Skip Navigation

Federal Communications Commission

English Display Options

Commission Document

FCC & USA v. CBS, Supreme Court

Download Options

Released: April 17, 2012

No.

In the Supreme Court of the United States
FEDERAL COMMUNICATIONS COMMISSION AND
UNITED STATES OF AMERICA, PETITIONERS
v.
CBS CORPORATION, ET AL.
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

DONALD B. VERRILLI, JR.
Solicitor General
Counsel of Record
STUART F. DELERY
Acting Assistant Attorney
General
AUSTIN C. SCHLICK
MALCOLM L. STEWART
General Counsel
Deputy Solicitor General
PETER KARANJIA
JOSEPH R. PALMORE
Deputy General Counsel
Assistant to the Solicitor
JACOB M. LEWIS
General
Associate General Counsel
THOMAS M. BONDY
C. GREY PASH, JR.
Attorney
Counsel
Department of Justice
Federal Communications
Washington, D.C. 20530-0001
Commission
SupremeCtBriefs@usdoj.gov
Washington, D.C. 20554
(202) 514-2217

QUESTION PRESENTED

Whether the Federal Communications Commission
acted arbitrarily and capriciously under the Administra-
tive Procedure Act, 5 U.S.C. 551 et seq., in determining
that a widely viewed television broadcast of public nu-
dity fell within federal prohibitions on broadcast inde-
cency.
(I)

PARTIES TO THE PROCEEDING

Petitioners are the Federal Communications Com-
mission and the United States of America.
Respondents are CBS Corporation, CBS Broadcast-
ing, Inc., CBS Television Stations, Inc., CBS Stations
Group of Texas L.P., and KUTV Holdings, Inc.
(II)

TABLE OF CONTENTS

Page
Opinions below . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Statutes and regulations involved . . . . . . . . . . . . . . . . . . . . . . . . 2
Statement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Reasons for granting the petition . . . . . . . . . . . . . . . . . . . . . . . 13
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Appendix A – Opinion of the court of appeals
(Nov. 2, 2011) . . . . . . . . . . . . . . . . . . . . . . . . 1a
Appendix B – Order on reconsideration
(May 4, 2006) . . . . . . . . . . . . . . . . . . . . . . 112a
Appendix C – Forfeiture order (Feb. 21, 2006) . . . . . . . . 152a
Appendix D – Sur petition for rehearing with sug-
gestion for rehearing in banc
(Jan. 18, 2012) . . . . . . . . . . . . . . . . . . . . . . 213a
Appendix E – Statutory provisions . . . . . . . . . . . . . . . . . . 215a

TABLE OF AUTHORITIES

Cases:
ABC, Inc. v. FCC, 404 Fed. Appx. 530 (2d Cir. 2011),
cert. granted, No. 10-1293 (argued Jan. 10, 2012) . . . . . 8
Action for Children’s Television v. FCC, 58 F.3d 654
(D.C. Cir. 1995), cert. denied, 516 U.S. 1043 (1996) . . . . 2
Boca Airport, Inc. v. FAA, 389 F.3d 185 (D.C. Cir.
2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Bowles v. Seminole Rock & Sand Co., 325 U.S. 410
(1945) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Cassell v. FCC, 154 F.3d 478 (D.C. Cir. 1998) . . . . . . . . . . 15
(III)

