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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 )
ORDER ON RECONSIDERATION
Adopted: May 4, 2006 Released: May 31, 2006
By the Commission: Commissioner Adelstein concurring in part, dissenting
in part, and issuing
a statement.
I. INTRODUCTION
1. In this Order on Reconsideration, issued pursuant to section 405(a) of
the Communications Act of 1934, as amended (the "Act"), and section
1.106(j) of the Commission's rules, we deny the Petition for
Reconsideration of Forfeiture Order ("Petition") filed by CBS
Broadcasting Inc. ("CBS") in this forfeiture proceeding. The CBS
Petition seeks reconsideration of our decision to impose a forfeiture
of $550,000 against CBS Corporation, as the ultimate parent company of
the licensees of the television stations involved in this proceeding,
for the violation of 18 U.S.C. S 1464 and the Commission's rule
regulating the broadcast of indecent material. We find that CBS has
failed to present any argument warranting reconsideration of our
Forfeiture Order.
II. BACKGROUND
2. This proceeding involves the broadcast of the halftime show of the
National Football League's Super Bowl XXXVIII over the CBS
owned-and-operated television stations in the CBS Network (the "CBS
Stations") on February 1, 2004, at approximately 8:30 p.m. Eastern
Standard Time. Super Bowl XXXVII was the most-watched program of the
2003-2004 television season and had an average of audience of 89.8
million viewers. At the end of the musical finale of the halftime
show, Justin Timberlake pulled off part of Janet Jackson's bustier,
exposing one of her breasts to the television audience. After
conducting an investigation, the Commission issued a Notice of
Apparent Liability (the "NAL") finding the ultimate parent company of
the licensees of the CBS Stations apparently liable for violating 18
U.S.C. S 1464 and section 73.3999, the Commission's rule regulating
the broadcast of indecent material. The NAL proposed a forfeiture in
the amount of $27,500, the statutory maximum forfeiture amount,
against each of the CBS Stations, for a total forfeiture amount of
$550,000.
3. CBS submitted its Opposition to the NAL on November 5, 2004. CBS
argued that the material broadcast was not actionably indecent under
the Commission's existing case law. CBS further argued that the
broadcast of Jackson's breast was accidental, and therefore not
"willful" under section 503(b)(1)(B) of the Act. CBS further argued
that the Commission's indecency framework is unconstitutionally vague
and overbroad, both on its face and as applied to the halftime show.
4. In the Forfeiture Order, released on March 15, 2006, the Commission
rejected CBS's arguments and imposed the $550,000 forfeiture proposed
in the NAL. The Forfeiture Order held that, under the Commission's
contextual analysis, the broadcast of the halftime show was patently
offensive as measured by contemporary community standards for the
broadcast medium. With respect to the first principal factor in the
Commission's contextual analysis, the Commission rejected CBS's
arguments relating to whether the broadcast of partial nudity was
premeditated or planned by the broadcaster. Rather, the Commission
held that the focus of the first factor of the analysis is whether the
broadcast was graphic and explicit from the viewer's or listener's
point of view. The Commission found that the video broadcast of an
image of a woman's breast is graphic and explicit if it is clear and
recognizable to the average viewer, as was the case here. With respect
to the second principal factor in the Commission's contextual
analysis, the Commission agreed with CBS that the image in the
halftime show was fleeting, but the Commission held that the brevity
of the partial nudity was not dispositive. The third principal factor
is whether the material is pandering, titillating or shocking. The
Commission clarified that the broadcaster's or performer's state of
mind is not relevant here. Rather, this factor focuses on the material
that was broadcast and its manner of presentation. The Commission
rejected CBS's claim that the segment in question merely involved an
accidental, fleeting glimpse of a woman's breast. Rather, the segment
was part of a halftime show that featured "performances, song lyrics,
and choreography [that] discussed or simulated sexual activities."
These sexually suggestive performances culminated in the spectacle of
Timberlake tearing off a portion of Jackson's clothing to reveal her
naked breast during a highly sexualized performance while he sang
"gonna have you naked by the end of this song." The Commission stated:
"Clearly, the nudity in this context was pandering, titillating and
shocking to the viewing audience." The Commission therefore held that,
on balance, the graphic, explicit, pandering, titillating and shocking
nature of the material outweighed its brevity in the contextual
analysis.
5. The Forfeiture Order also rejected CBS's claim that the violation was
accidental rather than willful under section 503(b)(1) of the Act. The
Commission dismissed CBS's attempts to define "willful" in accordance
with criminal law and copyright law cases, holding that the definition
of the word appearing in section 312 of the Act applies to this case.
Specifically, the Commission held that CBS Corporation 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. The
Commission further held that CBS Corporation was vicariously liable
under the doctrine of respondeat superior for the willful actions of
the performers and choreographer that it selected and over whose
performance it exercised extensive control.
6. The Forfeiture Order also rejected CBS's constitutional arguments,
concluding that the Commission's indecency standard has been upheld in
a series of decisions and has not been invalidated by subsequent
developments in the legal or technological landscape. The Forfeiture
Order further held that the upward adjustment of the forfeiture amount
to the statutory maximum was supported by 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 Corporation, the gravity of the violation in light of the
nationwide audience for the indecent broadcast, CBS Corporation's
ability to pay the forfeiture, and the need for strong financial
disincentives to violate the Act and the indecency rule. The
Forfeiture Order also rejected CBS's claim that it lacked prior notice
that a brief scene of partial nudity might result in a forfeiture. The
Commission noted that in Young Broadcasting, the Commission released a
Notice of Apparent Liability proposing the statutory maximum
forfeiture amount in a case involving a brief display of male frontal
nudity shortly before the subject Super Bowl broadcast.
III. DISCUSSION
7. Indecency Analysis. We reject CBS's contention that the Commission
misapplied the test for broadcast indecency in the Forfeiture Order.
In doing so, we note that CBS does not contest the Commission's
determination that the material at issue here falls within the subject
matter scope of our indecency definition because it "describe[d] or
depict[ed] sexual or excretory organs or activities." Rather, CBS
takes issue with our conclusion that the Super Bowl halftime show was
patently offensive as measured by contemporary community standards for
the broadcast medium. While many of the arguments raised by CBS are
repetitive of those set forth in its Opposition to the NAL and
rejected by the Commission in the Forfeiture Order, we do address two
new objections raised in the Petition.
8. First, CBS disputes the Commission's conclusion that "a video
broadcast image of [Justin] Timberlake pulling off part of [Janet]
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," arguing that this conclusion is inconsistent
with determinations reached by the Commission in the Omnibus Order. No
such inconsistency exists; rather, a comparison of the Super Bowl
halftime show to the material addressed in the Omnibus Order
highlights the critical importance that the Commission places on the
particular content and context in evaluating indecency complaints.
9. CBS's attempt to compare Ms. Jackson's "wardrobe malfunction" to the
material addressed in the Omnibus Order from The Today Show and The
Amazing Race 6 is unavailing. In both of those cases, the
complained-of material did not constitute the focus of the scene in
question. During The Today Show, a man's penis was briefly exposed at
a considerable distance while he was shown being pulled from raging
floodwaters in news footage. As the Commission indicated, "the overall
focus of the scene [was] on the rescue attempt, not on the man's
sexual organ." As a result, many viewers may not have even noticed the
briefly exposed penis. Similarly, during The Amazing Race 6, while two
contestants were leaving a train in Budapest, the camera shot briefly
showed the phrase "Fuck Cops!" spray-painted in small white letters on
the side of a train. Again, the graffiti was in the background, did
not constitute the focus of the scene, and would not likely have been
noticed by the average viewer. Under these circumstances, we found
that the material at issue was not graphic or explicit.
