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                                   Before the

                       Federal Communications Commission

                             Washington, D.C. 20554


                                               )   
     In the Matter of                              
                                               )   
     Complaints Regarding Various Television       
                                               )   
     Broadcasts Between February 2, 2002 and       
                                               )   
     March 8, 2005                                 
                                               )   


                                     ORDER

   Adopted: November 6, 2006 Released: November 6, 2006

   By the Commission: Commissioner Adelstein concurring in part, dissenting
   in part, and issuing a statement.

                               Table of Contents

   Heading Paragraph #

   I.  INTRODUCTION 1

   II.  BACKGROUND 2

   III.  DISCUSSION 11

   A. "The 2003 Billboard Music Awards" 12

   B. "The 2002 Billboard Music Awards" 55

   C. "The Early Show" 67

   D. "NYPD Blue" 74

   IV.  ordering clauses 78

   I. INTRODUCTION

    1. In this Order, we address complaints alleging that four television
       programs ("The 2002 Billboard Music Awards," "The 2003 Billboard Music
       Awards," "NYPD Blue," and "The Early Show") contained indecent and/or
       profane material. After considering the comments submitted by
       broadcasters as well as other interested parties, we find that
       comments made by Nicole Richie during "The 2003 Billboard Music
       Awards" and by Cher during the "The 2002 Billboard Music Awards" are
       indecent and profane as broadcast but that the complained-of material
       aired on "The Early Show" is neither indecent nor profane. In
       addition, we dismiss on procedural grounds the complaints involving
       "NYPD Blue" as inadequate to trigger enforcement action.

   II. BACKGROUND

    2. On March 15, 2006, the Commission released Notices of Apparent
       Liability and a Memorandum Opinion and Order ("Omnibus Order")
       resolving numerous complaints that television broadcasts aired between
       February 2, 2002, and March 8, 2005, contained indecent, profane,
       and/or obscene material. Section III.A of the Omnibus Order proposed
       monetary forfeitures against six different television broadcasts for
       apparent violations of our prohibitions against indecency and/or
       profanity. Section III.C addressed twenty-eight broadcasts that we
       concluded did not violate indecency, profanity, and/or obscenity
       restrictions for various reasons. In the portion of the Omnibus Order
       at issue here, Section III.B, the Commission considered complaints
       filed against four programs.

    3. "The 2002 Billboard Music Awards." The Commission received a complaint
       concerning "The 2002 Billboard Music Awards" program that aired on
       Station WTTG(TV), Washington, DC, beginning at 8:00 p.m. Eastern
       Standard Time on December 9, 2002. The complaint specifically alleged
       that during the broadcast Cher, an award winner, stated, "`People have
       been telling me I'm on the way out every year, right? So fuck `em.'"

    4. "The 2003 Billboard Music Awards." The Commission received a number of
       complaints about the "The 2003 Billboard Music Awards" program that
       aired on Fox Television Network stations beginning at 8:00 p.m.
       Eastern Standard Time on December 10, 2003. The complaints concerned a
       segment in which Nicole Richie, an award presenter, stated, "Have you
       ever tried to get cow shit out of a Prada purse? It's not so fucking
       simple."

    5. "NYPD Blue." The Commission received complaints concerning the use of
       the term "bullshit" in several "NYPD Blue" episodes that aired on
       KMBC-TV, Kansas City, Missouri, beginning at 9:00 p.m. Central
       Standard Time on various dates between January 14 and May 6, 2003.

    6. "The Early Show." The Commission received a viewer complaint that
       Station KDKA-TV, Pittsburgh, Pennsylvania, licensed to CBS
       Broadcasting, Inc. ("CBS"), aired the word "bullshit" during "The
       Early Show" at approximately 8:10 a.m. Eastern Standard Time on
       December 13, 2004. A videotape obtained from CBS showed that during a
       live interview with Twila Tanner, a contestant on the CBS program
       "Survivor: Vanuatu," Ms. Tanner referred to another contestant as a
       "bullshitter."

    7. In Section III.B of the Omnibus Order, the Commission found that the
       broadcasts at issue apparently violated the statutory and regulatory
       prohibitions against airing indecent and profane material. In light of
       the circumstances, however, the Commission did not initiate forfeiture
       proceedings against the relevant licensees.  All of the broadcasts
       discussed in Section III.B, except for the "The Early Show," preceded
       the Golden Globe Awards Order, in which the Commission made clear that
       the isolated use of an offensive expletive could be actionably
       indecent. The FCC also stated that its precedent at the time of "The
       Early Show" broadcast "did not clearly indicate that the Commission
       would take enforcement action against an isolated use" of "shit" (the
       "S-Word") or its variants. Accordingly, consistent with its commitment
       to proceed with caution and restraint in this area, the Commission
       decided that it would not take any adverse action against any licensee
       as a result of these apparent violations.

    8. Following release of the Omnibus Order, several parties petitioned for
       judicial review of Section III.B, asserting a variety of
       constitutional and statutory challenges. Fox Television Stations, Inc.
       ("Fox") and CBS filed a joint petition for review in the United States
       Court of Appeals for the Second Circuit. ABC Television Network
       ("ABC") and Hearst-Argyle Television, Inc. ("Hearst") filed a joint
       petition for review in the United States Court of Appeals for the D.C.
       Circuit, which later transferred the petition to the Second Circuit.
       The Second Circuit consolidated the petitions on June 14, 2006.

    9. At the same time, several parties complained to the Commission about
       the process the Commission followed in formulating Section III.B of
       the Omnibus Order. The Commission ordinarily provides broadcasters
       with an opportunity to file responses and raise arguments before
       imposing forfeiture liability. With one exception, however, the FCC
       did not seek the views of the licensees affected by Section III.B of
       the Omnibus Order because the Commission did not impose any sanctions
       on them. Following the release of the Omnibus Order, broadcasters
       complained that they should have had an opportunity to present their
       views before the Commission reached its decisions in Section III.B.
       Upon reflection, the Commission agreed and stated that it wanted to
       ensure that all of the affected licensees were afforded a full
       opportunity to be heard before the Commission issued a final decision
       with respect to the broadcasts at issue. Accordingly, on July 5, 2006,
       the Commission asked the Second Circuit for a voluntary remand of the
       case and stay of the briefing schedule. The Commission asked the court
       to remand the case for 60 days in order to afford interested parties
       an opportunity to file responses and the Commission an opportunity to
       give the issues further consideration.

   10. The Second Circuit granted the Commission's motion on September 7,
       2006, remanding for a period of 60 days "for the entry of a further
       final or appealable order of the FCC following such further
       consideration as the FCC may deem appropriate in the circumstances."
       On the same day, the Commission announced a two-week filing period for
       interested parties wishing to submit comments concerning the four
       cases. The Enforcement Bureau separately issued Letters of Inquiry
       ("LOIs") to Fox, CBS, and KMBC Hearst-Argyle Television, Inc. on
       September 7, 2006, and to those broadcasters as well as other parties
       to the Second Circuit proceeding on September 18, 2006.

   III. DISCUSSION

   11. Consistent with our commitment to consider the comments and LOI
       responses filed following the Second Circuit's Remand Order and to
       take a fresh look at the issues raised by the four programs at issue
       on remand, we vacate Section III.B of the Omnibus Order in its
       entirety and replace it with the decisions below.

     A. "The 2003 Billboard Music Awards"

   12. The Programming. The Commission, Fox, stations licensed to Fox or its
       affiliated companies, and affiliates of the Fox Television Network all
       received a number of complaints from individual viewers and
       organizations alleging that Fox stations aired indecent material
       during "The 2003 Billboard Music Awards" program on December 10, 2003
       between 8 p.m. and 10 p.m. Eastern Standard Time. The complainants
       alleged that Nicole Richie, who with Paris Hilton presented an award
       on the program, uttered language that was indecent and profane in
       violation of 18 U.S.C. S 1464 and the Commission's rule restricting
       the broadcast of indecent material. The complainants requested that
       the Commission impose sanctions against each station that aired the
       remarks.

   13. The Bureau sent Fox a letter of inquiry on January 7, 2004. Fox
       responded on January 30, 2004, attaching a transcript of the material
       at issue. According to Fox, the program announcer introduced Paris
       Hilton and Nicole Richie, stars of the Fox Television Network show
       "The Simple Life," as follows: "To present the award for Top 40
       Mainstream Track, here are two babes whose lives are anything but
       mainstream. From their hit TV series, `The Simple Life,' please
       welcome Nicole Richie and Paris Hilton." Following that introduction,
       Paris Hilton and Nicole Richie walked onstage to present the award.
       Fox-owned stations and Fox affiliates in the Eastern and Central Time
       Zones then broadcast the following exchange between them:

   Paris Hilton: Now Nicole, remember, this is a live show, watch the bad
   language.

   Nicole Richie: Okay, God.

   Paris Hilton: It feels so good to be standing here tonight.

   Nicole Richie: Yeah, instead of standing in mud and [audio blocked]. Why
   do they even call it "The Simple Life?" Have you ever tried to get cow
   shit out of a Prada purse? It's not so fucking simple.

   14. Fox contends that this broadcast was not actionably indecent. Although
       Fox concedes that it broadcast the F-Word, it argues that the word, in
       context, did not depict or describe sexual activities but rather, "at
       most," was a "vulgar expletive used to express emphasis," and thus is
       outside the scope of the Commission's indecency definition. As for the
       use of the S-Word, Fox does not deny that it was used in the excretory
       sense. It argues, however, that the dialogue "contained at most a
       passing reference to an excretory by-product (i.e., `cow shit') and an
       expletive used for emphasis," that the dialogue lasted only 22
       seconds, and that it was not pandering, titillating or shocking.
       Therefore, Fox contends that the dialogue is not actionably indecent.

   15. Indecency Analysis. The Commission defines indecent speech as material
       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. Thus, indecency findings
       require two primary determinations. First, the material alleged to be
       indecent must fall within the subject matter scope of our indecency
       definition - that is, the material must describe or depict sexual or
       excretory organs or activities. Second, the material must be patently
       offensive  as measured by contemporary community standards for the
       broadcast medium. In our assessment of whether broadcast material is
       patently offensive, "the full context in which the material appeared
       is critically important." 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 the descriptions; and (3) whether the material panders to,
       titillates or shocks the audience. 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."  In
       particular cases, one or two of the factors may outweigh the others,
       either rendering the broadcast material patently offensive and
       consequently indecent, or, alternatively, removing the broadcast
       material from the realm of indecency.

   16. With respect to the first determination, Fox does not dispute that Ms.
       Richie's comment - "Have you ever tried to get cow shit out of a Prada
       purse?" - refers to excrement, and we conclude that it is clearly
       within the scope of our indecency definition. Fox does contend that
       Ms. Richie's use of the "F-Word" - in the statement "[i]t's not so
       fucking simple" - does not describe sexual activities and thus falls
       outside the scope of our indecency definition, but we disagree. A long
       line of precedent indicates that the use of the "F-Word" for emphasis
       or as an intensifier comes within the subject matter scope of our
       indecency definition. Given the core meaning of the "F-Word," any use
       of that word has a sexual connotation even if the word is not used
       literally. Indeed, the first dictionary definition of the "F-Word" is
       sexual in nature. Moreover, it hardly seems debatable that the word's
       power to "intensify" and offend derives from its implicit sexual
       meaning. Accordingly, we conclude that, as we stated in Golden Globe,
       its use inherently has a sexual connotation and thus falls within the
       scope of our indecency definition. The material thus warrants further
       scrutiny to determine whether it is patently offensive as measured by
       contemporary community standards for the broadcast medium. Looking at
       the three principal factors in our contextual analysis, we conclude
       that it is.

   17. We will first address the first and third principal factors in our
       contextual analysis - the explicitness or graphic nature of the
       material and whether the material panders to, titillates, or shocks
       the audience. The complained-of material is quite graphic and
       explicit. Ms. Richie's comment referring to excrement conveys a
       graphic image of Ms. Richie trying to scrape cow excrement out of her
       designer hand bag. Because of her use of the "S-Word," Ms. Richie's
       description also contained quite vulgar language. Furthermore, the
       vulgar description of excrement was coupled with the use of the
       "F-Word." As we have previously concluded, the "F-Word" is one of the
       most vulgar, graphic, and explicit words for sexual activity in the
       English language. Here, Ms. Richie's use of the "F-Word" coupled with
       her graphic and explicit description of the handling of excrement
       during a live broadcast of a popular music awards ceremony when
       children were expected to be in the audience was vulgar and shocking.
       Her comments were also presented in a pandering manner. As part of
       their dialogue, Ms. Hilton reminded Ms. Richie to "watch the bad
       language," a comment that served to preview and highlight for the
       viewing audience Ms. Richie's remarks. Moreover, Fox does not argue
       that there was any justification for Ms. Richie's comments.

   18. We note that when the Supreme Court stressed the importance of context
       in Pacifica, it mentioned as relevant contextual factors the time of
       day of the broadcast, program content as it affects "the composition
       of the audience," and the nature of the medium. All of these factors
       support the conclusion that the dialogue here was patently offensive
       in context. The complained-of material was broadcast early in prime
       time. The program's content was, as discussed above, graphic, explicit
       and vulgar, both in its excretory description and its use of the
       "F-Word." The program was designed to draw a large nationwide audience
       that could be expected to include many children interested in seeing
       their favorite music stars. Although there is no requirement that we
       document the presence of children in the audience for a program that
       is subject to an indecency complaint and is aired between 6 a.m. and
       10 p.m., we note that in this case a significant portion of the
       viewing audience for this program was under 18. According to Nielsen
       ratings data, during an average minute of "The 2003 Billboard Music
       Awards" broadcast, 2,312,000 (23.4%) of the 9,871,000 people watching
       the program were under 18, and 1,089,000 (11%) were between the ages
       of 2 and 11. In addition, we note that this program was rated
       TV-PG(DL). Such a rating would not have put parents or others on
       notice of such vulgar language, and the broadcast contained no other
       warnings to viewers that it might contain material highly unsuitable
       for children. This no doubt helps explain the strong feelings that
       many of the complainants, particularly those who were watching the
       program with their children, expressed regarding the unexpectedly
       vulgar content. In light of all of these factors, we conclude that the
       first and third factors in our contextual analysis both weigh heavily
       in favor of a finding that the material is patently offensive.

   19. With respect to the second factor in our contextual analysis - whether
       the complained-of material was sustained or repeated - Fox argues that
       the dialogue here was a "fleeting and isolated utterance" and that
       such material is not actionably indecent. We disagree.

   20. Fox's argument that a "fleeting and isolated utterance" is not
       actionably indecent is based largely on staff letters and dicta in
       decisions predating the Commission's Golden Globe Awards Order. For
       example, in a 1987 decision clarifying that our indecency definition
       was not restricted only to the seven words contained in the George
       Carlin monologue determined to be indecent in Pacifica, the Commission
       distinguished in dicta between "expletives" - words such as the
       "F-Word" or the "S-Word" used outside of their core sexual or
       excretory meanings - and descriptions of sexual or excretory
       functions. And, in so doing, the Commission suggested: "If 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." The Commission made clear,
       however, that repetition was not required when speech "involv[es] a
       description or depiction of sexual or excretory functions" and that
       "[t]he mere fact that specific words or phrases are not repeated does
       not mandate a finding that material that is otherwise patently
       offensive to the broadcast medium is not indecent." In this case, Ms.
       Richie's use of the "S-Word" clearly involved "a description of
       excretory functions."

   21. Subsequent to this 1987 guidance, there were several Bureau-level
       decisions finding the isolated use of an expletive not to be
       actionably indecent. In no case, however, did the Commission itself,
       when evaluating an actual program, find that the isolated use of an
       expletive, such as the "F-Word," as broadcast was not indecent or
       could not be indecent. In our 2001 Indecency Policy Statement, we
       explained that "where sexual or excretory references have been made
       once or have been passing or fleeting in nature, this characteristic
       has tended to weigh against a finding of indecency," but also noted
       "even relatively fleeting references may be found indecent where other
       factors contribute to a finding of patent offensiveness." Then, in
       2004, the Commission itself considered for the first time in an
       enforcement action whether a single use of an expletive could be
       indecent. And in evaluating the broadcast of the F-Word during "The
       Golden Globe Awards," we overturned the Bureau-level decisions holding
       that an isolated expletive could not be indecent and disavowed our
       1987 dicta on which those decisions were based.

