virginia Media Holdings, L.L.C. WVNS-TV Lewisburg, WV
Gray Television Licensee, Inc. WKYT-TV Lexington, KY
Metro Video Productions, Inc. WLMO-LP Lima, OH
Gray Television Licensee, Inc. WYMT-TV Hazard, KY
Gray Television Licensee, Inc. KOLN Lincoln, NE
Gray Television Licensee, Inc. KGIN Grand Island,
NE
Arkansas Television Company KTHV Little Rock,
AR
WLKY Hearst-Argyle Television, Inc. WLKY-TV Louisville, KY
Nexstar Broadcasting, Inc. KLBK-TV Lubbock, TX
Gannett Georgia, L.P. WMAZ-TV Macon, GA
Television Wisconsin, Inc. WISC-TV Madison, WI
United Communications Corporation KEYC-TV Mankato, MN
Media General Broadcasting Of So. KIMT Mason City, IA
Carolina Holdings, Inc.
Freedom Broadcasting of Oregon Licensee, KTVL Medford, OR
L.L.C.
New York Times Management Services WREG-TV Memphis, TN
WMDN, Inc. WMDN Meridian, MS
WDJT-TV Limited Partnership WDJT-TV Milwaukee, WI
Reiten Television Inc. KXMC-TV Minot, ND
Reiten Television Inc. KXMA-TV Dickinson, ND
Reiten Television Inc. KXMD-TV Williston, ND
KPAX Communications, Inc. KPAX-TV Missoula, MT
Media General Broadcasting Of South WKRG-TV Mobile, AL
Carolina Holdings, Inc.
Noe Corporation, L.L.C. KNOE-TV Monroe, LA
Ackerley Media Group, Inc. KION-TV Monterey, CA
Alabama Broadcasting Partners WAKA Selma, AL
MMT License, L.L.C. KLSB-TV Nacogdoches,
TX
Newschannel 5 Network, L.P. WTVF Nashville, TN
WWL-TV, Inc. WWL-TV New Orleans,
LA
New York Times Management Services WTKR Norfolk, VA
ICA Broadcasting I, Ltd. KOSA-TV Odessa, TX
Griffin Entities, L.L.C. KWTV Oklahoma City,
OK
Emmis Television License Corporation KMTV Omaha, NE
Post-Newsweek Stations Orlando, Inc. WKMG-TV Orlando, FL
Desert Television L.L.C. KPSP-LP Cathedral
City, CA
Nexstar Broadcasting, Inc. WMBD-TV Peoria, IL
Meredith Corporation KPHO-TV Phoenix, AZ
Saga Quad States Communications, L.L.C. KOAM-TV Pittsburg, KS
WGME Licensee, L.L.C. WGME-TV Portland, ME,
Emmis Television License Corporation KOIN Portland, OR
Nepsk, Inc. WAGM-TV Presque Isle,
ME
TVL Broadcasting Of Rhode Island, L.L.C. WPRI-TV Providence, RI
Barrington Broadcasting Quincy KHQA-TV Hannibal, MO
Corporation
Capitol Broadcasting Company, Inc. WRAL-TV Raleigh, NC
Sarkes Tarzian, Inc. KTVN Reno, NV
Elcom Of Virginia, Inc. WTVR-TV Richmond, VA
WDBJ Television, Inc. WDBJ Roanoke, VA
Nexstar Broadcasting, Inc. WROC-TV Rochester, NY
Coronet Communications Company WHBF-TV Rock Island,
IL
Gray Television Licensee, Inc. WIFR Freeport, IL
SCI - Sacramento Licensee, L.L.C. KOVR Stockton, CA
WBOC, Inc. WBOC-TV Salisbury, MD
Jewell Television Corporation KLST San Angelo, TX
Kens-TV, Inc. KENS-TV San Antonio,
TX
Midwest Television, Inc. KFMB-TV San Diego, CA
Ackerley Media Group, Inc. KCOY-TV Santa Maria,
CA
Raycom America, Inc. WTOC-TV Savannah, GA
Mission Broadcasting, Inc. WYOU Scranton, PA
KIRO-TV Holdings, Inc. KIRO-TV Seattle, WA
Gray Television Licensee, Inc. KXII Sherman, TX
KSLA, L.L.C. KSLA-TV Shreveport, LA
Waitt Broadcasting, Inc. KMEG Sioux City, IA
Young Broadcasting Of Sioux Falls, Inc. KELO-TV Sioux Falls,
SD
Young Broadcasting Of Sioux Falls, Inc. KDLO-TV Florence, SD
Young Broadcasting Of Rapid City, Inc. KCLO-TV Rapid City, SD
Young Broadcasting Of Sioux Falls, Inc. KPLO-TV Reliance, SD
Ketchikan TV, L.L.C. KTNL Sitka, AK
Ketchikan TV, L.L.C. KUBD Ketchikan, AK
Ketchikan TV, L.L.C. KUBD-LP Kodiak, AK
WSBT, Inc. WSBT-TV South Bend, IN
Media General Broadcasting Of So. WSPA-TV Spartanburg,
Carolina Holdings, Inc.
SC
Media General Broadcasting Of So. WNEG-TV Toccoa, GA
Carolina Holdings, Inc.
King Broadcasting Company KREM-TV Spokane, WA
Meredith Corporation WSHM-LP Springfield,
MA
Mission Broadcasting, Inc. KOLR Springfield,
MO
KMOV-TV, Inc. KMOV St. Louis, MO
Atlantic Properties WVXF Charlotte
Amalie, VI
WTVH License, Inc. WTVH Syracuse, NY
Gray Television Licensee, Inc. WCTV Thomasville,
GA
Pacific And Southern Company, Inc. WTSP St.