10. In the Super Bowl halftime show, by contrast, the exposure of Ms.
Jackson's breast was the central focus of the scene in question. As we
stated in the Forfeiture Order, "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." Furthermore, even though CBS claims that "this
action occurred only after the shot moved away from a close-up to a
long shot," Jackson's breast is nonetheless "readily discernable" and
the natural focus of viewers' attention. As Jackson and Timberlake
were the headline performers on stage at that time, it would have been
hard for someone looking at the television screen not to notice that
he ripped off her clothing to expose her breast. We therefore reject
CBS's theory that most viewers did not notice the exposure of
Jackson's breast. We also reject CBS's repeated attempt to conflate
the first and second factors of the Commission's contextual analysis.
While we acknowledge that the exposure of Jackson's breast was
relatively brief, this does not alter the fact that it was explicit.
For all of these reasons, we reaffirm our conclusion that the
televised image of Timberlake tearing off Jackson's clothing to reveal
her bare breast was explicit.
11. Second, CBS maintains that the Commission misconstrued the third prong
of our contextual analysis. Tellingly, CBS does not directly dispute
the Commission's conclusion that the material was presented in a
pandering, titillating and shocking manner. At the conclusion of a
halftime show filled with sexual references, Timberlake and Jackson
performed a duet of the song "Rock Your Body" in which Timberlake
repeatedly grabbed Jackson, slapped her buttocks, and rubbed up
against her in a manner simulating sexual activity, all the while
proclaiming, among other things: "I wanna rock your body." Then, as
the Commission stated in the Forfeiture Order, the performance
"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.'"
12. Understandably, given these facts, CBS does not make any effort to
argue that the material was not presented in a pandering, titillating,
and shocking manner. Instead, CBS argues that the Commission should
have examined whether CBS intended to pander, titillate, or shock the
audience, rather than the manner in which the material was actually
presented. CBS fundamentally misunderstands the contextual analysis
employed by the Commission. In evaluating whether material is
indecent, we examine the material itself and the manner in which it is
presented, not the subjective state of mind of the broadcaster.
Indeed, under the test proposed by CBS, the same material presented in
the same manner and context could be indecent on one occasion but not
indecent on another if the broadcasters in question had differing
intents in airing the material. CBS suggests no legal or public policy
reason why the Commission should be compelled to undertake such a
fruitless analysis.
13. In this instance, it is clear that the material was presented in a
pandering, titillating, and shocking manner. In this regard, we
strongly dispute CBS's assertion that the exposure of Jackson's breast
was "exactly" the same as a broadcast where a woman's dress strap
breaks and accidentally reveals her breast. In this case, at the
conclusion of a highly sexualized performance in which Timberlake,
among other things, rubbed up against Jackson in a manner simulating
sexual intercourse and implored her to "do that ass-shakin' thing you
do," Timberlake ripped off a portion of Jackson's clothing, thus
exposing her breast, while singing "gonna have you naked by the end of
this song." To claim that this material is no more pandering or
titillating than an incident where a woman's dress strap accidentally
breaks, thus revealing her breast for a second, utterly ignores the
far different contexts of each situation.
14. We also once again reject CBS's general argument that the imposition
of a forfeiture here "would be contrary to contemporary community
standards for the broadcast medium" because "available information
shows that the community at large was not upset about the Super Bowl
broadcast." In light of the public uproar following the Super Bowl
halftime show, we believe that it is CBS, and not the Commission, that
is out of touch with the standards of the American people. Moreover,
while we continue to reject the use of third-party polls as
determinative in our assessment of contemporary community standards
for the broadcast medium and our analysis in this order does not rely
upon any third-party polls, we do not accept CBS's argument that
"available information shows that the community at large was not upset
about the Super Bowl broadcast." The polls cited by CBS do not
indicate whether the Super Bowl broadcast was patently offensive under
contemporary community standards for the broadcast medium. Moreover,
we note that other survey information suggests that most Americans
were indeed offended by the Super Bowl halftime incident and did not
believe that it was appropriate broadcast material. Further, we note
that while CBS now claims that the exposure of Jackson's breast was
not patently offensive, it conceded otherwise shortly after the
incident. For example, testifying before the House Energy and Commerce
Committee, Viacom's President and Chief Operating Officer stated that
"everyone at CBS and everyone at MTV was shocked and appalled . . . by
what transpired" and maintained that the material "went far beyond
what is acceptable standards for our broadcast network." Similarly, at
the same hearing, the Commissioner of the NFL said that he was "deeply
disappointed and offended by the inappropriate content of the show."
Finally, we reject CBS's argument that the Commission generally does
not evaluate material using contemporary community standards for the
broadcast medium. As we have stated before, "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."
15. In sum, we reaffirm our conclusion in the Forfeiture Order 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." As we found in the
Forfeiture Order, "[a]lthough the patently offensive material was
brief, its brevity is outweighed in this case by the first and third
factors in our contextual analysis."
16. Whether Violation Was "Willful." Seeking to absolve itself of
responsibility for the Super Bowl halftime show broadcast, CBS
challenges the Commission's finding that the indecency violation was
willful because of both CBS's own conduct and its vicarious liability
for the willful actions of the performers under the doctrine of
respondeat superior. We conclude that there is no basis to reconsider
our decision on either ground.
17. CBS contends that the "only question" in determining whether it is
legally responsible for "willfully" violating the Act and the
Commission's rules is whether it "intended for Ms. Jackson to bare her
breast as part of a broadcast that CBS aired." The Commission
disagrees. Not only is that not the "only question," it is not the
question at all. CBS acted willfully because it consciously and
deliberately broadcast the halftime show and consciously and
deliberately failed to take reasonable precautions to ensure that no
actionably indecent material was broadcast. The record shows 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. Under these
circumstances, the Commission was justified in finding CBS responsible
for the indecent broadcast based on its conscious and deliberate
omissions even if it did not intend for Ms. Jackson to bare her
breast.
18. While defending its "meticulous efforts to ensure the performance
adhered to broadcast standards and that no unforeseen incidents or
departures from script occurred," and dismissing the record evidence
on which the Commission relied, CBS fails to address several important
facts cited by the Commission. For example, CBS does not explain in
its Petition why it was not alarmed by, and did not investigate, the
news item posted on MTV's website before the show in which Jackson's
choreographer predicted that Jackson's performance would include some
"shocking moments." By CBS's own account, the management of both MTV
and Viacom were aware of the claims but apparently did nothing to
investigate them, preferring instead to remain in the dark based on
implausible assumptions regarding their meaning. We found
unconvincing CBS's previous assertions that MTV management believed
that the "shocking moments" quote referred to Timberlake's "surprise"
appearance, and that Viacom personnel who reviewed the story dismissed
it as hyperbole common in the music industry. As we explained in the
Forfeiture Order, it seems dubious that Timberlake's appearance would
be described as "shocking" when MTV included his name in the on-screen
credits before the show. Similarly, CBS says nothing about the fact
that a question posed by another halftime performer to MTV staff about
the length of the broadcast delay was recognized as having "scary"
implications - presumably because it signaled that a performer might
be contemplating a script departure and was wondering what he might be
able to get away with. And CBS does not dispute that the show's
sponsor, the NFL, raised specific concerns about Timberlake's scripted
line "gonna have you naked by the end of this song," which anticipated
the stunt resulting in the broadcast nudity.
