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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
COMPLAINTS AGAINST VARIOUS ) File No. EB-04-IH-0011
TELEVISION LICENSEES )
CONCERNING THEIR FEBRUARY ) NAL/Acct. No. 200432080212
1, 2004 BROADCAST OF THE SUPER )
BOWL XXXVIII HALFTIME SHOW )
FORFEITURE ORDER
Adopted: February 21, 2006 Released: March 15, 2006
By the Commission: Chairman Martin, Commissioners Copps and Tate issuing
separate statements; Commissioner Adelstein concurring and issuing a
statement.
I. INTRODUCTION
1. In this Forfeiture Order ("Order"), issued pursuant to section 503(b)
of the Communications Act of 1934, as amended (the "Act"), and section
1.80 of the Commission's rules, we impose a monetary forfeiture in the
amount of $550,000 against CBS Corporation ("CBS"), as the licensee or
the ultimate parent company of the licensees of the television
stations listed in the Appendix ("CBS Stations"). We find that CBS
violated 18 U.S.C. S 1464 and the Commission's rule regulating the
broadcast of indecent material in its broadcast of the halftime show
of the National Football League's Super Bowl XXXVIII over the CBS
Stations on February 1, 2004, at approximately 8:30 p.m. Eastern
Standard Time.
II. BACKGROUND
2. The halftime show in question was a live broadcast of music and
choreography produced by MTV Networks ("MTV"), which was then a
Viacom, Inc. subsidiary. The halftime show lasted approximately
fifteen minutes and aired over the CBS Stations and other television
stations affiliated with the CBS Television Network. The show received
considerable notoriety due to an incident at the end of its musical
finale, in which Justin Timberlake pulled off part of Janet Jackson's
bustier, exposing one of her breasts to the television audience.
3. Following the Super Bowl broadcast and the receipt of complaints, the
Enforcement Bureau ("Bureau") issued a letter of inquiry ("LOI") to
CBS, seeking information about the halftime show, followed by a letter
requesting videotapes of the complete Super Bowl programming broadcast
over the CBS Television Network stations on February 1, 2004,
including the halftime show (collectively, the "Broadcast Videotape").
In response, CBS provided a videotape of the broadcast of the halftime
show to the Bureau on February 3, 2004, an "interim response" to the
Bureau's inquiries on February 10, 2004, the Broadcast Videotape on
February 14, 2004, and a complete response to the LOI on March 16,
2004.
4. The script and Broadcast Videotape of the halftime show provided by
CBS confirm that the show contained repeated sexual references,
particularly in its opening and closing performances. The first song,
"All For You," performed by Janet Jackson, began with the following
lines, referring to a man at a party:
All my girls at the party
Look at that body
Shakin' that thing
Like I never did see
Got a nice package alright
Guess I'm gonna have to ride it tonight.
These lyrics use slang terms to refer to a man's sexual organs and sexual
intercourse and were repeated two more times during the song. Following
that performance, P. Diddy and Nelly presented a medley of songs
containing occasional references to sexual activities, emphasized by
Nelly's crotch-grabbing gestures. Then, after a medley by performer Kid
Rock, Jackson reappeared for a performance of "Rhythm Nation" and then the
closing song, "Rock Your Body," a duet in which she was joined by Justin
Timberlake. During the finale, Timberlake urged her to allow him to "rock
your body" and "just let me rock you `til the break of day" while
following her around the stage and, on several occasions, grabbing and
rubbing up against her in a manner simulating sexual activity. At the
close of the song, while singing the lyrics, "gonna have you naked by the
end of this song," Timberlake pulled off the right portion of Jackson's
bustier, exposing her breast to the television audience.
5. The Commission released its NAL on September 22, 2004, pursuant to
section 503(b) of the Act and section 1.80 of the Commission's rules,
finding that CBS apparently violated the federal restrictions
regarding the broadcast of indecent material. We noted that our
indecency analysis involves two basic determinations. The first
determination is whether the material in question depicts or describes
sexual or excretory organs or activities. We found that the broadcast
material contained, inter alia, a performance by Jackson and
Timberlake that culminated in the on-camera exposure of one of
Jackson's breasts, thereby meeting the first standard. The second
determination is whether the material is patently offensive as
measured by contemporary community standards for the broadcast medium.
We observed that, 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 or depiction of sexual or excretory organs or
activities; (2) whether the material dwells on or repeats at length
descriptions or depictions of sexual or excretory organs or
activities; and (3) whether the material appears to pander or is used
to titillate or shock. In examining these three factors, we stated
that we must weigh and balance them on a case-by-case basis 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." We noted that, in particular cases, one or
two factors may outweigh the others, either rendering the broadcast
material patently offensive and consequently indecent or,
alternatively, removing the broadcast from the realm of indecency.
6. The Commission examined all three factors in the NAL and determined
that, in context and on balance, the halftime show is patently
offensive as measured by contemporary community standards for the
broadcast medium. The Commission determined that the broadcast of
partial nudity in this instance was explicit and graphic and appeared
to pander to, titillate and shock the viewing audience. Therefore, the
Commission determined that the material was patently offensive as
measured by contemporary community standards for the broadcast medium,
even though the nudity was brief.
7. The Commission concluded, based upon its review of the facts and
circumstances of this case, that CBS was apparently liable for a
monetary forfeiture in the amount of $550,000, calculated by applying
the maximum forfeiture of $27,500 to each CBS Station, for
broadcasting indecent material in apparent violation of 18 U.S.C. S
1464 and section 73.3999 of the Commission's rules. In contrast, the
Commission proposed no forfeiture against any licensee other than CBS.
It did so based on its finding that no licensee of a non-CBS-owned CBS
affiliate was involved in the selection, planning or approval of the
material for the halftime show, nor could any such licensee reasonably
have anticipated that Viacom's production of the show would contain
indecent material. On November 5, 2004, CBS submitted its Opposition
to the NAL.
III. DISCUSSION
8. CBS does not dispute that the halftime show included a segment in
which Justin Timberlake pulls off a portion of Jackson's bustier to
reveal her breast at the end of the performance of a song containing
the lyrics quoted above. CBS nonetheless argues that the material
broadcast was not actionably indecent. CBS also maintains that the
broadcast of Jackson's breast was accidental, and therefore was not
"willful" under section 503(b)(1)(B) of the Act. CBS further argues
that the Commission's indecency framework is unconstitutionally vague
and overbroad, both on its face and as applied to the halftime show.
As discussed below, we reject CBS's arguments and find the broadcast
indecent for the reasons set forth herein. We reject CBS's assertion
that the material at issue is not indecent because it is not patently
offensive. In addition, we reject CBS's interpretation of the term
"willful" and also address specific circumstances indicating that: (1)
CBS consciously omitted the actions necessary to ensure that
actionably indecent material would not be aired; and (2) the
performers' willful actions here were attributable to CBS under
established principles of agency and respondeat superior. Finally, we
reject CBS's constitutional arguments, as the courts have repeatedly
upheld the constitutionality of the Commission's indecency framework
and our analysis of the halftime show is consistent with that
framework. We therefore conclude that the broadcast of this material
by the Viacom Stations violated 18 U.S.C. S 1464 and our rule against
indecent broadcasts between 6 a.m. and 10 p.m., and that the maximum
statutory forfeiture is warranted.
9. Indecency Analysis. The indecency analysis undertaken in the NAL
followed the approach that the Commission has consistently applied.
First, the material alleged to be indecent must fall within the
subject matter scope of our indecency definition, i.e., "the material
must describe or depict sexual or excretory organs or activities." The
NAL properly concluded that the broadcast of an exposed female breast
met this definition. The halftime show broadcast therefore warrants
further scrutiny to determine whether or not it was patently offensive
as measured by contemporary community standards for the broadcast
medium.
10. As discussed above, in our assessment of whether broadcast material is
patently offensive, "the full context in which the material appeared
is critically important." In cases involving televised nudity, the
contextual analysis necessarily involves an assessment of the entire
segment or program, and not just the particular scene in which the
nudity occurs. Accordingly, in this case, our contextual analysis
considers the entire halftime show, not just the final segment during
which Jackson's breast is uncovered. We find that, in context and on
balance, the complained-of material is patently offensive as measured
by contemporary community standards for the broadcast medium.
11. Turning to the first principal factor of our contextual analysis, we
conclude that a video broadcast image of Timberlake pulling off part
of Jackson's bustier and exposing her bare breast, where the image of
the nude breast is clear and recognizable to the average viewer, is
graphic and explicit. CBS maintains that none of the cases cited in
the NAL to support the conclusion that the partial nudity in the
halftime show was explicit and graphic involved a televised broadcast
of a woman's breast. We reject CBS's argument that our conclusion
regarding this factor is flawed. The NAL correctly relied on Young
Broadcasting, which supports the proposition that a scene showing nude
sexual organs is graphic and explicit if the nudity is readily
discernible. In this case, although the camera shot is not a close-up,
the nudity is readily discernible. Furthermore, Jackson and
Timberlake, as the headline performers, are in the center of the
screen, and Timberlake's hand motion ripping off Jackson's bustier
draws the viewer's attention to her exposed breast. CBS suggests that
the fact that this nudity was not "planned and approved by [CBS]" is
somehow relevant to whether it is explicit and graphic in nature.
However, CBS's suggestion that planning or premeditation should be a
factor in deciding whether a televised image is explicit or graphic
lacks any basis in logic or law. Rather, the first factor in our
contextual analysis focuses on the explicitness of the broadcast from
the viewer's or listener's standpoint. Notwithstanding CBS's claimed
befuddlement at how the televised image of a man tearing off a woman's
clothing to reveal her bare breast could be deemed explicit, we
believe that conclusion is clearly warranted by the facts here and
fully consistent with the case law.
12. The second principal factor in our contextual analysis is whether the
material dwells on or repeats at length descriptions or depictions of
sexual or excretory organs or activities. The NAL appropriately
recognizes that the image of Jackson's uncovered breast during the
halftime show is fleeting. However, "even relatively fleeting
references may be found indecent where other factors contribute to a
finding of patent offensiveness." In this case, even though we find
that the partial nudity was fleeting, the brevity of the partial
nudity is outweighed by the first and third factors of our contextual
analysis.
13. Under the third principal factor of our analysis - whether the
material appears to pander or is titillating or shocking - we examine
how the material is presented in context. The NAL found that "the
manner of presentation of the complained-of material over each [CBS
Station], for which Viacom failed to take adequate precautions, was
pandering, titillating and shocking." The NAL noted that the exposure
of Jackson's breast followed "performances, song lyrics and
choreography [that] discussed or simulated sexual activities."
Jackson's opening song contained repeated references to a man's "nice
package" that she was "gonna have to ride . . . tonight" - slang
references to male sexual organs and sexual intercourse. The P.
Diddy/Nelly performance also contained sexual references, emphasized
by Nelly's crotch-grabbing gestures. Likewise, the duet by Jackson and
Timberlake of "Rock Your Body" contained repeated references to sexual
activities and choreography in which Timberlake grabbed Jackson,
slapped her buttocks, and rubbed up against her in a manner simulating
sexual activity. These sexually suggestive performances culminated in
the spectacle of Timberlake ripping off a portion of Jackson's bustier
and exposing her breast while he sang "gonna have you naked by the end
of this song." Clearly, the nudity in this context was pandering,
titillating and shocking to the viewing audience, particularly during
a prime time broadcast of a sporting event that was marketed as family
entertainment and contained no warning that it would include nudity.
Contrary to CBS's contention, we do evaluate the nudity in context.
The offensive segment in question did not merely show a fleeting
glimpse of a woman's breast, as CBS presents it. Rather, it showed a
man tearing off a portion of a woman's clothing to reveal her naked
breast during a highly sexualized performance and while he sang "gonna
have you naked by the end of this song." From the viewer's standpoint,
this nudity hardly seems "accidental," nor was it. This broadcast thus
presents a much different case than would, for example, a broadcast in
which a woman's dress strap breaks, accidentally revealing her breast
for a fraction of a second.