Petersburg, FL
Emmis Television License Corporation WTHI-TV Terre Haute,
IN
Libco, Inc. WTOL Toledo, OH
Gray Television Licensee, Inc. WIBW-TV Topeka, KS
Raycom America, Inc. KOLD-TV Tucson, AZ
Griffin Licensing, L.L.C. KOTV Tulsa, OK
Catamount - Idaho License L.L.C. KMVT Twin Falls, ID
Gray Television Licensee, Inc. KWTX-TV Waco, TX
The Detroit News, Inc. WUSA Washington, DC
United Communications Corporation WWNY-TV Carthage, NY
Gray Television Licensee, Inc WSAW-TV Wausau, WI
Withers Broadcasting Company WDTV Weston, WV
Freedom Broadcasting Of Florida Licensee, WPEC West Palm
Inc. Beach, FL
West Virginia Media Holdings, L.L.C. WTRF-TV Wheeling, WV
Hoak Media Of Wichita Falls, L.P. KAUZ-TV Wichita Falls,
TX
Media General Broadcasting of So. KWCH-TV Hutchinson, KS
Carolina Holdings, Inc.
Media General Broadcasting of So. KBSD-TV Ensign, KS
Carolina Holdings, Inc.
Media General Broadcasting of So. KBSH-TV Hays, KS
Carolina Holdings, Inc.
Media General Broadcasting of So. KBSL-TV Goodland, KS
Carolina Holdings, Inc.
WILM, Inc. WILM-LP Wilmington, NC
Fisher Broadcasting-Washington TV, L.L.C. KIMA-TV Yakima, WA
Fisher Broadcasting-Washington TV, L.L.C. KLEW-TV Lewiston, ID
Fisher Broadcasting-Washington TV, L.L.C. KEPR-TV Pasco, WA
Piedmont Television Of Youngstown License WKBN-TV Youngstown, OH
L.L.C.
Pappas Arizona License L.L.C. KSWT Yuma, AZ
APPENDIX C
FCC List of Small Entities
As described below, a ``small entity'' may be a small
organization,
a small governmental jurisdiction, or a small business.
(1) Small Organization
Any not-for-profit enterprise that is independently owned
and operated and
is not dominant in its field.
(2) Small Governmental Jurisdiction
Governments of cities, counties, towns, townships, villages,
school districts, or
special districts, with a population of less than fifty
thousand.
(3) Small Business
Any business concern that is independently owned and
operated and
is not dominant in its field, and meets the pertinent size
criterion described below.
Industry Type Description of Small Business
Size Standards
Cable Services or Systems
Special Size Standard -
Cable Systems Small Cable Company has 400,000
Subscribers Nationwide or Fewer
Cable and Other Program
Distribution $12.5 Million in Annual
Receipts or Less
Open Video Systems
Common Carrier Services and Related Entities
Wireline Carriers and
Service providers
1,500 Employees or Fewer
Local Exchange Carriers,
Competitive Access
Providers, Interexchange
Carriers, Operator Service
Providers, Payphone
Providers, and Resellers
Note: With the exception of Cable Systems, all size
standards are expressed in either millions of dollars or
number of employees and are generally the average annual
receipts or the average employment of a firm. Directions
for calculating average annual receipts and average
employment of a firm can be found in
13 CFR 121.104 and 13 CFR 121.106, respectively.
International Services
International Broadcast
Stations
$12.5 Million in Annual
Receipts or Less
International Public Fixed
Radio (Public and Control
Stations)
Fixed Satellite
Transmit/Receive Earth
Stations
Fixed Satellite Very Small
Aperture Terminal Systems
Mobile Satellite Earth
Stations
Radio Determination
Satellite Earth Stations
Geostationary Space Stations
Non-Geostationary Space
Stations
Direct Broadcast Satellites
Home Satellite Dish Service
Mass Media Services
Television Services
$12 Million in Annual Receipts
or Less
Low Power Television
Services and Television
Translator Stations
TV Auxiliary, Special
Broadcast and Other Program
Distribution Services
Radio Services
$6 Million in Annual Receipts
or Less
Radio Auxiliary, Special
Broadcast and Other Program
Distribution Services
Multipoint Distribution Auction Special Size Standard -
Service Small Business is less than
$40M in annual gross revenues
for three preceding years
Wireless and Commercial Mobile Services
Cellular Licensees
1,500 Employees or Fewer
220 MHz Radio Service -
Phase I Licensees
220 MHz Radio Service - Auction special size standard -
Phase II Licensees Small Business is average gross
revenues of $15M or less for
the preceding three years
(includes affiliates and
controlling principals)
Very Small Business is average
gross revenues of $3M or less
for the preceding three years
(includes affiliates and
controlling principals)
700 MHZ Guard Band Licensees
Private and Common Carrier
Paging
Broadband Personal
Communications Services 1,500 Employees or Fewer
(Blocks A, B, D, and E)
Broadband Personal Auction special size standard -
Communications Services Small Business is $40M or less
(Block C) in annual gross revenues for
three previous calendar years
Very Small Business is average
gross revenues of $15M or less
for the preceding three
calendar years (includes
affiliates and persons or
entities that hold interest in
such entity and their
affiliates)
Broadband Personal
Communications Services
(Block F)
Narrowband Personal
Communications Services
Rural Radiotelephone Service 1,500 Employees or Fewer
Air-Ground Radiotelephone
Service
800 MHz Specialized Mobile Auction special size standard -
Radio Small Business is $15M or less
average annual gross revenues
for three preceding calendar
years
900 MHz Specialized Mobile
Radio
Private Land Mobile Radio 1,500 Employees or Fewer
Amateur Radio Service N/A
Aviation and Marine Radio
Service 1,500 Employees or Fewer
Fixed Microwave Services