19. CBS dismisses as irrelevant the fact that it learned the morning of
the show 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 markedly similar to Timberlake's
line that immediately preceded the tearaway of Jackson's bustier (and
had, incidentally, worried the NFL). CBS claims that this "reveals
that, in carefully examining the costumes before the show, CBS
reinforced its prohibition on reveals or other stunts that could go
wrong and implicate indecency concerns." But CBS does not say whether
in "carefully examining the costumes before the show" it noticed that
Jackson's bustier was constructed so that the cups could easily be
torn away. Nor does it address whether the parallel lyrics noted by
the Commission ("I wanna take my clothes off"/"gonna have you naked by
the end of this song") caused it any concern. In fact, CBS does not
explain at all how it "reinforced its prohibition on reveals or other
stunts that could go wrong and implicate indecency concerns."
20. These should have served as warnings signs of the risk of visual as
well as audio departures from script, yet CBS does not explain why its
"meticulous efforts" did not include further investigation or an
adequate delay mechanism. It also fails to explain why it did not take
the simple measure at the outset of requiring that MTV's agreements
with the performers obligate them to conform to the script and to
CBS's broadcast standards and practices.
21. Regarding the evidence that it does address, CBS complains that the
Commission has taken evidence out of context or inflated its
significance, but the record suggests otherwise. For example, it takes
issue with the Commission's characterization that MTV was seeking to
"push the envelope" in its halftime production, but counters only with
the argument that MTV did not use that term to mean pushing the bounds
of propriety in terms of sexually provocative content. But the
Commission's characterization is its own, and is well-founded based on
the entirety of the record. MTV clearly intended for the show to be
sexually provocative and repeatedly made decisions in an effort to
push the show in that direction. Moreover, the fact that the NFL had
to rein in MTV when it felt the show was heading in too risque a
direction suggests that MTV was in fact trying to push the envelope of
propriety, without regard to whether MTV chose to use that term.
22. CBS also disputes our conclusion that it made a calculated decision to
rely on a five-second audio delay even though it was aware of the risk
of visual deviations from the script that could not be blocked with a
five-second delay. It asserts that this did not reflect a "calculated
risk" but rather simply conformance with standard industry practice,
and that a video delay was "entirely unprecedented, and the technique
had to be specially engineered after the Super Bowl incident." It also
claims that the NFL was concerned only about audio, not visual,
departures from the script. Contrary to CBS's contention, however, the
record indicates that the NFL's expressed concerns were not limited to
audio deviation, and, perhaps even more importantly, that CBS/MTV
understood that the risks were not limited to audio deviations as
well. Furthermore, if the standard industry delay practice was
inadequate to alleviate the concerns under the circumstances, then CBS
was obligated to do more. We note that this was not a typical
broadcast; it was the most-watched television program of the year and
millions of families and children were expected to be in the audience.
23. Holding CBS responsible for the indecent broadcast under these
circumstances is not tantamount to imposing strict liability, as CBS
contends, because the finding of willfulness is based on CBS's
knowledge of the risks and its conscious and deliberate omissions of
the acts necessary to address them. As we stated in the Forfeiture
Order, this approach is consistent with the statutory definition of
willfulness, and it is particularly appropriate here given the
nondelegable nature of broadcast licensees' responsibility for their
programming.
24. We find CBS's arguments concerning our application of the doctrine of
respondeat superior equally unpersuasive. CBS's assertion that the
Commission applied "unusually strict rules" of vicarious liability in
the Forfeiture Order is inaccurate. The Commission applied
traditional agency principles, which "ordinarily make principals or
employers vicariously liable for acts of their agents or employees in
the scope of their authority or employment." Under these principles,
the FCC concluded that Jackson, Timberlake and Jackson's choreographer
were Viacom/CBS employees for purposes of determining whether CBS is
vicariously liable for their conduct here, and that their actions were
within the scope of their employment. CBS's assertion that the
Commission "seeks to impose nontraditional vicarious liability"
appears to be founded on the three's alleged status "as independent
contractors, not employees." The factors on which CBS relies, however,
are not strongly indicative of independent contractor status in the
circumstances before us, and CBS does not dispute the Commission's
finding on the decisive control factor.
25. The Commission properly treated CBS's right to control the halftime
show as the most significant test of its relationship with the
performers. Courts look to numerous factors in determining a hired
party's status under common law agency principles. "Though no single
factor is dispositive, the greatest emphasis should be placed on the
first factor--that is, on the extent to which the hiring party
controls the manner and means by which the worker completes his or her
assigned tasks." In addition, the relative weight of common law
factors also varies according to the legal context in which the agency
issue arises, and the control factor is particularly important in the
vicarious liability context because the root issue is where
responsibility lies for preventing the risk of harm to third parties.
26. CBS does not dispute the Commission's finding that the halftime show
performance was subject to exacting control by Viacom/CBS. However,
its suggestion that it exercised no more control than necessary "to
ensure a proper result or end-product of the work" belies the evidence
that every aspect of the performance, including the exact time,
length, location, material, set, script, staging, and wardrobe, was
subject to the control of Viacom/CBS through its corporate affiliate
MTV. Viacom/CBS was not commissioning a sculpture for its lobby or
hiring workers to install a floor covering, as were the hired parties
in the cases it cites. Rather, it was producing the Super Bowl
halftime show in order to attract a large nationwide audience to a CBS
network program and promote the brand of its corporate affiliate MTV.
Viacom/CBS developed the creative concepts for the show, scripted
every word uttered on stage, and reviewed every article of clothing
worn by the performers. CBS's reliance on Community for Creative
Non-Violence v. Reid and Chaiken v. VV Publishing Corp. is misplaced
because the extent of control exercised by the hiring parties in those
cases was not remotely comparable to this situation. Reid is also a
work-for-hire copyright case in which factors related to compensation
and benefits are generally accorded more weight than they are entitled
to in other legal contexts.
27. In this context, the contractual terms related to compensation and
benefits cited by CBS are not strongly indicative of independent
contractor status. CBS was obligated to ensure that its broadcast
programming served the public interest, and was not free to confer
this obligation on another by contract. Likewise, CBS's contention
that the performers were "highly skilled" does not meaningfully cut in
its favor. Courts applying common law agency principles have not
hesitated to hold entertainers and artists to be employees of the
parties that hire them. We recognize that some of the common law
factors are not indicative of agency. Again, however, the relative
weight of common law factors varies according to the legal context in
which the agency issue arises. The central issue here is the parties'
relationship for the specific purpose of imposing vicarious liability
for the performers' actions in that performance that were harmful to
the public (rather than for copyright, workers' compensation,
anti-discrimination or other purposes). In this context, the
Commission properly concluded that the evidence clearly demonstrating
Viacom/CBS's right to control the halftime show performance was
decisive.
28. CBS's assertion that the performers' actions were outside the scope of
authority conferred by its agreements with them also lacks merit. As
the Commission explained, their conduct is fully attributable to CBS
if it was "incident to the performance rather than `an independent
course of conduct intended to serve no purpose of the employer.'"