   22. While it is important to understand the history of the Commission's
       decisions in this area, we reject Fox's suggestion that Nicole
       Richie's comments would not have been actionably indecent prior to our
       Golden Globe decision. Rather, Ms. Richie's remarks would have been
       actionably indecent prior to our Golden Globe decision for three
       separate reasons. First, even under our pre-Golden Globe dicta, the
       offensive material here does not consist solely of the use of
       expletives; as discussed above, the "S-Word" was used here in its
       excretory sense and was integral to a graphic and vulgar description
       that clearly falls within the scope of our indecency rule. As we
       stated in our 1987 guidance, "repetitive use" was not required under
       such circumstances. Second, the offensive language was "repeated" in
       that it included not one but two extremely graphic and offensive
       words. Third, there seems to be little doubt that Ms. Richie's
       comments were deliberately uttered and that she planned her comments
       in advance. Ms. Hilton's opening remark to Ms. Richie that this was a
       live show and she should "watch the bad language" strongly suggests
       that the offensive language that followed was not spontaneous.
       Further, there is nothing in Ms. Richie's confident and fluid delivery
       of the lines, and her use of multiple offensive words, that suggests
       that any of the language was a spontaneous slip of the tongue. Thus,
       given the presence of a graphic description of excretory functions,
       the presence of multiple offensive words, and the deliberate nature of
       Ms. Richie's comments, we conclude that this broadcast would have been
       actionably indecent consistent with prior Commission guidance even in
       the absence of our Golden Globe decision.

   23. In addition, this broadcast is actionably indecent under the Golden
       Globe Awards Order. In that Order, we stated that the "mere fact that
       specific words or phrases are not sustained or repeated does not
       mandate a finding that material that is otherwise patently offensive
       to the broadcast medium is not indecent." While, as explained above,
       Commission dicta and Bureau-level decisions issued before Golden Globe
       had suggested that expletives had to be repeated to be indecent but
       "descriptions or depictions of sexual or excretory functions" did not
       need to be repeated to be indecent, we believe that this guidance was
       seriously flawed. We thus reaffirm that it was appropriate to disavow
       it. To begin with, any strict dichotomy between "expletives" and
       "descriptions or depictions of sexual or excretory functions" is
       artificial and does not make sense in light of the fact that an
       "expletive's" power to offend derives from its sexual or excretory
       meaning. Indeed, this is why it has long been clear that such words
       fall within the subject matter scope of our indecency definition,
       which since Pacifica has involved the description of sexual or
       excretory organs or activities. Moreover, in certain cases, it is
       difficult (if not impossible) to distinguish whether a word is being
       used as an expletive or as a literal description of sexual or
       excretory functions. Finally, and perhaps most importantly,
       categorically requiring repeated use of expletives in order to find
       material indecent is inconsistent with our general approach to
       indecency enforcement, which stresses the critical nature of context.
       In evaluating whether material is patently offensive, the Commission's
       approach has generally been to examine all factors relevant to that
       determination. To the extent that Commission dicta had previously
       suggested that one of these factors -whether material had been
       repeated - would always be decisive in a certain category of cases, we
       believe that such dicta was at odds with the Commission's overall
       enforcement policy and was appropriately disavowed.

   24. Turning back to "The 2003 Billboard Music Awards" broadcast, we
       believe that we need not ignore "the first blow" to the television
       audience in the circumstances presented here. Nor do we think that
       Pacifica requires that approach. The major broadcast networks
       ("Networks") argue that the Pacifica Court "would have never approved"
       an indecency enforcement regime that applied to isolated and fleeting
       expletives. But this claim finds no support in Pacifica, in which the
       Court specifically reserved the question of "an occasional expletive"
       and noted that it addressed only the "particular broadcast" at issue
       in that case. Indeed, we think it significant that the "occasional
       expletive" contemplated by the Court was one that occurred in "a
       two-way radio conversation between a cab driver and a dispatcher," - a
       conversation not broadcast to a wide audience - "or a telecast of an
       Elizabethan comedy," settings far removed from the broadcast at issue
       here.

   25. In explaining the special nature of the broadcast medium, the Supreme
       Court emphasized the "pervasive presence [of the broadcast medium] in
       the lives of all Americans" and that indecent broadcasts invade the
       privacy of the home. It rejected the argument that one could protect
       oneself by turning off the broadcast upon hearing indecent language:
       "To say that one may avoid further offense by turning off the radio
       when he hears indecent language is like saying that the remedy for an
       assault is to run away after the first blow." We believe that granting
       an automatic exemption for "isolated or fleeting" expletives unfairly
       forces viewers (including children) to take "the first blow." Indeed,
       it would as a matter of logic permit broadcasters to air expletives at
       all hours of a day so long as they did so one at a time. For example,
       broadcasters would be able to air any one of a number of offensive
       sexual or excretory words, regardless of context, with impunity during
       the middle of the afternoon provided that they did not air more than
       one expletive in any program segment. Such a result would be
       inconsistent with our obligation to enforce the law responsibly. We do
       not believe that viewers of free television broadcasts utilizing the
       public airwaves should feel, as so many of the complaining viewers of
       "The 2003 Billboard Music Awards" clearly do, that they cannot safely
       allow their families to watch prime-time broadcasts.

   26. Nor, as discussed above, are the Networks correct in their suggestion
       that fleeting utterances have never before been regulated. On the
       contrary, our Golden Globe Awards decision was not the first time that
       a fleeting utterance had been found to be indecent. We have long
       recognized that "even relatively fleeting references may be found
       indecent" if the context makes them patently offensive.

   27. We thus conclude that the fact that the offensive dialogue here was
       relatively brief is not dispositive under these particular
       circumstances. This is not a case involving a single, spontaneously
       uttered expletive. Rather, it was two sentences, one of which
       contained a graphic excretory description and the other a vulgar
       expletive used to heighten the effect of the excretory description.
       And, as noted above, these statements were not spontaneous slips of
       the tongue, but rather were planned by the speaker and presaged by the
       introductory remark to "watch the bad language."

   28. With respect to our analysis of the complained-of material, we
       emphatically reject the argument made by Fox and other broadcasters
       that the "contemporary community standards" employed by the Commission
       merely reflect the "subjective opinions" or "the tastes of the
       individuals with seats on the Commission." Rather, as we have
       previously stated, in evaluating material, we rely on the Commission's
       "collective experience and knowledge, developed through constant
       interaction with lawmakers, courts, broadcasters, public interest
       groups, and ordinary citizens."

   29. In this case, moreover, our assessment of contemporary community
       standards for the broadcast medium is strongly bolstered by
       broadcasters' own practices. As mentioned above, during the 10:00
       p.m.-6:00 a.m "safe harbor," broadcasters are permitted to air
       indecent and profane material. Nevertheless, with rare exceptions,
       they do not allow the "F-Word" or the "S-Word" to be broadcast during
       that time period. Fox, for example, "generally prohibit[s] use of any
       form of the F-word or S-word during any day part, including late-night
       programming." NBC also "does not broadcast the `F-Word' and the
       `S-Word'" during the "safe harbor" "except in unusual circumstances"
       and generally does not allow such language to be broadcast on its
       flagship late-night program "The Tonight Show with Jay Leno."
       Similarly, ABC, even during safe harbor hours, "generally has not
       approved the broadcast of the `f-word' and the `s-word.'" For
       instance, during a recent broadcast of "Nightline," ABC deleted uses
       of the "F-Word" in a piece on actor Mark Wahlberg. CBS, likewise,
       indicates that "[g]enerally speaking, broadcast[s] of the `F-word' and
       `S-word' are not permitted under CBS's Television Network Standards at
       any time of [the] day." Hearst also reports that its general policy,
       "which applies at all times, is that vulgar language such as the
       F-Word and the S-Word [is] not to be knowingly broadcast." To be sure,
       each of the broadcasters avers that in certain contexts, such as the
       motion picture Saving Private Ryan, they do permit the broadcast of
       the "F-Word" and the "S-Word." However, none of these examples bears
       even the slightest resemblance to Nicole Richie's comments during "The
       2003 Billboard Music Awards." Indeed, in Congressional testimony,
       Fox's President of Entertainment recognized that the very comments at
       issue here - Ms. Richie's remarks - contained "inappropriate
       language." Moreover, Fox edited out her comments in its broadcasts to
       the Mountain and Pacific Time Zones.

   30. Taken as a whole, broadcasters' practices with respect to programming
       aired during the safe harbor reflect their recognition that airing the
       "F-Word" and the "S-Word" on broadcast television is generally
       offensive to the viewing audience and, in the usual case, not
       consistent with contemporary community standards for the broadcast
       medium. They also reinforce our conclusion that Nicole Richie's
       comments during "The 2003 Billboard Music Awards" were patently
       offensive under contemporary community standards. For all of these
       reasons, we conclude that, given the explicit, graphic, vulgar, and
       shocking nature of Ms. Richie's comments, they were patently offensive
       under contemporary community standards for the broadcast medium and
       thus indecent as broadcast.

   31. We also disagree that it would be inequitable to hold Fox responsible
       for airing offensive language during "The 2003 Billboard Music Awards"
       due to the live, unscripted nature of the material. In disclaiming
       responsibility, Fox states that Nicole Richie's and Paris Hilton's
       scripted dialogue did not contain the "F-Word" or "S-Word." Rather,
       Ms. Richie's first scripted line read: "Yeah - instead of standing in
       mud and pig crap." When she spoke, she substituted "cow shit" (which
       was blocked out in the audio feed) for "pig crap" in that line. In the
       sentences at issue here, Ms. Richie was scripted to say "Have you ever
       tried to get cow manure out of a Prada purse? It's not so freaking
       simple."

   32. Fox also describes the measures it employed to delete objectionable
       material from the broadcast. It says that as in previous years -
       including during "The 2002 Billboard Music Awards" broadcast when it
       aired Cher's use of the phrase "fuck `em" - it utilized a five-second
       delay that it normally used during the production of live
       entertainment programming. A Broadcast Standards employee monitored
       the broadcast and operated a "delay button" that enables an employee
       to edit out objectionable content before it airs. Fox also assigned a
       Broadcast Standards representative to the event to review the script,
       attend dress rehearsals and be present at the event, as it normally
       did for the production of live entertainment events. During "The 2003
       Billboard Music Awards" program, the employee operating the delay
       button edited out the vulgar phrase "cow shit" the first time Ms.
       Richie said it, but failed to edit out the remaining offensive
       language discussed above. The program aired several hours later on
       stations in the Mountain and Pacific time zones, and Fox did remove
       the offensive language before it aired on those stations.

   33. As Fox points out, the FCC has long recognized that it may be
       inequitable to hold a licensee responsible for airing offensive speech
       during live coverage of a public event under some circumstances. But
       the Commission has not hesitated to enforce its indecency standard
       where, as here, a licensee fails to exercise "reasonable judgment,
       responsibility and sensitivity to the public's needs and tastes to
       avoid patently offensive broadcasts." Here, the original script for
       "The 2003 Billboard Music Awards" increased the likelihood that Ms.
       Richie would ad-lib offensive remarks; as noted above, it called for
       her to make excretory references to "pig crap" and "cow manure," and
       to substitute the euphemism "freaking" for the "F-Word." Such a script
       might have posed minimal risk in the hands of some performers. Relying
       on Ms. Hilton and Ms. Richie to avoid vulgar language, however,
       involved a substantially greater risk. As Fox well knew, Ms. Richie
       frequently used indecent language in inappropriate contexts. For
       example, during the three episodes of "The Simple Life" that it
       broadcast in the days leading up to the "The 2003 Billboard Music
       Awards," Fox felt it necessary to bleep expletives (the "F-Word" or
       "S-Word") uttered by Ms. Richie no fewer than nine times. Yet Ms.
       Richie was still selected as a presenter for the live, prime-time
       awards show, and Fox has not claimed it made any effort to caution Ms.
       Richie about its broadcast standards for the program or that it took
       any special precautions (beyond its standard five-second delay) to
       guard against her use of expletives on the air. Indeed, Fox does not
       even contend that it took any action against Ms. Richie after this
       episode.

   34. Even more significant, the particular five-second delay and editing
       system that Fox used in this case had already proved inadequate to
       delete Cher's offensive language during Fox's broadcast of "The 2002
       Billboard Music Awards" the previous year. During that broadcast,
       Cher, when accepting an award, had stated, "`People have been telling
       me I'm on the way out every year, right? So fuck `em.'"  According to
       Fox, the employee in charge of deleting objectionable material did not
       act quickly enough and ended up editing out dialogue that aired after
       Cher's comment. Despite this failure, Fox took no additional
       precautions to avoid airing such material the next year. The record
       also demonstrates that steps may be taken, such as adding "delay
       buttons" or lengthening the delay, that allow for far more effective
       editing of potentially objectionable content. Here, Fox itself
       contends that the time delay and editing system that it used for "The
       2003 Billboard Music Awards" was inadequate, maintaining that it
       imposed on the operator a "Herculean task" because he was "essentially
       trying to watch two programs at once - the live version occurring in
       real-time and the delayed version that was broadcast seconds later."
       Then, if he heard or saw objectionable content, he was required to
       "press the appropriate audio and/or video delay buttons at the precise
       instant necessary to eliminate the objectionable content from the
       delayed feed" while at the same time "staying abreast of the
       continuing live feed." In short, under these circumstances, Fox should
       have recognized the high risk that "The 2003 Billboard Music Awards"
       broadcast raised of airing indecent material. Nevertheless, Fox chose
       to rely on the same delay and editing system that had proved
       inadequate the previous year to delete an expletive during the same
       show. We are not persuaded, therefore, that Fox's efforts to edit out
       the offensive language were diligent or reasonable.

   35. We recognize that no delay and editing system is foolproof and that
       there is always a possibility of human error in using delay equipment
       to edit live programming. The Commission can and will consider these
       facts in deciding what, if any, remedy is appropriate. In this case,
       however, as discussed above, we conclude that Fox's efforts to prevent
       and edit out Ms. Richie's comments were not diligent or reasonable.

   36. Holding Fox responsible for airing indecent material in this case does
       not place live broadcasts at risk or impose undue burdens on
       broadcasters. This case does not involve breaking news coverage that
       Fox and other broadcasters have traditionally presented in so-called
       "real time." Nevertheless, Fox argues that "[t]he live presentation of
       awards shows . . . is what makes this content so compelling." Fox,
       however, did not even decide to air the program live in much of the
       country. Rather, viewers in the Mountain Time Zone saw the program
       with a one-hour delay, and those in the Pacific Time Zone experienced
       a three-hour delay. We find it difficult to understand why viewers on
       the East Coast would no longer find "live programming" to be
       "compelling" with a ten-second delay while it is evidently acceptable
       to provide this programming to viewers in the western half of the
       country  with a one-hour or three-hour delay. Moreover, with respect
       to awards shows as a whole, the record reflects that the vast majority
       of awards shows are not aired by major networks live in the Pacific
       Time Zone. Rather, they are generally broadcast with a three-hour
       delay, thus undermining any assertion that it is important that
       viewers see the presentation of the awards without the comparatively
       minimal delay required to remove indecent language.

   37. Under the circumstances, we fail to see how a delay of five, ten, or
       even fifteen seconds meaningfully affects the value of this
       programming or significantly implicates First Amendment values. In
       this vein, we note that so-called "live" programming is not literally
       live - viewers at home do not see an event at the very time that it is
       actually occurring. Rather, there is a natural delay caused by the
       time that it takes a signal to reach viewers. The record shows that
       digital signals, for example, may take up to 1.3 to 3.3 seconds to
       reach viewers over-the-air. And, if viewers are receiving such signals
       through a cable operator or satellite provider, there may be an
       additional delay of up to 3 seconds. Finally, if a viewer has a
       digital video recorder, there is another additional delay of
       approximately another half-second. Thus, using a conservative
       estimate, a viewer may be watching an event more than three seconds
       after it occurs, even in the absence of any delay technology. In light
       of this, we fail to see how there is a meaningful adverse impact on a
       viewer's experience because he or she learns the winner of the
       Billboard Award for Top 40 Mainstream Track some eight to eighteen
       seconds after the winner is announced on stage in Las Vegas (with a
       delay) as opposed to after the normal three to six seconds (without
       one).

   38. Finally, we note that our decision here will not deprive Fox of the
       ability to present such programming in substantially the same way that
       it has in the past. Fox has utilized a time delay and other procedures
       to avoid airing patently offensive material during live entertainment
       broadcasts such as "The 2003 Billboard Music Awards" for years before
       the Commission's decision in the Golden Globe Awards Order. We also
       disagree that "delaying live broadcasts to edit potentially offensive
       language inevitably results in overbroad censorship of appropriate
       material."  As the D.C. Circuit observed, "some degree of
       self-censorship is inevitable and not necessarily undesirable so long
       as proper standards are available." The possibility that an
       over-zealous broadcast standards employee may "dump" material that is
       not actionably indecent during the live presentation of an awards show
       does not outweigh the compelling interest in preventing patently
       offensive broadcasts such as the one that occurred in this case.