Small Business is 1,500
Public Safety Radio Services employees or less
Small Government Entities has
population of less than 50,000
persons
Wireless Telephony and
Paging and Messaging 1,500 Employees or Fewer
Personal Radio Services N/A
Offshore Radiotelephone 1,500 Employees or Fewer
Service
Wireless Communications Small Business is $40M or less
Services average annual gross revenues
for three preceding years
Very Small Business is average
gross revenues of $15M or less
for the preceding three years
39 GHz Service
Auction special size standard
(1996) -
Multipoint Distribution Small Business is $40M or less
Service average annual gross revenues
for three preceding calendar
years
Prior to Auction -
Small Business has annual
revenue of $12.5M or less
Multichannel Multipoint
Distribution Service $12.5 Million in Annual
Receipts or Less
Instructional Television
Fixed Service
Auction special size standard
(1998) -
Local Multipoint Small Business is $40M or less
Distribution Service average annual gross revenues
for three preceding years
Very Small Business is average
gross revenues of $15M or less
for the preceding three years
First Auction special size
standard (1994) -
Small Business is an entity
that, together with its
affiliates, has no more than a
218-219 MHZ Service $6M net worth and, after
federal income taxes (excluding
carryover losses) has no more
than $2M in annual profits each
year for the previous two years
New Standard -
Small Business is average gross
revenues of $15M or less for
the preceding three years
(includes affiliates and
persons or entities that hold
interest in such entity and
their affiliates)
Very Small Business is average
gross revenues of $3M or less
for the preceding three years
(includes affiliates and
persons or entities that hold
interest in such entity and
their affiliates)
Satellite Master Antenna
Television Systems $12.5 Million in Annual
Receipts or Less
24 GHz - Incumbent Licensees 1,500 Employees or Fewer
24 GHz - Future Licensees Small Business is average gross
revenues of $15M or less for
the preceding three years
(includes affiliates and
persons or entities that hold
interest in such entity and
their affiliates)
Very Small Business is average
gross revenues of $3M or less
for the preceding three years
(includes affiliates and
persons or entities that hold
interest in such entity and
their affiliates)
Miscellaneous
On-Line Information Services $18 Million in Annual Receipts
or Less
Radio and Television
Broadcasting and Wireless
Communications Equipment 750 Employees or Fewer
Manufacturers
Audio and Video Equipment
Manufacturers
Telephone Apparatus
Manufacturers (Except 1,000 Employees or Fewer
Cellular)
Medical Implant Device 500 Employees or Fewer
Manufacturers
Hospitals $29 Million in Annual Receipts
or Less
Nursing Homes $11.5 Million in Annual
Receipts or Less
Hotels and Motels $6 Million in Annual Receipts
or Less
Tower Owners (See Lessee's Type of Business)
STATEMENT OF
CHAIRMAN MICHAEL K. POWELL
Re: Complaints Against Various Television Licensees
Concerning Their February 1, 2004, Broadcast of the Super
Bowl XXXVIII Halftime Show
No television event has ever received as many
complaints from the American public¾over 540,000¾as the
Super Bowl XXXVIII halftime show produced by CBS. As
countless families gathered around the television to watch
one of our Nation's most celebrated events, they were rudely
greeted with a halftime show stunt more fitting of a
burlesque show. The show, clearly intended to push the
limits of prime time television, ultimately violated federal
law that restricts indecent programming to times when
children are less likely to be watching. The U.S.
Constitution is generous in its protection of free
expression, but it is not a license to thrill. ``Anything
goes,'' is not an acceptable mantra for those that elect to
earn their profit using the public's airwaves.
Indecency determinations, however, must be made
cautiously and with appropriate restraint. There is always
a substantial danger that a regulatory authority buoyed by
an outraged public will overstep and fail to heel to the
commands of the First Amendment. Our decision stays in
bounds, but I am troubled at the suggestion of some on the
Commission that we should reach further and drop the hammer
for the musical performances themselves¾divorced from the
infamous wardrobe malfunction¾or for the commercials. I
agree that some of the performances were risqué and that
commercials were frequently crass and sophomoric, but they
were hardly indecent within the bounds of federal law. To
let loose governmental sanction on such a thin premise is to
stray from our limited role in enforcing the indecency laws,
into the role of national nanny¾arbiter of taste, values and
propriety.
One critical way in which we exercise restraint is by
analyzing the alleged indecent material in the context in
which it is presented to the viewer or listener.
Broadcasters plead frequently that there should be clear
prescriptions to guide their choices. While the desire for
such comfort is understandable, it is not possible to write
a ``red book'' of dos and don'ts, nor is it wise. There are
simply too many subtleties and too many contexts in which a
given form of speech might occur to generalize a set of
rules. The individual facts and the context are critical to
separating protected speech from unlawful speech.