IV
Cases–Continued: Page
Citizen’s Complaint Against Pacifica Found. Station
WBAI (FM), 56 F.C.C.2d 94 (1975), clarified,
59 F.C.C.2d 892 (1976), rev’d, Pacifica Found. v.
FCC, 556 F.2d 9 (D.C. Cir. 1977), rev’d, 438 U.S.
726 (1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Complaints Against Various Broad. Licensees Re-
garding Their Airing of the “Golden Globe
Awards” Program
, 19 F.C.C.R. 497 (2004) . . . . . . 5, 6, 11
Complaints Against Various Television Licensees
Concerning Their Feb. 25, 2003 Broad. of the
Program “NYPD Blue,”
, 23 F.C.C.R. 3147 (2008),
vacated, ABC, Inc. v. FCC, 404 Fed. Appx. 530
(2d Cir. 2011), cert. granted, No. 10-1293
(argued Jan. 10, 2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 8
Complaints Against Various Television Licen-
sees Concerning Their Feb. 1, 2004, Broad.
of the XXXVIII Super Bowl Halftime Show
,
19 F.C.C.R. 19,230 (2004) . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Complaints Regarding Various Television
Broads. Between Feb. 2, 2002 and Mar. 8, 2005,
21 F.C.C.R. 13,299 (2006), vacated, Fox Tele-
vision Stations, Inc.
v. FCC, 489 F.3d 444 (2007),
rev’d, 556 U.S. 502 (2009) . . . . . . . . . . . . . . . . . . . . . . . . 6, 7
FCC v. Fox Television Stations, Inc.:
131 S. Ct. 3065 (2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
556 U.S. 502 (2009) . . . . . . . . . . . . . . . . . . . . 6, 7, 12, 16, 17
FCC v. Pacifica Found., 438 U.S. 726 (1978) . . . . . . . . . . . . 3

V
Cases—Continued: Page
Fox Television Stations, Inc. v. FCC:
613 F.3d 317 (2d Cir. 2010), cert. granted,
No. 10-1203 (argued Jan. 10, 2012) . . . . . . . . . . . . . . . 7
489 F.3d 444 (2d Cir. 2007), rev’d, 556 U.S. 502
(2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Infinity Broad. Corp. of Pa., 3 F.C.C.R. 930 (1987),
aff’d in pertinent part, Action for Children’s Tele-
vision
v. FCC, 852 F.2d 1332 (D.C. Cir. 1988) . . . . . . . . . 3
Pacifica Found., Inc., 2 F.C.C.R. 2698, recons.
granted in part, Infinity Broad. Corp. of Pa.,
3 F.C.C.R. 930 (1987), aff’d in pertinent part,
Action for Children’s Television v. FCC,
852 F.2d 1332 (D.C. Cir. 1988) . . . . . . . . . . . . . . 4, 6, 15, 16
Constitution, statutes and regulations:
U.S. Const. Amend. I . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Administrative Procedure Act, 5 U.S.C. 551 et seq. . . . . . . 6
Public Telecommunications Act of 1992, Pub. L. No.
102-356, § 16(a), 106 Stat. 954 . . . . . . . . . . . . . . . . . . . . . . 2
18 U.S.C. 1464 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
47 U.S.C. 307 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
47 U.S.C. 309(k) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
47 U.S.C. 503(b)(1)(B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
47 U.S.C. 503(b)(1)(D) (Supp. IV 2010) . . . . . . . . . . . . . . . . . 2
47 C.F.R. 73.3999(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

VI
Miscellaneous:
Page
Industry Guidance on the Commission’s Case Law
Interpreting 18 U.S.C. § 1464 & Enforcement Poli-
cies Regarding Broad. Indecency
, 16 F.C.C.R.
7999 (2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 5

In the Supreme Court of the United States
No.
FEDERAL COMMUNICATIONS COMMISSION AND
UNITED STATES OF AMERICA, PETITIONERS
v.
CBS CORPORATION, ET AL.
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

The Solicitor General, on behalf of the Federal Commu-
nications Commission and the United States, respectfully
petitions for a writ of certiorari to review the judgment of
the United States Court of Appeals for the Third Circuit in
this case.