14. Accordingly, we conclude that the Super Bowl XXXVIII halftime show
contained material that was graphic, explicit, pandering, titillating
and shocking and, in context and on balance, was patently offensive
under contemporary community standards for the broadcast medium and
thus indecent. Although the patently offensive material was brief, its
brevity is outweighed in this case by the first and third factors in
our contextual analysis. The complained-of material was broadcast
within the 6 a.m. to 10 p.m. time frame relevant to an indecency
determination under Section 73.3999 of the Commission's rules, and is
therefore legally actionable.
15. Whether Violation was "Willful." CBS argues that, if it did air
indecent programming, its violation was "accidental" rather than
"willful" and therefore cannot be sanctioned under section 503(b)(1)
of the Act. In support of this argument, CBS cites definitions of
"willful" from criminal and copyright law cases. These definitions,
however, are inapposite. Rather than borrowing definitions from
unrelated areas of law, the Commission appropriately applies the
definition of "willful" that appears in the Communications Act.
Section 312(f)(1) of the Act defines "willful" as "the conscious and
deliberate commission or omission of [any] act, irrespective of any
intent to violate" the law. As discussed in detail below, CBS acted
willfully because it consciously and deliberately broadcast the
halftime show, whether or not it intended to broadcast nudity, and
because it consciously and deliberately failed to take reasonable
precautions to ensure that no actionably indecent material was
broadcast. CBS also is vicariously liable for the willful actions of
the performers under the doctrine of respondeat superior.
16. The Commission's forfeiture authority was enacted "to impel broadcast
licensees to become familiar with the terms of their licenses and the
applicable Rules, and to adopt procedures, including periodic review
of operations, which will insure that stations are operated in
substantial compliance with their licenses and the Commission's
Rules." The obligation of licensees to adopt measures to ensure
compliance with the Act and the Commission's rules has particular
force when it comes to broadcasters' responsibility for the
programming that they broadcast to the public. Under well-established
principles of broadcast regulation, "[b]roadcast licensees must assume
responsibility for all material which is broadcast through their
facilities," and that "duty is personal to the licensee and may not be
delegated."
17. CBS claims that it had no advance knowledge that Timberlake planned to
tear off part of Jackson's clothing to reveal her breast. Even
assuming that this claim is true, however, we do not believe that this
relieves CBS from responsibility for the indecent material that it
broadcast. Rather, the record reveals that CBS was acutely aware of
the risk of unscripted indecent material in this production, but
failed to take adequate precautions that were available to it to
prevent that risk from materializing.
18. It is disingenuous for CBS to argue that "the `costume reveal' was as
much a shock to Viacom as to everyone else." CBS clearly recognized
that the live broadcast of the Super Bowl halftime show posed a
significant risk that indecent material would be aired. The extensive
planning and preparation for the show highlighted this risk. CBS knew
that MTV, the corporate affiliate that was producing the show, was
seeking to push the envelope by, among other things, including
sexually provocative performers and material. In fact, the NFL
expressed concerns about whether the planned halftime show might be
heading in too risque a direction and rebuffed MTV's desire to feature
one performer because of a prior incident in which the performer
unexpectedly removed her clothes during a national telecast of an NFL
event. MTV sought to overcome the NFL's objections to another
performer by offering assurances that it would exercise control over
her wardrobe and actions, despite its own doubts about its ability to
do so.
19. CBS maintains that it selected Jackson and Timberlake "to minimize the
possibility of the unexpected," but CBS was well aware that their
selection did not obviate this risk. The NFL specifically expressed
concerns to CBS about the costume that Jackson would wear during the
halftime show. Moreover, the NFL raised concerns about Timberlake's
scripted line "gonna have you naked by the end of this song" that
anticipated the stunt resulting in the broadcast nudity. There were
other warning signs as well. In a January 28, 2004 news item posted on
MTV's website, Jackson's choreographer predicted that Jackson's
performance would include "some shocking moments" and said "I don't
think the Super Bowl has ever seen a performance like this . . ."
Shortly before the game, one halftime show performer asked about the
length of the audio delay, a question that MTV employees evidently
recognized implied an intention to depart from the script. Further,
MTV learned the morning of the Super Bowl telecast of plans to use
tearaway cheerleading outfits for dancers in another halftime
performance in connection with a scripted line ("I wanna take my
clothes off") that is quite similar to Timberlake's line ("gonna have
you naked by the end of this song"). The record reflects CBS's
awareness 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. In sum, there was a
significant and foreseeable risk in a halftime show seeking to push
the envelope and replete with sexual content that performers might
depart from script and staging, and this is particularly true of
Jackson and Timberlake given the sexually-provocative nature of their
performance, the fact that it was promoted as "shocking," and the fact
that it culminated with the scripted line "gonna have you naked by the
end of this song." Based on examination of the record, we conclude
that CBS recognized the high risk that this broadcast raised of airing
indecent material.
20. Examination of the record also reveals that CBS failed to take
adequate precautions to prevent the airing of unscripted indecent
material. Aware of the risk of visual and spoken deviations from the
script and staging -- that something spontaneous might occur or be
said -- CBS made a calculated decision. It chose to rely on a
five-second audio delay that would enable it to bleep offensive
language but would not enable it to block unscripted visual moments.
Thus, it could not cut off Jackson's "costume reveal" when it occurred
- and it had no expectation that it would be able to block any
indecent images. Only after the Super Bowl halftime show - for the
broadcast of the 2004 Grammy Awards - did CBS institute an audio and
video delay "to ensure that no unexpected or unplanned video images
would be broadcast." CBS asserts that the delay used for the 2004
Grammy Awards was "unprecedented." But CBS does not argue that use of
a delay mechanism capable of editing video images during the Super
Bowl halftime show would not have been feasible. The fact that use of
such a delay mechanism would have been "far more technically complex
and involved more broadcast standards staff to implement" than the
delay that CBS actually used hardly excuses its omission under these
circumstances. Furthermore, CBS also failed to adopt other precautions
available to it. For example, MTV's agreements with the performers did
not require them to conform to the script or to CBS's broadcast
standards and practices, notwithstanding the fact that MTV's agreement
with the NFL contained provisions to this effect. In addition, the
record contains no evidence that MTV or CBS communicated CBS's
broadcast standards and practices to Jackson, Timberlake, or Jackson's
choreographer before the show, despite the highly sexualized nature of
the performances and the fact that MTV's contract with the NFL
required MTV to communicate those standards and practices to all
performers.
21. CBS also overstates the level of care it exercised in overseeing the
halftime production. Critically, it failed to investigate Jackson's
choreographer's "shocking moments" prediction, which was posted on
MTV's website, despite CBS's concern about unscripted remarks or
actions. In addition, contrary to its contention, each aspect of the
halftime show was not reviewed in advance by CBS's Program Practices
Department. As stated above, MTV learned for the first time on the
morning of the Super Bowl telecast of plans for dancers to use
tearaway cheerleading outfits to act out the line "I wanna take my
clothes off." It does not appear that these plans were reviewed by
CBS's Program Practices Department because the rehearsals that CBS,
MTV and NFL representatives reviewed occurred several days before the
Super Bowl telecast, and the dancers were not in costume during the
scene in question.
22. Under these circumstances, we believe that CBS can and should be held
responsible for the patently offensive material that it broadcast to a
nationwide audience. A contrary result would permit a broadcast
licensee to stage a show that "pushes the envelope," send that show
out over the air waves, knowingly taking the risk that performers will
engage in offensive unscripted acts or use offensive unscripted
language, and then disavow responsibility - leaving no one legally
responsible for the result. We believe that these are fully
appropriate circumstances for application of the "conscious and
deliberate . . . omission" basis for finding "willfulness"
incorporated by Congress into Section 503(b) of the Act. Indeed, given
the nondelegable nature of broadcast licensees' responsibility for
programming and the means available to but declined by CBS to reduce
the risk of the broadcast of indecent programming, it is difficult to
conceive of a more appropriate context in which to apply that
standard.
23. Further, CBS is legally responsible here for another reason; it is
fully responsible for the actions of Jackson, Timberlake, and
Jackson's choreographer under the doctrine of respondeat superior. "It
is well established that traditional vicarious liability rules
ordinarily make principals or employers vicariously liable for acts of
their agents or employees in the scope of their authority or
employment." The Commission has long held licensees responsible for
the unauthorized acts of their agents under this doctrine. Respondeat
superior subjects a principal to vicarious liability when its
agent-employee commits a tort while acting within the scope of
employment. Whether an agent is an employee for purposes of respondeat
superior depends on whether the agent is subject to the principal's
control or right to control the performance of the work. An
agent-employee acts within the scope of employment when performing
work assigned by the employer or engaging in a course of conduct
subject to the employer's control.
24. It is appropriate to impose vicarious responsibility on CBS for the
willful actions of Jackson, Timberlake, and Jackson's choreographer
under the doctrine of respondeat superior. Even assuming arguendo that
the corporate officers and other corporate employees of CBS and MTV
did not act willfully within the meaning of section 503(b)(1), there
is no question that the performers did. Timberlake's declaration
acknowledges a premeditated plan for him to tear off part of Jackson's
clothing during the performance. Jackson, Timberlake, and Jackson's
choreographer were CBS agents for the halftime show performance;
Jackson and Timberlake entered into agreements with MTV (MTV and CBS
at the time were both Viacom subsidiaries) to perform during the
halftime show, and Gil Duldulao contractually agreed to choreograph
the dance. Based on examination of the record, we also believe that
the three were CBS employees for purposes of applying the principle of
respondeat superior. CBS had the right to control, and in fact
exercised considerable control over, the halftime show:
Each aspect of the halftime show was scripted in advance and a script of
the halftime show was reviewed by the CBS Program Practices Department. In
addition, employees of CBS, MTV, and the NFL attended two full
run-throughs of the halftime show on Thursday, January 29 to review the
production. The run-throughs were videotaped, and reviewed by
representatives of CBS and the NFL. MTV producers then used the tape to
individually review the rehearsal performances with the talent to instruct
them on changes to be made in the actual performance on Super Bowl Sunday.
Based on these procedures, certain changes were made to the show. For
example, the costume worn by one of the dancers during the run-throughs
was considered to be too revealing, and she was instructed to change it
before the final show. There was also concern about some of the language,
and changes were suggested. . . . Because Ms. Jackson was not in costume
during the run-throughs, an executive producer subsequently checked to
make sure that Ms. Jackson's wardrobe would conform to broadcast standards
during the actual performance.
25. Thus, CBS exercised control over all aspects of the performers'
conduct in the performance of the halftime show, including the script,
staging and wardrobe used during the Jackson-Timberlake performance.
Other factual indicia of control are present as well. CBS (through
MTV) provided the set and set elements for the performance and
dictated its time and place, as well as the time and place of
production and press-related activities. Many courts have held
entertainers to be employees for respondeat superior and other
purposes under similar circumstances. Finally, the performers' actions
were clearly within the scope of their employment. In this regard, the
determining factor is not whether their actions were authorized by CBS
but whether the performance was subject to CBS's control. Put
differently, their conduct was incident to the performance rather than
"an independent course of conduct intended to serve no purpose of the
employer." Accordingly, the performers' willful actions are fully
attributable to CBS under the doctrine of respondeat superior
irrespective of whether the performers' actions were authorized by
CBS.