Nonetheless, the Commission should explain the central
elements of its decision in order to permit broadcasters to
make reasonable assessments in their programming choices,
based on analogous precedents. Nudity, while not
necessarily indecent in itself, certainly should raise a red
flag for a broadcaster contemplating its airing during the
hours in which the law restricts indecency because children
are likely in the audience. If a programmer opts to air
nude content, he places great weight in the hope that its
purpose and context will keep the program from running afoul
of the law. In this case, the context of the half time
show leads us to conclude that the breast-baring finale was
intended (in the vernacular of the indecency law) ``to
pander, titillate and shock'' those watching. The song's
lyrics leave little doubt where the show was going: ``Hurry
up cause you're taking too long. . . better have you naked
by the end of this song.'' Well, he certainly did and
judging by the complaints it had its intended shocking
effect¾and drew a penalty flag in the process.
Finally, although individual licensees are indeed
responsible for what is broadcast over the airwaves to their
individual communities, fundamental fairness dictates that
in this instance we not sanction those affiliates not owned
by Viacom. The Super Bowl is widely regarded as a family
event with as many as one in five children watching this
year's edition. Past half time productions have generally
reflected the family-friendly character of the event.
While affiliates certainly are not exempt from their
responsibility to guard against the airing of indecent
material, I do not believe it is warranted under the
circumstances before us, where one would not have reasonably
anticipated the dramatic departure.
In contrast, Viacom was not so passively involved.
Viacom is the parent company of not only the CBS network,
which aired the program, but also of MTV, which developed,
rehearsed and produced the program. The Viacom organization
knew, or surely should have known, what was to come. The
fact that Viacom promoted the half time show before it aired
as one that would be shocking, gives credence to their
culpability. Unquestionably, Viacom consciously took the
risk and, thus, now bears the responsibility.
Enforcing the indecency laws is no easy task, but it is
one that falls to the FCC. We must respond to public
complaints and give meaning to the indecency prohibitions on
the public airwaves. Just as importantly, however, we must
exercise great care not to overstep our own Constitutional
limits and smother the free expression that is the central
tenet of our democracy.
STATEMENT OF
COMMISSIONER MICHAEL J. COPPS,
APPROVING IN PART, CONCURRING IN PART
Re: Complaints Against Various Television Licensees
Concerning Their February 1, 2004, Broadcast of the Super
Bowl XXXVIII Halftime Show
Few incidents have focused such widespread attention on
the issue of indecency on the airwaves or garnered more
complaints than last year's Super Bowl. Millions of
Americans watched what should have been an all-American
evening for the entire family. Instead, we got something
far different - an outrageous stunt and over 540,000
complaints from people all across the country.
I agree that the Super Bowl halftime show violated the
indecency statute and am pleased that we are taking this
step to address a deplorable incident. I remain troubled,
however, by certain aspects of the decision and therefore do
not approve it in its entirety.
First, I am concerned by the precedent we establish in
failing to assess a penalty against non-Viacom-owned
affiliates that aired the Super Bowl. I recognize that the
affiliates likely did not expect that this national event
would include such indecency. Yet, many stations air
programming that they do not produce themselves. The
Commission must be careful not to signal that we would
excuse indecent broadcasts merely because a station did not
control the production of the content. Some level of fine
would have been appropriate for these stations. The primary
focus of our indecency enforcement under the statute must
remain those who are licensed to use the public airwaves and
we look to their vigilance to protect our children from
indecent broadcasts.
Second, the Commission received complaints about other
aspects of the halftime show and some of the commercials.
Yet, the Order dismisses these complaints in a footnote with
hardly any analysis or explanation. The FCC relies on
viewers and listeners to file complaints about indecent
broadcasts and places a heavy burden on complaining
citizens. The citizens that filed these complaints have a
right to expect more of a Commission follow-through on their
complaints.
Finally, although the Commission is imposing the
largest fine in history for indecency on television, let's
not kid ourselves that this fine will serve as a
disincentive to multi-billion dollar conglomerates
broadcasting indecency. This fine needs to be seen in the
context of a broadcast in which each 30-second commercial
cost more than $2 million. In other words, this fine
represents less than 10 seconds of ad time on the Super Bowl
and will be easily absorbed as a cost of doing business. We
must continue to demonstrate to citizens that their
complaints will receive prompt and vigorous attention and to
the broadcast industry that Commission involvement in these
issues is not a passing fancy.
STATEMENT OF
COMMISSIONER KEVIN J. MARTIN
APPROVING IN PART, CONCURRING IN PART
Re: Complaints Against Various Television Licensees
Concerning Their February 1, 2004, Broadcast of the
Super Bowl XXXVIII Halftime Show, Notice of Apparent
Liability for Forfeiture
I write separately to express two concerns.
First, hundreds of thousands of viewers across the country
filed complaints asking us to find various aspects of the
Super Bowl halftime show indecent. Some even complained
that the whole show was indecent. This Notice, however,
analyzes only one segment of the show. We have a duty to
the public to fully analyze all of the complaints that we
receive.80
Second, as I have said before, we need to affirm local
broadcasters' ability - and responsibility - to reject
inappropriate programming.81 This obligation is critical to
local broadcasters' ability to keep coarser network
programming off the air in their communities. The network
affiliates asked us to clarify that this right over three
years ago. We still have not acted, and thus I concur in
the decision not to fine the affiliates in this instance. STATEMENT OF
COMMISSIONER JONATHAN S. ADELSTEIN,
APPROVING IN PART AND DISSENTING IN PART
Re: Complaints Against Various Television Licensees
Concerning Their February 1, 2004, Broadcast of the
Super Bowl XXXVIII Halftime Show
Based on a careful review of the record, I find today's
remedy totally inadequate. After all the bold talk, it's a
slap on the wrist that can be paid with just 7½ seconds of
Super Bowl ad time. The $550,000 fine measures up to only
about a dollar per complaint for the more than 542,000
complaints that flooded into the FCC after the broadcast.