OPINIONS BELOW

The opinion of the court of appeals (App., infra, 1a-
111a) is reported at 663 F.3d 122. The orders of the
Federal Communications Commission (App., infra,
112a-151a, 152a-212a) are reported at 21 F.C.C.R. 6653
and 21 F.C.C.R. 2760, respectively.
(1)

2

JURISDICTION

The judgment of the court of appeals was entered on
November 2, 2011. A petition for rehearing was denied
on January 18, 2012 (App., infra, 213a-214a). The juris-
diction of this Court is invoked under 28 U.S.C. 1254(1).

STATUTES AND REGULATIONS INVOLVED

Relevant statutory and regulatory provisions are set
out in the appendix to this petition. App., infra, 215a-
218a.

STATEMENT

1. a. Federal law has long prohibited the broadcast
of “obscene, indecent, or profane language by means of
radio communication.” 18 U.S.C. 1464. In 1992, Con-
gress supplemented that prohibition by directing the
Federal Communications Commission (FCC or Com-
mission) to “promulgate regulations to prohibit the
broadcasting of indecent programming” during certain
times of the day. Public Telecommunications Act of
1992, Pub. L. No. 102-356, § 16(a), 106 Stat. 954; see Ac-
tion for Children’s Television v. FCC, 58 F.3d 654, 669-
670 (D.C. Cir. 1995) (en banc), cert. denied, 516 U.S.
1043 (1996). The FCC’s rules currently prohibit licens-
ees of radio and television stations from broadcasting
“any material which is indecent” between the hours of
“6 a.m. and 10 p.m.” 47 C.F.R. 73.3999(b). The Commis-
sion does not regulate indecent broadcasts outside that
time period. The FCC has authority to enforce the
broadcast-indecency prohibition by, inter alia, im-
posing civil forfeitures, see 47 U.S.C. 503(b)(1)(B);
47 U.S.C. 503(b)(1)(D) (Supp. IV 2010), or taking viola-
tions into account during license-renewal proceedings,
see 47 U.S.C. 307; 47 U.S.C. 309(k).

3
b. In FCC v. Pacifica Foundation, 438 U.S. 726
(1978), the FCC applied its indecency regime to a mid-
day radio broadcast of George Carlin’s monologue
“Filthy Words.” Responding to a listener complaint, the
Commission determined that the broadcast violated Sec-
tion 1464. Id. at 730-732. This Court held that the Com-
mission’s enforcement action was consistent with the
First Amendment. Id. at 748-750.
c. For several years after Pacifica, the FCC en-
forced the indecency prohibition only against “material
that closely resembled the George Carlin monologue,”
that is, material that “involved the repeated use, for
shock value, of words similar or identical to those” used
by Carlin. Infinity Broad. Corp. of Pa., 3 F.C.C.R. 930,
930 ¶ 4 (1987) (Infinity Reconsideration Order). In
1987, however, the Commission determined that such a
“highly restricted enforcement standard * * * was
unduly narrow as a matter of law” because it “focus[ed]
exclusively on specific words rather than the generic
definition of indecency.” Id. at 930 ¶ 5. Accordingly, the
Commission concluded that, in enforcing Section 1464,
it would apply the generic indecency test articulated
in Pacifica, that is, whether the material “describes,
in terms patently offensive as measured by contempo-
rary community standards for the broadcast medium,
sexual or excretory activities or organs, when there is a
reasonable risk that children may be in the audience.”
Id. at 930 ¶¶ 2, 5 (quoting Citizen’s Complaint Against
Pacifica Found . Station WBAI (FM), 56 F.C.C.2d 94,
98 ¶ 11 (1975)).
In making that change, the Commission recognized
that “the question of whether material is patently offen-
sive requires careful consideration of context.” Infinity
Reconsideration Order, 3 F.C.C.R. at 932 ¶ 16. Despite

