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STATEMENT OF
COMMISSIONER JONATHAN S. ADELSTEIN
Re: Complaints Against Various Broadcast
Licensees Regarding Their Airing of the ``Golden
Globe Awards'' Program; Memorandum Opinion and
Order
The Commission today takes a major step in safeguarding
the well-being of our nation's children. By reversing the
Bureau order, we deliver a loud and clear decree that
gratuitous broadcasts of the F-word will not be tolerated on
our airwaves. Many studies show that the use of the F-word
and other vulgarities is becoming more prevalent in our
society, and in our media. Broadcasters have a
responsibility to serve the public interest, and fail to
meet it if they contribute to this trend.
By today's action, the Commission steps up to its
responsibility to enforce statutory and regulatory
provisions restricting broadcast indecency and profanity.
Recognizing that the First Amendment requires a delicate
balance, the Supreme Court has held that the Commission can
constitutionally regulate indecent broadcasts in the
interests of protecting children from vulgarities broadcast
over public airwaves to the public at large. The same
statute also proscribes broadcast profanity, and I am
pleased that we apply a profanity definition endorsed by the
courts to give meaning to our statutory directive.1 While
we have historically interpreted ``profane'' to mean
blasphemy, I support our application of the statute to the
F-word, a highly offensive and commonly understood
``profanity.''
I agree with the courts that what is indecent is
largely a function of context, and cannot adequately be
judged in an abstract, or per-se, manner. In large part,
the character of an act is informed by the circumstances in
which it is done. Yet, even for live award shows, where
technology allows for the removal of isolated words, the
gratuitous broadcast of the F-word is not justified. The
tens of thousands of emails, calls and letters that poured
in to the Commission opposing this broadcast are telling of
the sexual connotation and offensiveness of that word. And
its offensiveness does not depend on whether it is used as
an adjective, adverb, verb or gerund.
Today's action does not fail to appreciate the cultural
creativity and pluralism of our society. There was no
suggestion that the use of the F-word in this case was
traced to any literary, artistic, political or scientific
value. Its use here was both gratuitous and easily
avoidable.
There should be no doubt, my strong preference here
would have been to assess a fine against the licensees in
this case. Despite this preference, as a legal matter,
today's action can be said to represent a departure from a
previous line of cases issued before I joined the
Commission. Those cases routinely failed to take action
against isolated uses of the F-word, an approach that was
endorsed in our April 2001 Policy Statement.2 Our action
today also represents a fresh, new approach to enforcing our
statutory responsibility with respect to profane
broadcasts.3 Regardless of my personal view, in such
instances, licensees should have fair notice that the use of
this language in a setting such as this would be found
actionably indecent and profane. Given the delicate
authority the courts have permitted us under the First
Amendment to enforce the indecency laws, the Commission must
exercise care in affording licensees firm yet fair
treatment. Nonetheless, it should be abundantly clear from
today's action that we are setting a clear line to broadcast
indecency and profanity to which all licensees should adhere
and which from now on will result in forfeitures and other
enforcement sanctions.
Broadcasters, themselves, bear much of the
responsibility to keep our airwaves decent. As stewards of
the public airwaves, they are in the position to showcase
the best of our country's tremendous cultural heritage.
Their choices will ultimately guide our future enforcement,
as their transgressions will result in increasingly severe
and swift action.
_________________________
1 See Tallman v. United States, 465 F.2d 282, 286 (7th
Cir. 1972).
2 See, e.g., Pacifica Foundation, Inc., 2 FCC Rcd 2698,
2699 (1987); Infinity Broadcasting Corporation of
Pennsylvania, Inc., 2 FCC Rcd 2705 (1987); 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) (2001 Policy Statement) and cases cited
in note 32 of this decision. Included in these examples is
a broadcast of Cher saying the F-word on the 2002 Billboard
Awards Ceremony which was found not indecent.
3 See 2001 Policy Statement (stating that ``[p]rofanity
that does not fall under one of the above two categories
[obscenity or indecency] is fully protected by the First
Amendment and cannot be regulated.'').