   39. For all of these reasons, we conclude that Fox's broadcast of "The
       2003 Billboard Music Awards" violated the prohibitions in 18 U.S.C. S
       1464 and the Commission's rules against broadcast indecency and that
       it is not inequitable to hold Fox responsible for these violations.

   40. Profanity Analysis. Consistent with our decisions in the Golden Globe
       Awards Order and the Omnibus Order, we also find that the
       complained-of language in the program at issue violated Section 1464's
       prohibition on the broadcast of "profane" utterances. In the Golden
       Globe Awards Order, the Commission concluded that the "F-Word" was
       profane within the meaning of Section 1464 because, in context, it
       constituted vulgar and coarse language "`so grossly offensive to
       members of the public who actually hear it as to amount to a
       nuisance.'" Similarly, we concluded in the Omnibus Order that the
       "S-Word" is a vulgar excretory term so grossly offensive to members of
       the public that it amounts to a nuisance and is presumptively profane.
       In certain cases, language that is presumptively profane will not be
       found to be profane where it is demonstrably essential to the nature
       of an artistic or educational work or essential to informing viewers
       on a matter of public importance. However, such circumstances are not
       present here: Fox does not contend that Ms. Richie's profane language
       was essential to informing viewers on a matter of public importance or
       that modifying the language would have had a material impact on its
       function as a source of news and information. On the contrary, Fox
       sought (albeit unsuccessfully) to delete the profane language, and did
       remove it before the program aired on time delay in the Mountain and
       Pacific Time Zones. It is undisputed that the complained-of material,
       including the "F-Word" and the "S-Word," was broadcast within the 6
       a.m. to 10 p.m. time frame relevant to a profanity determination.
       Because there was a reasonable risk that children may have been in the
       audience at the time of the broadcast on December 10, 2003, the
       broadcast is legally actionable.

   41. Contrary to the Networks' Joint Comments, we believe that our
       interpretation of "profane" as used in Section 1464 is appropriate.
       The word has long carried a variety of meanings, including
       non-religious meanings. Several courts have interpreted the word in a
       non-religious sense, consistent with the established rule that a court
       should construe a statute, if reasonably possible, to avoid
       constitutional problems. Further, when viewed in its statutory context
       with the words "obscene" and "indecent," both of which have vulgar
       overtones, we believe that the word "profane" is reasonably
       interpreted in the related sense of "grossly offensive." We do not
       read the cases cited by the Networks as precluding a non-religious
       interpretation. Duncan  upheld a conviction for broadcasting profanity
       where the defendant "referred to an individual as `damned,'" "used the
       expression `By God' irreverently," and "announced his intention to
       call down the curse of God upon certain individuals." But the court
       held only that this language was "within the meaning of that term" as
       used in the Radio Act of 1927, not that the provision only covered
       such language. Gagliardo addressed the meaning of "profane" in Section
       1464 only in dicta, because the government in that case did not
       contend that the words at issue were profane. Finally, the fact that
       the Commission has a specific rule addressing "obscene" and "indecent"
       programming plainly does not foreclose the agency from exercising in
       an adjudication its express statutory authority to take enforcement
       action against broadcasts that are "profane."

   42. Constitutional Issues. The Networks offer a variety of arguments
       attacking the constitutionality of the Commission's indecency
       framework as it relates to "The 2003 Billboard Music Awards"
       broadcast. We do not find any of these arguments to be persuasive.

   43. First,  the Networks argue that our definition of indecency is
       unconstitutionally vague. However, that definition is essentially the
       same as the one that we articulated in the order under review in FCC
       v. Pacifica Foundation. The Supreme Court had no difficulty in
       applying that definition and using it to conclude that the broadcast
       at issue in that case was indecent. We agree with the D.C. Circuit
       that "implicit in Pacifica" is an "acceptance of the FCC's generic
       definition of `indecent' as capable of surviving a vagueness
       challenge."

   44. The Networks suggest that the Supreme Court's more recent decision in
       Reno v. ACLU has "undermine[d] any constitutional defense of the
       Commission's current approach" to indecency. In Reno, the Court
       considered the constitutionality of the Communications Decency Act of
       1996 (CDA), a statute that regulated indecency on the Internet and
       that contained a definition similar to ours. Though the Court did not
       hold that the statute was "so vague that it violates the Fifth
       Amendment," it concluded that "the many ambiguities concerning the
       scope of its coverage render it problematic for purposes of the First
       Amendment."

   45. Reno in no way undermines Pacifica. On the contrary, the Court in Reno
       expressly distinguished Pacifica, and it gave three different reasons
       for doing so. First, the Court noted that the Commission is "an agency
       that [has] been regulating radio stations for decades," and that the
       Commission's regulations simply "designate when--rather than
       whether--it would be permissible" to air indecent material. The CDA,
       in contrast, was not administered by an expert agency, and it
       contained "broad categorical prohibitions" that were "not limited to
       particular times." Second, the CDA was a criminal statute, whereas the
       Commission has no power to impose criminal sanctions for indecent
       broadcasts. Third, unlike the Internet, the broadcast medium has
       traditionally "received the most limited First Amendment protection."
       Thus, far from casting doubt on Pacifica's vagueness holding, Reno
       recognizes its continuing vitality.

   46. The Networks also argue that the more relaxed level of First Amendment
       scrutiny discussed in Pacifica should no longer apply to broadcasting
       in light of changes in the media marketplace. Specifically, they
       contend that because of the prevalence of other media, such as the
       Internet and cable and satellite television, "it is fanciful to
       believe that aggressive enforcement of S 1464 against broadcasters
       will be effective in preventing children from being exposed to
       potentially offensive words."

   47. We disagree that technological changes have undermined the validity of
       the reasoning in Pacifica. In Pacifica, the Court identified two
       reasons why broadcasting has received "the most limited First
       Amendment protection." First, "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."
       Second, "broadcasting is uniquely accessible to children, even those
       too young to read."

   48. Notwithstanding the growth of other communications media, courts have
       recognized the continuing validity of these rationales. In 1994, the
       Supreme Court reaffirmed that "our cases have permitted more intrusive
       regulation of broadcast speakers than of speakers in other media." And
       the D.C. Circuit has rejected precisely the argument advanced by the
       Networks here: "Despite the increasing availability of other means of
       receiving television, such as cable, . . . there can be no doubt that
       the traditional broadcast media are properly subject to more
       regulation than is generally permissible under the First Amendment."

   49. The broadcast media continue to have "a uniquely pervasive presence"
       in American life. The Supreme Court has recognized that "[d]espite the
       growing importance of cable television and alternative technologies,
       `broadcasting is demonstrably a principal source of information and
       entertainment for a great part of the Nation's population.'" Though
       broadcast television is "but one of many means for communication, by
       tradition and use for decades now it has been an essential part of the
       national discourse on subjects across the whole broad spectrum of
       speech, thought, and expression." In 2003, 98.2% of households had at
       least one television, and 99% had at least one radio. The Networks
       correctly point out that almost 86% of households with television
       subscribe to a cable or satellite service. That still leaves 15.4
       million households that rely exclusively on broadcast television,
       hardly an inconsequential number. In addition, it has been estimated
       that almost half of direct broadcast satellite subscribers receive
       their broadcast channels over the air, and many subscribers to cable
       and satellite still rely on broadcast for some of the televisions in
       their households. All told, the National Association of Broadcasters
       ("NAB") estimates that there are an estimated 73 million
       broadcast-only television sets in American households. Moreover, many
       of those broadcast-only televisions are in children's
       bedrooms.  According to a 2005 Kaiser Family Foundation report, 68
       percent of children aged eight to 18 have a television set in their
       bedrooms, and nearly half of those sets do not have cable or satellite
       connections.

   50. In addition, the bare number of cable and satellite service
       subscribers does not reflect the large disparity in viewership that
       still exists between broadcast and cable television programs. For
       example, during the week of September 18, 2006, each of the top ten
       programs on broadcast television had more than 15 million viewers,
       while only one program on cable television that week managed to
       attract more than 5 million viewers. Similarly, of the 495
       most-watched television programs during the 2004-2005 season, 485
       appeared on broadcast television, and the highest-rated program on
       cable television was only the 257th most-viewed program of the season.

   51. The broadcast media are also "uniquely accessible to children." In
       this respect, broadcast television differs from cable and satellite
       television. Parents who subscribe to cable exercise some choice in
       their selection of a package of channels, and they may avoid
       subscribing to some channels that present programming that, in their
       judgment, is inappropriate for children. Indeed, upon the request of a
       subscriber, cable providers are required by statute to "fully block
       the audio and video programming of each channel carrying such
       programming so that one not a subscriber does not receive it." In
       contrast, as the D.C. Circuit has observed, "broadcast audiences have
       no choice but to `subscribe' to the entire output of traditional
       broadcasters." The V-chip provides parents with some ability to
       control their children's access to broadcast programming. But most
       televisions do not contain a V-chip, and most parents who have a
       television set with a V-chip are unaware of its existence or do not
       know how to use it. In addition, the effectiveness of a V-chip depends
       on the accuracy of program ratings; a V-chip is of little use when, as
       here, the rating does not reflect the material that is broadcast. In
       light of the TV-PG rating given to "The 2003 Billboard Music Awards,"
       even an informed use of a V-chip would not necessarily have protected
       children from Ms. Richie's vulgar comments, and studies demonstrate
       that inaccurate ratings are far from an isolated problem. In a Kaiser
       Family Foundation survey, for example, nearly 4 in 10 parents of
       children aged 2-17 stated that most television programs are not rated
       accurately.

   52. Broadcast television is also significantly different from the
       Internet. The Internet, unlike television, is not accessible to
       children "too young to read." And parents who wish to control older
       children's access to inappropriate material can use widely available
       filtering software -- an option that, whatever its flaws, lacks an
       effective analog in the context of broadcast television in light of
       the numerous problems with the V-chip and program ratings discussed
       above.

   53. No Sanction Proposed. For the reasons stated above, we conclude that
       "The 2003 Billboard Music Awards" contained indecent and profane
       material in violation of Section 1464 and our rules. Fox stations
       broadcast indecent and profane language in an awards show that aired
       between 6 a.m. and 10 p.m. and was watched by people of all ages.
       Under the circumstances, however, we propose no forfeiture here. We
       originally declined to propose a sanction in this case because the
       broadcast occurred prior to the Golden Globe Awards Order. As
       discussed above, we believe on further consideration that the
       complained-of language was actionable under Commission decisions
       preceding the Golden Globe Awards Order. Nevertheless, we still
       decline to propose a forfeiture here. To begin with, proposing a
       sanction would require issuance of a notice of apparent liability,
       which would not be "a further final or appealable order of the FCC,"
       as required by the Remand Order. In addition, even absent the
       requirement that we issue a "final or appealable order," we would not
       exercise our enforcement discretion to propose a forfeiture here given
       the limited remand under which we are proceeding.  Accordingly, we
       find that no forfeiture is warranted in this case. In light of our
       decision not to impose a forfeiture, we will not require the licensees
       of any of the stations that broadcast the material to report our
       finding here to us as part of their renewal applications, and we will
       not consider the broadcast to have an adverse impact upon such
       licensees as part of the renewal process or in any other context.

   54. In light of our decision not to impose a forfeiture, we need not
       address whether the violations of Section 1464 and our rule were
       willful within the meaning of Section 503(b). We disagree with the
       Networks, however, that Section 1464 is not violated unless a
       broadcaster acts with the state of mind required for a criminal
       conviction. The Supreme Court has squarely rejected the argument that
       the FCC's civil authority to enforce Section 1464 must be interpreted
       in accordance with rules that apply to criminal statutes, explaining:
       "The legislative history of the provisions establishes their
       independence. As enacted in 1927 and 1934, the prohibition on indecent
       speech was separate from the provisions imposing civil and criminal
       penalties for violating the prohibition. . . Although the 1948
       codification of the criminal laws and the addition of new civil
       penalties changed the statutory structure, no substantive change was
       apparently intended. . . Accordingly, we need not consider any
       question relating to the possible application of S 1464 as a criminal
       statute." Thus, the mens rea necessary for a criminal conviction is
       not a prerequisite to the Commission's finding a Section 1464
       violation.

     A. "The 2002 Billboard Music Awards"

   55. The Programming. The Commission received a complaint alleging that
       WTTG(TV), Washington, DC, broadcast indecent material during "The 2002
       Billboard Music Awards" program which aired at 8 p.m. Eastern Standard
       Time on December 9, 2002. Specifically, the complainant alleged that
       while accepting an award, Cher stated: "People have been telling me
       I'm on the way out every year, right? So fuck `em." The "2002
       Billboard Music Awards" was broadcast nationwide on the Fox Television
       Network.

   56. Examination of a videotape of the broadcast reveals that Cher, a
       singer and actress, was presented with an "Artist Achievement Award"
       during "The 2002 Billboard Music Awards" program. Cher had been
       selected to receive this award at least three weeks before the
       broadcast.  In the course of her remarks accepting the award, she
       stated as follows: "I've had unbelievable support in my life and I've
       worked really hard. I've had great people to work with. Oh, yeah, you
       know what? I've also had critics for the last 40 years saying that I
       was on my way out every year. Right. So fuck `em. I still have a job
       and they don't."

   57. Following the Second Circuit's remand, the Bureau sent Fox a letter of
       inquiry on September 7, 2006 concerning "The 2002 Billboard Music
       Awards" broadcast. Fox responded on September 21, 2006. Fox's response
       confirms that it broadcast the material described in the complaint.
       Nevertheless, Fox argues that its broadcast of the "F-Word," in
       context, did not depict or describe sexual activities but rather, "at
       most," was a "vulgar expletive directed as an insult toward an
       individual or group against whom the speaker held deep-seated feelings
       of ill-will," and thus is outside the scope of the Commission's
       indecency definition. Further, Fox argues that the complained-of
       material was not actionably indecent because it "contained at most the
       passing use of an expletive used to convey an insult," it "lasted only
       a couple of seconds out of a two-hour program," and Fox did not
       present it to pander to or titillate the audience, or for shock value.
       Therefore, Fox contends that the dialogue is not actionably indecent.

   58. Indecency Analysis. With respect to the first prong of the indecency
       test, Fox contends that Cher's statement "fuck `em" does not describe
       sexual activities and thus falls outside the scope of our indecency
       definition. We disagree. As discussed above, a long line of precedent
       indicates that both literal and non-literal uses of the "F-Word" come
       within the subject matter scope of our indecency definition. Given the
       core meaning of the "F-Word," any use of that word has a sexual
       connotation. Moreover, it hardly seems debatable that the word's power
       to insult and offend derives from its sexual meaning. Here, for
       example, Cher's use of the "F-Word" to reference a sexual act as a
       metaphor to express hostility to her critics is inextricably linked to
       the sexual meaning of the term. Accordingly, we conclude that, as we
       stated in Golden Globe, its use falls within the scope of our
       indecency definition. The material thus warrants further scrutiny to
       determine whether it is patently offensive as measured by contemporary
       community standards for the broadcast medium. Looking at the three
       principal factors in our contextual analysis, we conclude that it is.

   59. We will first address the first and third principal factors in our
       contextual analysis - the explicit or graphic nature of the material
       and whether the material panders to, titillates, or shocks the
       audience. As we have previously concluded, the "F-Word" is one of the
       most vulgar, graphic, and explicit words for sexual activity in the
       English language. Moreover, the gratuitous use of this language during
       a live broadcast of a popular music awards ceremony when children were
       expected to be in the audience was vulgar and shocking. The
       complained-of material was broadcast in prime time, and the program
       was designed to draw a large nationwide audience that could be
       expected to include many children interested in seeing their favorite
       music stars. As in the case of "The 2003 Billboard Music Awards," a
       significant portion of the viewing audience for this program was under
       18. According to Nielsen ratings data, during an average minute of
       "The 2002 Billboard Music Awards" broadcast, 2,608,000 (27.9%) of the
       9,361,000 people watching the program were under 18, and 1,186,000
       (12.7%) were between the ages of 2 and 11. In addition, the program's
       TV-PG rating would not have put parents or others on notice of such
       vulgar language, and the broadcast contained no other warnings to
       viewers that it might contain material highly unsuitable for children.
       Furthermore, Fox does not argue that there was any justification for
       Cher's comment. In light of all of these factors, we conclude that the
       first and third factors in our contextual analysis weigh in favor of a
       finding that the material is patently offensive.