The Commission is required by Congress to enforce
federal restrictions against the broadcast of indecent
material, and I agree with the indecency finding here. We
were deluged with a record number of complaints about the
Super Bowl halftime show, and took the unusual step of
launching an investigation. But after a major announcement
and months of investigation, today's enforcement action goes
out of its way to focus narrowly on the exposure of Janet
Jackson's breast on twenty CBS-owned stations.
Most troubling, this decision sets a puzzling precedent
by failing to hold all licensees responsible for the
material broadcast over their stations. Why announce such a
thorough investigation if we just let some of the stations
that broadcast this material completely off the hook? It is
true that the CBS affiliates are as much the innocent
victims as the families who were stunned to see such
gratuitous nudity during a family viewing event. In this
case CBS affiliates - like the general public - had no idea
what was coming, but this is true for most live programming.
This aspect of today's action shows the lack of a coherent
long-term framework that should form the basis of all our
indecency enforcement efforts.
Compliance with federal broadcast decency restrictions
is the responsibility of the station that chooses to air the
programming, not the performers. Less than a week before
the Super Bowl, the Commission fined a television station
for a similar case of gratuitous brief on-camera nudity.
Since the Super Bowl outcry, Viacom has acted responsibly by
apologizing, by instituting measures such as time delays to
keep indecency off the airwaves, and by cooperating fully
with our investigation. Viacom should be commended for
these steps. Nevertheless, subsequent actions cannot excuse
the fact that indecent material was broadcast to 100 million
viewers, including one in five American children.
While the Commission must always proceed cautiously in
broadcast decency cases, this type of graphic and gratuitous
nudity is not a close call. The millions of our nation's
children who were ambushed by the Super Bowl halftime show
deserve better protection. A fine of 7½ seconds of ad time
is scarcely any deterrent. The shockwaves are still being
felt by this shameful episode. I fear that today we're
responding to a ``wardrobe malfunction'' with a regulatory
malfunction.
_________________________
1 The respective licensees, station call signs and
communities of license that are the subject of this NAL are
listed in Appendices A and B.
2 47 U.S.C. § 503(b); 47 C.F.R. § 1.80.
3 For purposes of this NAL, the ``CBS Network Stations''
include: (i) the television stations licensed to Viacom or
to entities ultimately controlled by Viacom that are listed
in Appendix A (the ``Viacom Stations''); and (ii) the other
television stations that are affiliates of the CBS
Television Network listed in Appendix B (collectively, the
``CBS Affiliates'' and each, a ``CBS Affiliate'').
According to a recent FCC Form 323 ownership report for CBS
Broadcasting, Inc., Viacom is the licensee or the parent of
each licensee of the Viacom Stations listed in Appendix A.
See FCC File No. BOA-20030701CWJ.
4 See 18 U.S.C. § 1464; 47 C.F.R. § 73.3999; and 47 U.S.C. §
503(b).
5 Appendix A also includes the FCC Registration Number (FRN)
and facility identification number for each Viacom Station.
6 To date, the Commission has received over 542,000
complaints concerning the broadcast.
7 Some of the complainants also object to other material in
the Super Bowl broadcast, including the propriety of the
costume worn by Kid Rock during his halftime performance, a
poncho apparently made from a United States flag, and the
content of certain commercials. While Kid Rock's wearing of
the flag-based apparel may be troubling to many viewers, it
does not provide us a basis for action under 18 U.S.C.
§ 1464. Similarly, we have reviewed all of the commercials
aired during the broadcast and find that, although we
understand that several may be offensive to some viewers,
none fits within the Commission's definition of indecent
material so as to be actionable.
8 See Appendix A.
9 Letter from William D. Freedman, Deputy Chief,
Investigations and Hearings Division, Enforcement Bureau,
Federal Communications Commission, to Howard Jaeckel, Vice
President and Associate General Counsel, CBS Broadcasting,
Inc., dated February 2, 2004 (the ``LOI'').
10 Letter from Robert Corn-Revere, Esquire to William D.
Freedman, Deputy Chief, Investigations and Hearings
Division, Enforcement Bureau, Federal Communications
Commission, dated February 3, 2004.
11 Letter from Robert Corn-Revere, Esquire to William D.
Freedman, Deputy Chief, Investigations and Hearings
Division, Enforcement Bureau, Federal Communications
Commission, dated February 10, 2004 (the ``CBS Interim
Response''). Therein, CBS characterizes its Interim
Response as ``preliminary in nature and reflects only that
investigation and research as could be accomplished in the
time permitted. In addition to not addressing legal issues
and preserving all legal defenses and arguments as indicated
below . . . the answers provided herein to the questions and
requests in the [LOI] may be subject to revision based on
results of ongoing investigation, interviews, and review of
potentially relevant and/or responsive documents.'' CBS
Interim Response at 1, n. 1; see also id. at 3.
12 Letter from William D. Freedman, Deputy Chief,
Investigations and Hearings Division, Enforcement Bureau,
Federal Communications Commission, to Robert Corn-Revere,
Esquire, dated February 10, 2004.
13 Letter from James S. Blitz, Esquire to William D.
Freedman, Deputy Chief, Investigations and Hearings
Division, Enforcement Bureau, Federal Communications
Commission, dated February 14, 2004.
