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STATEMENT OF
COMMISSIONER KATHLEEN Q. ABERNATHY
Re: Complaints Against Various Broadcast Licensees
Regarding Their Airing of the ``Golden Globe Awards''
Program, File No. EB-03-IH-0110
Today, we take a strong stand against indecency on our
public airwaves and a significant step in protecting our
children. Indeed, use of the ``f-word'' on a nationally
telecast awards ceremony is shocking, gratuitous, and
offensive. I am pleased that the Commission has signaled
that such language will no longer be tolerated.
I do recognize, however, that today's decision is a
departure from prior Commission's precedent and policy.
That is why I could not support a fine in this case. Prior
Commissions not only failed to take action against an
isolated use of the f-word, but in fact sanctioned such
behavior. The Commission stated in the past that ``[i]f a
complaint focuses solely on the use of expletives, we
believe that . . . deliberate and repetitive use in a
patently offensive manner is a requisite to a finding of
indecency.''1 A series of prior Commission and staff
decisions, moreover, have indicated that isolated or
fleeting broadcasts of the f-word, such as the case here,
are not indecent.2
Nor do I believe it is reasonable to suggest that
broadcasters should have been on notice that we would find
this incident to be profane. Although I support applying
the definition of ``profane'' as discussed in Tallman3 to
this particular incident, this too is a new finding by the
Commission. The courts never applied the standard in
Tallman to an isolated broadcast of the f-word and the FCC
has never used this definition in any analysis of
``profane'' content, let alone the use of expletives.
Rather, ``profane language'' has historically been
interpreted in a legal sense to mean blasphemy.4 Moreover,
the Mass Media Bureau in a document entitled ``The Public
and Broadcasting'' stated that ``[p]rofanity that does not
fall under one of the above two categories [indecency or
obscenity] is fully protected by the First Amendment and
cannot be regulated.''5
It is a fundamental principle of due process that a
licensee must be on notice that its actions would be in
violation of our rules before this Commission may impose
sanctions.6 Given that prior Commission statements and
staff action in fact permitted the broadcast at issue here,
retroactive application of our new policy to these
broadcasters would have been fundamentally unfair, not to
mention unlawful. I emphasize, however, that the law has
now changed and all licensees are on notice that even
isolated and fleeting broadcasts of the f-word may violate
our restrictions on indecency and profanity.
_________________________
1 Pacifica Foundation, Inc., 2 FCC Rcd 2698, 2699 (1987)
(subsequent history omitted); see also Infinity Broadcasting
Corporation of Pennsylvania, 2 FCC Rcd 2705 (1987) (``Speech
that is indecent must involve more than the isolated use of
an offensive word.'').
2 See, e.g. Industry Guidance on the Commission's Case Law
Interpreting 18 U.S.C. § 1464 and Enforcement Policies
Regarding Broadcast Indecency, 16 FCC Rcd 7999 (2001) and
cases cited in note 32 of this decision.
3 Tallman v. United States, 465 F.2d 282, 286 (7th Cir.
1972).
4 See, e.g., Duncan v. U.S., 48 F.2d 128, 133-134 (9th Cir.
1931) (``[T]he defendant having referred to an individual as
`damned,' having used the expression `By God' irreverently,
and having announced his intention to call down the curse of
God upon certain individuals, was properly convicted of
using profane language within the meaning of that term as
used in the act of Congress prohibiting the use of profane
language in radio broadcasting.''), cert. denied, 383 U.S.
863 (1931).
5 I recognize that the document itself states that ``[t]his
manual provides only a general review of our broadcast rules
and policies. It is not intended to be a comprehensive or
controlling statement of these rules and policies.'' Yet,
if the Mass Media Bureau was clearly unaware that the
Commission would find any language to be profane, I fail to
see how licensees are supposed to be on notice that we would
find the isolated use of an expletive to be profane.
6 See Trinity Broadcasting of Florida, Inc. v. FCC, 211 F.3d
618 (D.C. Cir. 2000).