26. Amount of Forfeiture. CBS offers a variety of arguments that the
forfeiture proposed in the NAL is excessive or unfair. First, it
contends that it is unfair to impose a forfeiture on it, when no
forfeiture was imposed on those affiliates of the CBS Television
Network that are not owned by CBS. Second, CBS argues that the NAL
improperly cites "the history of recent indecent broadcasts by CBS
owned radio stations" with a footnote to cases that are not completely
adjudicated. Third, CBS maintains that the forfeiture is excessive in
relation to the duration of the nude scene and in light of CBS's
precautionary measures. Fourth, CBS argues that it had no prior notice
that a brief scene of partial nudity constituted actionable indecency
and thus should not be subject to any forfeiture.
27. We conclude that CBS's arguments do not justify a reduction in the
amount of the proposed forfeiture. The NAL proposed no forfeiture
against CBS Television Network affiliate stations that are not owned
by Viacom because there is no evidence that the licensees of any of
those stations played any role in the selection, planning or approval
of the halftime show or that they could have reasonably anticipated
that CBS's production of the halftime show would include partial
nudity. CBS has not provided any contrary evidence. In contrast, CBS
admits that it was closely involved in the production of the halftime
show, and that its MTV affiliate produced it.
28. With respect to the NAL's reference to the history of indecent
broadcasts by CBS's radio stations, we note that those cases have been
resolved by a Consent Decree in which CBS admitted to certain
violations, and the Commission agreed not to use that admission
against CBS in any other proceeding, including this one. Accordingly,
we no longer rely on that history of indecent broadcasts in reaching
our determination here. Nevertheless, we remain convinced that the
upward adjustment to the statutory maximum is appropriate in light of
all of the factors enumerated in section 503(b)(2)(D) of the Act,
particularly the circumstances involving the preparation, execution
and promotion of the halftime show by CBS, the gravity of the
violation in light of the nationwide audience for the indecent
broadcast, and CBS's ability to pay. The crux of CBS's defense is that
the blame lies with the performers who planned and carried out the
costume reveal that resulted in the exposure of Jackson's breast.
However, CBS's attempt to place blame on the performers in question is
unavailing; as discussed above, the performers were acting as CBS's
agents and CBS is responsible for their actions within the scope of
their employment. In addition, CBS planned almost every element of the
halftime show. In the course of doing so, it brushed off warning signs
of the potential for actionably indecent behavior and failed to take
adequate precautions to prevent the airing of indecent material. As a
result of its decisions, an enormous nationwide audience, including
numerous children, was subjected without warning to the offensive
spectacle of a man tearing off a woman's clothing on stage in the
midst of a sexually charged performance. Finally, regarding the
element of ability to pay and financial disincentives to violate the
Act and rules, we find that CBS's size and resources, without
question, support an upward adjustment to the maximum statutory
forfeiture of $550,000 because a lesser amount would not serve as a
significant penalty or deterrent to a company of its size and
resources.
29. We also reject CBS's claim that it lacked prior notice that a brief
scene of partial nudity might result in a forfeiture. Our rule against
the broadcast of indecent material outside of the safe harbor hours
has been in effect since 1993, and our criteria for determining
whether material is indecent were clearly spelled out in the Policy
Statement issued in 2001. Furthermore, the Young Broadcasting
decision, holding that a brief display of male frontal nudity was an
apparent violation of that rule, was released shortly before the
subject Super Bowl broadcast. Thus, CBS was on notice that the
broadcast of partial nudity could violate the indecency rule and
statute. CBS tries to liken its situation to that of NBC in the Golden
Globe Order, where we declined to impose a forfeiture because we
overruled precedent that had specifically held that isolated
expletives were not actionably indecent. We have never held, however,
that fleeting nudity is not actionably indecent. On the contrary, as
discussed above, we held that fleeting nudity was indecent in Young
Broadcasting before the Super Bowl broadcast at issue here. The fact
that this case is not identical to Young Broadcasting (or, indeed, any
other case) certainly does not preclude us from imposing a forfeiture.
The facts of most indecency cases are not identical to any that
precede them. For example, the Commission has not been confronted
before this case with a broadcast where a male performer ripped off
the clothing of a female performer to reveal her breast in the midst
of a song containing repeated sexual references and a dance containing
simulated sexual activities. But any argument that CBS lacked adequate
notice that such a performance would run afoul of the Commission's
indecency regulations is groundless. The Commission is applying an
established standard to the facts of a new case and is not overruling
precedent. Thus, it is entirely lawful and appropriate to impose a
forfeiture when we determine that the licensee has violated that
standard.
30. Constitutional Issues. CBS offers a number of arguments attacking the
constitutional underpinnings of the Commission's indecency framework.
We find no merit in those arguments.
31. We reject CBS's arguments that the Commission's indecency standard is
vague, overbroad, and vests the Commission with excessive discretion.
Courts have upheld the indecency standard applied in the NAL and in
this Order against facial vagueness and overbreadth challenges. The
D.C. Circuit also has rejected the argument that the Commission's
indecency standard is overbroad because it may encompass material with
serious merit. We do not believe that requiring broadcasters to
exercise care to prevent a televised depiction of naked sexual organs
prior to 10 p.m. unduly "chills" exercise of their First Amendment
rights. As the D.C. Circuit observed, "some degree of self-censorship
is inevitable and not necessarily undesirable so long as proper
standards are available."
32. We also disagree with CBS that the NAL is inconsistent with the
Supreme Court's Pacifica decision. Pacifica stressed the importance of
contextual analysis such as that reflected in this Order. Accordingly,
we do not read Pacifica as precluding an indecency finding based on a
brief depiction of partial nudity. The Supreme Court specifically
stated that it had not decided whether an occasional expletive in a
different setting (e.g., a two-way radio conversation between a cab
driver and a dispatcher, or a telecast of an Elizabethan comedy) would
justify any sanction. The Court's emphasis on the narrowness of its
holding was meant to highlight the "all-important" role of context,
not to deprive the Commission of power to regulate broadcast indecency
except in situations involving extended or repetitious expletives or
depictions of sexual or excretory organs or activities.
33. CBS also claims that the constitutional validity of our indecency
enforcement practice has been undermined by a changed legal and
technological landscape, citing the Supreme Court's decisions in
United States v. Playboy Entertainment Group, Inc., Reno v. ACLU, and
Denver Area Educational Telecommunications Consortium v. FCC, and
pointing to the pervasiveness of cable and satellite television, and
the development of online media and media recording technology (e.g.,
videocassette recorders, DVD recorders and personal video recorders
featuring time-shifting technology) and the V-chip. Again, we
disagree. In striking down as unconstitutional an Internet indecency
standard, the Supreme Court expressly recognized in Reno the "special
justifications for regulation of the broadcast media," citing Red Lion
and Pacifica. Moreover, in Denver Area, the Court addressed the
constitutionality of a Commission order implementing provisions of the
1992 Cable Television Consumer Protection and Competition Act that
concerned indecent and obscene cable programming, not over-the-air
broadcasting. We find nothing in that opinion that undermines the
constitutionality of our framework for enforcing our rule against the
broadcast of indecent material outside the safe harbor hours.
34. Furthermore, CBS's arguments about new technologies have no apparent
application to this case. The V-chip technology cannot be utilized to
block sporting events such as the Super Bowl because sporting events
are not rated. Nevertheless, even if the V-chip could be used to block
sporting events, based on CBS's representations it appears that CBS
would not have rated the Super Bowl halftime show as inappropriate for
children.
35. Finally, we address CBS's dire warnings that imposing sanctions in
this case will have a chilling effect on live coverage of public
events, such as national political conventions and presidential
scandals, and "violates the Commission's own pledge" to "take no
action which would inhibit broadcast journalism." While we are
sensitive to the impact of our decisions on speech and, in particular,
on live news coverage, we do not believe that CBS's fears about the
chilling effect of our decision here are well-founded. As discussed in
detail above, this case involves a staged show planned by CBS and its
affiliates, under circumstances where they had the means to exercise
control and good reasons to take precautionary measures. These
circumstances are obviously completely different from live coverage of
breaking news events, which are not controlled by broadcasters, and
this decision in no way suggests that we are imposing strict liability
for such coverage or, indeed, any other programming.
36. Conclusion. Under section 503(b)(1)(B) of the Act, any person who is
determined by the Commission to have willfully failed to comply with
any provision of the Act or any rule, regulation, or order issued by
the Commission shall be liable to the United States for a monetary
forfeiture penalty. In order to impose such a forfeiture penalty, the
Commission must issue a notice of apparent liability, the notice must
be received, and the person against whom the notice has been issued
must have an opportunity to show, in writing, why no such forfeiture
penalty should be imposed. The Commission will then issue a forfeiture
if it finds by a preponderance of the evidence that the person has
violated the Act or a Commission rule. For the reasons set forth
above, we conclude under this standard that CBS is liable for a
forfeiture for its willful violation of 18 U.S.C. S 1464 and section
73.3999 of the Commission's rules.
37. The Commission's Forfeiture Policy Statement sets a base forfeiture
amount of $7,000 for transmission of indecent materials. The
Forfeiture Policy Statement also specifies that the Commission shall
adjust a forfeiture based upon consideration of the factors enumerated
in section 503(b)(2)(D) of the Act, 47 U.S.C. S 503(b)(2)(D), such as
"the nature, circumstances, extent and gravity of the violation, and,
with respect to the violator, the degree of culpability, any history
of prior offenses, ability to pay, and such other matters as justice
may require." In this case, taking all of these factors into
consideration, for the reasons set forth above, we find that the NAL
properly proposed the statutory maximum forfeiture of $550,000 against
CBS.
IV. ORDERING CLAUSES
38. Accordingly, IT IS ORDERED THAT, pursuant to section 503(b) of the
Act, and sections 0.311 and 1.80(f)(4) of the Commission's Rules, CBS
Corporation IS LIABLE FOR A MONETARY FORFEITURE in the amount of
$550,000 for willfully violating 18 U.S.C. S 1464 and section 73.3999
of the Commission's rules.
39. Payment of the forfeiture shall be made in the manner provided for in
section 1.80 of the Commission's rules within 30 days of the release
of this Order. If the forfeiture is not paid within the period
specified, the case may be referred to the Department of Justice for
collection pursuant to section 504(a) of the Act. Payment of the
forfeiture must be made by check or similar instrument, payable to the
order of the Federal Communications Commission. The payment must
include the NAL/Acct. No. referenced above and the FRN(s) referenced
in the Appendix. Payment by check or money order may be mailed to
Federal Communications Commission, P.O. Box 358340, Pittsburgh, PA
15251-8340. Payment by overnight mail may be sent to Mellon Bank/LB
358340, 500 Ross Street, Room 1540670, Pittsburgh, PA 15251. Payment
by wire transfer may be made to ABA Number 043000261, receiving bank
Mellon Bank, and account number 911-6106.
40. Requests for payment under an installment plan should be sent to:
Associate Managing Director - Financial Operations, 445 12th Street,
S.W., Room 1-A625, Washington, D.C. 20554.
41. IT IS FURTHER ORDERED THAT a copy of this FORFEITURE ORDER shall be
sent by Certified Mail, Return Receipt Requested to CBS Corporation,
2000 K Street, N.W., Suite 725, Washington, DC 20006, and to its
counsel, Robert Corn-Revere, Esquire, Davis Wright Tremaine LLP, 1500
K Street, N.W., Washington, DC 20005.
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
Secretary
APPENDIX
CBS-OWNED
CBS TELEVISION NETWORK AFFILIATES
FCC Call Community of Facility
Licensee Registration Sign License ID No.
Number
CBS Stations
Group of Texas 0001767078 KEYE-TV Austin, TX 33691
L.P.
Viacom Inc. 0003612447 WJZ-TV Baltimore, MD 25455
Viacom Inc. 0003612447 WBZ-TV Boston, MA 25456
CBS Broadcasting 0003482189 WBBM-TV Chicago, IL 9617
Inc.
CBS Stations
Group of Texas 0001767078 KTVT Ft. Worth, TX 23422
L.P.
CBS Television 0003482189 KCNC-TV Denver, CO 47903
Stations Inc.