   60. We next turn to the second factor in our contextual analysis - whether
       the complained-of material was sustained or repeated. Fox argues that
       this factor precludes a finding of indecency. As reviewed above,
       Commission dicta and Bureau-level decisions issued before our Golden
       Globe decision had suggested that expletives had to be repeated to be
       indecent but that such a repetition requirement would not apply to
       "descriptions or depictions of sexual or excretory functions." In this
       case, Cher did more than use the "F-Word" as a mere interjection or
       intensifier. Rather, she used the word to describe or reference a
       sexual act as a metaphor to express hostility to her critics. The fact
       that she was not literally suggesting that people engage in sexual
       activities does not necessarily remove the use of the term from the
       realm of descriptions or depictions. This case thus illustrates the
       difficulty in making the distinction between expletives on the one
       hand and descriptions or depictions on the other. Particularly in
       light of this lack of clarity, we acknowledge that it was not apparent
       that Fox could be penalized for Cher's comment at the time it was
       broadcast. This case also shows that the inquiry into whether a word
       is used an expletive rather than a description or depiction is wholly
       artificial. Whether used as an expletive, or as a description or
       depiction, the offensive nature of the "F-Word" is inherently tied to
       the term's sexual meaning.

   61. In any event, under our Golden Globe precedent, the fact that Cher
       used the "F-Word" once does not remove her comment from the realm of
       actionable indecency. We stated in Golden Globe that the "mere fact
       that specific words or phrases are not sustained or repeated does not
       mandate a finding that material that is otherwise patently offensive
       to the broadcast medium is not indecent." To be sure, the fact that
       material is not repeated does weigh against a finding of indecency,
       and in certain cases, when all of the relevant factors are considered
       together, this factor may tip the balance in a decisive manner. This,
       however, is not one of those cases.

   62. We believe that Cher's use of the "F-Word" here during a program aired
       in prime time was patently offensive under contemporary community
       standards for the broadcast medium. The patent offensiveness is
       compounded by the fact that the warnings accompanying the broadcast
       were inadequate and misleading. We do not believe that the Commission
       should ignore "the first blow" to the television audience in the
       particular circumstances presented here. Our determination, moreover,
       is consistent with the networks' own broadcast standards during the
       "safe harbor," which would not allow the broadcast of a single use of
       the "F-Word" under these circumstances. Such standards reflect the
       networks' recognition that even a single use of the "F-Word" under
       most circumstances is not consistent with contemporary community
       standards for the broadcast medium. Indeed, Fox edited out Cher's
       comment in its broadcasts to the Mountain and Pacific Time Zones.

   63. In sum, we conclude that, given the explicit, graphic, vulgar, and
       shocking nature of Cher's use of the "F-Word," Fox's broadcast was
       patently offensive under contemporary community standards for the
       broadcast medium.

   64. Fox also argues that it should not be held responsible for airing
       Cher's comment. In particular, Fox argues that Cher's remarks were
       unscripted and that the five-second delay and editing system that it
       used for "The 2002 Billboard Music Awards" previously had been
       effective in preventing the airing of objectionable material. We need
       not address these arguments, however, because we decide that it would
       not be equitable to sanction Fox for a different reason. Specifically,
       as discussed above, it was not clear at the time that broadcasters
       could be punished for the kind of comment at issue here.

   65. Profanity Analysis. Consistent with our decisions in the Golden Globe
       Awards Order and the Omnibus Order, we also find that Cher's use of
       the "F-Word" in the program at issue violated Section 1464's
       prohibition on the broadcast of "profane" utterances. In the Golden
       Globe Awards Order, the Commission concluded that the "F-Word" was
       profane within the meaning of Section 1464 because, in context, it
       constituted vulgar and coarse language "`so grossly offensive to
       members of the public who actually hear it as to amount to a
       nuisance.'"  In certain cases, language that is presumptively profane
       will not be found to be profane where it is demonstrably essential to
       the nature of an artistic or educational work or essential to
       informing viewers on a matter of public importance. However, such
       circumstances are not present here: Fox does not contend that Cher's
       profane language was essential to informing viewers on a matter of
       public importance or that modifying the language would have had a
       material impact on its function as a source of news and information.
       On the contrary, Fox maintains that it attempted to delete the profane
       language, and did remove it before the program aired on time delay in
       the Mountain and Pacific Time Zones. It is undisputed that the
       "F-Word" was broadcast within the 6 a.m. to 10 p.m. time frame
       relevant to a profanity determination. Because it was broadcast at a
       time of day when there was a reasonable risk of children's presence in
       the audience (indeed, as detailed above, over two-and-a-half million
       viewers of the broadcast were under the age of 18), the broadcast is
       legally actionable.

   66. No Sanction Proposed. For the reasons stated above, we conclude that
       "The 2002 Billboard Music Awards" contained indecent and profane
       material in violation of Section 1464 and our rules. Fox stations
       broadcast indecent and profane language in an awards show that aired
       between 6 a.m. and 10 p.m. and was watched by people of all ages.
       Under the circumstances, however, we find that no forfeiture is
       warranted in this case for the reason set forth above. In light of our
       decision not to impose a forfeiture, we will not require the licensees
       of any of the stations that broadcast the material to report our
       finding here to us as part of their renewal applications, and we will
       not consider the broadcast to have an adverse impact upon such
       licensees as part of the renewal process or in any other context.

     A. "The Early Show"

   67. "The Early Show" is a two-hour morning program that airs weekdays on
       the CBS Television Network. On December 13, 2004, the program devoted
       significant coverage to discussion of the CBS program "Survivor:
       Vanuatu," which had crowned its winner the prior evening. As part of
       that coverage, "The Early Show" co-host Julie Chen conducted a live
       interview with the final four contestants from "Survivor: Vanuatu."
       During that interview, Ms. Chen asked runner-up Twila Tanner whether
       she agreed with fourth-place finisher Eliza Orlins that Chris
       Daugherty, the winner of the program, would have prevailed had he been
       matched up in the finals against Ms. Orlins. Ms. Tanner then
       responded, "Not necessarily. I knew he was a bullshitter from Day
       One."

   68. A viewer subsequently filed a complaint with the Commission that
       Station KDKA-TV, Pittsburgh, Pennsylvania, which is licensed to CBS
       Broadcasting Inc., aired Ms. Tanner's comment at approximately 8:10
       a.m. Eastern Standard Time, on December 13, 2004, and alleged that the
       comment was indecent and profane. In response to the Commission's
       letter of inquiry, CBS does not deny that the comment in question was
       broadcast on KDKA-TV. However, CBS argues, among other things, that
       the material is not actionable because it was spoken during a bona
       fide news interview.

   69. In the Omnibus Order, we "recognize[d] the need for caution with
       respect to complaints implicating the editorial judgment of broadcast
       licensees in presenting news and public affairs programming, as these
       matters are at the core of the First Amendment's free press
       guarantee." Indeed, when we denied an indecency complaint regarding
       material that was aired during "The Today Show," which is a competitor
       of "The Early Show," we reiterated the need for the Commission to
       exercise caution with respect to news programming.

   70. This restrained approach is consistent with a long line of Commission
       precedent. For example, in Peter Branton, the Commission held that an
       NPR news story on John Gotti, which included a wiretap of a
       conversation in which Gotti repeatedly used variations of the
       "F-Word," was not indecent because "it was an integral part of a bona
       fide news story." The Commission explained that "we traditionally have
       been reluctant to intervene in the editorial judgments of broadcast
       licensees on how best to present serious public affairs programming to
       their listeners."

   71. In today's Order, we reaffirm our commitment to proceeding with
       caution in our evaluation of complaints involving news programming. To
       be sure, there is no outright news exemption from our indecency rules.
       Nevertheless, in light of the important First Amendment interests at
       stake as well as the crucial role that context plays in our indecency
       determinations, it is imperative that we proceed with the utmost
       restraint when it comes to news programming.

   72. Some critics have questioned whether the segments of "The Early Show"
       devoted to "Survivor: Vanuatu" are legitimate news programming or
       instead are merely promotions for CBS's own entertainment programming.
       CBS nevertheless maintains in its LOI response that its interview of
       the "Survivor: Vanuatu" contestants was a "bona fide news interview."
       "The Early Show" is produced by CBS News and addressed a variety of
       other topics that morning, including a suicide bombing in Iraq, the
       withdrawal of Bernard Kerik as a candidate to serve as Secretary of
       Homeland Security, and the apparent poisoning of then-Ukrainian
       opposition leader Viktor Yushchenko, which clearly fall under the
       rubric of news programming. In light of these factors and our
       commitment to exercising caution in this area, we believe it is
       appropriate in these circumstances to defer to CBS's plausible
       characterization of its own programming. Accordingly, we find that, in
       the Omnibus Order, we did not give appropriate weight to the nature of
       the programming at issue (i.e., news programming).

   73. Turning to the specific material that is the subject of the complaint,
       we can certainly understand that viewers may have been offended by Ms.
       Tanner's coarse language. Nevertheless, given the nature of her
       comment and our decision to defer to CBS's characterization of the
       program segment as a news interview, we conclude, regardless of
       whether such language would be actionable in the context of an
       entertainment program, that the complained-of material is neither
       actionably indecent nor profane in this context. Accordingly, we deny
       the complaint.

     A.  "NYPD Blue"

   74. As discussed above, the Commission received complaints regarding
       several "NYPD Blue" episodes that aired on KMBC-TV, Kansas City,
       Missouri, and other unidentified ABC Television Network affiliates
       beginning at 9:00 p.m. Central Standard Time, in which the "S-Word"
       was used. In the Omnibus Order, the Commission found those broadcasts
       containing the "S-Word" to be apparently indecent and profane. In its
       response to the Commission's letter of inquiry, KMBC Hearst-Argyle
       Television, Inc. ("Hearst"), licensee of KMBC-TV, does not dispute
       that it aired the complained-of material. Hearst argues, however, that
       the complaints should either be dismissed on procedural grounds or
       denied on the merits.

   75. Raising an argument that we did not previously consider, Hearst
       contends that the Commission should dismiss the complaints as
       insufficient under the enforcement policy set forth in the Omnibus
       Order. One complaint was filed against each of the "NYPD Blue"
       broadcasts at issue, and each of these complaints was filed by the
       same person. All of these complaints stated that the complained-of
       broadcast "originally aired at 9:00 p.m. CST on Kansas City affiliate
       KMBC" and was "also seen in homes across the country on ABC
       affiliates." However, as Hearst accurately maintains, none of the
       complaints was filed by anyone residing in the market served by
       KMBC-TV. Nor were any of the complaints filed by anyone residing in a
       market where the complained-of material aired outside of the 10:00
       p.m.-6:00 a.m. safe harbor. Instead, each complaint was filed by the
       same individual from Alexandria, Virginia, where, as Hearst points
       out, the material was aired during the safe harbor.  In addition, none
       of the complaints contains any claim that the out-of-market
       complainant actually viewed the complained-of broadcasts on KMBC-TV or
       any other ABC affiliate where the material was aired outside of the
       safe harbor.  Thus, there is nothing in the record either to tie the
       complaints to Station KMBC-TV's local viewing area (or the local
       viewing area of any station where the material was aired outside of
       the safe harbor), or to suggest that the broadcast programming at
       issue was the subject of complaints from anyone who viewed the
       programming on any station that aired the material outside of the safe
       harbor.

   76. We therefore agree with Hearst that we should dismiss the complaints
       regarding "NYPD Blue" pursuant to the enforcement policy that we
       announced in the Omnibus Order. There, the Commission stated that it
       would propose forfeitures only against licensees and stations whose
       broadcasts of actionable material were the subject of a viewer
       complaint filed with the Commission, explaining that "[i]n the absence
       of complaints concerning the program filed by viewers of other
       stations, it is appropriate that we sanction only the licensee of the
       station whose viewers complained about that program." In addition to
       demonstrating appropriate restraint in light of First Amendment
       values, this enforcement policy preserves limited Commission
       resources, while still vindicating the interests of local residents
       who are directly affected by a station's airing of indecent and
       profane material.

   77. Based on consideration of Hearst's arguments, we agree that consistent
       application of our restrained enforcement policy requires us to apply
       the same approach to this case that we applied to the notices of
       apparent liability in the Omnibus Order. While this case does not
       involve the imposition of forfeitures against KMBC-TV or any other
       licensee, the sufficiency of a complaint is the first step rather than
       the last step in the Commission's analysis. Thus, as Hearst puts it,
       "[o]nly the dismissal of the NYPD Blue complaints will bring [this
       case] into harmony with the Commission's announced enforcement
       policy." Accordingly, we dismiss these complaints.

   IV. ordering clauses

   78. Accordingly, IT IS ORDERED that Section III.B of the Omnibus Order is
       VACATED in its entirety.

   79. IT IS FURTHER ORDERED that the complaints referenced in this Order
       involving "The 2003 Billboard Music Awards" and "The 2002 Billboard
       Music Awards" are GRANTED to the extent set forth herein and OTHERWISE
       DENIED.

   80. IT IS FURTHER ORDERED that the complaints referenced in this Order
       involving "The Early Show" are DENIED.

   81. IT IS FURTHER ORDERED that the complaints referenced in this Order
       involving "NYPD Blue" are DISMISSED.

   82. IT IS FURTHER ORDERED that a copy of this Order shall be sent
       Certified Mail, Return Receipt Requested, to Susan L. Fox, Esq., Vice
       President, Government Relations, The Walt Disney Company, 1150 17^th
       Street, N.W., Suite 400, Washington, D.C. 20036.

   83. IT IS FURTHER ORDERED that a copy of this Order shall be sent
       Certified Mail, Return Receipt Requested, to John W. Zucker, Esq.,
       Senior Vice President, Law-Regulation, ABC, Inc., 77 West 66^th
       Street, New York, N.Y. 10024.

   84. IT IS FURTHER ORDERED that a copy of this Order shall be sent
       Certified Mail, Return Receipt Requested, to Seth Waxman, Esq.,
       Counsel to The Walt Disney Company, Wilmer, Cutler, Pickering, Hale &
       Dorr, LLP, 2445 M Street, N.W., Washington, D.C. 20037.

   85. IT IS FURTHER ORDERED that a copy of this Order shall be sent
       Certified Mail, Return Receipt Requested, to Anne Lucey, Esq., Senior
       Vice President, Regulatory Policy, CBS Corporation, 601 Pennsylvania
       Ave., N.W., Suite 540, Washington, DC 20004.

   86. IT IS FURTHER ORDERED that a copy of this Order shall be sent
       Certified Mail, Return Receipt Requested, to Robert Corn-Revere,
       Counsel to CBS Corp., Davis Wright Tremaine, LLP, 1500 K Street, N.W.,
       Suite 450, Washington, D.C. 20005-1272.

   87. IT IS FURTHER ORDERED that a copy of this Order shall be sent
       Certified Mail, Return Receipt Requested, to Mark J. Prak, Esq.,
       Counsel to Hearst-Argyle Television, Inc., Brooks, Pierce, McLendon,
       Humphrey & Leonard, LLP, 150 Fayetteville Street, Suite 1600 Wachovia
       Capitol Center, Raleigh, North Carolina 27601.

   88. IT IS FURTHER ORDERED that a copy of this Order shall be sent
       Certified Mail, Return Receipt Requested, to Maureen A. O'Connell,
       Esq., News Corporation, 444 North Capitol Street, N.W., Suite 740,
       Washington, D.C. 20001.

   89. IT IS FURTHER ORDERED that a copy of this Order shall be sent
       Certified Mail, Return Receipt Requested, to John Quale, Esq., Counsel
       to Fox Television Stations, Inc., Skadden, Arps, Slate, Meagher &
       Flom, LLP, 1440 New York Ave., N.W., Washington, D.C. 20005.

   FEDERAL COMMUNICATIONS COMMISSION

   Marlene H. Dortch

   Secretary

                                  STATEMENT OF

                       Commissioner Jonathan S. Adelstein

                     Concurring in Part, Dissenting in Part

   Re: Complaints Regarding Various Television Broadcasts Between February 2,
   2002 and March 8, 2005,  Order

   Today's Order is pursuant to a grant from the United States Court of
   Appeals for the Second Circuit of the Commission's voluntary remand
   request to reconsider portions of the March 15, 2006, Omnibus Order. In
   that decision, I concurred in part and dissented in part because I
   believed the Commission had failed to develop a consistent and coherent
   indecency enforcement policy. It was my hope that the Commission would use
   this remand to clarify and rationalize our indecency regime, but
   regulatory convenience and avoidance have prevailed instead. I am,
   therefore, compelled again to concur in part and dissent in part.

   The proverbial "elephant in the room" looming over today's decision is the
   Golden Globe Awards Order, which inexplicably has been pending
   reconsideration for more than two and one-half years. While the Commission
   has simply refused to review the Golden Globe case, we have relied upon,
   expanded and applied it more than any other indecency case in the past two
   years. As the foundational basis for the Commission's decision in the
   cases involved in this remand, we should review and finalize this
   watershed decision.

