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                        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.