CBS Broadcasting 0003482189 WFRV-TV Green Bay, WI 9635
Inc.
CBS Broadcasting 0003482189 WJMN-TV Escanaba, MI 9630
Inc.
CBS Broadcasting 0003482189 WWJ-TV Detroit, MI 72123
Inc.
CBS Broadcasting 0003482189 KCBS-TV Los Angeles, 9628
Inc. CA
CBS Television 0003482189 WFOR-TV Miami, FL 47902
Stations Inc.
CBS Broadcasting 0003482189 WCCO-TV Minneapolis, 9629
Inc. MN
CBS Broadcasting 0003482189 KCCO-TV Alexandria, MN 9632
Inc.
CBS Broadcasting 0003482189 KCCW-TV Walker, MN 9640
Inc.
CBS Broadcasting 0003482189 KDKA-TV Pittsburgh, PA 25454
Inc.
CBS Broadcasting 0003482189 KYW-TV Philadelphia, 25453
Inc. PA
CBS Broadcasting 0003482189 WCBS-TV New York, NY 9610
Inc.
KUTV Holdings, 0004499273 KUTV Salt Lake 35823
Inc. City, UT
KUTV Holdings, 0004499273 KUSG St. George, UT 35822
Inc.
CBS Broadcasting 0003482189 KPIX-TV San Francisco, 25452
Inc. CA
STATEMENT OF
CHAIRMAN KEVIN J. MARTIN
Re: Complaints Against Various Television Licensees Concerning Their
February 1, 2004 Broadcast of the Super Bowl XXXVIII Halftime Show;
Complaints Regarding Various Television Broadcasts Between February 2,
2002 and March 8, 2005; Complaints Against Various Television Licensees
Concerning Their December 31, 2004 Broadcast of the Program "Without A
Trace"
Congress has long prohibited the broadcasting of indecent and profane
material and the courts have upheld challenges to these standards. But the
number of complaints received by the Commission has risen year after year.
They have grown from hundreds, to hundreds of thousands. And the number of
programs that trigger these complaints continues to increase as well. I
share the concerns of the public - and of parents, in particular - that
are voiced in these complaints.
I believe the Commission has a legal responsibility to respond to them and
resolve them in a consistent and effective manner. So I am pleased that
with the decisions released today the Commission is resolving hundreds of
thousands of complaints against various broadcast licensees related to
their televising of 49 different programs. These decisions, taken both
individually and as a whole, demonstrate the Commission's continued
commitment to enforcing the law prohibiting the airing of obscene,
indecent and profane material.
Additionally, the Commission today affirms its initial finding that the
broadcast of the Super Bowl XXXVIII Halftime Show was actionably indecent.
We appropriately reject the argument that CBS continues to make that this
material is not indecent. That argument runs counter to Commission
precedent and common sense.
STATEMENT OF
COMMISSIONER MICHAEL J. COPPS
Re: Complaints Regarding Various Television Broadcasts Between
January 1, 2002 and March 12, 2005, Notices of Apparent Liability and
Memorandum Opinion and Order
Complaints Against Various Television Licensees Concerning Their December
31, 2004 Broadcast of the Program "Without A Trace", Notice of Apparent
Liability
Complaints Against Various Television Licensees Concerning Their February
1, 2004 Broadcast Of The Super Bowl XXXVII Halftime Show, Forfeiture Order
In the past, the Commission too often addressed indecency complaints with
little discussion or analysis, relying instead on generalized
pronouncements. Such an approach served neither aggrieved citizens nor
the broadcast industry. Today, the Commission not only moves forward to
address a number of pending complaints, but does so in a manner that
better analyzes each broadcast and explains how the Commission determines
whether a particular broadcast is indecent. Although it may never be
possible to provide 100 percent certain guidance because we must always
take into account specific and often-differing contexts, the approach in
today's orders can help to develop such guidance and to establish
precedents. This measured process, common in jurisprudence, may not
satisfy those who clamor for immediate certainty in an uncertain world,
but it may just be the best way to develop workable rules of the road.
Today's Orders highlight two additional issues with which the Commission
must come to terms. First, it is time for the Commission to look at
indecency in the broader context of its decisions on media consolidation.
In 2003 the FCC sought to weaken its remaining media concentration
safeguards without even considering whether there is a link between
increasing media consolidation and increasing indecency. Such links have
been shown in studies and testified to by a variety of expert witnesses.
The record clearly demonstrates that an overwhelming number of the
Commission's indecency citations have gone to a few huge media
conglomerates. One recent study showed that the four largest radio
station groups which controlled just under half the radio audience were
responsible for a whopping 96 percent of the indecency fines levied by the
FCC from 2000 to 2003.
One of the reasons for the huge volume of complaints about excessive sex
and graphic violence in the programming we are fed may be that people feel
increasingly divorced from their "local" media. They believe the media no
longer respond to their local communities. As media conglomerates grow
ever larger and station control moves farther away from the local
community, community standards seem to count for less when programming
decisions are made. Years ago we had independent programming created from
a diversity of sources. Networks would then decide which programming to
distribute. Then local affiliates would independently decide whether to
air that programming. This provided some real checks and balances.
Nowadays so many of these decisions are made by vertically-integrated
conglomerates headquartered far away from the communities they are
supposed to be serving--entities that all too often control both the
distribution and the production content of the programming.
If heightened media consolidation is indeed a source for the violence and
indecency that upset so many parents, shouldn't the Commission be cranking
that into its decisions on further loosening of the ownership rules? I
hope the Commission, before voting again on loosening its media
concentration protections, will finally take a serious look at this link
and amass a credible body of evidence and not act again without the facts,
as it did in 2003.
Second, a number of these complaints concern graphic broadcast violence.
The Commission states that it has taken comment on this issue in another
docket. It is time for us to step up to the plate and tackle the issue of
violence in the media. The U.S. Surgeon General, the American Academy of
Pediatrics, the American Psychological Association, the American Medical
Association, and countless other medical and scientific organizations that
have studied this issue have reached the same conclusion: exposure to
graphic and excessive media violence has harmful effects on the physical
and mental health of our children. We need to complete this proceeding.
STATEMENT OF
Commissioner Jonathan S. Adelstein
Concurring
Re: Complaints Against Various Television Licensees Concerning Their
February 1, 2004 Broadcast of the Super Bowl XXXVIII Halftime Show,
Forfeiture Order
I have sworn an oath to uphold the Constitution and to carry out the laws
adopted by Congress. Trying to find a balance between these obligations
has been challenging in many of the indecency cases that I have decided. I
believe it is our duty to regulate the broadcast of indecent material to
the fullest extent permissible by the Constitution because safeguarding
the well-being of our children is a compelling national interest. I
therefore have supported efforts to step up our enforcement of indecency
laws since I joined the Commission.
The Commission's authority to regulate indecency over the public airwaves
was narrowly upheld by the Supreme Court with the admonition that we
should exercise that authority with the utmost restraint, lest we inhibit
constitutional rights and transgress constitutional limitations on
government regulation of protected speech. Given the Court's guidance in
Pacifica, the Commission has repeatedly stated that we would judiciously
walk a "tightrope" in exercising our regulatory authority. Hence, within
this legal context, a rational and principled "restrained enforcement
policy" is not a matter of mere regulatory convenience. It is a
constitutional requirement.
Accordingly, I concur with today's Super Bowl Order, but concur in part
and dissent in part with the companion Omnibus Order because, while in
some ways today's Omnibus decision goes too far, in other ways it does not
go far enough. Significantly, it abruptly departs from our precedents by
adopting a new, weaker enforcement mechanism that arbitrarily fails to
assess fines against broadcasters who have aired indecent material.
Additionally, while today's Omnibus decision appropriately identifies
violations of our indecency laws, not every instance determined to be
indecent meets that standard.
We have previously sought to identify all broadcasters who have aired
indecent material, and hold them accountable. In the Omnibus Order,
however, the Commission inexplicably fines only the licensee whose
broadcast of indecent material was the subject of a viewer's complaint,
even though we know millions of other Americans were exposed to the
offending broadcast. I cannot find anywhere in the law that Congress told
us to apply indecency regulations only to those stations against which a
complaint was specifically lodged. The law requires us to prohibit the
broadcast of indecent material, period. This means that we must enforce
the law anywhere we determine it has been violated. It is willful
blindness to decide, with respect to network broadcasts we know aired
nationwide, that we will only enforce the law against the local station
that happens to be the target of viewer complaints. How can we impose a
fine solely on certain local broadcasters, despite having repeatedly said
that the Commission applies a national indecency standard - not a local
one?
The failure to enforce the rules against some stations but not others is
not what the courts had in mind when they counseled restraint. In fact,
the Supreme Court's decision in Pacifica was based on the uniquely
pervasive characteristics of broadcast media. It is patently arbitrary to
hold some stations but not others accountable for the same broadcast. We
recognized this just two years ago in Married By America. The Commission
simply inquired who aired the indecent broadcast and fined all of those
stations that did so.
In the Super Bowl XXXVIII Halftime Show decision, we held only those
stations owned and operated by the CBS network responsible, under the
theory that the affiliates did not expect the incident and it was
primarily the network's fault. I dissented in part to that case because I
believed we needed to apply the same sanction to every station that aired
the offending material. I raise similar concerns today, in the context of
the Omnibus Order.
The Commission is constitutionally obligated to decide broadcast indecency
and profanity cases based on the "contemporary community standard," which
is "that of the average broadcast viewer or listener." The Commission has
explained the "contemporary community standard," as follows:
We rely on our collective experience and knowledge, developed through
constant interaction with lawmakers, courts, broadcasters, public interest
groups and ordinary citizens, to keep abreast of contemporary community
standards for the broadcast medium.
I am concerned that the Omnibus Order overreaches with its expansion of
the scope of indecency and profanity law, without first doing what is
necessary to determine the appropriate contemporary community standard.
The Omnibus Order builds on one of the most difficult cases we have ever
decided, the Golden Globe Awards case, and stretches it beyond the limits
of our precedents and constitutional authority. The precedent set in that
case has been contested by numerous broadcasters, constitutional scholars
and public interest groups who have asked us to revisit and clarify our
reasoning and decision. Rather than reexamining that case, the majority
uses the decision as a springboard to add new words to the pantheon of
those deemed to be inherently sexual or excretory, and consequently
indecent and profane, irrespective of their common meaning or of a
fleeting and isolated use. By failing to address the many serious concerns
raised in the reconsideration petitions filed in the Golden Globe Awards
proceeding, before prohibiting the use of additional words, the Commission
falls short of meeting the constitutional standard and walking the
tightrope of a restrained enforcement policy.
This approach endangers the very authority we so delicately retain to
enforce broadcast decency rules. If the Commission in its zeal oversteps
and finds our authority circumscribed by the courts, we may forever lose
the ability to protect children from the airing of indecent material,
barring an unlikely constitutional amendment setting limitations on the
First Amendment freedoms.
The perilous course taken today is evident in the approach to the
acclaimed Martin Scorsese documentary, "The Blues: Godfathers and Sons."
It is clear from a common sense viewing of the program that coarse
language is a part of the culture of the individuals being portrayed. To
accurately reflect their viewpoint and emotions about blues music requires
airing of certain material that, if prohibited, would undercut the ability
of the filmmaker to convey the reality of the subject of the documentary.
This contextual reasoning is consistent with our decisions in Saving
Private Ryanand Schindler's List.
The Commission has repeatedly reaffirmed, and the courts have consistently
underscored, the importance of content and context. The majority's
decision today dangerously departs from those precedents. It is certain to
strike fear in the hearts of news and documentary makers, and broadcasters
that air them, which could chill the future expression of constitutionally
protected speech.
We should be mindful of Justice Harlan's observation in Cohen v.