   As I stated in the Omnibus Order, "by failing to address the many serious
   concerns raised in the Golden Globe Awards case, before prohibiting the
   use of additional words, we fall short of meeting the [appropriate]
   constitutional standard and walking the tightrope of a restrained
   enforcement policy."  Today, we fail again. Litigation strategy should not
   be the dominant factor guiding policy when First Amendment protections are
   at stake.

   In its remand request, the Commission asked the Second Circuit for an
   opportunity to consider the concerns of broadcasters before issuing a
   final decision. Yet squandering this opportunity, the Commission fails to
   consider fully all concerns relating to an August 22, 2003, complaint
   against the December 9, 2002, broadcast of "The Billboard Music Awards" by
   WTTG(TV) in Washington, D.C. This Order does not adequately address the
   Enforcement Bureau's December 18, 2002, decision letter, which denied the
   same complaint on the merits. No one filed either a petition for
   reconsideration or an application for review and, consequentially, the
   decision letter became a final order. It seems patently unfair for the
   Commission to re-adjudicate the same complaint, involving the same parties
   on the same cause of action, first in the initial decision letter, then in
   the Omnibus Order, and then again in today's Order. The Supreme Court has
   held that the principle of res judicata applies to an adjudicative
   administrative proceeding where the agency has properly resolved disputes
   of fact and the parties have had an adequate opportunity to litigate. The
   Commission should not have re-adjudicated this complaint a second time in
   the Omnibus Order. Certainly today, the third time around, this complaint
   should be dismissed, or the Commission should reverse the Enforcement
   Bureau's decision letter and the resultant final order.

   More broadly, today's Order notes that the Supreme Court in Pacifica
   stressed context and we have repeatedly said "the full context in which
   the material appeared is critically important." Yet the Commission's
   analyses of the 2002 and 2003 broadcasts of "The Billboard Music Awards"
   are limited exclusively to a few seconds of a two-hour program. No
   consideration whatsoever is given to the entirety of the program. While it
   is perfectly reasonable to conclude that, after considering the entire
   program, the vulgarity and shock value of a particular scene permeated and
   dominated the program, the Commission should consider the totality of the
   program, rather than limit our consideration to an isolated programming
   segment.

   Similarly, the Commission's justification for denying the complaint
   against the December 12, 2004, broadcast of "The Early Show," and
   reversing its indecency and profanity findings reflect the arbitrary,
   subjective and inconsistent nature of the Commission's decision-making. In
   the Omnibus Order, the Commission concluded that the use of the s-word was
   shocking "particularly during a morning news interview," and that this
   "vulgarity in a morning television interview is of particular concern and
   weighs heavily in our analysis." Today, without any legal support found in
   American jurisprudence, the Commission, sua sponte, creates a new
   "plausible" standard to determine the threshold question of whether a
   particular program segment qualifies as a "bona fide news interview."
   While the Commission admits that "there is no outright news exemption from
   our indecency rules," it will nevertheless defer to a broadcaster's
   "plausible characterization of its own programming." I not only fail to
   find a legal basis for the Commission's latest invention, I also fail to
   understand the justification for such a shift in reasoning. While the
   creation of this "infotainment" exception that can be invoked by a
   broadcaster's plausible characterization" may be convenient in this order
   today, it will surely create unintended consequences in future cases.

   Even as applied, this new "plausible" standard is problematic. In this
   case, the CBS "Early Show" interview of contestants from the CBS program
   "Survivor: Vanuatu" was a cross promotion of a network's primetime
   entertainment programming on the same network's morning show. It stretches
   the bounds to argue this is legitimate news or public affairs programming.
   It is unreasonable to say that the latest contestant to be voted off the
   island or the latest contestant to hear "you're fired" or even "come on
   down" is "serious public affairs programming." The network creates its own
   "reality" on a reality show, and we are somehow to believe that
   developments within its own artificial world are news? The only news here
   is how far this Commission is willing to stretch the definition of "news."

   I also dissent in part from the Commission's decision to dismiss numerous
   complaints against several nationally televised episodes of the ABC
   network program "NYPD Blue" because the complaints did not come from
   viewers who resided in the station's media market. While the Commission
   has not changed its decision on the merits of the complaints, it has
   relied on an arbitrary procedural change in our enforcement policy that
   creates an unnecessary disconnect between the basis of our indecency
   authority and our enforcement policy, and encourages letter-writing
   campaigns, which will further burden Commission resources.

   The Commission has long maintained, and does not now dispute, that we
   enforce a national, contemporary community standard, not a local one. For
   instance, in an effort to justify its authority in today's Order, the
   Commission observes that the broadcast medium has a "special nature" and
   "a uniquely pervasive presence in American life." The Commission points
   out the "the Supreme Court emphasized the `pervasive presence [of the
   broadcast medium] in the lives of all Americans' and that indecent
   broadcasts invade the privacy of the home." Yet, the Commission's new
   enforcement policy is inconsistent with the national standard we impose
   and the pervasiveness of the medium we regulate.

   This new enforcement policy is also inconsistent with the Commission's
   reasoning in other sections of today's Order. For example, as an important
   factor weighing in support of its finding that the 2002 and 2003
   broadcasts of "The Billboard Music Awards" are indecent, the Commission
   cites Nielsen rating data on the total number of children under 18 and
   children between ages 2 and 11 who watched the programs, nationally. Yet
   based on our enforcement policy, the Commission will actually only protect
   children in the particular local media market where there is a complaint.

   The consequences of this new policy reveal its lack of logic. When the
   Commission determines a national network broadcast violates our national
   community standards, we will only fine the local station that has a
   complaint filed against it by a viewer in its media market. Although our
   obligation is to enforce the law to protect all children, we will only
   fine a local station that has the misfortune of being in a market where a
   parent or an adult made the effort to complain. This policy is misguided
   because a sufficient and valid complaint is truly the first, and an
   important, step in our indecency enforcement regime. The complaint and the
   complainant serve an important role, but the real party in interest is the
   Commission, acting on behalf the public, rather than the specific
   individual or organization that brings allegedly indecent material to our
   attention.

   According to the new enforcement policy, even after we have determined the
   complained-of material is indecent, we will willfully blind ourselves to
   the potentially millions of children and households that watched the
   indecent program. The new policy would fine only the local station and
   only if the complainant is in its coverage area. Other stations will
   essentially be "sitting ducks," waiting for an in-market viewer to file a
   complaint about the same program, in order for the Commission to act. I do
   not understand how we can say we are faithfully enforcing the law when we
   are aware of violations of the law that we simply choose to ignore.

   This is not the restrained enforcement policy encouraged by the Supreme
   Court in Pacifica. Restraint applies to the standard we use in our
   decision-making and the manner in which we decide what constitutes
   actionable, indecent material. Restraint applies to the development of a
   coherent framework that is based on rational and principled distinctions.

   The power to limit speech should be exercised responsibly, and with the
   utmost caution. While I agree with some aspects of today's Order, I
   respectfully cannot support our reasoning. For that reason, I concur in
   part and dissent in part.

   For purposes of this Order, we refer to all of the complained-about
   episodes of "NYPD Blue" as a single "program."

   Complaints Regarding Various Television Broadcasts Between February 2,
   2002 and March 8, 2005, Notices of Apparent Liability and Memorandum
   Opinion and Order, 21 FCC Rcd 2664 (2006) ("Omnibus Order"), pets. for
   review pending, Fox Television Stations, Inc. v. FCC, No. 06-1760-AG (2d
   Cir. filed Apr. 13, 2006), remanded and partially stayed, Sept. 7, 2006
   ("Remand Order").

   Id. at 2670-90 PP 22-99.

   Id. at 2700-20 PP 146-232.

   Id. at 2690 P 101. See Letter from Lara Mahaney, Director of Corporate and
   Entertainment Affairs, PTC to David Solomon, Chief, Enforcement Bureau,
   Federal Communications Commission (August 22, 2003).

   Id. The Enforcement Bureau obtained a videotape of the broadcast that
   confirmed the allegation in the complaint. Omnibus Order, 21 FCC Rcd at
   2690 P 101.

   Id. at 2692 P 112.

   Id. at  P 112 and n. 164.

   Id. at 2696 P 125. The Commission provided the following descriptions of
   the complained-of portions of the broadcasts:

   1/14/03 episode (Det. Sipowitz in response to his partner's arrest by
   Internal Affairs): "Alright, this is Bullshit!"

   2/4/03 episode (Det. Sipowitz to street officer regarding that officer's
   partner framing Sipowitz's partner): "Over time - over what - bullshit, a
   beef!"

   2/18/03 episode (stated by a suspect who bragged about, but now denies,
   killing his daughter): "I told people I killed Samia to try and get
   respect back. She had ashamed me and my community look at me as a fool."
   Det. 1: "You took credit for killing your daughter?! Bullshit!"

   4/15/03 episode (Det. harassing suspect who had harassed prosecutor): "I'm
   hoping this bullshit about you trying to get under ADA Haywood's skin is a
   misunderstanding."

   5/6/03 episode (Captain to Det. who harassed suspect in 4/15 episode): "He
   said you nearly assaulted his client last night.' Det.: `Well, that's a
   bunch of bullshit."

   Id. at n. 187.

   Id. at 2698-99 P 137.

   Id. See id. at 2699 n. 199 ("In commenting on the strategy employed by the
   fellow contestant, Ms. Tanner stated: `I knew he was a bullshitter from
   Day One.' The interviewer, Julie Chen, recognized the inappropriateness of
   the language, stating: `I hope we had the cue ready on that one . . . We
   can't say that word . . . There is a delay.'").

   Id. at 2690-2700 PP 100-45. See 18 U.S.C. S 1464; 47 C.F.R. S 73.3999.
   However, with respect to complaints regarding the use of the words "dick"
   and "dickhead" in episodes of "NYPD Blue," the Commission found that in
   context the broadcasts of these terms were not patently offensive under
   its contextual analysis and based on FCC precedent. Omnibus Order, 21 FCC
   Rcd at 2696-97 P 127.

   Omnibus Order, 21 FCC Rcd at 2690 P 100.

   Complaints Against Various Broadcast Licensees Regarding Their Airing of
   the "Golden Globe Awards" Program, Memorandum Opinion and Order, 18 FCC
   Rcd 19859 (Enf. Bur. 2003), review granted, 19 FCC Rcd 4975, 4981 PP 13-14
   (2004) ("Golden Globe Awards Order"), petitions for stay and recon.
   pending.

   See Omnibus Order, 21 FCC Rcd at 2692 P 111, 2695 P 124, 2698 P 136.

   Id. at 2700 P 145.

   Id. at 2690 P 100.

   See supra n. 2 (noting pending petitions for review).

   The Second Circuit also granted motions to intervene in the Fox-CBS case
   by NBC Universal, Inc., NBC Telemundo License Co., NBC Television
   Affiliates, FBC Television Affiliates Association, CBS Television Network
   Affiliates Association, and the Center for Creative Community, Inc. Before
   transferring the ABC-Hearst case, the D.C. Circuit granted ABC Television
   Affiliates Association's motion to intervene.

   See 47 U.S.C. S 503(b)(4)(A); Industry Guidance on the Commission's Case
   Law Interpreting 18 U.S.C. S 1464 and Enforcement Policies Regarding
   Broadcast Indecency, Policy Statement, 16 FCC Rcd 7999, 8015-16 PP 26-27
   (2001) ("Indecency Policy Statement").

   The Commission did send a narrow Letter of Inquiry ("LOI") regarding "The
   2003 Billboard Music Awards" broadcast, receiving a limited response from
   Fox on January 30, 2004. Fox also responded to a supplemental LOI without
   presenting new legal arguments. The Commission did not send LOIs regarding
   the complained-of broadcasts of "The 2002 Billboard Music Awards," "NYPD
   Blue," and "The Early Show" prior to the court's remand.

   Remand Order at 2.

   See Public Notice, FCC Announces Filing Procedures In Connection With
   Court Remand of Section III.B of the Commission's March 15, 2006 Omnibus
   Order Resolving Numerous Broadcast Television Indecency Complaints, DA
   06-1739 (rel. Sept. 7, 2006).

   FCC File Nos. EB-03-IH-0617, EB-04-IH-0295, EB-04-IH-0091.

   See Letter from William D. Freedman, Deputy Chief, Investigations and
   Hearings Division, Enforcement Bureau, to Fox Television Stations, Inc.
   (January 7, 2004).

   See Letter from John C. Quale, Counsel, Fox Television Stations, Inc., to
   Investigations and Hearings Division, Enforcement Bureau, FCC, File No.
   EB-03-IH-0617 (January 30, 2004) ("Response").

   "The Simple Life," which debuted on December 2, 2003, followed Ms.
   Hilton's and Ms. Richie's fish-out-of-water adventures upon being
   transplanted from Beverly Hills, California to an Arkansas farm for 30
   days. A New York Times review described the show as "[a]n updated `Green
   Acres'" featuring "Ms. Hilton, 22, of the hotel fortune, and Ms. Richie,
   also 22, daughter of the pop singer Lionel Richie." Alessandra Stanley,
   With a Rich Girl Here and a Rich Girl There, N.Y. Times, Dec. 2, 2003, at
   E1. The cover of the Simple Life DVD describes Ms. Hilton and Ms. Richie
   in the following manner: "They're Rich. They're Sexy. They're
   TOTALLY-OUT-OF-CONTROL!" Discussing Fox executives' original idea for the
   show in an interview, one executive touched on the same excretory theme as
   "The 2003 Billboard Awards" script, stating that "`[t]hey wanted to see
   stilettos in cow shit.'"

   http://web.archive.org/web/20040215040316/http://www.tvweek.com/topstorys/112403simplelife.html.

   Daily Variety's review of the premiere episode also described Ms. Richie's
   penchant for "bad language," labeling her as "potty-mouthed." Brian Lowry,
   The Simple Life, Daily Variety, Nov. 25, 2003 at 4.

   See Response at 3-4.

   Id. at 12-13.

   Id.

   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)).

   Indecency Policy Statement, 16 FCC Rcd at 8002 P 8 (emphasis in original);
   see Omnibus Order, 21 FCC Rcd at 2667 P 12.

   Indecency Policy Statement, 16 FCC Rcd  at 8002 P 9 (emphasis in
   original).

   Id. at 8002-15 PP 8-23.

   Id. at 8003 P 10.

   Id. at 8009 P 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)).

   Indecency Policy Statement, 16 FCC Rcd at 8010 P 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").

   See, e.g., Grant Broadcasting System II, Inc. Licensee WJPR-TV, 12 FCC Rcd
   8277, 8279 (Mass Media Bur. 1997) (NAL issued for non-literal uses of the
   "F-Word" and the "S-Word," such as "this fucking place is going to blow
   up"); Pacifica Foundation, Inc., Memorandum Opinion and Order, 2 FCC Rcd
   2698, 2699 PP 12-13 (1987) (subsequent history omitted) (distinguishing
   between the use of "expletives" and "speech involving the description or
   depiction of sexual . . . functions" but indicating that both fall within
   the subject matter scope of our indecency definition). The Enforcement
   Bureau's departure from this precedent in its Golden Globe Awards
   decision, Complaints Against Various Broadcast Licensees Regarding Their
   Airing of the "Golden Globe Awards," Memorandum Opinion and Order, 18 FCC
   Rcd 19859 (Enf. Bur. 2003), was contrary to this precedent and thus
   appropriately overturned by the Commission. While the Bureau cited two
   cases for the proposition that the use of the "F-Word" did not necessarily
   fall within the subject matter scope of our indecency definition, both
   cases were inapposite. First, the "F-Word" was not even an issue in
   Entercom, which addressed the words "prick" and "piss," and, in any event,
   was a Bureau rather than a Commission decision. See Entercom Buffalo
   License, LLC (WGR(AM)), Order, 17 FCC Rcd 11997 (Enf. Bur. 2002). Second,
   in Peter Branton, the Commission did not rule that the some uses of the
   "F-Word" fell outside the subject matter scope of our indecency
   definition. Rather, we decided that the uses of the "F-Word" there were
   not "patently offensive" in the context of the news programming at issue
   in that case. See Peter Branton, 6 FCC Rcd 610 (1991), appeal dismissed,
   993 F.2d 906 (D.C. Cir. 1993), cert. den. 511 U.S. 1052 (1994).

   See, e.g., American Heritage College Dictionary 559 (4th  ed. 2002)
   (defining the F-Word as "1: to have sexual intercourse with").

   See Robert F. Bloomquist, The F-Word: A Jurisprudential Taxonomy of
   American Morals (In a Nutshell), 40 Santa Clara L. Rev. 65, 98 (1999)
   ("all F-word usage has at least an implicit sexual meaning").

   See Golden Globe Awards Order, 19 FCC Rcd at 4979 P 8.

