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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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