California. Writing for the Court, he observed:
[W]ords are often chosen as much for their emotive as their cognitive
force. We cannot sanction the view that the Constitution, while solicitous
of the cognitive content of individual speech, has little or no regard for
that emotive function which, practically speaking, may often be the more
important element of the overall message sought to be communicated.
Given all of these considerations, I find that the Omnibus Order, while
reaching some appropriate conclusions both in identifying indecent
material and in dismissing complaints, is in some ways dangerously off the
mark. I cannot agree that it offers a coherent, principled long-term
framework that is rooted in common sense. In fact, it may put at risk the
very authority to protect children that it exercises so vigorously.
STATEMENT OF
COMMISSIONER DEBORAH TAYLOR TATE
Re: Complaints Against Various Television Licensees Concerning Their
February 1, 2004 Broadcast of the Super Bowl XXXVIII Halftime Show,
Forfeiture Order; Complaints Regarding Various Television Broadcasts
Between February 2, 2002 and March 8, 2005, Notices of Apparent Liability
and Memorandum Opinion and Order; Complaints Against Various Television
Licensees Concerning Their December 31, 2004 Broadcast of the Program
"Without A Trace", Notice of Apparent Liability for Forfeiture
Today marks my first opportunity as a member of the Federal Communications
Commission to uphold our responsibility to enforce the federal statute
prohibiting the airing of obscene, indecent or profane language. To be
clear - I take this responsibility very seriously. Not only is this the
law, but it also is the right thing to do.
One of the bedrock principles of the Communications Act of 1934, as
amended, is that the airwaves belong to the public. Much like public
spaces and national landmarks, these are scarce and finite resources that
must be preserved for the benefit of all Americans. If numbers are any
indication, many Americans are not happy about the way that their airwaves
are being utilized. The number of complaints filed with the FCC reached
over one million in 2004. Indeed, since taking office in January 2006, I
have received hundreds of personal e-mails from people all over this
country who are unhappy with the content to which they - and, in
particular, their families - are subjected.
I have applauded those cable and DBS providers for the tools they have
provided to help parents and other concerned citizens filter out
objectionable content. Parental controls incorporated into cable and DBS
set-top boxes, along with the V-Chip, make it possible to block
programming based upon its content rating. However, these tools, even when
used properly, are not a complete solution. One of the main reasons for
that is because much of the content broadcast, including live sporting
events and commercials, are not rated under the two systems currently in
use.
I also believe that consumers have an important role to play as well.
Caregivers - parents, in particular - need to take an active role in
monitoring the content to which children are exposed. Even the most
diligent parent, however, cannot be expected to protect their children
from indecent material broadcast during live sporting events or in
commercials that appear during what is marketed to be "appropriate"
programming.
Today, we are making significant strides toward addressing the backlog of
indecency complaints before this agency. The rules are simple - you break
them and we will enforce the law, just as we are doing today. Both the
public and the broadcasters deserve prompt and timely resolution of
complaints as they are filed, and I am glad to see us act to resolve these
complaints. At the same time, however, I would like to raise a few
concerns regarding the complaints we address in these decisions.
First, I would like to discuss the complaint regarding the 6:30 p.m.
Eastern Daylight Time airing of an episode of The Simpsons. The Order
concludes that this segment is not indecent, in part because of the fact
that The Simpsons is a cartoon. Generally speaking, cartoons appeal to
children, though some may cater to both children and adults
simultaneously. Nevertheless, the fact remains that children were
extremely likely to have been in the viewing audience when this scene was
broadcast. Indeed, the marketing is aimed at children. If the scene had
involved real actors in living color, at 5:30 p.m. Central Standard Time,
I wonder if our decision would have been different? One might argue that
the cartoon medium may be a more insidious means of exposing young people
to such content. By their very nature, cartoons do not accurately portray
reality, and in this instance the use of animation may well serve to
present that material in a more flattering light than it would if it were
depicted through live video. I stop short of disagreeing with our decision
in this case, but note that the animated nature of the broadcast, in my
opinion, may be cause for taking an even closer look in the context of our
indecency analysis.
Second, our conclusion regarding the 9:00 p.m. Central Standard Time
airing of an episode of Medium in which a woman is shot at point-blank
range in the face by her husband gives me pause. While I agree with the
result in this case, I question our conclusion that the sequence
constitutes violence per se and therefore falls outside the scope of the
Commission's definition of indecency. Without question, this scene is
violent, graphically so. Moreover, it is presented in a way that appears
clearly designed to maximize its shock value. And therein lies my concern.
One of the primary ways that this scene shocks is that it leads the viewer
to believe that the action is headed in one direction - through dialogue
and actions which suggest that interaction of a sexual nature is about to
occur - and then abruptly erupts in another - the brutally violent
shooting of a wife by her husband, in the head, at point-blank range. Even
though the Commission's authority under Section 1464 is limited to
indecent, obscene, and profane content, and thus does not extend to
violent matter, the use of violence as the "punch line" of titillating
sexual innuendo should not insulate broadcast licensees from our
authority. To the contrary, the use of sexual innuendo may, depending on
the specific case, subject a licensee to potential forfeiture, regardless
of the overall violent nature of the sequence in which such sexual
innuendo is used.
* * *
Finally, I would like to express my hope and belief that the problem of
indecent material is one that can be solved. Programmers, artists,
writers, broadcasters, networks, advertisers, parents, public interest
groups, and, yes, even Commissioners can protect two of our country's most
valuable resources: the public airwaves and our children's minds. We must
take a stand against programming that robs our children of their innocence
and constitutes an unwarranted intrusion into our homes. By working
together, we should promote the creation of programming that is not just
entertaining, but also positive, educational, healthful, and, perhaps,
even inspiring.
47 U.S.C. S 503(b); 47 C.F.R. S 1.80.
The Appendix is an updated version of Appendix A from the Notice of
Apparent Liability in this proceeding. See Complaints Against Various
Television Licensees Concerning Their February 1, 2004, Broadcast of the
Super Bowl XXXVIII Halftime Show, Notice of Apparent Liability, 19 FCC Rcd
19230 (2004) (the "NAL"). The NAL was directed to Viacom, Inc., which was
the ultimate corporate parent company of the licensees in question at that
time. As of December 31, 2005, Viacom, Inc. effected a corporate
reorganization in which the name of the ultimate parent company of the
licensees of the CBS Stations was changed to CBS Corporation. Accordingly,
we generally refer to the company herein as CBS even for periods preceding
the reorganization. As part of the reorganization, certain non-broadcast
businesses, including MTV Networks, were transferred to a new company
named Viacom Inc. At the time of the violations, however, the CBS Stations
and MTV Networks were corporate affiliates under common control.
47 C.F.R. S 73.3999.
We note that viewers in markets served by each of the CBS Stations filed
complaints with the Commission concerning the February 1, 2004 broadcast
of the Super Bowl XXXVIII halftime show.
See Letter from William D. Freedman, Deputy Chief, Investigations and
Hearings Division, Enforcement Bureau, Federal Communications Commission,
to Howard Jaeckel, Vice President and Associate General Counsel, CBS,
dated February 2, 2004; Letter from William D. Freedman, Deputy Chief,
Investigations and Hearings Division, Enforcement Bureau, Federal
Communications Commission, to Robert Corn-Revere, Esquire, dated February
10, 2004.
See Letter from Robert Corn-Revere, Esquire to William D. Freedman, Deputy
Chief, Investigations and Hearings Division, Enforcement Bureau, Federal
Communications Commission, dated February 3, 2004.
Letter from Robert Corn-Revere, Esquire to William D. Freedman, Deputy
Chief, Investigations and Hearings Division, Enforcement Bureau, Federal
Communications Commission, dated February 10, 2004 (the "CBS Interim
Response").
Letter from James S. Blitz, Esquire to William D. Freedman, Deputy Chief,
Investigations and Hearings Division, Enforcement Bureau, Federal
Communications Commission, dated February 14, 2004.
Letter from Susanna M. Lowy, Esquire to William D. Freedman, Deputy Chief,
Investigations and Hearings Division, Enforcement Bureau, Federal
Communications Commission, dated March 16, 2004 (the "CBS Response").
Although many of CBS's responses to the LOI's inquiries are contained in
both the CBS Interim Response and the CBS Response, for purposes of
simplicity, unless otherwise noted, references herein will be to the
latter. CBS requested confidential treatment of the bulk of the materials
attached to its Response, including electronic mail and other documents
relevant to the planning of the halftime show. We do not rule on CBS's
request at this time because it is unnecessary to do so for purposes of
this Order. Consistent with the request, however, we limit ourselves to
describing or characterizing the substance of the materials and providing
record citations herein, rather than actually quoting the materials or
otherwise incorporating them into the Order. The Confidential Appendix,
however, contains quotations to various documents in the record.
Broadcast Videotape. See also CBS Response, Ex. 9 at 7-10;
www.azlyrics.com/lyrics/janetjackson/allforyou.html.
These sexual references include the lyrics "I was like good gracious ass
bodacious . . . I'm waiting for the right time to shoot my steam (you
know)" and "[i]t's gettin' hot in here (so hot), so take off all your
clothes (I am gettin' so hot)" in the Nelly song "Hot in Herre." Broadcast
Videotape. See also CBS Response, Ex. 9 at 16, 18;
www.lyricsstyle.com/n/nelly/hotinherre.html.
Broadcast Videotape. See also CBS Response, Ex. 9 at 36-37;
www.lyricsondemand.com/j/justintimberlakelyrics/rockyourbodylyrics.html.
Broadcast Videotape.
See 18 U.S.C. S 1464; 47 C.F.R. S 73.3999; and 47 U.S.C. S 503(b).
See 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, 8002, P 7 (2001) ("Indecency Policy
Statement").
NAL, 19 FCC Rcd at 19235, P 11.
The "contemporary standards for the broadcast medium" criterion is that of
an average broadcast listener and does not encompass any particular
geographic area. Indecency Policy Statement, 16 FCC Rcd at 8002, P 8 and
n. 15. CBS suggests that we should rely on third-party public opinion
polls to determine whether the material is patently offensive as measured
by contemporary community standards for the broadcast medium. Opposition
at 33-34. In determining whether material is patently offensive, we do not
rely on polls, but instead apply the three-pronged contextual analysis
described in the text. CBS provides no legal support for a departure from
that approach.
NAL, 19 FCC Rcd at 19235, P 12, quoting Indecency Policy Statement, 16 FCC
Rcd at 8002, P 9 (emphasis in original).
Indecency Policy Statement, 16 FCC Rcd at 8002-15, PP 8-23.
NAL, 19 FCC Rcd at 19235, P 12, quoting Indecency Policy Statement, 16 FCC
Rcd at 8003, P 10.
NAL, 19 FCC Rcd at 19235, P 12; Indecency Policy Statement, 16 FCC Rcd at
8009, P 19 (citing Tempe Radio, Inc. (KUPD-FM), 12 FCC Rcd 21828 (Mass
Media Bur. 1997) (forfeiture paid), and EZ New Orleans, Inc. (WEZB(FM)),
12 FCC Rcd 4147 (Mass Media Bur. 1997) (forfeiture paid), which found that
the extremely graphic or explicit nature of references to sex with
children outweighed the fleeting nature of the references.
NAL, 19 FCC Rcd at 19235, P 12; Indecency Policy Statement, 16 FCC Rcd at
8010, P 20 (noting that "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.")
NAL, 19 FCC Rcd at 19235-36, PP 12-14.
Id. at 19236-40, PP 16-24. The Commission recently amended its rules to
increase the maximum penalties to account for inflation since the last
adjustment of the penalty rates. However, the new rates apply to
violations that occur or continue after September 7, 2004, and therefore
do not apply here. See Amendment of Section 1.80(b) of the Commission's
Rules, Adjustment of Forfeiture Maxima to Reflect Inflation, Order, 19 FCC
Rcd 10945, 10946, P 6 (2004).