   See id.

   To the extent that Fox argues that it did not present Ms. Richie's comment
   for "shock value," see, e.g., Response at 13, it fundamentally
   misunderstands the contextual analysis employed by the Commission. "In
   evaluating whether material is indecent, we examine the material itself
   and the manner in which it is presented, not the subjective state of mind
   of the broadcaster." Complaints Against Various Television Licensees
   Concerning Their February 1, 2004 Broadcast of the Super Bowl XXXVIII
   Halftime Show, Order on Reconsideration, 21 FCC Rcd 6653, 6657-58 P 12
   (2006) ("Super Bowl Order on Reconsideration"), pet. for review pending,
   CBS Corp. v. FCC, No. 06-3575 (3d Cir. filed July 28, 2006).

   For example, Fox does not argue that Ms. Richie's remarks had any artistic
   merit or were necessary to convey any message.

   See Pacifica, 438 U.S. at 749-51.

   See Action for Children's Television v. FCC, 58 F.3d 654, 665 (D.C. Cir.
   1995) (en banc) ("ACT III") (holding that the Commission could rely on
   bright-line time channeling rule and rejecting contention that it was
   required to use "station-specific and program-specific data in assessing
   whether children are at risk of being exposed to broadcast indecency"),
   cert. denied, 516 U.S. 1072 (1996).

   Fox notes that its policy is to rate any programming containing the
   "F-Word" TV-MA. See Letter from John C. Quale to Marlene H. Dortch,
   Secretary, FCC, in FCC File Nos. EB-03-IH-0460, EB-03-IH-0617,
   EB-04-IH-0295, EB-04-IH-0091 at 4 (filed Sept. 29, 2006) ("Fox Response to
   9/18/2006 LOI"). The TV-MA rating (mature audience only) signifies that
   the program is specifically designed to be viewed by adults and therefore
   may be unsuitable for children under 17. In the context of a TV-MA rated
   program, an "L" would signify "crude indecent language." The TV-PG rating
   (parental guidance suggested), by contrast, merely signifies that the
   program contains material that parents may find unsuitable for younger
   children, and that parents may want to watch the program with their
   younger children. TV-PG is the most common rating, covering a majority of
   the programs that are rated. See Nancy Signorielli, Age-Based Ratings,
   Content Designations, and Television Content: Is There a Problem?, 8 Mass
   Comm. & Soc'y 277, 293 (2005) (six in ten rated programs are rated TV-PG).
   The "D" signifies that the program may contain some suggestive dialogue,
   and the "L" signifies that the program may contain some infrequent coarse
   language. Moreover, we note that the TV-PG(DL) rating appeared only at the
   beginning and once in the middle of the program; thus, a viewer tuning
   into this 2-hour broadcast at another time may not even have been aware
   that it was rated TV-PG(DL). See Pacifica, 438 U.S. at 748 ("Because the
   broadcast audience is constantly tuning in and out, prior warnings cannot
   completely protect the listener or viewer from unexpected program
   content.").

   See, e.g., e-mail complaint from individual to Fox station KMSP(TV),
   Minneapolis, dated December 10, 2003 ("I would appreciate it if you would
   pass on my intense opinion of the Billboard Awards and Nicole Ritchie
   (sic). We teach our kids that people like her have a potty mouth. My
   children were watching part of this program and happened to catch her
   vulgarity. We will not finish watching the awards nor will we continue to
   watch fox network in this household."); e-mail complaint from individual
   to Fox station WTVT(TV), Tampa, dated January 21, 2004 ("Fox insults my
   ears and those of my wife and children with the "f' word, etc. and we
   leave you for good . . ."); e-mail complaint from individual to Fox
   station KMSP(TV), Minneapolis, dated December 10, 2003 ("Why are you
   allowing that kind of language at 8:00 p.m. for all ages of people to
   hear? . . . It was disgusting and very disturbing. . . "); e-mail
   complaint from individual to Fox station KMSP(TV), Minneapolis, dated
   December 13, 2003 ("I was watching the event with my 12 and 13 y/o
   daughters. . . the amount of swearing that was done and the severity of
   some of the words was horrible. . . Watching TV has become very
   unpredictable these days . . . I do not feel it is a safe source of
   entertainment for our children. . . ."); complaint from individual to
   David Solomon, Chief of Enforcement Bureau, dated December 12, 2003 ("I
   was horrified to learn that some of the young children in the school that
   I teach in viewed the program. Several of these children are among those
   children who have social problems and are often in trouble. Is this what
   our children have to look toward for example on how to live? Would you
   want your children or grandchildren to mimic these entertainers ?????")
   All of these complaints except for the last one to the FCC's Enforcement
   Bureau are attached to Fox's January 30, 2004 Response.

   Response at 12, 13.

   Pacifica Foundation, Inc.,2 FCC Rcd at 2699. See also New Indecency
   Enforcement Standards To Be Applied to All Broadcast and Amateur Radio
   Licensees, Public Notice, 2 FCC Rcd 2726 (1987).

   See Pacifica Foundation, Inc., 2 FCC Rcd at 2699 (emphasis added).

   Id.

   See, e.g., Golden Globe Awards Order, 19 FCC Rcd at 4981 P 12 n. 32
   (listing Bureau-level decisions).

   Indecency Policy Statement, 16 FCC Rcd at 8008-09 PP 17-19.

   Id. at 8008 P 17.

   Id. at 8009 P 19.

   In this respect, our decision differs from our suggestion in Section III.B
   of the Omnibus Order, now vacated, that prior to the Commission's decision
   in Golden Globe this broadcast would not have warranted enforcement action
   because it involved an "isolated use of expletives." See Omnibus Order, 21
   FCC Rcd at 2695 P 124. For the reasons discussed above, we do not believe
   that our prior suggestion accurately reflected the context of this
   broadcast or Commission precedent.

   Pacifica Foundation, Inc., 2 FCC Rcd at 2699.

   See id. (discussing "deliberate" use of expletives).

   For these reasons, Ms. Richie's comments differ significantly from the
   language involved in the two Bureau-level decisions finding fleeting
   expletives not to be indecent that were cited in the Indecency Policy
   Statement. See Indecency Policy Statement, 16 FCC Rcd at 8008-09 P 18.
   Rather, they are more similar to the material in the LBJS Broadcasting
   Company Notice of Apparent Liability cited in the Indecency Policy
   Statement because they combine a graphic and vulgar description of sexual
   or excretory material with an expletive. Id. at 8009 P 19, citing LBJS
   Broadcasting Company, 13 FCC Rcd 20956 (Mass Media Bur. 1998) (forfeiture
   paid) (finding broadcast apparently indecent for use of phrase "[s]uck my
   dick you fucking cunt").

   See Golden Globe Awards Order, 19 FCC Rcd at 4980 P 12.

   Id.

   See supra para. 16.

   Pacifica, 438 U.S. at 742.

   Indecency Policy Statement, 16 FCC Rcd at 8002-03 P 9.

   Id. at PP 9-10.

   Pacifica, 438 U.S. at 748-49.

   Joint Comments of Fox, CBS, NBC Universal, Inc. and NBC Telemundo License
   Co. in DA 06-1739 at 3 (filed Sept. 21, 2006) ("Joint Comments").

   Pacifica, 438 U.S. at 742, 750.

   Id. at 750.

   Id. at 748-49.

   Such words could include grossly offensive sexual terms such as "cunt."

   See complaints listed in note 48 supra. Like the broadcast in Pacifica,
   Ms. Richie's statements "could have enlarged a child's vocabulary in an
   instant." Pacifica, 438 U.S. at 749.

   Indecency Policy Statement, 16 FCC Rcd at 8009 P 19.

   See id. (listing examples of isolated utterances found to be actionably
   indecent).

   Joint Comments at 10-11.

   Infinity Radio License, Inc., Memorandum Opinion and Order, 19 FCC Rcd
   5022, 5026 P 12 (2004).

   Fox Response to 9/18/2006 LOI at 4 (emphasis added).

   Letter from F. William LeBeau to Marlene H. Dortch, Secretary, FCC, File
   Nos. EB-03-IH-0355, EB-03-IH-0460, EB-03-IH-0617, EB-04-IH-0295,
   EB-04-IH-0091, EB-05-IH-0007 at 4-5 (Sept. 29, 2006) ("NBC Response to
   9/18/2006 LOI").

   Letter from John W. Zucker, Senior Vice President, ABC, Inc. to Marlene H.
   Dortch, Secretary, FCC, File No. EB-03-IH-0355 at 2 (Sept. 29, 2006) ("ABC
   Response to 9/18/2006 LOI").

   "Nightline," Sept. 29, 2006.

   Letter from Anne Lucey, Senior Vice President, CBS Corp. to Marlene H.
   Dortch, Secretary, FCC, File No. EB-05-IH-0007 at 2 (Sept. 29, 2006) ("CBS
   Response to 9/18/2006 LOI") (emphasis added).

   Response of Hearst-Argyle Television, Inc., File No. EB-03-IH-0355 at 3
   (Sept. 29, 2006) ("Hearst Response to 9/18/2006 LOI") (emphasis added).

   See ABC Response to 9/18/2006 LOI at 2; CBS Response to 9/18/2006 LOI at
   2-3; Hearst Response to 9/18/2006 LOI at 4-5; NBC Response to 9/18/2006
   LOI at 3-4; Fox Response to 9/18/2006 LOI at 4.

   H.R. 3717, the `Broadcast Decency Enforcement Act of 2004': Hearing Before
   the Subcommittee on Telecommunications and the Internet of the House Comm.
   On Energy & Commerce, 107^th Congress, (Feb. 26, 2004) (statement of Gail
   Berman).

   The Networks also complain about the Commission's analysis of contemporary
   community standards in other pending proceedings, such as The Blues:
   Godfathers and Sons. See Joint Comments at 10. In the case of The Blues,
   the Commission has issued only a Notice of Apparent Liability for
   Forfeiture, see Omnibus Order at 2683-87 PP 72-85, and we will address
   such issues in further proceedings in that case.

   See Response at 13.

   Id. at 6.

   Id. at 8-9. Following this broadcast, Fox implemented a longer delay
   mechanism and a second delay button for all live broadcasts to serve as a
   back-up. Id. at 9. In its recent response to a LOI relating to the
   broadcast of "The 2002 Billboard Music Awards," Fox states that it now
   uses a total of four delay buttons for all live broadcasts of
   entertainment programming. In addition, it "recognizes that certain
   performers may present more risk of spontaneous objectionable content
   during live performances than others" and thus "has begun to tape in
   advance certain performances to air during otherwise `live' broadcasts."
   See Letter from John C. Quale to Marlene H. Dortch, Secretary, FCC, File
   No. EB-03-IH-0460 at 6 (Sept. 21, 2006) ("Fox Response to 9/7/06 LOI").

   Pacifica, 438 U.S. at 733 n. 7, quoting Pacifica Foundation, 59 FCC 2d at
   893 n. 1. See Response at 12.

   Pacifica Foundation, Inc., 2 FCC Rcd at 2700 P 18. See Liability of San
   Francisco Century Broadcasting, L.P., Memorandum Opinion and Order, 8 FCC
   Rcd 498, 499 P 7 (1993) ("the mere fact that a show is live does not
   excuse a station from exercising its editorial responsibilities,
   especially where commonly available screening techniques can eliminate the
   element of surprise."), citing Sound Broadcasting Corp., Notice of
   Apparent Liability, 6 FCC Rcd 2174 (Mass Media Bur. 1991); Radio Station
   KFMH-FM, Muscatine, Iowa, Notice of Apparent Liability, 9 FCC Rcd 1681,
   1681-82 (Mass Media Bur. 1994) (rejecting contention that licensee should
   not be held responsible for broadcasting live and unscripted offensive
   material from an outside source where the broadcaster suspected "that the
   caller involved was the same person who had told the objectionable joke
   only eight minutes earlier" but "chose to place the call on the air rather
   than to discontinue the broadcast or to use precautions such as a delay
   device."); L.M. Communications, Notice of Apparent Liability, 7 FCC Rcd
   1595 (Mass Media Bur. 1992) (rejecting argument that broadcaster should
   not be sanctioned for airing indecent material within live and unscripted
   programming where "the scatological material as broadcast involved a
   deliberate and repetitive use of the word `crap' to heighten the
   audience's awareness of and attention to the subsequent use of the term
   `shit' by the announcer.").

   See Response at 6; see also Complaints Against Various Television
   Licensees Concerning Their February 1, 2004 Broadcast of the Super Bowl
   XXXVIII Halftime Show, Forfeiture Order, 21 FCC Rcd 2760, 2769 P 19 (2006)
   (citing evidence that "there is always a risk that performers will ad-lib
   remarks or take unscripted actions, and that the risk level varies
   according to the nature of the performance.") (subsequent history
   omitted).

   See supra note 27. As discussed above, Fox advertised Ms. Hilton and Ms.
   Richie as being "totally-out-of-control" on the cover of the Simple Life
   DVD. Additionally, The Los Angeles Times review of the first episode of
   "The Simple Life" describes Ms. Hilton and Ms. Richie as "out-of-control."
   Carina Chocano, Work for a Living? What a Concept, L.A. Times, Dec. 2,
   2003, at 1 (Calendar Section).

   "The Simple Life,"  Season 1, Episodes 1-3. In addition, Ms. Richie's
   penchant for cursing is highlighted in a scene during the first episode in
   which their host, reviewing the house rules with them, states "no cussing
   or bad language," at which point the camera focuses on Ms. Richie giggling
   helplessly at Ms. Hilton. Their penchant for vulgarity is also illustrated
   during the third episode in two scenes at a local fast food franchise
   where Ms. Richie and Ms. Hilton are working for the day. Directed to
   change the letters of a sign out front to read "Half Price Burgers All
   Day," they instead arrange the letters to read "1/2 Price Anal Salty
   Weiner Bugers." Later, standing on the curb in costumes of the
   restaurant's mascot, an animated milkshake, they stick up their respective
   middle fingers (which are pixilated) to passersby.

   See infra para. 56.

   See Fox Response to 9/7/06 LOI at 5.

   See Response at 5.

   See, e.g., id. at 8-9.

   Fox Response to 9/18/2006 LOI at 10 n. 21.

   Id. By contrast, Fox states that its current time delay and editing system
   "relies upon technology to ensure that once an edit button is pressed, the
   potentially objectionable content is edited at the right time during the
   delayed feed." Id. As stated above, Fox's current system also utilizes
   more than one employee "to provide redundancy." Id. at 10.

   See Joint Comments at 12-16.

   Since this case does not involve breaking news or sports programming, we
   do not address issues involving such programming here. But as we recognize
   elsewhere in this Order, "in light of the important First Amendment
   interests at stake as well as the crucial role that context plays in our
   indecency determinations, it is imperative that we proceed with the utmost
   restraint when it comes to news programming." See infra, S III.C.

   See Joint Comments, Appendix X (Declaration of Peter Ligouri) at P 2.

   Of the 32 awards shows that were broadcast by the major networks and are
   discussed in the record, only the Academy Awards aired live in all time
   zones. See ABC Response to 9/18/2006 LOI at 2; NBC Response to 9/18/2006
   LOI at 4 and Exh. C.; Fox Response to 9/18/2006 LOI at 3-4; CBS Response
   to 9/18/2006 LOI at 7.

   Fox Response to 9/18/2006 LOI at 11.

   Id.

   Id. See ABC Response to 9/18/2006 LOI at 7-8 (reporting that transmitting
   signals from ABC's New York Broadcast Center to affiliates results in less
   than a two second delay, that feeding live material from remote locations
   to ABC's New York Broadcast Center may cause an additional delay of up to
   a second, and that distribution of the signals to the consumers through
   cable and satellite systems may cause an additional delay).

   See Response at 8; see also Fox Response to 9/7/06 LOI at 5. In addition,
   Fox uses delays for live entertainment broadcasts even after 10 p.m. See
   id. at 5-7. The Commission's indecency regulation does not apply at that
   time, see 47 C.F.R. S 73.3999(b), so Fox obviously has reasons apart from
   regulatory compulsion for using a delay.

   Joint Comments  at 15.

   Action for Children's Television v. FCC, 59 F.3d 1249, 1261 (D.C. Cir.
   1995), cert. denied, 516 U.S. 1072 (1996) (ACT IV), citing Pacifica, 438
   U.S. at 743. See ACT III, 58 F.3d at 666 ("Whatever chilling effects may
   be said to inhere in the regulation of indecent speech, these have existed
   ever since the Supreme Court first upheld the FCC's enforcement of section
   1464 of the Radio Act.").

   18 U.S.C. S 1464.

   Golden Globe Awards Order, 19 FCC Rcd at 4981 P 13, quoting Tallman v.
   United States, 465 F.2d 282, 286 (7th Cir. 1972).