Here, the actions at issue were part of the performance for which
Jackson and Timberlake were hired. Furthermore, examination of the
record reflects that the costume reveal was intended to serve
Viacom/CBS's overarching entertainment goal of providing a spectacular
finale. Accordingly, the Commission correctly concluded that Jackson
and Timberlake were within the scope of their authority under common
law agency principles.
29. Amount of Forfeiture. In its Petition, CBS asks the Commission to
reduce the amount of the forfeiture imposed on it for three reasons.
We find each of these arguments to be unpersuasive.
30. First, CBS maintains that "[t]o the extent that any O&O station was
not the subject [of] a complaint about the halftime show, its fine
should be rescinded and the total forfeiture reduced proportionately."
However, as we stated in the Forfeiture Order, "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." Accordingly, it was appropriate for the
Commission to impose a forfeiture on all stations owned by CBS. To the
extent that CBS is suggesting that the Commission will only impose a
forfeiture in response to complaints that specifically mention a
station's call letters, it misunderstands the enforcement policy
announced by the Commission in the Omnibus Order. Under that policy,
it is sufficient that viewers in markets served by each of the CBS
Stations filed complaints with the Commission identifying the
allegedly indecent program broadcast by the CBS Stations.
31. Second, CBS claims that the Commission has not provided a "logically
consistent explanation" for why forfeitures were imposed on those
stations owned by CBS but not on affiliates owned by others. However,
as we explained in the Forfeiture Order, CBS's culpability for the
broadcast of indecent material in this case was far greater than that
of other owners of CBS stations. "CBS admits that it was closely
involved in the production of the halftime show, and that its MTV
affiliate produced it." Under these circumstances, it was within the
Commission's enforcement discretion to impose fines on the stations
owned by CBS but not on affiliates owned by others. While CBS attempts
to distance its wholly-owned television stations from its wholly-owned
affiliate supervising the halftime production, it does not dispute
that both entities were part of the same corporate structure,
responsible to the same corporate parent.
32. Third, CBS argues that the forfeiture should be reduced because of its
"long record of compliance with broadcast standards" and because it
did not "intentionally flout[] FCC rules." We disagree. Looking at all
of the relevant factors enumerated in section 503(b)(2)(D) of the Act,
we continue to believe that the maximum statutory forfeiture is
warranted given the particular circumstances of this case. In
particular, given CBS's size and resources, we stand by our belief
that a lesser forfeiture "would not serve as a significant penalty or
deterrent." Indeed, we note that the amount of the forfeiture in this
case is less than one-quarter of the $2.3 million that CBS charged for
a single 30-second advertisement aired during its broadcast of Super
Bowl XXXVIII. While CBS observes that indecency findings may also have
a deterrent effect because of the potential negative consequences on a
company's licenses, it remains the case that monetary forfeitures are
a central tool used by the Commission to insure compliance with our
rules. Moreover, as we noted in the Forfeiture Order, the gravity of
this violation is heightened because the indecent material was
broadcast to "an enormous nationwide audience," a fact that CBS does
not dispute. Indeed, the material in question was part of the
most-watched program of the entire 2003-2004 television season by far,
and this fact heightens the gravity of the violation in this case.
CBS's broadcast of Super Bowl XXXVIII was viewed by an average of 89.8
million people. By contrast, the second most-watched program of the
2003-2004 television season, the series finale of Friends, only drew
an average of 52.5 million viewers. In addition, according to Nielsen
Media Research, Super Bowl XXXVIII was the top-ranked program of the
2003-2004 television season among children of all age groups: 2 to 5;
6 to 11; and 12 to 17. Finally, we continue to believe that the
particular nature of this violation weighs in favor of the statutory
maximum forfeiture. In this case, unsuspecting viewers were confronted
during the Super Bowl halftime show, which was not rated as content
inappropriate for children, by a highly sexualized performance in
which Timberlake tore off a piece of clothing to reveal Jackson's
breast while singing "gonna have you naked by the end of this song."
While CBS now argues that this conduct was not patently offensive, we
disagree.
33. Constitutional Issues. We also adhere to our rejection of CBS's facial
and as-applied constitutional challenges to the imposition of a
forfeiture in this case.
34. The Commission's authority to enforce the statutory restrictions
against the broadcast of indecent programming during times of day in
which children are likely to be in the audience was upheld against
constitutional challenge by the Supreme Court in Pacifica more than a
quarter-century ago, and has been reaffirmed since then. Under our
standards implementing this settled precedent, as we have explained,
CBS's broadcast was actionably indecent.
35. We reject CBS's contention that the Forfeiture Order abandons the
policy of restraint upon which Pacifica was based. The Order does no
such thing. On the contrary, the Commission remains "sensitive to the
impact of our decisions on speech." In this case, however, CBS
broadcast "the offensive spectacle of a man tearing off a woman's
clothing on stage in the middle of a sexually charged performance"
during the halftime show of one of the nation's most heavily-watched
sporting events, to a vast nationwide audience that included numerous
children. As we have found, the broadcast was "planned by CBS and its
affiliates under circumstances where they had the means to exercise
control and good reason to take precautionary measures." Under the
circumstances, we fail to see how the decision in Pacifica - or any
other consideration - requires us to refrain from exercising our
indecency enforcement powers to impose a forfeiture in this case.
36. We also reject CBS's argument that Pacifica limits the Commission's
authority "to penalize isolated and fleeting transmissions of indecent
material." On the contrary, in upholding the Commission's power to
proceed against material that involved the repeated use of expletives,
the Court in Pacifica expressly left open the issue of whether an
isolated expletive might also be held indecent, and did not even
address a brief display of televised nudity. In addition, the
Commission has never itself held, as CBS suggests, that a brief
display of televised nudity could not be found actionably indecent. To
the contrary, in Young Broadcasting (released shortly before the Super
Bowl halftime show was broadcast), we made clear that a televised
display of male frontal nudity, though comparably brief, constituted
an apparent violation of our indecency rules.
37. Finally, we reiterate our rejection of CBS's contention that changes
in law and technology have undermined Pacifica and its progeny. CBS
asserts that "every court decision that applies to every medium that
allows targeted blocking of content has struck down broadcast-type
indecency regulation." But those same decisions recognize that there
remain "special justifications" that allow for more extensive
government regulation of broadcast speech. Among them is that
broadcasting continues to have "a uniquely pervasive presence in the
lives of all Americans," a presence that is particularly evident
where highly-anticipated annual national programming events --
epitomized by the Super Bowl -- are concerned. As for technological
changes, while the V-chip provides a technological tool not available
when Pacifica was decided, older televisions do not contain a V-chip,
and on newer sets the evidence shows that most parents are unaware of
the V-chip's existence or the manner of its operation. The V-chip also
depends on accurate program ratings, but as the Commission explained
in the Forfeiture Order, sporting events are not included in the
V-chip ratings system, and neither the Super Bowl nor its halftime
show were given V-chip ratings in this case. Nor does CBS provide any
basis for concluding that had it rated the Super Bowl halftime show,
it would have rated the show as inappropriate for children. Thus,
CBS's constitutional argument based on the availability of blocking
technology is completely irrelevant to this case.