Id., 19 FCC Rcd at 19240-41, P 25.
"Opposition to Notice of Apparent Liability for Forfeiture" by CBS, dated
November 5, 2004 ("Opposition"). In addition to CBS's Opposition, we also
received filings from non-parties to this proceeding that we are treating
as filings by amici curiae. One such filing is a "Petition for Partial
Reconsideration of Notice of Apparent Liability for Forfeiture" submitted
by Saga Quad States Communications, LLC, and Saga Broadcasting, LLC, which
argues that the NAL improperly imposes a new requirement on network
affiliate stations to employ delay technology to prescreen network feeds.
The NAL urges such licensees to take reasonable precautions to prevent the
broadcast of indecent programming over their stations, but this is not a
new requirement. See NAL, 19 FCC Rcd at 19241, P 25. See also Complaints
Against Various Licensees Regarding Their Broadcast of the Fox Network
Program "Married by America" on April 7, 2003, Notice of Apparent
Liability for Forfeiture, 19 FCC Rcd 20191 (2004) ("Married by America")
(response pending); 47 C.F.R. S 73.658(e)(1) (prohibiting television
stations from entering into arrangements with networks that restrict their
right to reject programming that the stations reasonably believe to be
unsatisfactory or unsuitable or contrary to the public interest). Another
such filing by Litigation Recovery Trust ("LRT") is styled a "Petition for
Reconsideration" but fails to meet the requirements of Section 1.106(b)(1)
of our rules for petitions for reconsideration by non-parties. First, a
petition for reconsideration of a Notice of Apparent Liability is not
appropriate under Section 1.106(b)(1) because such action is only a
notice, not a Commission decision that is subject to reconsideration.
Furthermore, even if a petition for reconsideration were appropriate here,
LRT does not make the showings required under that rule that a non-party
"state with particularity the manner in which the person's interest are
adversely affected by the action taken, and show good reason why it was
not possible for him to participate in the earlier stages of the
proceeding." 47 C.F.R. S 1.106(b)(1). In substance, LRT's filing is a
supplement to a prior request for rulemaking on a matter that is outside
the scope of, and is not affected by, this decision.
Opposition at 11. CBS does take issue with the NAL's statement that the
nudity lasted for 19/32 of a second, stating that the actual time was 9/16
of a second. Id. at 11 n. 7. We accept CBS's determination as to the
duration, but we find no practical difference here. We also note that the
brevity of the image is considered in connection with just one of three
contextual factors, and no single factor is dispositive. See Indecency
Policy Statement, 16 FCC Rcd at 8003, P 10 ("Each indecency case presents
its own particular mix of these [three], and possibly other, factors,
which must be balanced to ultimately determine whether the material is
patently offensive and therefore indecent. No single factor generally
provides the basis for an indecency finding.").
Opposition at 13-34.
Id. at 35-38.
Id. at 44-77.
Indecency Policy Statement, 16 FCC Rcd at 8002, P 7.
NAL, 19 FCC Rcd at 19235, P 11.
Indecency Policy Statement, 16 FCC Rcd at 8002, P 9 (emphasis in
original).
See, e.g., Young Broadcasting of San Francisco, Inc., Notice of Apparent
Liability for Forfeiture, 19 FCC Rcd 1751, 1755-57 (2004) ("Young
Broadcasting") (response pending) (Commission makes an assessment of the
entire segment of a morning news program involving an interview of and
demonstration by cast members from a "Puppetry of the Penis" stage
production in which adult male nudity was aired for less than a second (PP
11-13); and distinguishes an earlier case involving non-fleeting adult
frontal nudity in a broadcast of Schindler's List based on "the full
context of its presentation, including the subject matter of the film
[World War II and wartime atrocities], the manner of presentation, and the
warnings that accompanied the broadcast of the film" (P 14)).
We note that, although Jackson wore a piece of jewelry on her nipple, it
only partially covered her nipple and did not cover her breast.
Opposition at 21.
NAL, 19 FCC Rcd at 19235, P 13 and n. 42. CBS attempts to distinguish
Young Broadcasting from this case. See Opposition at 19-20. However, CBS's
analysis focuses on the foreseeability of the nudity in that case as
compared to this case. As discussed below, foreseeability and
premeditation relate to whether the broadcast of indecent matter was
willful, and not to whether the material is graphic and explicit.
See Opposition at 25 n.35. See also id. at 22. We agree that the exposure
of Jackson's breast was not in the official script submitted by CBS, but
CBS has not shown that it was unplanned. Clearly, the "costume reveal"
that led to the exposure of the breast was at least planned by the
performers (Jackson and Timberlake) and their choreographer, Gil Duldulao,
who were hired by CBS for the halftime show. Timberlake's Declaration
disavows any knowledge on his part that the costume reveal would lead to
exposure of Jackson's breast, but Jackson's statement does not address her
knowledge or intentions, and Duldulao did not provide a statement. See CBS
Response, Ex. 7 and Ex. 8.
CBS compares this case to a decision that it claims involves programming
that is "considerably more explicit and clearly premeditated," in which
the Commission imposed a base forfeiture rather than the maximum
forfeiture imposed in this case. See Opposition at 22-23, citing Married
by America. The appropriate level of the forfeiture is best addressed in a
subsequent section, but at this point we note that the case cited involved
a program in which certain body parts were digitally obscured by
pixilation to avoid a display of partial nudity such as that aired by CBS
to a national audience in this case. Thus, that case is not a particularly
useful precedent in determining whether the material at issue here is
graphic and explicit.
CBS argues that our recent dismissals of complaints about programming that
we found not to be graphic or explicit requires a similar decision here.
Opposition at 23-25, citing KSAZ Licensee, Inc., Memorandum Opinion and
Order, 19 FCC Rcd 15999 (2004), and Complaints Against Various Broadcast
Licensees Regarding Their Airing of the UPN Network Program "Buffy the
Vampire Slayer" on November 20, 2001, Memorandum Opinion and Order, 19 FCC
Rcd 15995 (2004). Neither case is apposite here because neither program
included nudity. The other cases cited by CBS are inapposite for the same
reason. See Opposition at 23-24.
See NAL, 19 FCC Rcd at 19236, P 14.
Indecency Policy Statement, 16 FCC Rcd at 8009, P 19. See also Young
Broadcasting; Tempe Radio, Notice of Apparent Liability, 12 FCC Rcd 21828
(Mass Media Bur. 1997) (paid); LBJS Broadcasting, Notice of Apparent
Liability, 13 FCC Rcd. 20956 (Mass Media Bur. 1998) (paid).
Indecency Policy Statement, 16 FCC Rcd at 8010, P20.
NAL, 19 FCC Rcd at 19236 n. 44. The NAL stated that "the nudity here was
designed to pander to, titillate and shock the viewing audience." Id. at P
14. To the extent that the language in the NAL could be interpreted to
suggest that the broadcaster's state of mind is a decisional factor, we
wish to clarify that this is not the case. Our Indecency Policy Statement
frames this factor as "whether the material appears to pander or is used
to titillate, or whether the material appears to have been presented for
its shock value." Indecency Policy Statement, 19 FCC Rcd at 8003, P 10
(emphasis in original). In making this determination, we focus on the
material that was broadcast and its manner of presentation, not on the
state of mind of the broadcaster or performer. See Young Broadcasting, 19
FCC Rcd at 1755-57, PP 13-14.
NAL, 19 FCC Rcd at 19236, P 14.
Timberlake sang the lyrics: "I've been watching you, I like the way you
move, so go `head and girl just do that ass-shakin' thing you do . . . I
wanna rock your body, let me rock your body." Broadcast Videotape. See
also CBS Response, Ex. 9 at 36-37;
http://www.lyricsondemand.com/j/justintimberlakelyrics/rockyourbodylyrics.html.
Indeed, CBS appears to concede that it was shocking, but maintains that
"the `costume reveal' was as much a shock to Viacom as to everyone else."
Opposition at iii.
See CBS Response at Ex. 7 and Ex. 8. Whether this nudity was planned or
foreseeable by CBS and the stations that broadcast it is a distinct issue
that is addressed below in the discussion of the "willfulness" factor.
47 C.F.R. S 73.3999.
See Opposition at 37-38.
The Conference Report to the 1982 amendment to the Act that added this
definition stated: "Willful means that the licensee knew he was doing the
act in question, regardless of whether there was an intent to violate the
law." H.R. Rep. No. 97-765, 97^th Cong. 2d Sess. 51 (1982). The Conference
Report also makes it clear that this definition applies to section 503(b)
of the Act as well as section 312. See Southern California Broadcasting
Co., Memorandum Opinion and Order, 6 FCC Rcd 4387, 4388 (1991). CBS
initially acknowledges that "the Commission has held that in order to
satisfy the willfulness requirement, the purported offender need not
intend to violate the Act or an FCC rule, or even be aware the action in
question constitutes a violation." Opposition at 36. Yet on the next page
of its Opposition it urges us to apply criminal cases in which the
scienter requirement has been held to require "an act done with a bad
purpose" or an "evil motive." Id. at 37. Clearly, those cases have no
application in interpreting the willfulness requirement in a regulatory
statute authorizing the imposition of administrative sanctions. We
disagree with CBS's contention that criminal law definitions of "willful"
are apt because 18 U.S.C. S 1464 is a criminal statute. Id. In Pacifica,
the Supreme Court declined to consider questions relating to possible
application of section 1464 as a criminal statute in upholding a broadcast
indecency forfeiture imposed by the Commission. FCC v. Pacifica
Foundation, 438 U.S. 726, 739 n.13 (1978) ("the validity of the civil
sanctions [authorized under the Act] is not linked to the validity of the
criminal penalty."). Likewise, we reject CBS's suggestion that the First
Amendment requires statutes imposing civil penalties on speech to be
interpreted to include the same scienter requirement as those imposing
criminal penalties. Opposition at 38, citing United States v. X-Citement
Video, Inc., 513 U.S. 64, 77-78 (1994), Smith v. California, 361 U.S. 147
(1959), and United States v. Reilly, 2002 WL 31307170 (S.D.N.Y. 2002).
We note that application of this standard to CBS does not "impose a strict
liability requirement on protected speech." Opposition at 38, citing Gertz
v. Robert Welch, Inc., 418 U.S. 323 (1974). The Supreme Court held in
Gertz that "the States should retain substantial latitude in their efforts
to enforce a legal remedy for defamatory falsehood injurious to the
reputation of a private individual," so long as they do not impose
liability without fault. Id. at 345-46. As discussed infra, CBS clearly is
at fault for broadcasting actionably indecent material during the Super
Bowl telecast. We also note that CBS's reliance on Saxe v. State College,
240 F.3d 200, 206 (3d Cir. 2001), as holding that willful indifference is
a legally insufficient basis for punishing speech, is misplaced. See
Opposition at 38. Saxe held that a school district policy prohibiting
"harassing" speech was unconstitutionally overbroad because it was not
limited to vulgar or lewd speech or school-sponsored speech, and was not
necessary to prevent substantial disruption or interference with the
rights of students or the conduct of the school. The court did not address
the intent required to impose liability for expressive speech or conduct
under the First Amendment.
Crowell-Collier Broadcasting Corp., Memorandum Opinion and Order, 44 FCC
2444, 2449 (1961) (violation due to erroneous advice from the station's
competent engineering consultant warrants a forfeiture).