   Omnibus Order, 21 FCC Rcd at 2686 P 81 ("Like the `F-Word,' [the `S-Word']
   is one of the most offensive words in the English language, the broadcast
   of which is likely to shock the viewer and disturb the peace and quiet of
   the home.").

   Id. at 2669 P 19, citing Complaints Against Various Television Licensees
   Regarding Their Broadcast on November 11, 2004 of the ABC Television
   Network's Presentation of the Film "Saving Private Ryan," Memorandum
   Opinion and Order, 20 FCC Rcd 4507, 4512-14 PP 13-18 (2005).

   Response at 8.

   See Omnibus Order, 21 FCC Rcd at 2666 P 8.

   See supra para. 18 (noting that, according to Nielsen ratings data, 23.4%
   of the people watching an average minute of "The 2003 Billboard Music
   Awards" broadcast were under 18, and 11% were between the ages of 2 and
   11).

   See Joint Comments at 28-32; Thomas Jefferson Center For the Protection of
   Free Expression Comments at 11-15 (Sept. 21, 2006).

   The 1891 edition of the Century Dictionary includes this definition of
   profane: "2. To put to a wrong use; employ basely or unworthily." Century
   Dictionary 4754 (1891 ed.). In an appendix to his concurring opinion in
   Burstyn v. Wilson, 343 U.S. 495, 533-40 (1952), Justice Frankfurter
   collected definitions of "sacrilege," "blasphemy," and "profane" dating to
   1651. The earliest of these definitions of profane is "to apply any thing
   sacred to common use. To be irreverent to sacred persons or things. To put
   to a wrong use." Id. at 536, quoting Rider, A New Universal English
   Dictionary (London, 1759). The next is "To violate; to pollute.--To put to
   wrong use." Id. at 537, quoting Kenrick, A New Dictionary of the English
   Language (London, 1773). Frankfurter's concurring opinion also notes that
   Funk & Wagnalls' New Standard Dictionary of the English Language, first
   copyrighted in 1913, includes a definition of "to profane" as "3. To
   vulgarize; give over to the crowd." Id. at 527 n. 48. Thus, we disagree
   that Congress clearly would have understood the term in 1927 to mean only
   blasphemous or sacrilegious. Joint Comments at 28.

   See Tallman v. United States, 465 F.2d at 286; State v. Richards, 896 P.2d
   357, 364 (Id. App. 1995) (in rejecting a vagueness challenge to state
   statute proscribing telephone harassment through, inter alia, "obscene,
   lewd or profane language," construing "profane" to mean "characterized by
   abusive language . . . cursing or vituperation . . ."); see also United
   States v. Hicks, 980 F.2d 963, 970 n. 9 (5th Cir. 1992) (angry reference
   to flight attendant as a "bitch" and angry admonition that she should get
   her "ass" to the plane's kitchen qualified as "profane"). We disagree with
   the Networks that Tallman addressed the word's meaning in dicta, and that
   the case actually refutes the Commission's interpretation because the
   Court cited with approval Duncan v. United States, 48 F.2d 128 (9th Cir.),
   cert. denied, 383 U.S. 863 (1931),  and Gagliardo v. United States, 366
   F.2d 720 (9th Cir. 1966). See Joint Comments at 31. Tallman held that the
   word "profane" in Section 1464 must be interpreted narrowly as, inter
   alia, "denoting language which under contemporary community standards is
   so grossly offensive to members of the public who actually hear it as to
   amount to a nuisance" to preserve its validity in response to a facial
   constitutional challenge. Tallman, 465 F.2d at 286. The Court cited Duncan
   and Gagliardo solely as examples of prior judicial interpretations
   available to the trial judge had jury instructions on the word's meaning
   been necessary, without approving or even identifying such
   interpretations. Id. We also reject the Networks' argument that the rule
   of lenity counsels against the Commission's interpretation of "profane."
   See Joint Comments at 30, n. 34. Among other things, the Networks make no
   showing that their preferred construction of the term is any narrower than
   the Commission's. Indeed, we think it likely that more broadcast speech
   would be considered "profane" under the Networks' interpretation of the
   term than under ours. See also infra para. 54 (explaining that the
   Pacifica Court squarely rejected the argument that the FCC's civil
   authority to enforce Section 1464 must be interpreted in accordance with
   rules that apply to criminal statutes, such as the rule of lenity).

   See State v. Richards, 896 P.2d at 364 ("when words appear in a list or
   are otherwise associated, they should be given related meanings."), citing
   Schreiber v. Burlington Northern, Inc., 472 U.S. 1 (1985), Jarecki v. G.D.
   Searle & Co., 367 U.S. 303 (1961), 2A Norman J. Singer, Southerland's
   Statutes and Statutory Construction S 47.16 at 183 (5th ed. 1992); United
   States v. Hicks, 980 F.2d at 970 n. 9 ("By `profanity' or `vulgarity,' we
   refer to words that, while not obscene, nevertheless are considered
   generally offensive by contemporary community standards."). The fact that
   the words "indecent" and "profane" in Section 1464 have "separate"
   meanings does not render our interpretation of profane "implausible." See
   Joint Comments  at 31, quoting Pacifica, 438 U.S. at 739-40. We recognize
   that the two words have separate meanings, and the Commission interprets
   the two words differently. Our enforcement policy limiting the regulation
   of profane language to words that are sexual or excretory in nature or are
   derived from such terms stems from First Amendment considerations rather
   than the meaning of the word. See Omnibus Order, 21 FCC Rcd at 2669 P 18.

   Duncan, 48 F.2d at 133-34 (the phrase "God damn it" uttered in anger was
   not profane under Section 1464).

   Id. at 134. Duncan was decided before constitutional law evolved to the
   point that such language could not be proscribed. See Burstyn v. Wilson,
   343 U.S. 495 (1952) (holding unconstitutional a New York statute
   authorizing state officials to license films for public exhibition unless
   the films are "sacrilegious").

   Gagliardo, 366 F.2d at 725 ("God damn it" uttered in anger not legally
   profane). The FCC did not address whether "profane" could be interpreted
   in a non-religious sense in Raycom America, Inc., Memorandum Opinion and
   Order, 18 FCC Rcd 4186 (2003) (portions of "The West Wing" in which a
   character "`scream[ed] at God,' and made irreverent references toward the
   deity--`[y]ou're a sonofabitch, you know that?,' and `have I displeased
   you, you feckless thug?'" not actionably profane), and Warren B. Appleton,
   28 FCC 2d 36 (Broadcast Bur. 1971) ("damn" not actionably profane),
   because those cases involved language with religious connotations.

   47 C.F.R. S 73.3999.

   47 U.S.C. S 1464; 47 U.S.C. S 503(b)(1)(D). See Joint Comments at 32.

   See, e.g., Joint Comments at 7-8.

   Pacifica, 438 U.S. at 732.

   See id. at 739, 741.

   Action for Children's Television v. FCC, 852 F.2d 1332, 1339 (D.C. Cir.
   1988) ("ACT I"); accord ACT III, 58 F.3d at 659.

   521 U.S. 844 (1997).

   Joint Comments at 7.

   See 47 U.S.C. S 223(d) (1994 Supp. II).

   Reno, 521 U.S. at 870.

   Id. at 867.

   Id.

   See id. at 867, 872; see also Pacifica, 438 U.S. at 750 (declining to
   decide whether an indecent broadcast "would justify a criminal
   prosecution").

   Reno, 521 U.S. at 867 (quoting Pacifica, 438 U.S. at 748).

   Joint Comments at 22.

   In any event, the Commission has no authority to overrule Pacifica. Cf.
   Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 484
   (1989).

   Pacifica, 438 U.S. at 748.

   Id.

   Id. at 749.

   Turner Broadcasting Sys., Inc. v. FCC, 512 U.S. 622, 637 (1994); see also
   Reno, 521 U.S. at 868 (recognizing "special justifications for regulation
   of the broadcast media").

   ACT III, 58 F.3d at 660. See  also Prometheus Radio Project v. FCC, 373
   F.3d 372, 401-02 (3d Cir. 2004) (rejecting argument that broadcast
   ownership regulations should be subjected to higher level of scrutiny in
   light of the rise of "non-broadcast media").

   Turner Broadcasting Sys., Inc. v. FCC, 520 U.S. 180, 190 (1997) (quoting
   U.S. v. Southwestern Cable Co., 392 U.S. 157, 177 (1968)).

   Id. at 194.

   U.S. Census Bureau, Statistical Abstract of the United States 737 (2006).

   Joint Comments at 21 (citing Annual Assessment of the Status of
   Competition in the Market for the Delivery of Video Programming, Twelfth
   Annual Report, 21 FCC Rcd 2503, P 8 (2006) ("Annual Assessment")).

   Annual Assessment, 21 FCC Rcd at 2508 P 15; see also Comments of the Walt
   Disney Co. in MB Docket No. 04-210 at 2 (filed Aug. 11, 2004) ("Disney/ABC
   stresses that these customers [relying on broadcast only] represent a
   significant portion of our potential viewing audience.").

   Media Bureau Staff Report Concerning Over-the-Air Broadcast Television
   Viewers, No. 04-210, P 9 (MB Feb. 28, 2005), available at 2005 WL 473322,
   at *2.

   Annual Assessment, 21 FCC Rcd at 2508 P 15.

   Id. at 2552 P 97. The NAB has properly characterized this number as
   "enormous." Reply Comments of the National Association of Broadcasters and
   the Association for Maximum Service Television, Inc. in MB Docket No.
   04-210 at i (filed Sept. 7, 2004).

   See Kaiser Family Foundation, Generation M: Media in the Lives of 8-18
   Year-olds 77 (2005).

   See Nielsen Media Research, "Top 10 Broadcast TV Programs for the Week of
   September 18, 2006;" Nielsen Media Research, "Top 10 Cable TV Programs for
   the Week of September 18, 2006."

   See Television Bureau of Advertising, "Season-to-Date Broadcast vs.
   Subscription TV Primetime Ratings: 2004-2005," available at
   http://www.tvb.org/rcentral/ViewerTrack/FullSeason/fs-b-c.asp?ms=2004-2005.asp.

   47 U.S.C. S 560 (2000); see also United States v. Playboy Entertainment
   Group, Inc., 529 U.S. 803 (2000).

   ACT III, 58 F.3d at 660.

   See Super Bowl Order on Reconsideration, 21 FCC Rcd at 6667 P 37. In
   Congressional testimony shortly after the 2003 Billboard Music Awards,
   Fox's President of Entertainment acknowledged that the V-chip and
   television ratings were "underutilized." H.R. 3717, the `Broadcast Decency
   Enforcement Act of 2004': Hearing Before the Subcommittee on
   Telecommunications and the Internet of the House Comm. On Energy &
   Commerce, 107^th Congress, (Feb. 26, 2004) (statement of Gail Berman).
   According to a 2003 study, parents' low level of V-chip use is explained
   in part by parents' unawareness of the device and the "multi-step and
   often confusing process" necessary to use it. Annenberg Public Policy
   Center, Parents' Use of the V-Chip to Supervise Children's Television Use
   3 (2003). Only 27 percent of mothers in the study group could figure out
   how to program the V-Chip, and "many mothers who might otherwise have used
   the V-Chip were frustrated by an inability to get it to work properly."
   Id. at 4.

   See supra para. 18, n. 46; Super Bowl Order on Reconsideration, 21 FCC Rcd
   at 6667-68 P 37.

   See supra para. 18, n. 46.

   Henry J. Kaiser Family Foundation, Parents, Media and Public Policy: A
   Kaiser Family Foundation Survey 5 (2004) ("Kaiser Survey"). Likewise in a
   study published in the journal Pediatrics, parents concluded that half of
   television shows the industry had rated as appropriate for teenagers were
   in fact inappropriate, a finding the study authors called "a signal that
   the ratings are misleading." David A. Walsh & Douglas A. Gentile, A
   Validity Test of Movie, Television, and Video-Game Ratings, 107 Pediatrics
   1302, 1306 (2001).

   Academics who have studied the television rating system share parents'
   assessment that the ratings are often inaccurate. A 2002 study found that
   many shows that should carry content descriptors do not, therefore leaving
   parents unaware of potentially objectionable material. See Dale Kunkel, et
   al., Deciphering the V-Chip: An Examination of the Television Industry's
   Program Rating Judgments, 52 Journal of Communications 112 (2002). For
   example, the study found that 68 percent of prime-time network shows
   without an "L" descriptor contained "adult language," averaging nearly
   three scenes with such language per show. See id. at 132; see also id. at
   131 (finding that 20 percent of shows rated TV-G - supposedly appropriate
   for all ages - included objectionable language, including "bastard,"
   "bitch," "shit," and "whore"). In fact, "in all four areas of sensitive
   material - violence, sexual behavior, sexual dialogue, and adult language
   - the large majority of programs that contain such depictions are not
   identified by a content descriptor." Id. at 136. The study's authors
   concluded that "[p]arents who might rely solely on the content-based
   categories to block their children's exposure to objectionable portrayals
   would be making a serious miscalculation, as the content descriptors
   actually identify only a small minority of the full range of violence,
   sex, and adult language found on television." Id.

   A 2004 study also raised serious questions about the accuracy of
   television ratings. It found that there was more coarse language broadcast
   during TV-PG programs than those rated TV-14, just the opposite of what
   these age-based ratings would lead a viewer to believe. Barbara K. Kaye &
   Barry S. Sapolsky, Offensive Language in Prime-Time Television: Four Years
   After Television Age and Content Ratings, 48 Journal of Broadcasting &
   Electronic Media 554, 563-64 (2004); see also Parents Television Council,
   The Ratings Sham: TV Executives Hiding Behind A System That Doesn't Work
   (April 2005) (study of 528 hours of television programming concluding that
   numerous shows were inaccurately and inconsistently rated); Effectiveness
   of Media Rating Systems: Subcommittee of Science, Technology, and Space of
   the Senate Comm. On Commerce, Science & Transp., 107^th Congress (2004)
   (statement of Ms. Patti Miller, director, Children and the Media Program
   for Children Now) ("Can parents depend on the accuracy of the ratings
   systems? Sadly, the answer is no.").

   An economist studying the question of why broadcasters consistently
   "underlabel" their programs concluded that they are likely responding to
   economic incentives. See James T. Hamilton, Who Will Rate the Ratings?, in
   The V-Chip Debate: Content Filtering from Television to the Internet 133,
   143, 149 (Monroe E. Price, ed. 1998). He found that programs with more
   restrictive ratings command lower advertising revenues. See id. at 143.
   The desire to charge more for commercials and fear of "advertiser
   backlash" over shows with more restrictive ratings "means that networks
   have incentives to resist the provision of content-based information." Id.
   at 149; see also Kunkel, 52 Journal of Communications at 114 ("[T]he
   prospect that applying `higher' ratings to a program could reduce audience
   size raises a self-interest concern regarding the accuracy with which
   judgments about program ratings are determined.").

   Finally, even assuming arguendo that the content descriptors were
   accurately applied, they would not assist the majority of parents because
   they are not sufficiently understood. The Kaiser Survey found that only
   51% of parents understand that "V" stands for violence; only 40%
   understand "L" stands for language; only 37% understand "S" stands for
   sex; and only 4% understand that "D" stands for suggestive or sexual
   dialogue. Kaiser Survey at 6.

   Pacifica, 438 U.S. at 749. See, e.g., Youth, Pornography, and the
   Internet, ed. by Dick Thornburgh and Herbert S. Lin, p. 115 (National
   Academy Press 2002) ("As a general rule, young children do not have the
   cognitive skills needed to navigate the Internet independently. Knowledge
   of search strategies is limited if not nonexistent, and typing skills are
   undeveloped.").

   See Reno, 521 U.S. at 877. Filtering software, for example, can block
   access to a website based on the software's evaluation of the site's
   content. The V-chip, in contrast, does not evaluate television programs
   itself and therefore is only effective if the programs have been given
   accurate ratings. However, to the extent that filtering software is
   ineffective and children are still able to access indecent material on the
   Internet, we note that Congress has sought to address this problem through
   the Child Online Protection Act, a statute whose validity is still being
   litigated. See Ashcroft v. ACLU, 542 U.S. 656 (2004) (affirming
   preliminary injunction). We note that the Networks also refer to the
   availability of video game consoles as another medium that, in their view,
   is as pervasive as television. See Joint Comments at 21-22. Video games
   differ from broadcast television in that games must be purchased
   individually, so a parent who purchases a video game console for a child
   retains the ability to determine which games the child will play.

   See supra para. 51 and nn. 159-162.