38. Conclusion. For all of these reasons, we deny CBS's Petition. Based on
our careful consideration of the law and the record in this case, we
continue to believe that the $550,000 forfeiture imposed on CBS here
is appropriate.
IV. ORDERING CLAUSES
39. Accordingly, IT IS ORDERED, pursuant to section 405(a) of the Act, and
section 1.106(j) of the Commission's rules, that the Petition for
Reconsideration of Forfeiture Order filed by CBS on April 14, 2006 is
DENIED.
40. IT IS FURTHER ORDERED that a copy of this Order on Reconsideration be
sent by Certified Mail, Return Receipt Requested, to Anne Lucey, Esq.,
Senior Vice President for Regulatory Policy, CBS Corporation, 1750 K
Street, N.W., 6^th Floor, Washington, D.C. 20005 and Robert
Corn-Revere, Esq., Davis Wright Tremaine LLP, 1500 K Street, N.W.,
Suite 450, Washington, D.C.
20005-1272.
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
Secretary
STATEMENT OF
Commissioner Jonathan S. Adelstein
Concurring in Part, Dissenting in Part
Re: Complaints Regarding Various Television Licensees Concerning Their
February 1, 2004 Broadcast of the Super Bowl XXXVIII Halftime Show, Order
on Reconsideration
The Super Bowl XXXVIII halftime show was arguably one of the most shocking
incidents in the history of live broadcast television. Indeed, the Super
Bowl was the most-watched program of the entire 2003-04 television season
and American viewers, collectively, expressed their disappointment and
disapproval. The Commission, entrusted with the responsibility to execute
faithfully broadcast indecency laws, responded swiftly and appropriately.
While I agree with the ultimate outcome of today's Order on
Reconsideration, I concur in part because the Commission again has not
provided much-needed clarity and guidance to our decision-making process
in indecency enforcement. In addition, I dissent in part because I
continue to believe the Commission has erred in fining only CBS owned and
operated stations, not all stations that broadcasted the indecent
material.
Considering the substantial public confusion that pervades the
Commission's indecency enforcement, we should, whenever possible, opt for
clear statements of Commission policy. Until today, Commission policy has
been to refrain from considering third-party polls or opinion surveys in
assessing whether a program is indecent as measured by contemporary
community standards. Regardless whether the poll or survey attempts to
reflect the views of the national or local audience, the Commission simply
does not consider opinion polls in indecency cases and polls are not a
factor in determining the contemporary community standards. To suggest
otherwise, as the instant Order does, is contrary to long standing
Commission policy.
I also have grave concerns with the failure of this Order to provide clear
guidance on the nature of the Commission's new fine imposition policy
announced in the March 15^th, 2006, Omnibus TV Order. Rather than stating
what the new policy is not, as today's Order does, the Commission should
state affirmatively the key features of our new "more limited approach
towards the imposition of forfeiture penalties." After all, it is still
unclear how the Commission determines the sufficiency of a viewer's
complaint in light of this new enforcement policy.
Finally, I dissented in part in our initial Super Bowl decision (the
September 22^nd, 2004, Notice of Apparent Liability), and I do so again
today. I continue to believe the Commission has decided erroneously to
fine only CBS owned and operated stations, not all stations that
broadcasted the indecent material. Notwithstanding the fact that this
Commission has always purported to apply a national indecency standard on
the broadcast medium, the Commission has failed to penalize the vast
majority of stations that actually broadcasted the offending halftime
performance.
I believe now, as I believed then, that this is not the restrained
enforcement policy the Supreme Court advised in Pacifica. Consistent with
the values of First Amendment, this Commission should exercise restraint
and caution in its determination of the type of expression that is
indecent. But once the indecency determination is made, the Commission
should apply a uniform fine imposition policy across the broadcast medium.
The Commission has an obligation to provide clarity and guidance whenever
possible. Equally, the Commission is obligated to enforce a consistent
fine imposition policy across the broadcast medium. Sadly, today's Order
fails to meet our obligation on both counts. Accordingly, I concur in part
and dissent in part to this Order on Reconsideration.
47 U.S.C. S 405(a); 47 C.F.R. S 1.106(j).
Petition for Reconsideration of Forfeiture Order by CBS, dated April 14,
2006 ("Petition").
See Complaints Against Various Television Licensees Concerning Their
February 1, 2004 Broadcast of the Super Bowl XXXVIII Halftime Show,
Forfeiture Order, FCC 06-19 at 1 P 1 & n. 2, 2006 FCC LEXIS 1267 (rel.
March 15, 2006) ("Forfeiture Order") (citing 18 U.S.C. S 1464 and 47
C.F.R. S 73.3999).
The CBS Stations were identified in the Appendix to the Forfeiture Order.
The Forfeiture Order noted 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 Forfeiture
Order at 1 P 1, n. 4 and Appendix.
VNU Media and Marketing Guide for Super Bowl,
(http://www.nielsenmedia.com/newsreleases/2005/2005SuperBowl.pdf).
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. For the sake of clarity, we generally
refer to the petitioner herein as CBS and to its corporate parent company
as CBS Corporation, 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.
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, n. 4 (2004) ("NAL")
(citing 18 U.S.C. S 1464 and 47 C.F.R. S 73.3999). The NAL found that
there was no evidence that any licensee of any non-CBS-owned television
station was involved in the selection, planning or approval of the
apparently indecent material and that such licensees could not have
reasonably anticipated that the CBS Network's production of a prestigious
national event such as the Super Bowl would contain material that included
the on-camera exposure of Ms. Jackson's breast. Id., 19 FCC Rcd at 19240 P
25. Accordingly, the NAL did not propose a forfeiture by any such
licensee.
Id., 19 FCC Rcd at 19240 P 24.
Opposition to Notice of Apparent Liability for Forfeiture by CBS, dated
November 5, 2004 ("Opposition").
Opposition at 13-34.
Id. at 35-38.
Id. at 44-77.
Forfeiture Order at 6-7 P 11.
Id. at 7 P 12.
Id. at 7 n. 44.
NAL, 19 FCC Rcd at 19236 P 14.
Forfeiture Order at 8 P 13.
Id.
Id. at 8 P 14.
Id. at 8-9 P 15.
Id. at 8-13 PP 15-22.
Id. at 13-15 PP 23-25.
Id. at 17-19 PP 30-35.
Id. at 15-16 PP 26-28.
Young Broadcasting of San Francisco, Inc., Notice of Apparent Liability
for Forfeiture, 19 FCC Rcd 1751 (2004) ("Young Broadcasting") (response
pending).
Id. at 16-17 P 29.
Forfeiture Order at 5 P 9.
Id. at 6 P 11.
Complaints Regarding Various Television Broadcasts Between February 2,
2002 and March 8, 2005, FCC 06-17, 2006 FCC LEXIS 1265, released March 15,
2006 ("Omnibus Order").
Omnibus Order at P 215.
See Omnibus Order at PP 189-92.
As such, we note that the Commission's treatment of the Super Bowl
halftime show is consistent with our evaluation of the brief exposure of a
penis in Young Broadcasting.
Forfeiture Order at 6 P 11.
See id.