14 Letter from Susanna M. Lowy, Esquire to William D.
Freedman, Deputy Chief, Investigations and Hearings
Division, Enforcement Bureau, Federal Communications
Commission, dated March 16, 2004 (the ``CBS Response.'').
Although many of CBS's responses to the LOI's inquiries are
contained in both the CBS Interim Response and the CBS
Response, for purposes of simplicity, unless otherwise
noted, references herein will be to the latter.
15 Id. at 5-7 (responses to LOI Inquiries 1, 2 and 3).
16 Id. at 5.
17 Id. In its statement, CBS Television states that it
``deeply regrets the incident. . . .'' MTV indicates that
it ``deeply regrets this incident occurred and we apologize
to anyone who was offended by it.'' Id., Exhibit 4.
18 Id., Exhibit 7.
19 Id., Exhibit 8.
20 Id., Exhibit 9.
21 Id. at 5.
22 CBS Response at 9, n. 22.
23 Id., Exhibit 9 at 35-39; Broadcast Videotape.
24 See 47 U.S.C. § 326.
25 18 U.S.C. § 1464.
26 Pub. L. No. 102-356, § 16(a), 106 Stat. 949, 954 (1992).
27 47 U.S.C. § 503(b); 47 C.F.R. § 1.80(f).
28 See, e.g., SBC Communications, Inc., Apparent Liability
for Forfeiture, Forfeiture Order, 17 FCC Rcd 7589, 7591 ¶ 4
(2002) (forfeiture paid).
29 U.S. CONST., amend. I; See Action for Children's
Television v. FCC, 852 F.2d 1332, 1344 (D.C. Cir. 1988)
(``ACT I'').
30 FCC v. Pacifica Foundation, 438 U.S. 726 (1978)
(``Pacifica''). See also ACT I, 852 F.2d at 1339; Action
for Children's Television v. FCC, 932 F.2d 1504, 1508 (D.C.
Cir. 1991), cert. denied, 503 U.S. 914 (1992) (``ACT II'');
Action for Children's Television v. FCC, 58 F. 3d 654 (D.C.
Cir. 1995), cert. denied, 516 U.S. 1043 (1996) (``ACT
III'').
31 ACT I, 852 F.2d at 1344 (``Broadcast material that is
indecent but not obscene is protected by the First
Amendment; the FCC may regulate such material only with due
respect for the high value our Constitution places on
freedom and choice in what people may say and hear.''). See
also id. at 1340 n. 14 (``the potentially chilling effect
of the FCC's generic definition of indecency will be
tempered by the Commission's restrained enforcement
policy.'').
32 Infinity Broadcasting Corporation of Pennsylvania,
Memorandum Opinion and Order, 2 FCC Rcd 2705 (1987)
(subsequent history omitted) (citing Pacifica Foundation,
Memorandum Opinion and Order, 56 FCC 2d 94, 98 (1975), aff'd
sub nom. FCC v. Pacifica Foundation, 438 U.S. 726 (1978)).
33 Industry Guidance on the Commission's Case Law
Interpreting 18 U.S.C. §1464 and Enforcement Policies
Regarding Broadcast Indecency, Policy Statement, 16 FCC Rcd
7999, 8002, ¶¶ 7-8 (2001) (``Indecency Policy Statement'')
(emphasis in original).
34 CBS Response at 5-7, Exhibits 5 and 6. CBS states that
it ``has no reason to believe that any affiliate did not
broadcast such material.'' Id.at 7. It also acknowledges
that the halftime show aired at approximately 8:30 Eastern
Standard Time.
35 The ``contemporary standards for the broadcast medium''
criterion is that of an average broadcast listener and, with
respect to Commission decisions, does not encompass any
particular geographic area. See Indecency Policy Statement,
16 FCC Rcd at 8002, ¶ 8 and n. 15.
36 Id., 16 FCC Rcd at 8002, ¶ 9 (emphasis in original).
37 Id., 16 FCC Rcd at 8002-15, ¶¶ 8-23.
38 Id., 16 FCC Rcd at 8003, ¶ 10.
39 Id., 16 FCC Rcd at 8009, ¶ 19 (citing Tempe Radio, Inc
(KUPD-FM), Notice of Apparent Liability For Forfeiture, 12
FCC Rcd 21828 (Mass Media Bur. 1997) (forfeiture paid)
(extremely graphic or explicit nature of references to sex
with children outweighed the fleeting nature of the
references); EZ New Orleans, Inc. (WEZB(FM)), Notice of
Apparent Liability For Forfeiture, 12 FCC Rcd 4147 (Mass
Media Bur. 1997) (forfeiture paid) (same)).
40 Indecency Policy Statement, 16 FCC Rcd at 8010, ¶ 20
(``the manner and purpose of a presentation may well
preclude an indecency determination even though other
factors, such as explicitness, might weigh in favor of an
indecency finding'').
41 CBS Response at 5, n. 12.
42 See Young Broadcasting of San Francisco, Inc. (KRON-TV),
Notice of Apparent Liability for Forfeiture, 19 FCC Rcd 1751
(2004) (response pending) (``Young Broadcasting'').