   Remand Order at 2. See 47 U.S.C. S 503(b)(4)(C); ACT IV, 59 F.3d at 1254,
   citing Pleasant Broadcasting Co. v. FCC, 564 F.2d 496 (D.C. Cir. 1977).

   In light of recent legislation, the Networks raise the prospect of future
   fines in excess of $65 million for "a single, fleeting instance of
   indecent speech." Joint Comments at 16. We do not believe, however, that a
   case similar to "The 2003 Billboard Music Awards" arising in the future
   would merit the maximum fine permitted under the Broadcast Decency
   Enforcement Act. See Pub. L. 109-235, 102 Stat. 491 (June 15, 2006), to be
   codified at 47 U.S.C. S 503(b)(2)(C)(ii). While that Act, once we adopt
   implementing regulations, will provide the Commission with the flexibility
   to impose appropriate fines in egregious cases, the Commission will
   continue to follow a restrained enforcement policy in imposing forfeitures
   in this area.

   See 47 U.S.C. SS 503(b)(1)(B) & (D). We also need not address whether
   responsibility would lie with independent Fox affiliates in addition to
   the licensees owned by Fox. Cf. Complaints Against Various Television
   Licensees Concerning Their February 1, 2004 Broadcast of the Super Bowl
   XXXVIII Halftime Show, Notice of Apparent Liability for Forfeiture, 19 FCC
   Rcd 19230, 19240-41 P 25 (2004).

   Joint Comments at 24-26. We also reject, as contrary to the plain meaning
   of the Act, the Networks' contention that we may not impose forfeitures
   for violations of our indecency rule under section 503(b)(1)(B). While the
   Networks suggest that the Commission's indecency rule, 47 C.F.R. S
   73.3999, merely represents a decision by the Commission to restate 18
   U.S.C. S 1464, the indecency rule was adopted by the Commission pursuant
   to the direction of Congress. See Public Telecommunications Act of 1992,
   Pub. L. No. 102-356, 106 Stat. 949, Section 16 (1992).

   Pacifica, 438 U.S. at 739 n.13.

   The Networks' reliance on FCC v. ABC, 347 U.S. 284, 296 (1954), for the
   proposition that "`[t]here cannot be one construction for the Federal
   Communications Commission and another for the Department of Justice'" is
   misplaced. Joint Comments at 24. In that case, the Court rejected the
   broad construction urged by the Commission of a statutory prohibition
   against a "lottery, gift enterprise, or similar scheme" in part because
   "the same construction would likewise apply in criminal cases." FCC v.
   ABC, 347 U.S. at 296. In contrast, the intent required to impose civil
   penalties for Section 1464 violations has no impact on its possible
   application as a criminal statute. See Pacifica, 438 U.S. at 739 n. 13.

   FCC File No. EB-03-IH-0460. See Letter from Lara Mahaney, Director of
   Corporate and Entertainment Affairs, PTC to David Solomon, Chief,
   Enforcement Bureau, Federal Communications Commission (August 22, 2003).
   As noted in the Golden Globe Awards Order, the Commission's Enforcement
   Bureau had dismissed an earlier complaint concerning the same broadcast on
   the same station eight months earlier. See Letter from Charles Kelley,
   Chief, Investigations and Hearings Division, Enforcement Bureau, FCC to
   [1]RadioEsq@aol.com, EB-02-IH-0861-MT (December 18, 2002), cited in
   Golden Globe Awards Order, 19 FCC Rcd at 4980 P 12 n.32 (noting Bureau
   dismissal of complaint). However, Fox has raised no claim of
   administrative res judicata, and thus, because that defense has been
   waived, we need not consider it. Cf. Kern Oil & Ref. Co. v. Tenneco Oil
   Co., [2]840 F.2d 730, 735 (9th Cir. 1988).

   See Letter from Lara Mahaney, Director of Corporate and Entertainment
   Affairs, PTC to David Solomon, Chief, Enforcement Bureau, Federal
   Communications Commission (August 22, 2003).

   See Press Release, "Cher to Receive the Artist Achievement Award on the
   2002 Billboard Music Awards Monday, Dec. 9 on Fox" (Nov. 14, 2002),
   attached to Letter from John C. Quale, Counsel of Fox, to Benigno E.
   Bartolome, Deputy Chief, Investigations and Hearings Division, Enforcement
   Bureau, File No. EB-03-IH-0460 (September 21, 2006) ("Fox Response to
   9/7/2006 LOI").

   See Letter from Benigno E. Bartolome, Deputy Chief, Investigations and
   Hearings Division, Enforcement Bureau, to Fox Television Stations, Inc.,
   File No. EB-03-IH-0460 (September 7, 2006).

   See Fox Response to 9/7/2006 LOI.

   Id. at 2.

   Id. at 10.

   Id.

   Fox also suggests that the complaint should be dismissed because it fails
   to specifically allege that the complainant viewed "The 2002 Billboard
   Music Awards." See id. at 2. We disagree. Our practice has never been to
   require such an allegation in order for a complaint to be considered. It
   is sufficient that the complaint originated from within the market of the
   station against which the complaint is filed. See Indecency Policy
   Statement, 16 FCC Rcd at 8015 P 24; see also Super Bowl Order on
   Reconsideration, 21 FCC Rcd at 6665 P 30.

   See supra note 38.

   See supra para. 16.

   See supra note 40.

   See Andrew Koppelman, Why Discrimination Against Lesbians and Gay Men Is
   Sex Discrimination, 69 N.Y.U. L. Rev. 197, 224 (1994) (explaining the
   sexual meaning of the metaphorical use of the "F-Word" as a verb).

   See Golden Globe Awards Order, 19 FCC Rcd at 4979 P 8.

   See id.

   See Pacifica, 438 U.S. at 749-51 (identifying as relevant contextual
   factors the time of day of the broadcast, program content as it affects
   "the composition of the audience," and the nature of the medium). See also
   supra para. 18.

   See supra para. 18

   Fox Response to 9/7/2006 LOI at 6.

   See supra n. 47. In the context of a broadcast rated "TV-PG," an "L"
   content description warning would not have alerted parents to the use of
   the "F-word." See id. Nonetheless, the "2002 Billboard Music Award,"
   unlike the 2003 version of the same show, did not include even that
   inadequate "L" content descriptor. So parents relying on the ratings would
   not have expected even mild "coarse" language, much less the "F-Word."

   For instance, Fox does not contend that Cher's comment had any artistic
   merit or was necessary to convey any message.

   Fox's argument that it did not present Cher's comment for "shock value"
   misunderstands the contextual analysis employed by the Commission, under
   which "we examine the material itself and the manner in which it is
   presented, not the subjective state of mind of the broadcaster."  Super
   Bowl Order on Reconsideration, 21 FCC Rcd at 6657-58 P 12.

   See Golden Globe Awards Order, 19 FCC Rcd at 4980 P 12.

   Id.

   See supra para. 59.

   Pacifica, 438 U.S. at 748-49.

   See supra para. 29.

   See Fox Response to 9/7/06 LOI at 4-6, 10.

   See supra para. 60; see also Golden Globe Awards Order, 19 FCC Rcd at 4982
   P 15.

   18 U.S.C. S 1464.

   Golden Globe Awards Order, 19 FCC Rcd at 4981 P 13, quoting Tallman, 465
   F.2d at 286.

   Omnibus Order  at 2669 P 19, citing Complaints Against Various Television
   Licensees Regarding Their Broadcast on November 11, 2004 of the ABC
   Television Network's Presentation of the Film "Saving Private Ryan,"
   Memorandum Opinion and Order, 20 FCC Rcd 4507, 4512-14 PP 13-18 (2005).

   Fox Response to 9/7/2006 LOI at 10.

   See Omnibus Order, 21 FCC Rcd at 2666 P 8.

   See supra para. 59 (noting that, according to Nielsen ratings data, 27.9%
   of the people watching an average minute of "The 2002 Billboard Music
   Awards" broadcast were under 18, and 12.7% were between the ages of 2 and
   11); see also Pacifica, 438 U.S. at 749-50 (discussing government's
   interest in protecting children from "offensive expression")

   See supra para. 64. In light of our decision not to impose a forfeiture,
   we need not address whether the violations of Section 1464 and our rule
   were willful within the meaning of Section 503(b).

   The constitutional arguments raised by the Networks relating to the
   application of our indecency framework to "The 2002 Billboard Music
   Awards" are the same as the constitutional arguments that we have already
   addressed with respect to the "2003 Billboard Music Awards" broadcast. We
   reject those arguments for the same reasons given above. See supra para.
   42-52.

   FCC File No. EB-05-IH-0007.

   See Letter From Robert Corn-Revere, Counsel to CBS, to Marlene H. Dortch,
   Secretary, FCC, File No. EB-05-IH-0007 (Sept. 21, 2006), at 1 ("CBS
   Response to 9/7/2006 LOI").

   See id. at 4.

   Omnibus Order, 21 FCC Rcd at 2668 P 15.

   Id. at 2717 P 218.

   Peter Branton, 6 FCC Rcd at 610. See Infinity Broadcasting Corp. of
   Pennsylvania, Memorandum Opinion and Order, 3 FCC Rcd 930, 937 n. 31
   (1987), vacated on other grounds sub nom. ACT I, (noting that "context
   will always be critical to an indecency determination and . . . the
   context of a bona fide news program will obviously be different from the
   contexts of the three broadcasts now before us, and, therefore, would
   probably be of less concern."); Indecency Policy Statement, 16 FCC Rcd at
   8002-03 (stating that "[e]xplicit language in the context of a bona fide
   newscast might not be patently offensive." ).

   Peter Branton, 6 FCC Rcd at 610.

   See, e.g., Evergreen Media Corporation of Chicago AM, Memorandum Opinion
   and Order, 6 FCC Rcd 5950, 5951 (Mass Media Bur. 1991) (finding talk show
   segment discussing pornographic photographs of Vanessa Williams to be
   indecent and concluding that "[e]ven if it had been argued that the [show]
   in question was comparable to a news program, the Vanessa Williams segment
   contained vulgar material presented in a pandering and titillating manner
   unlike anything found in the Branton case."); Pacific and Southern Company
   Inc. (KSD-FM), Notice of Apparent Liability, 6 FCC Rcd 3689 (Mass Media
   Bur. 1990) (forfeiture paid) (finding that "exceptionally explicit and
   vulgar" material that was "presented in a pandering manner" was indecent
   even though it "arguably concerned an incident that was at the time `in
   the news.'").

   See, e.g., Howard Rosenberg, The Fact Is, the Joke is the News,
   Broadcasting & Cable, Nov. 1, 2004, at 32 ("Even more common is the
   venerable, widespread practice of cross-promotion, as on The Early  Show,
   a production of CBS News, which each Friday devotes a lengthy segment to
   `covering' the previous night's Survivor episode on the network, as if who
   got bumped off was an actual news story.  As a bonus, The Early  Show
   folds itself into this fantasy from a special set outfitted to resemble
   Survivor.").

   FCC File No. EB-03-IH-0355.

   Omnibus Order, 21 FCC Rcd  at 2696-98 PP 125-36.

   KMBC Hearst-Argyle Television, Inc. Response to Letter of Inquiry and
   Memorandum of Law, File No. EB-03-IH-0355  at 8 (Sept. 21, 2006) ("Hearst
   Response to 9/7/2006 LOI").

   See Letters from Lara Mahaney, Director of Corporate and Entertainment
   Affairs, PTC, to David Solomon, Chief, Enforcement Bureau, dated July 1
   and July 3, 2003.

   Hearst Response to 9/7/2006 LOI at 11, n.9.

   See supra note 217 and accompanying text. The letterhead of each complaint
   identified contact information for PTC's office in Alexandria, Virginia,
   as well as a PTC office in Los Angeles, California.

   See id.

   Omnibus Order, 21 FCC Rcd at 2673 P 32, 2676 P 42, 2687 P 86.

   Id. at 2687 P 86. See Super Bowl Order on Reconsideration, 21 FCC Rcd at
   6665 P 30 (under the enforcement policy announced in the Omnibus Order,
   "it is sufficient that viewers in markets served by each of the CBS
   Stations filed complaints with the Commission identifying the allegedly
   indecent program broadcast by the CBS Stations.").

   Hearst Response to 9/7/2006 LOI  at 11.

   Complaints Regarding Various Television Broadcasts Between February 2,
   2002 and March 8, 2005, Notices of Apparent Liability and Memorandum
   Opinion and Order, 21 FCC Rcd 2664 (2006) ("Omnibus Order").

   Today's decision presumes that the general statement that the Commission's
   "collective experience and knowledge, developed through constant
   interaction with lawmakers, courts, broadcasters, public interest groups,
   and ordinary citizens," and nothing more, is sufficient to inform the
   public and broadcasters what we believe are the national, contemporary
   community standards of the broadcast medium. In re Infinity Radio License,
   Inc., Memorandum Opinion and Order, 19 FCC Rcd 5022, 5026 (2004); compare,
   Reno v. ACLU, 521 U.S. 844 (1997) (finding the terms "indecent", "patently
   offensive" and "in context" were so vague that criminal enforcement would
   violate the fundamental constitutional principles, but while recognizing
   "the history of extensive government regulation of broadcasting").

   Complaints Against Various Broadcast Licensees Regarding Their Airing of
   the "Golden Globe Awards" Program, Memorandum Opinion and Order, 18 FCC
   Rcd 19859 (Enf. Bur. 2003), reversed, 19 FCC Rcd 4975 (2004) ("Golden
   Globe Awards Order"), petitions for stay and recon. pending (since April
   2004)  .

   Golden Globe Awards Order at PP 9, 12 and 14 (eviscerating our
   longstanding standard for "isolated or fleeting" expletives,  establishing
   that any use of the "F-word" or a variation, in any context, "invariably
   invokes a coarse sexual image," and changing our 30-year standard of what
   constitutes profanity).

   Omnibus Order, Statement of Commissioner Jonathan S. Adelstein, concurring
   in part, dissenting in part, 21 FCC Rcd at 2726.

   The decision letter dismissing a complaint against the December 9, 2002,
   broadcast of "The Billboard Music Awards" by WTTG (TV), Washington, D.C.,
   was referenced in footnote 32 of the Golden Globe Awards Order, and in
   footnote 9 of my Statement in that Order.

   United States v. Utah Constr. & Min. Co., 384 U.S. 394, 422 (1966).

   In the Omnibus Order, with respect to "The Early Show," the Commission
   said: "In rare contexts, language that is presumptively profane will not
   be found to be profane where it is demonstrably essential to the nature of
   an artistic or educational work or essential to informing viewers on a
   matter of public importance. We caution, however, that we will find this
   to be the case only in unusual circumstances, and such circumstances are
   clearly not present here." Omnibus Order, P 144.

   See Omnibus Order, 21 FCC Rcd at 2699 P 141  [emphasis added].

   Id. [emphasis added].

   P 72, supra.

   Id. [emphasis in original].

   Looking at this contorted reasoning one must wonder whether the Commission
   is attempting to avoid reconsideration of its policy enunciated in the
   Omnibus Order that, consistent with Golden Globe, any variant, of the
   S-word is inherently excretory. Omnibus Order at 2699 P 139.

   Peter Branton, 6 FCC Rcd 610 (1991).

   FCC v. Pacifica Foundation, 438 U.S. 726, 748 (1978).

   See id., citing Rowan v. Post Office Dept., 397 U.S. 728  (1970).

   Order, PP 18, 59 and 65.

   Pacifica, 438 U.S. at 763, POWELL J, concurring in part and concurring in
   judgment.

   The Commission claims that "the sufficiency of a complaint is the first
   step rather that the last step in the Commission's analysis." Order, P 77.
   However, in the single complaint filed against the "The 2002 Billboard
   Music Awards," for example, the complainant does not even aver that she
   watched the program. Quite the contrary, the complaint was filed "on
   behalf of the Parents Television Council and its over 800,000 members."
   The complainant alleges, the broadcast "was seen in homes across the
   country on the Fox network, and in Washington DC." Based on the
   Commission's reasoning in today's Order and the Golden Globe Awards Order,
   this complaint does not state a prima facie case to justify Commission
   action. See Order, PP 40 and 65 (stating that "[i]n the Golden Globe
   Awards Order, the Commission concluded that the F-Word was profane within
   the meaning of Section 1464 because, in context, it contained vulgar and
   coarse language `so grossly offensive to members of the public who
   actually hear it as to amount to a nuisance'") (emphasis added). See also
   Order, P 75 (stating that complaints against "NYPD Blue" are justifiably
   dismissed because "none of the complaints contains any claim that the
   out-of market complainant actually viewed the complained-of broadcasts")
   (emphasis added).

   (...continued from previous page)

                                                              (continued....)

   Federal Communications Commission FCC 06-166

   2

   Federal Communications Commission FCC 06-166

References

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