Report and Statement of Policy re: Commission en banc Programming Inquiry,
44 FCC Rcd 2303, 2313 (1960). See also Yale Broadcasting Co. v. FCC, 478
F.2d 594 (D.C. Cir. ), cert. denied, 414 U.S. 914 (1973) (affirmed action
of Commission reminding broadcast licensees of their duty to have
knowledge of the content of their programming and on the basis of this
knowledge to evaluate the desirability of broadcasting music dealing with
drug use); Gaffney Broadcasting, Inc., 23 FCC 2d 912, 913 (1970)
("licensees are responsible for the selection and presentation of program
material over their stations, including . . . acts or omissions of their
employees"); Alabama Educational Television Commission, 50 FCC 2d 461, 464
(1975) (AETC lost its license in part because it failed to maintain
exclusive authority over all of its programming decisions); WCHS-AM-TV
Corp., 8 FCC 2d 608, 609 (1967) (maintenance of control over programming
is a most fundamental obligation of the licensee).
Opposition at iii.
See, e.g., CBS Response, App. B-C at Bates stamped pgs. 18, 176, 219, 314,
1175, 1229, 1456. See also Super Bowl NAL, 19 FCC Rcd at 19238-39 P 19
(discussing MTV's promotion of the sexually-provocative nature of the
halftime show by, inter alia, posting on its website a news item entitled
"Janet Jackson's Super Bowl Show Promises `Shocking Moments,'" which
quoted her choreographer Gil Dulduleo's prediction that her performance
would include "some shocking moments."). Confidential Appendix 1.
See CBS Response, App. B at Bates stamped pgs. 72, 96, 195, 218-19.
Confidential Appendix 2.
See CBS Response, App. B at Bates stamped pgs. 123, 355, 447. Confidential
Appendix 3.
Opposition at 18. See CBS Response at 9 (stating that Jackson and
Timberlake were "proven, experienced talent").
See CBS Response, App. B at Bates stamped p. 72. Confidential Appendix 4.
See CBS Response, App. B at Bates stamped pgs. 39, 452-54. Confidential
Appendix 5. Cf. CBS Radio License, Inc. (WLLD(FM)), Notice of Apparent
Liability for Monetary Forfeiture, 15 FCC Rcd 23881, 23883, P 8 (Enf. Bur.
2000) (given licensee's awareness of the actual language used in
performers' recordings, it should have taken precautions to avoid airing
actionably indecent material during a live, unscripted broadcast).
See Super Bowl NAL, 19 FCC Rcd at 19238-39, P 19; CBS Response, App. D at
Bates stamped pgs. 2659.
See CBS Response, App. B at Bates stamped p. 462. Confidential Appendix 6.
See CBS Response, App. B at Bates stamped p. 458. Confidential Appendix
7.
See CBS Response, App. B at Bates stamped pgs. 503-04, 511, 527.
Confidential Appendix 5, 8. See also supra, P 4. The risk of departures
from the script was heightened here not only by the suggestive lyrics, but
also by the fact that the line which occasioned Jackson's nudity was the
culminating one in the script; the record reflects both the performers'
and the producers' desire for a high-impact grand finale to the show.
Confidential Appendix 9.
See Super Bowl NAL, 19 FCC Rcd at 19237, P 17 n.54, citing Complaints
Against Various Broadcast Licensees Regarding Their Airing of the "Golden
Globe Awards" Program, 19 FCC Rcd 4975, 4979 (2004) (network could have
anticipated that a recipient at a live award ceremony might use profanity
because similar mishaps had occurred in the past). CBS points out that the
Golden Globe Awards Order was released after the Super Bowl telecast,
Opposition at 19, but the issue here is whether CBS could have anticipated
an unscripted costume reveal, not whether it had notice of the Golden
Globe Awards Order.
See, e.g., supra, PP 2, 4 and n. 4.
See Opposition at 5 ("Historically, a five-second delay has been adequate
to preclude the broadcast of any spontaneous or unplanned audio material.
With such an arrangement, an individual from the broadcast standards
department monitors the transmission of a live event and manually `hits
the button' to delete any objectionable material before it is broadcast.
Although both the audio and visual transmission is delayed, five seconds
does not provide sufficient time to edit video images. Accordingly, the
precaution of a five-second delay could not prevent the broadcast of the
unexpected images at the end of the halftime show.") (emphasis added). As
indicated above, CBS also had reason to believe that its five-second audio
delay might be inadequate to edit unscripted audio material during the
halftime show. See note 63 supra and accompanying text.
CBS Response at 5.
Id. at 5, n.13.
CBS Response at 5, n.13.
CBS Response, App. B-C at Bates stamped pgs. 168-72, 431-34, 2152-2332,
2336-42, 2469. Confidential Appendix 10. CBS did not provide an executed
agreement for either Jackson or Timberlake in response to the LOI, but
none of the contract drafts provided by CBS refers to a script or to
broadcast standards and practices. The executed agreement for Jackson's
choreographer likewise contains no such references.
See Confidential Appendix 10. Because CBS's failure to take reasonable
precautions to prevent the broadcast of actionably indecent material was
conscious and deliberate, its reliance on Mega Communications of New
Britain Licensee, L.L.C., 19 FCC Rcd 11373 (Enf. Bur. 2004), is misplaced.
See Opposition at 36, n.57 ("The same result should apply here, where
Viacom took all reasonable precautions based on past experience--including
inspecting Ms. Jackson's costume--but an unforeseeable violation
nevertheless occurred."). The Bureau held in Mega that a licensee did not
commit a willful violation of the Commission's antenna structure fencing
requirements because it conducted regular inspections in compliance with
those requirements and "the problem occurred shortly after an inspection
by Mega." As the above discussion indicates, however, CBS consciously
failed to prevent the airing of indecent material. Moreover, the Mega case
is distinguishable because it involved actions by a third party, not the
licensee. Vernon Broadcasting, Inc., Memorandum Opinion and Order, 60 RR
2d 1275 (1986), illustrates this distinction. In Vernon, the Commission
rescinded a forfeiture liability for a tower fencing violation as not
willful, while affirming a liability for an unintentional violation of the
public file rule. The distinction between the two situations was that the
damage to the fence was caused by vandals, despite the station's regular
process of inspections and repairs, whereas the public file violation
arose from the station's own actions.
See note 62 supra and accompanying text. CBS maintains that it
interpreted the "shocking moments" quote innocently, stating that it
believed the quote referred to Timberlake's surprise guest appearance, and
that it "did not stand out because such hyperbolic language is not
uncommon in the music world." Opposition at 7-8. As the Commission has
indicated, CBS's explanation lacks credibility. See NAL, 19 FCC Rcd at
19239, n.64 ("at the start of the halftime segment, MTV included an
onscreen credit for Timberlake, hardly a disclosure that would be made ten
minutes before his appearance, had his participation in the program been
the `shocking moments' that it had publicized for days on its Internet
site."). CBS's explanation also is dubious in light of the fact that the
quote referred to "moments" in the plural, whereas it would have been
expected to refer to a "moment" if it only concerned Timberlake's
appearance. CBS has never provided a statement from Jackson's
choreographer to explain what he meant by the quote. But even accepting
CBS's argument that the choreographer's comment may have been innocent
hyperbole, it should at least have caused CBS to look into the matter,
given the level of concern at CBS and the NFL about the edgy lyrics and
the possibility of inappropriate script departures. CBS gives no
indication that it did so.
Opposition at 4. See CBS Response at 9-10.
See CBS Response, App. B at Bates stamped p. 458.
See CBS Response at 9, App. B at Videotapes 6, 8 (Jackson/Timberlake Dress
Rehearsal).
47 U.S.C. S 503(b)(1); 47 U.S.C. S 312(f).
Meyer v. Holley, 537 U.S. 280, 285 (2003) (citations omitted).
See Dial-a-Page, Inc., 8 FCC Rcd 2767 (1993), recon. den., 10 FCC Rcd 8825
(1995) (rule violation resulting from employee error was fully
attributable to licensee under doctrine of respondeat superior and
"willful" within the meaning of S 503(b)(1)); Wagenvoord Broadcasting Co.,
35 FCC 2d 361 (1972); Eure Family Ltd. Partnership, 17 FCC Rcd 7042, 7044
P 7 (Enf. Bur. 2002) ("it is a basic tenet of agency law that the actions
of an employee or contractor are imputed to the employer and `the
Commission has consistently refused to excuse licensees from forfeiture
penalties where actions of employees or independent contractors have
resulted in violations.'").
Restatement (Second) of Agency S 219(1) (1957) (2^nd Restatement). See
also Restatement (Third) of Agency S 7.07 (T.D. No. 5 2004) (3^rd
Restatement).
2^nd Restatement S 220. See also 3^rd Restatement S 7.07.
2^nd Restatement S 228.
CBS Response at Att. 8 ("At the end of the song, I attempted to perform a
`costume reveal' by removing a portion of Ms. Jackson's costume and
revealing the undergarment beneath. I had neither the intention nor the
knowledge that the reveal could expose her right breast. The decision to
add the `costume reveal' to the finale was made by Ms. Jackson and her
choreographer after final rehearsals for the Halftime Show. They informed
me just before the performance began.").
See CBS Response, App. B-C at Bates stamped pgs. 168-72, 431-34,
2152-2332, 2336-42; 2^nd Restatement S 1 ("Agency is a legal concept which
depends upon the existence of required factual elements: the manifestation
by the principal that the agent shall act for him, the agent's acceptance
of the undertaking and the understanding of the parties that the principal
is to be in control of the undertaking."), cited in Meyer v. Holley, 537
U.S. at 286.
CBS Response at 9-10. Although CBS had the right to exercise control over
the halftime show, and in fact exercised considerable control, there were,
as discussed above, significant lapses in the level of care that it
exercised in overseeing the halftime production. See para. 17-22. Those
lapses in supervision do not, however, negate the fact that the
performances were subject to CBS's control and that CBS was thus
vicariously responsible for the performers' actions within the scope of
their employment under the doctrine of respondeat superior. See note 87
infra.
Id. at Bates-stamped pgs. 168-72, 431-34, 2336-42. See 2^nd Restatement S
220; 3^rd Restatement S 7.07 (relevant factual indicia of control include
"whether the agent or the principal supplies the tools and other
instrumentalities required for the work and the place in which to perform
it").
See P.T. Barnum's Nightclub v. Duhamell, 766 N.E.2d 729 (Ind.App. 2002)
(referring to 2^nd Restatement factors in affirming denial of summary
judgment as to whether male exotic dancer was an employee for respondeat
superior purposes where "the Club exercised some degree of control over
Ajishegiri's work, particularly with regard to work hours, conditions, and
regulations, and was in the business of displaying adult entertainers
(primarily female), but did not dictate the stylistic aspects of
Ajishegiri's performance"); White v. Frenkel, 615 So.2d 535, 538-40 (La.
App. 3 Cir. 1993) (professional wrestler was employee for respondeat
superior purposes where, inter alia, promoter controlled who would win and
who would lose wrestler's matches and had total control over who, where,
and when wrestler wrestled); Jeffcoat v. State Dept. of Labor, 732 P.2d
1073, 1075-78 (Alaska 1987) (dancer was employee for purposes of state
labor statute where, inter alia, club exercised some control over costumes
and dances and total control over music and dancers' working hours); Jack
Hammer Assoc. v. Delmy Productions, Inc., 499 N.Y.S.2d 418, 419-20 (1^st
Dept. 1986) (actor was employee for purposes of determining availability
of workers' compensation benefits where actor entered into a written
contract for a stipulated sum for a term certain, time and place for his
work was determined by production company, actor had to perform in a
certain number of shows at specified times, and he had to follow a script
and was subject to supervision of play's director). New York state courts
have consistently held entertainers to be employees of the producers who
engage them. See Jack Hammer Assoc., 499 N.Y.S.2d at 419-20; Challis v.
Nat'l Producing Co., 88 N.Y.S.2d 731 (3d Dept. 1949) (circus clown);
Berman v. Barone, 88 N.Y.S.2d 327, 328 (3d Dept. 1949) (ballet dancer and
variety artist). See also In re Sims, 602 N.Y.S.2d 225 (3d Dept. 1993)
(finding a sufficient degree of direction and control by a conductor who
hired musicians for imposition of respondeat superior liability although
supervision was not direct). Here, the performers' agreements contain
choice-of-law provisions specifying New York law. CBS Response at
Bates-stamped pgs. 168-72, 431-34, 2336-42.