In support of its claim that "the event became recognizable as nudity to
most people only because they actively searched for images after the
fact," CBS cites the facts that Janet Jackson was the most searched term
on Google in February 2004 and that the end of the Super Bowl halftime
show became the most TiVoed moment in the history of digital video
recorders, Petition at 5, n.7. This evidence, however, does not provide
support for CBS's theory. Given the widespread media coverage of the Super
Bowl halftime show, it should come as no surprise that public interest in
Jackson skyrocketed in the aftermath of the incident, thus causing many
people to search for information about her using Google. While some of
these searches may have been conducted by individuals wishing to see
images from the halftime show, it is entirely speculative to suggest that
many of these individuals: (1) had watched the halftime show; but (2) did
not realize at the time that Jackson had exposed her breast. Similarly,
the fact that the end of the Super Bowl halftime show was the most TiVoed
moment in the history of digital video recorders lends no support to CBS's
theory. There are many reasons why viewers might have replayed the
exposure of Jackson's breast - not the least of which is that viewers
clearly saw the image and were truly shocked. For CBS to suggest that the
fact that the Super Bowl halftime show was the most TiVoed moment in
history demonstrates that people watching the broadcast at the time were
confused about what had happened has no basis in the evidence. For
example, before Super Bowl XXXVIII, the most replayed moment in TiVo
history had been the kiss shared by Britney Spears and Madonna during the
2003 MTV Video Music Awards, and it was not unclear at the time whether
those two singers had actually kissed. See Ben Charny, "Janet Jackson
Still Holds TiVo Title," September 29, 2004
(http://news.com.com/Janet+Jackson+still+holds+TiVo+title/2100-1041_3-5388626.html).
See Young Broadcasting.
To the extent that CBS attempts to compare, for purposes of explicitness,
the exposure of Jackson's breast during the Super Bowl halftime show to
the brief exposure of an infant's naked buttocks on America's Funniest
Home Videos, see Petition at 5, we seriously question CBS's grasp of
contemporary community standards. We also note that the Commission found
the footage from America's Funniest Home Videos "somewhat explicit" but
that factor was outweighed in that case by the scene's brevity and the
absence of any shocking, pandering, or titillating effect on the audience.
Omnibus Order at P 226. Moreover, CBS's comparison of the Super Bowl
halftime show to the display of a "portion of the side of [a] maid's
breast" in material previously considered by the Commission is obviously
inapposite as far more than a portion of the side of Jackson's breast was
displayed during her duet with Timberlake. See Petition at 3, n.3.
Forfeiture Order at 8 P 13.
Contrary to CBS's assertion, see Petition at 7, n. 10, the Commission in
Young Broadcasting used the same approach that we have employed in this
case. In Young Broadcasting, the Commission concluded that "the manner of
presentation of the complained-of material . . . was pandering,
titillating, and shocking." Young Broadcasting, 19 FCC Rcd at 1757 (2004)
(emphasis added). Among other things, the Commission pointed to the fact
that the broadcast included comments made by off-camera station employees
urging performers from "Puppetry of the Penis" to conduct a nude
demonstration.
See Petition at 7.
Petition at 9.
Petition at 9.
The surveys cited by CBS in its Petition highlight the difficulties
associated with relying on third-party public opinion polls in assessing
whether material is patently offensive as measured by contemporary
community standards for the broadcast medium. Most significantly, the
questions asked by pollsters are often not aligned with the issues we must
resolve in determining whether broadcast material is indecent under the
statute and our rule. For example, the Kaiser Family Foundation survey
cited by CBS did not ask respondents whether or not they found the
broadcast of the Super Bowl halftime show finale to be offensive. Rather,
they were asked about a quite different matter: how concerned they were
about the effect of the "Janet Jackson incident" on their own children.
Indeed, the fact that 17% of respondents answered that they were "very
concerned" about the impact that the Janet Jackson Super Bowl incident had
on their own children and that another 14% of respondents were "somewhat
concerned" shows an astoundingly high level of concern about the impact of
a single program on their own families, especially given that not all of
the respondents even had children who watched the Super Bowl halftime
show. Contrary to the suggestion of CBS, it certainly does not show that
the community at large was "not upset about the Super Bowl broadcast."
Petition at 9. Similarly, the Associated Press/Ipsos poll cited by CBS
does not appear to have asked respondents whether or not they found the
broadcast of the finale of the Super Bowl halftime show to have been
offensive. Rather, the survey appears to have asked the conclusory
question of whether the Timberlake/Jackson stunt was an illegal act, even
though there is no evidence that poll respondents were informed before
answering the question of the legal standard for broadcast indecency. See
Poll: Janet's Revelation No Crime, February 21, 2004,
www.cbsnews.conm/stories/2004/02/02/entertainment/printable597184.shtml.
(We note that the poll is proprietary, and CBS does not provide any
information concerning precisely what was asked to elicit the poll
responses.) In sum, we view the results of polls and surveys in the
indecency context with care and a measure of skepticism because survey
results in this area can easily be skewed by the phraseology of the
questions, and those questions are often not on point with the issues we
must resolve in determining whether broadcast material is indecent under
the statute and our rule.
For example, when specifically asked by survey researchers whether the
$550,000 forfeiture proposed by the FCC against CBS was appropriate in
this case, a majority of Americans responded either that the FCC had
handled the case appropriately or that the Commission's proposed sanction
was not harsh enough. See "Americans Geared Up for `Ad Bowl' 2005",
February 4, 2005, (http://www.comscore.com/press/release.asp?press=554)
(44 percent of Americans agree that the FCC handled the Super Bowl
halftime incident appropriately while another 12 percent felt that the
Commission should have done more to punish CBS and the NFL). Moreover, a
survey conducted by Opinion Dynamics Corporation also reveals that the
majority of the American people think that CBS and MTV showed a lack of
respect for the American people in airing the Super Bowl halftime show.
See "Could Election 2004 Be as Close as 2000?" (February 5, 2004)
(http://www.foxnews.com/story/0,2933,110675,00.html) (56 percent of
Americans agree that CBS and MTV demonstrated a lack of respect for the
American people with the Janet Jackson-Justin Timberlake halftime show
during the Super Bowl).
Hearings Before the Subcommittee on Telecommunications and the Internet of
the Committee on Energy and Commerce of the House of Representatives on
H.R. 3717, Serial No. 108-68 (February 11, 2004) at 37 (statement of Mel
Karmazin).
Id. at 30 (statement of Paul Tagliabue).
Infinity Radio License, Inc., Memorandum Opinion and Order, 19 FCC Rcd
5022, 5026 (2004).
Forfeiture Order at 8 P 14.
Id.
Petition at 12.
Forfeiture Order at 8-13 PP 15-22.
Id.
See 47 U.S.C. S 312(f)(1).
Petition at 14.
Forfeiture Order at 10 P 19.
See Opposition at 7-8.
See Forfeiture Order at 12 n.74.
Forfeiture Order at 10 P 19; Con. App. 6.
Forfeiture Order at 10 P 19; Con. App. at 5.
Petition at 15-16.
Id. See also id. at 14 ("CBS double-checked with Ms. Jackson's staff there
would be no alterations in her performance as scripted, including any
involving wardrobe"). See also "Jackson's halftime stunt fuels indecency
debate," USAToday.com, February 2, 2004,
http://www.usatoday.com/sports/football/super/2004-02-02-jackson-halftime-incident_x.htm
("Close-ups of the costume, posted on the Internet, appear to reveal snaps
around that part of the bustier.").
Petition at 15-16.