43 CBS Response, Exhibit 9 at 35-39; Broadcast Videotape.
44 Compare WPBN/WTOM License Subsidiary, Inc. (WPBN-TV and
WTOM-TV), Order on Review, 15 FCC Rcd 1838 (2000), in which
the Commission found not to be patently offensive and
accordingly not indecent adult frontal nudity depicted
during a broadcast of the film ``Schindler's List.'' In
that decision, the Commission held that the staff of the
then-Mass Media Bureau had properly concluded that a
broadcast of this film was not patently offensive as
measured by contemporary community standards for the
broadcast medium, based upon the full context of its
presentation, including the subject matter of the film, the
manner of presentation, and the warnings that accompanied
the broadcast of the film. The staff determined, and the
Commission agreed, that in the particular broadcast of the
film at issue, the depiction of adult frontal nudity was
incidental to the broadcast material's rendering of a
historical view of World War II and wartime atrocities,
which, viewed in context, was not presented in a pandering,
titillating or vulgar manner. Id. at 1839-40, ¶¶ 3, 13. In
contrast, as discussed herein, the manner of presentation of
the complained-of material over each CBS Network Station,
for which Viacom failed to take adequate precautions, was
pandering, titillating and shocking. Nor do we find that
the apologies to viewers by CBS and MTV following the
broadcast mitigate the liability of Viacom for violation of
the statute and the Commission's rules.
45 See Young Broadcasting, 19 FCC Rcd 1751.
46 See ACT III, 58 F.3d at 660-63.
47 The Commission's Forfeiture Policy Statement and
Amendment of Section 1.80 of the Rules to Incorporate the
Forfeiture Guidelines, Memorandum Opinion and Order, 12 FCC
Rcd 17087, 17113 (1997) (``Forfeiture Policy Statement''),
recon. denied 15 FCC Rcd 303 (1999); 47 C.F.R. § 1.80(b).
The Commission recently amended its rules to increase the
maximum penalties to account for inflation since the last
adjustment of the penalty rates. See Amendment of Section
1.80(b) of the Commission's Rules and Adjustment of
Forfeiture Maxima to Reflect Inflation, Order, 15 FCC Rcd
18221 (2000). However, the new rates apply to violations
that occur or continue after September 7, 2004 and therefore
do not apply here. See Amendment of Section 1.80(b) of the
Commission's Rules and Adjustment of Forfeiture Maxima to
Reflect Inflation, Order, FCC 04-139 (rel. Jun. 18, 2004).
48 Forfeiture Policy Statement, 12 FCC Rcd at 17100-01, ¶
27.
49 CBS Response, Exhibit 4.
50 Id., Exhibit 7.
51 Id., Exhibit 8.
52 Id., Exhibit 9.
53 Id., Appendix D, Tab 1 at 2658-60.
54 See Complaints Against Various Broadcast Licensees
Regarding Their Airing of the ``Golden Globe Awards''
Program, Memorandum Opinion and Order, 19 FCC Rcd 4975, 4979
¶ 10 (2004) (``Golden Globe Awards Order'') (petitions for
reconsideration pending) (because licensees were on notice
that an award presenter or recipient might use offensive
language during a live program, they should have taken
appropriate steps to ensure that such language would not be
broadcast); CBS Radio License, Inc. (WLLD(FM)), Notice of
Apparent Liability for Monetary Forfeiture, 15 FCC Rcd
23881, 23883, ¶ 8 (Enf. Bur. 2000) (given licensee's
awareness of the actual language used in performers'
recordings, it should have taken precautions to avoid airing
material meeting the indecency definition during a live,
unscripted broadcast) (subsequent history omitted); Regent
Licensee of Flagstaff, Inc., (KZGL(FM)), Notice of Apparent
Liability for Monetary Forfeiture, 15 FCC Rcd 17286, 17288,
¶ 9 (Enf. Bur. 2000) (forfeiture paid).
Here, the prior conduct of Ms. Jackson and Mr. Timberlake in
their performances and efforts to promote their recordings
should have given CBS cause for caution regarding their
joint appearance on the live, nationally televised Super
Bowl broadcast. Mr. Timberlake earned considerable
notoriety with his duet with Kylie Minogue on the Brit
Awards program, which was nationally televised in England on
February 19, 2003, conduct quite similar to that at issue
here. According to a news account that ran shortly
thereafter, while he performed a song with Ms. Minogue, he
``grabbed Minogue's famous bottom.'' The article goes on to
relate, ``Justin later told a reporter: `I've heard people
in Britain are obsessed with Kylie's bottom and I can
totally see why. I'm pretty obsessed with it, too. I
didn't just touch Kylie's bum. I copped a feel. On a scale
of one to 10, it was like a 58.''' People in the News,'' THE
MIAMI HERALD, February 22, 2003, available on LEXIS, News
Library, Miamih File.
55 Thus, according to CBS:
the planning and preparation for the Super Bowl
halftime show telecast were directed toward
ensuring that the program met the expectations of
CBS and the NFL and conformed to broadcast
standards. Measures employed included careful
selection of proven, experienced talent, careful
advance review of the script for the halftime
show, and active involvement of the CBS Broadcast
Standards Department to monitor the broadcast
itself. Each aspect of the halftime show was
scripted in advance and a script of the halftime
show was reviewed by the CBS Program Practices
Department. In addition, employees of CBS and MTV
attended two full run-throughs of the halftime
show on Thursday, January 29 to review the
production. The run-throughs were videotaped,
reviewed by representatives of CBS and the NFL.
MTV producers then used the tape to individually
review the rehearsal performances with the talent
to instruct them on changes to be made in the
actual performance on Super Bowl Sunday. Based on
these procedures, certain changes were made to the
show. For example, the costume worn by one of the
dancers during the run-throughs was considered to
be too revealing, and she was instructed to change
it before the final show. There was also concern
about some of the language, and changes were
suggested.