2^nd Restatement S 228.
3^rd Restatement S 7.07 ("an employee's conduct is outside the scope of
employment when it occurs within an independent course of conduct intended
to serve no purpose of the employer."). See also id. ("Alternative
formulations avoid the use of motive or intention to determine whether an
employee's tortious conduct falls within the scope of employment. These
tests vary somewhat in how they articulate the requisite tie between the
tortfeasor's employment and the tort. In general, such a tie is present
only when the tort is a generally foreseeable consequence of the
enterprise undertaken by the employer or is incident to it.").
Opposition at 14.
Id. at 39-40. CBS relies on section 504(c) of the Act, which provides that
the Commission may not use the issuance of a notice of apparent liability
in any other proceeding involving that person unless the forfeiture has
been paid or there is a final court order for the payment of the
forfeiture. CBS argues that the Commission not only must ignore cases in
which there has been no final adjudication, but that it must consider
CBS's long record of compliance with broadcast standards. Id. at 42.
Id. at 41-43.
Id. at 43.
See Viacom Inc., Order, 19 FCC Rcd 23100 (2004), petition for recon.
pending. In light of that Consent Decree, entered into after the NAL, we
conclude that CBS's history of past offenses is not relevant to our
analysis. We note, however, that we disagree with, and have previously
rejected, CBS's interpretation of section 504(c). We have made it clear
that the Commission may rely on the underlying facts that provide the
basis for a notice of apparent liability in a separate case. See
Forfeiture Policy Statement and Amendment of Section 1.80 of the Rules to
Incorporate the Forfeiture Guidelines, Report and Order, 15 FCC Rcd 303,
304-05, PP 3-5 (1999) ("Forfeiture Policy Statement"), recon. denied, 17
FCC Rcd 303 (1999).
See 47 U.S.C. S 503(b)(2)(D) (the Commission "shall take into account the
nature, circumstances, extent, and gravity of the violation and, with
respect to the violator, the degree of culpability, any history of prior
offenses, ability to pay, and such other matters as justice may require");
NAL, 19 FCC Rcd at 19237, P 17.
See http://www.usatoday.com/sports/football/super/2004-02-02-ratings_x.htm
(stating that Super Bowl XXXVIII was "most-watched Super Bowl in history"
with estimated 143.6 million viewers and 41.3 national rating).
See 47 C.F.R. S 1.80, Note to Paragraph (b)(4), Section II, Upward
Adjustment Criterion No. 2.
See "Viacom Takes Big Write-Down, Creating a Loss," New York Times, Feb.
25, 2005, at C1 (reporting that Viacom, Inc. took a non-cash charge for
2004 to write down the value of its assets by 27%, to $49 billion, and
that the company's revenue for the final quarter of 2004 was $6.3
billion); "While Shares Fell, Viacom Paid Three $160 Million," New York
Times, April 16, 2005, at C1 (reporting that the company's top three
executives received a total of $160 million in compensation for 2004).
See Enforcement of Prohibitions Against Broadcast Indecency, Report and
Order, 8 FCC Rcd 704 (1993), modified, 10 FCC Rcd 10558 (1995). CBS, Inc.
and Infinity Broadcasting Corporation, both of which became Viacom, Inc.
subsidiaries, submitted comments in that rulemaking proceeding. Id., 8 FCC
Rcd at 712.
Young Broadcasting, 19 FCC Rcd at 1751 (release date of January 27, 2004).
Opposition at 19, 27-28.
As we find CBS legally responsible for the indecent broadcast based on
both its own willful omission and its vicarious liability for the willful
acts of its agents under the principle of respondeat superior, we need not
address whether it could also be held responsible under Section
503(b)(1)(D) without a showing of willfulness.
Opposition at 65-77.
See ACT III, 58 F.3d at 659 (upholding the Commission's indecency
definition against facial vagueness and overbreadth challenges). CBS's
arguments about the Commission's discretion focus on the Commission's
investigatory practices in cases where a complaint is based on a
description of allegedly offensive programming, and not supported by a
tape or a transcript. Opposition at 74-76. However, those arguments have
nothing to do with this case, in which there was no dispute about what was
broadcast and in which CBS issued a public apology to viewers for the
violation of its broadcast standards. Similarly, CBS's contention about
delay in the Commission's enforcement process (Opposition at 76-77) is
irrelevant to this case. We also note that the D.C. Circuit has previously
rejected this argument. Action for Children's Television v. FCC, 59 F.3d
1249, 1261-62 (D.C. Cir. 1995) ("ACT IV"), cert. denied, 516 U.S. 1072
(1996).
Action for Children's Television v. FCC, 852 F.2d 1332, 1339 (D.C. Cir.
1988) ("ACT I") ("`serious merit' need not, in every instance, immunize
material from FCC channeling authority").
ACT IV, 59 F.3d at 1261; see ACT III, 58 F.3d at 666 ("Whatever chilling
effect 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.").
Opposition at 44-53. In making this argument, CBS generally ignores the
specific context of this case, preferring instead to opine about live
television coverage of political and other events and even to lament "the
end of live broadcasting as we know it." Id. at 48. We reiterate that our
decision is limited to the specific context of this case, which involves a
Super Bowl halftime entertainment show that was produced by CBS, using
performers selected and paid by CBS. For the reasons stated in the NAL and
in this Order, there is ample support for our conclusion that CBS failed
to take reasonable precautions to ensure that no actionably indecent
material was broadcast in this context.
Pacifica, 438 U.S. at 742 ("indecency is largely a function of context -
it cannot be adequately judged in the abstract").
Id., 438 at 750; see id. at 760-61 (Powell, J., concurring).
Id. at 750. The D.C. Circuit upheld the Commission's interpretation of
Pacifica as not imposing such limits. See ACT I, 852 F.2d at 1338
(upholding the Commission's decision to depart from its prior policy of
acting only in cases involving "the repeated use, for shock value, of
words similar to those satirized in the Carlin `Filthy Words' monologue. .
. . The FCC rationally determined that its former policy could yield
anomalous, even arbitrary, results.").
529 U.S. 803 (2000).
521 U.S. 844 (1997).
518 U.S. 717 (1996).
Opposition at 53-61.
Similarly, in Playboy, the Court distinguished broadcast services from
cable due to differences in the nature of those media. See United States
v. Playboy Entertainment Group, Inc., 529 U.S. at 815.
See Implementation of Section 551 of the Telecommunications Act of 1996,
Report and Order, 13 FCC Rcd 8232, 8242-43, P 21 (1998) (news programming,
sports programming and advertisements are not included in the V-chip
ratings system). Outside of the context of exempt programming such as
sports programming, we agree that the V-chip is an important protection,
but it does not eliminate the need for enforcing our indecency rule or
undermine the constitutionality of that rule. We note that last year, CBS
and the other major networks announced their participation with the
Advertising Council in an educational campaign designed to improve
awareness of the V-chip. The announcement stated that less than 10 percent
of all parents are using the V-chip and 80 percent of all parents who
currently own a television set with a V-chip are not aware that they have
it. See News Release, "The Advertising Council and Four Major Television
Networks Announce Unprecedented Partnership to Educate Parents About the
V-Chip," http://www.adcouncil.org/about/news_033004 (March 30, 2004). In
addition, numerous television sets in U.S. households lack V-chips.
Opposition at 53, quoting Pacifica Reconsideration Order, 59 FCC 2d at
893. See also Opposition at ix, x, 46, 48-53.
47 U.S.C. S 503(b)(1)(B); 47 C.F.R. S 1.80(a)(1).
47 U.S.C. S 503(b); 47 C.F.R. S 1.80(f).
Forfeiture Policy Statement, 12 FCC Rcd at 17113.
Id., 12 FCC Rcd at 17100-01, P 27.
47 U.S.C. S 503(b).
47 C.F.R. SS 0.311, 1.80(f)(4).
47 U.S.C. S 504(a).
See 47 C.F.R. S 1.1914.
U.S. Const., amend. I.
Congress has specifically forbidden the broadcast of obscene, indecent or
profane language. 18 U.S.C. S 1464. It has also forbidden censorship. 47
U.S.C. S 326.
See, e.g., N.Y. v. Ferber, 458 U.S. 747, 756-57 (1982).
See FCC v. Pacifica Foundation, 438 U.S. 726, 750 (1978) (emphasizing the
"narrowness" of the Court's holding); Action for Children's Television v.
FCC, 852 F.2d 1332, 1344 (D.C. Cir. 1988) ("ACT I") ("Broadcast material
that is indecent but not obscene is protected by the [F]irst
[A]mendment.").
See Brief for Petitioner, FCC, 1978 WL 206838 at *9.
ACT I, supra note 4, at 1344 ("the FCC may regulate [indecent] material
only with due respect for the high value our Constitution places on
freedom and choice in what the people say and hear."); Id. at 1340 n.14
("[T]he potentially chilling effect of the FCC's generic definition of
indecency will be tempered by the Commission's restrained enforcement
policy.").
Complaints Regarding Various Television Broadcasts Between February 2,
2002 and March 8, 2005, Notices of Apparent Liability and Memorandum
Opinion and Order (decided March 15, 2006) (hereinafter "Omnibus Order").
See, e.g., In re Sagittarius Broadcasting Corporation, Memorandum Opinion
and Order, 7 FCC Rcd 6873, 6876 (1992) (subsequent history omitted).
See Pacifica Found., 438 U.S. at 748-49 (recognizing the "uniquely
pervasive presence" of broadcast media "in the lives of all Americans").
In today's Order, paragraph 10, the Commission relies upon the same
rationale.
See Complaints Against Various Licensees Regarding Their Broadcast of the
Fox Television Network Program "Married by America" on April 7, 2003,
Notice of Apparent Liability for Forfeiture,19 FCC Rcd 20191, 20196 (2004)
(proposing a $7,000 forfeiture against each Fox Station and Fox Affiliate
station); reconsideration pending. See also Clear Channel Broadcast
Licenses, Inc., 19 FCC Rcd 6773, 6779 (2004) (proposing a $495,000 fine
based on a "per utterance" calculation, and directing an investigation
into stations owned by other licensees that broadcast the indecent
program). In the instant Omnibus Order, however, the Commission
inexplicably fines only the licensee whose broadcast of indecent material
was actually the subject of a viewer's complaint to the Commission. Id. at
P 71.
See Complaints Against Various Television Licensees Concerning Their
February 1, 2004, Broadcast of the Super Bowl XXXVIII Halftime Show,
Notice of Apparent Liability, 19 FCC Rcd 19230 (2004).
In re Infinity Radio License, Inc., Memorandum Opinion and Order, 19 FCC
Rcd 5022, 5026 (2004).
In re Complaints Against Broadcast Licensees Regarding Their Airing of the
"Golden Globe Awards" Program, Memorandum Opinion and Order, 19 FCC Rcd
4975 (2004); petitions for stay and reconsideration pending.
In the Matter of Complaints Against Various Television Licensees Regarding
Their Broad. 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, 4513 (2005) ("Deleting all [indecent] language or
inserting milder language or bleeping sounds into the film would have
altered the nature of the artistic work and diminished the power, realism
and immediacy of the film experience for viewers."). See also Peter
Branton, Letter by Direction of the Commission, 6 FCC Rcd 610 (1991)
(concluding that repeated use of the f-word in a recorded news interview
program not indecent in context).
In the Matter of WPBN/WTOM License Subsidiary, Inc., 15 FCC Rcd 1838
(2000).
403 U.S. 15 (1971).
Id. at 26 ("We cannot indulge the facile assumption that one can forbid
particular words without also running a substantial risk of suppressing
ideas in the process.").
See 18 U.S.C. S 1464.
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