See para. 22 infra regarding CBS's decision to implement a 5-second
delay.
Forfeiture Order at P 20.
See Petition at 14-15.
See Forfeiture Order. at 10 P 18. See also Con. App. 1, 5.
Petition at 15.
Id. at n.24.
The NFL's concern about the lyrics "I am going to get you naked by the end
of this song" can most reasonably be understood as a concern that the
performers might act out the lyrics. There did not appear to be any
particular cause for concern that the performers might insert profanity
into that line any more than any other line.
See Con. App. 5, 8.
Notwithstanding CBS's protestations to the contrary, delaying a live
broadcast long enough to block visual indecency does not appear to pose
major technical challenges to a company such as CBS.
47 U.S.C. SS 312(f)(1), 503(b)(1).
Petition at 16 (internal quotes omitted).
Forfeiture Order at 13 P 23, quoting Meyer v. Holley, 537 U.S. 280, 285
(2003) (citation omitted).
Id. at 13-15 PP 24-25. This decision was consistent with Holley. In that
case, the Supreme Court held that, absent a statutory basis, vicarious
liability could not be imposed based solely on the right to control.
Rather, evidence was also needed that the employee acted in the scope of
employment. See Meyer v. Holley, 537 U.S. at 286. Here, the Commission
determined that the performers were both subject to CBS's control and
acting in the scope of their authority.
Petition at 17.
Community for Creative Non-Violence v. Reid, 490 U.S. 730, 751-52 (1989),
citing Restatement (Second) of Agency S 220(2) (1957) (Restatement).
Eisenberg v. Advance Relocation & Storage, Inc., 237 F.3d 111, 114 (2^nd
Cir. 2000) ("The first factor is entitled to this added weight because,
under the common law of agency, an employer-employee relationship exists
if the purported employer controls or has the right to control both the
result to be accomplished and the manner and means by which the purported
employee brings about that result.") (internal quotes and citations
omitted). See id. at 114-15 (listing authorities). See also Restatement S
220(1) cmt. D ("control or right to control the physical conduct of the
person giving service is important and in many situations is
determinative" of whether that person is an employee or independent
contractor).
See, e.g., id. at 116.
See Restatement S 219(1) cmt. a ("Bearing in mind the purpose for fixing
the categories, it may be said that a servant is an agent standing in such
close relation to the principal that it is just to make the latter respond
for some of his physical acts resulting from the performance of the
principal's business.").
Petition at 17.
Forfeiture Order at 13-14 P 24. See Lorenz Schneider Co. v. NLRB, 517 F.2d
445, 451 (2^nd Cir. 1975) ("the more detailed the supervision and the
stricter the enforcement standards, the greater the likelihood of an
employer-employee relationship").
See Petition at 18, n. 31 and accompanying text (relying on Community for
Creative Nonviolence v. Reid, 490 U.S. 730, 752-53 (1989) (sculptor was an
independent contractor under the work-for-hire doctrine) and Carpet Exch.
Of Denver, Inc. v. Indus. Claim Appeals Office, 859 P.2d 278, 281 (Colo.
App. 1993) (workers who installed floor covering purchased by company's
customers were not employees for purposes of state worker's compensation
law)). CBS cites the Carpet Exch. Of Denver, Inc. case for the proposition
that "independent contractors, though `subject to control sufficient to
ensure that the end resulted contracted for is reached, are not subject to
control over the[ir] means and methods." As discussed herein, however, in
this case the performers were subject to extensive control over their
means and methods.
See CBS Response, App. C at Bates stamped pgs. 312, 355-57, 370.
Forfeiture Order at 13-14 P 24. See CBS Response, App. C. at Bates stamped
pgs. 318, 452, 459-69, 518-19.
See Reid, 490 U.S. at 753 ("Apart from the deadline for completing the
sculpture, Reid had absolute freedom to decide when and how long to
work."); Chaiken v. VV Publishing Corp., 907 F.Supp. 689, 699 (S.D.N.Y.
1995) ("As an experienced reporter, Friedman controlled the manner in
which the article was written--including the selection of a topic,
research plan, and sources--without any guidance from the Voice. Voice
editors reviewed the article only after Friedman completed a draft, and
the editors subsequently made few substantive changes.").
As the Second Circuit has explained, special consideration of such factors
"may make sense in the copyright work-for-hire context because, under the
copyright statute, workers and employees are free to allocate intellectual
property rights by contract." Eisenberg, 237 F.3d at 117. If Reid's
weighing of factors applied in the vicarious liability context, however,
firms could devise compensation packages to opt out of tort liability.
Compare id. (declining to accord presumptive significance to benefits and
tax treatment in determining whether a female warehouse worker was an
employee under anti-discrimination laws; "[w]hile the rights to
intellectual property can depend on contractual terms, the right to be
treated in a non-discriminatory manner does not depend on the terms of any
particular contract.").
Petition at 17.
See Forfeiture Order at P 16. Cf. Eisenberg, 237 F.3d at 117 (placing
special weight on the extent to which the hiring party controlled the
"manner and means" by which the worker completes her assigned tasks,
rather than benefits and tax treatment factors, in anti-discrimination
context because special consideration of benefits and tax treatment
factors "would allow workers and firms to use individual employment
contracts to opt out of the anti-discrimination statutes.").
See Carter v. Helmsley-Spear, Inc., 71 F.3d 77, 87 (2^nd Cir. 1995)
(sculptors held to be employees despite their "artistic freedom and
skill"); Jack Hammer Assoc., Inc. v. Delmy Productions, Inc., 499 N.Y.S.2d
418, 419-20 (1^st Dep't 1986) (actor in musical play); Challis v. National
Producing Co., 88 N.Y.S.2d 731 (3d Dep't 1949) (circus clown); Berman v.
Barone, 88 N.Y.S.2d 327, 328 (3d Dep't 1949) (ballet dancer and variety
artist). See also Landman Fabrics, a div. of Blocks Fashion Fabrics, Inc.,
160 F.3d 106, 113 (2nd Cir. 1998) (evidence would support a holding that
artist who developed a fabric design was an employee in copyright context
where, inter alia, artist was highly skilled but hiring party controlled
the artist's work to the smallest detail). As the Commission noted, the
contracts contain choice-of-law provisions specifying New York law.
Forfeiture Order at 14 P 25 n.87.
CBS notes that Jackson's, Timberlake's, and Duldalao's contracts "were
with a production company, not CBS or MTV," but fails to point out the
significance of this fact. Examination of the record reflects that
Jackson's and Timberlake's contracts were with "FRB Productions, Inc.,"
and Duldalao's contract was with "Remote Productions, Inc." Neither FRB
nor Remote is identified in CBS's Response, but they appear to be
creatures of MTV. MTV executives generated, reviewed, and signed the
contracts on behalf of FRB and Remote. See, e.g., CBS Response, App. C at
Bates stamped pgs. 154-71, 257-61, 359-63, 2160-61, 2341. At least one
document in the record specifies that Remote is "a wholly owned subsidiary
of MTV Networks," id. at Bates stamped p.2352, and another document
suggests that MTV executives treated FRB as interchangeable with Remote.
See id. at Bates stamped p.2148.
Petition at 19.
Forfeiture Order at 14-15 P 25, quoting Restatement (Third) of Agency S
7.07 (T.D. No.5 2004).