CBS Response at 9-10; see also Written Testimony of Mel
Karmazin, then-President and Chief Operating Officer,
Viacom, Before the House Subcommittee on Telecommunications
and the Internet, dated February 11, 2004, at 2-3 (``MTV's
preparations for this year's half-time event included a full
review, in tandem with CBS, of the script and lyrics and
attendance at all rehearsals throughout the week before the
Super Bowl so as to conform to broadcast standards.'').
56 CBS Response at 9. The language of the performers in the
segment is also fully reflected in these pre-broadcast
materials and the final script, each page of which is marked
``1/31/04 4:00 p.'' Id., Exhibit 9. Moreover, review of
the Broadcast Videotape reveals the performers did not
deliver their vocals live during the halftime program- they
lip-synched them, mouthing the words to a prerecording of
their performances.
57 CBS advises in its Response, ``Other suggested changes
involved commercial issues that are not relevant to this
inquiry.'' Id., at 10, n. 26.
58 See Broadcast Videotape.
59 CBS Response, Appendix D, Tab 1 at 2658-60.
60 Id.
61 Id. at 13, Appendix F, Tab 2 at 3829.
62 Id. at 13-14, Appendix F, Tab 2 at 3829. CBS advises
that MTV removed this item from its website at 10 a.m. on
February 2. Id.
63 Id. at 11-12. The ``editor's note'' reads as follows:
At the time of this report, MTV thought that the
``shock'' was going to be the as-yet-unannounced
appearance of Justin Timberlake as part of Janet's
performance. Janet Jackson's subsequent
performance was not what had been rehearsed,
discussed or agreed to with MTV. To read Janet's
statement and apology, see ``Janet Apologizes,
Says Super Bowl Stunt Went Too Far.'' To see
MTV's statement, see ``Janet, Justin, MTV
apologize for MTV Super Bowl Flash.''
CBS Response, Appendix D, Tab 1 at 2659.
64 Indeed, at the start of the halftime segment, MTV
included an on-screen credit for Mr. Timberlake, hardly a
disclosure that would be made ten minutes before his
appearance, had his participation in the program been the
``shocking moments'' that it had publicized for days on its
Internet site. See Broadcast Videotape.
65 According to A.C. Nielsen Media Research, an average of
89.6 million people watched the Super Bowl broadcast, with
an audience of 98.6 million during the fourth quarter and
143.6 million tuning in for at least some part of the game.
Super Bowl Ratings Up Slightly Over 2003, SI.COM, February
2, 2004, available at
http://sportsillustrated.cnn.com/2004/football/nfl/specials-
/playoffs/2003/02/02/bc.fbn.superbowl/ratings/ap.
66 ``Based on preliminary stats,'' an estimated one in five
children between the ages of 2 to 11 years watched the
halftime show. Lisa de Moraes, The TV Column, WASHINGTON
POST, February 3, 2004, at C1.
67 Infinity Broadcasting Operations, Inc. (WNEW(FM)), Notice
of Apparent Liability for Monetary Forfeiture, 18 FCC Rcd
19954, 19962 ¶14 (2003) (response pending) (fact that
broadcast contest encouraging sexual activity was well-
planned and extensively promoted, with the involvement of a
large number of station and programming employees and
managers, led to the conclusion that the material was aired
to pander and titillate).
68 See, e.g., Infinity Broadcasting Operations, Inc. (WKRK-
FM), Notice of Apparent Liability for Monetary Forfeiture,
FCC 04-49 (rel. March 18, 2004) (response pending);
Infinity Broadcasting Operations, Inc.(WKRK-FM), Notice of
Apparent Liability for Monetary Forfeiture, 18 FCC Rcd 6915
(2003) (response pending); Infinity Broadcasting Corporation
of Los Angeles (KROQ-FM), Memorandum Opinion and Order, 17
FCC Rcd 9892 (2002); Infinity Broadcasting Operations,
Inc.(WNEW(FM)), Notice of Apparent Liability for Monetary
Forfeiture, 17 FCC Rcd 10665 (Enf. Bur. 2002) (response
pending).
69 Pacifica, 438 U.S. 726.
70 Id. at 748.
71 Id. at 749-50.
72 ACT III, 58 F.3d at 663.
73 Id., citing Pacifica, 438 U.S. at 758 (Powell, J.
concurring in part and concurring in the judgment).
74 Id.
75 Id.
76 CBS Television Press Release, CBS Sports Coverage of
Super Bowl XXXVIII Watched by 140 Million Viewers (February
2, 2004), available at
http://viacom.com/press.tin?ixPressRelease=80254180.
77 47 C.F.R. § 1.80.
78 See 47 C.F.R. § 1.1914.
79 Consistent with section 503(b) of the Act and Commission
practice, for the purposes of the forfeiture proceeding
initiated by this NAL, Viacom Inc. shall be the only party
to this proceeding.
80 Note 6 of the Notice acknowledges that ``[s]ome of the
complainants also object to other material in the Super Bowl
broadcast,'' but then concludes in two sentences that
examples of such material were not indecent.
81 See Written Statement of Commissioner Kevin J. Martin,
Before the Committee on Commerce, Science and Transportation
at 4 (February 2004),
http://hraunfoss.fcc.gov/edocs_public/attachmatch/DOC-
243865A2.doc. See also Petition for Inquiry into Network
Practices, filed by Network Affiliated Stations Alliance
(March 2001); Motion for Declaratory Ruling, filed by
Network Affiliated Stations Alliance (June 2001).