See Forfeiture Order at 10 PP 18-19; CBS Response, App. B at Bates stamped
pgs. 130, 135.
Petition at 19-20.
Forfeiture Order at 1 P 1, n.4.
Petition at 20.
Forfeiture Order at 15 P 27.
Id.
Petition at 21.
Forfeiture Order at 16 P 28.
"Television Keeps NFL On Top," Fort Worth Star Telegram at 1A (January 30,
2004) ("The cost for a 30-second advertisement is $2.3 million, or roughly
the cost of a $77,000 luxury car each second.").
Contrary to CBS's suggestion in its Petition, this does not mean, of
course, that the Commission will always impose a maximum forfeiture
anytime that a large company violates our rules. However, consistent with
section 503(b)(2)(D) of the Act, a company's "ability to pay" is a factor
that weighs in our analysis.
Forfeiture Order at 16 P 28.
See "Viewer Track: Top-rated programs of 2003-04"
(www.tvb.org/rcentral/viewertrack/trends/top2003.asp).
See VNU Media and Marketing Guide for Super Bowl,
(http://www.nielsenmedia.com/newsreleases/2005/2005SuperBowl.pdf).
See Joal Ryan, "52 Million Friends See Off `Friends'" (May 7, 2004)
(http://att.eonline.com/News/Items/0,1,14056,00.html).
See Nielsen Media Research, TV National People Meter Data 9/22/2003 -
5/26/2004.
Indeed, the program was not rated at all.
See, e.g., FCC v. Pacifica Foundation, 438 U.S. 726, 748-51 (1978); Action
for Children's Television v. FCC, 58 F.3d 654, 669-70 (D.C. Cir. 1995) (en
banc) (ACT III), cert. denied, 516 U.S. 1043 (1996).
Petition at 23.
Forfeiture Order at 19 P 35.
Id. at P 28.
Id. at 19 P 35.
Petition at 23 n.42.
Pacifica, 438 U.S. at 750: see Golden Globes, 19 FCC Rcd 4975, 4982 P 16
(2004).
Petition at 24.
19 FCC Rcd 1751, 1755 P 12 (2004). In WGBH Educ. Found., 68 FCC 2d 1250
(1978), we granted the renewal of a public television station license
renewal in the face of complaints based on the station's broadcast of
programs - including "Monty Python's Flying Circus" - that allegedly
contained "nudity and/or sexually-oriented material." 69 FCC2d at 1250-51
P 2. In holding that the complaints did not make out a case that the
station's continued operation would be inconsistent with the public
interest, id. at 1255, P 13, we nowhere suggested that the televised
broadcast of nudity could never be actionably indecent.
Petition at 25.
Id. (emphasis in original). (citing United States v. Playboy Entmt. Group,
Inc. v. FCC, 529 U.S. 803 (2000); Reno v. ACLU, 521 U.S. 844 (1997); and
Denver Area Educ. Telecomms. Consortium v. FCC, 518 U.S. 727 (1996)).
Reno, 521 U.S. at 868. See Playboy, 529 U.S. at 815. See also ACT III, 58
F.3d at 660 (recognizing that "radio and television broadcasts may
properly be subject to different - and often more restrictive - regulation
than is permissible for other media under the First Amendment").
See ACT III, 58 F.3d at 659 (quoting Pacifica, 438 U.S. at 748).
As of January 1, 2000, all television sets manufactured in the United
States or shipped in interstate commerce with a picture screen of thirteen
inches or larger must be equipped with a "V-chip" system that can be
programmed to block violent, sexual, or other programming that parents do
not wish their children to view. Technical Requirements to Enable Blocking
of Video Programming Based on Program Ratings, 13 FCC Rcd 11248 (1998); 47
C.F.R. S 15.120(b). Out of a total universe of 280 million sets in U.S.
households, see Nielsen Media Research U.S. TV Household Estimates,
2003-04, about 119 million sets in use are equipped with V-chips.
Broadcasting & Cable TVFAX, TV Watch "Exposes" V-chip Critics, July 8,
2005, at 2.
See Forfeiture Order at P 34 n.117 (citing broadcaster's statements in
2004 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 also Parents, Media and Public
Policy: A Kaiser Family Foundation Survey (Fall 2004), at 7 (telephone
survey of 1,001 parents of children ages 2-17 showing that (1) only 15
percent of all parents have used the V-chip; (2) 26 percent of all parents
have not bought a new television set since January 2000 (when the V-chip
was first required in all sets); (3) 39 percent of parents have bought a
new television set since January 2000, but do not think it includes a
V-chip; and (4) 20 percent know they have a V-chip, but have not used it).
In the Kaiser Family Foundation survey, nearly 4 in 10 parents of children
aged 2-17 stated that most television programs are not rated accurately.
Id. at 5. See also Parents Television Council, The Ratings Sham: TV
Executives Hiding Behind A System That Doesn't Work (April 2005) (study of
528 hours of television programming concluding that numerous shows were
inaccurately and inconsistently rated).
Implementation of Section 551 of the Telecommunications Act of 1996,
Report and Order, 13 FCC Rcd 8232, 8242-43, P 21 (1998).
47 U.S.C. S 405(a); 47 C.F.R. S 1.106(j).
While the Commission, in today's Order, maintains that it rejects the use
of third-party polls as "determinative" and that it does not "rely" upon
any third-party polls, we should provide clear guidance as to whether the
Commission, as a matter of policy, even "considers" polls in its indecency
analysis. The answer to that inquiry should be an unequivocal "no." Rather
than making this point clear, the Commission engages in a gratuitous
discussion about the adequacy of the polls cited by CBS. The Commission
argues that the opinion polls cited by CBS were unavailing because the
polls did not answer the central legal question - namely, "whether the
Super Bowl broadcast was patently offensive under contemporary community
standards." Order at P 14. This discussion is misleading because the
Commission does not consider polling data, notwithstanding the artfulness
of the questions asked by pollsters.
Order at P 30.
Complaints Regarding Various Television Programs Broadcast Between
February 2, 2002 and March 8, 2005, FCC 06-17 (released March 15, 2006)
(Omnibus TV Order) at P 71.
In a failed attempt to address this significant concern, the instant Order
states that "it is sufficient that viewers in markets served by each of
the CBS Stations filed complaints with the Commission identifying the
allegedly indecent program broadcast by the CBS Stations." This is a mere
restatement of fact, not a policy statement of the essential components of
a sufficient and adequate complaint.
In the Omnibus TV Order, the sole guidance the Commission provided was
that it would propose forfeiture against only the licensee whose broadcast
of the material was actually the subject of a viewer complaint. Omnibus TV
Order at P 71. Yet in the same order, based on a California viewer's
complaint of indecent material against a local Washington, D.C. affiliate
and the entire network, the Commission proposed forfeiture only against
the local D.C. affiliate. The California viewer did not even assert that
she viewed the program in Washington, D.C. Further, in the same case, it
was completely unclear whether the complainant even watched the program on
over-the-air broadcasting or on cable. The Commission is obligated to
resolve or clarify these legitimate concerns.
See Complaints Against Various Television Licensees Concerning Their
February 1, 2004, Broadcast of the Super Bowl XXXVIII Halftime Show,
Notice of Apparent Liability for Forfeiture, FCC 04-209 (released
September 22, 2004) (Commr. Jonathan S. Adelstein, approving in part and
dissenting in part).
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