4
its renewed emphasis on context, the Commission stated
that “[i]f a complaint focuses solely on the use of exple-
tives, * * * deliberate and repetitive use * * * is a
requisite to a finding of indecency.” Pacifica Found .,
Inc., 2 F.C.C.R. 2698, 2699 ¶ 13 (1987). In contrast, the
Commission explained, when offensive material “goes
beyond the use of expletives” and involves “the descrip-
tion or depiction of sexual or excretory functions,” “rep-
etition of specific words or phrases is not necessarily an
element critical to a determination of indecency.” Ibid.
d. In 2001, the Commission issued a policy state-
ment to provide further guidance concerning its enforce-
ment of the statutory indecency standard. Industry
Guidance on the Commission’s Case Law Interpreting
18 U.S.C. § 1464 & Enforcement Policies Regarding
Broad . Indecency, 16 F.C.C.R. 7999 (Industry Guid-
ance). In that statement, the Commission explained that
it applies a two-part test to determine whether a broad-
cast is indecent. First, the material at issue “must fall
within the subject matter scope of [the] indecency defi-
nition—that is, the material must describe or depict sex-
ual or excretory organs or activities.” Id. at 8002 ¶ 7.
Second, “the broadcast must be patently offensive as
measured by contemporary community standards for
the broadcast medium.” Id. at 8002 ¶ 8.
The Commission’s policy statement reiterated that
whether a broadcast is “patently offensive” turns on
“the full context” in which the material is broadcast
and is therefore “highly fact-specific.” Industry Guid-
ance, 16 F.C.C.R. at 8002-8003 ¶ 9. The Commission
identified three “principal factors” that are “significant”
in evaluating patent offensiveness:
(1) the explicitness or graphic nature of the descrip-
tion or depiction of sexual or excretory organs or

5
activities; (2) whether the material dwells on or re-
peats at length descriptions of sexual or excretory
organs or activities; [and] (3) whether the material
appears to pander or is used to titillate, or whether
the material appears to have been presented for its
shock value.
Id. at 8003 ¶ 10 (emphases omitted).
The Commission stressed that “[e]ach indecency case
presents its own particular mix of these, and possibly
other, factors, which must be balanced to ultimately de-
termine whether the material is patently offensive and
therefore indecent.” Industry Guidance, 16 F.C.C.R. at
8003 ¶ 10. For example, with respect to the second fac-
tor, the Commission noted that “[r]epetition of and per-
sistent focus on sexual or excretory material” may “ex-
acerbate the potential offensiveness of broadcasts,” but
emphasized that “even relatively fleeting references
may be found indecent where other factors contribute to
a finding of patent offensiveness.” Id. at 8008-8009
¶¶ 17, 19.
e. In 2004, the Commission changed its policy con-
cerning isolated expletives. The previous year, NBC
had presented a live broadcast of the Golden Globe
Awards. The FCC determined that the broadcast was
indecent based on language used by the rock singer
Bono when accepting an award. Complaints Against
Various Broad . Licensees Regarding Their Airing of
the “Golden Globe Awards” Program, 19 F.C.C.R. 4975
(Golden Globe Awards Order). It disavowed, as “no lon-
ger good law,” “prior Commission and staff action” that
had “indicated that isolated or fleeting broadcasts of the
‘F-Word’ * * * are not indecent or would not be acted
upon.” Id. at 4980 ¶ 12. The FCC stated “that the mere
fact that specific words or phrases are not sustained or

6
repeated does not mandate a finding that material that
is otherwise patently offensive to the broadcast medium
is not indecent.” Ibid.
2. a. Two years later, the FCC applied the new pol-
icy articulated in the Golden Globes Awards Order when
it concluded that two broadcasts of the Billboard Music
Awards that included isolated uses of indecent language
were indecent. Complaints Regarding Various Televi-
sion Broads. Between Feb. 2, 2002 and Mar. 8, 2005, 21
F.C.C.R. 13,299 (2006) (Remand Order). The Commis-
sion reaffirmed that the fleeting nature of an utterance
does not by itself preclude a finding of indecency, rea-
soning that “categorically requiring repeated use of ex-
pletives in order to find material indecent” would be
“inconsistent with our general approach to indecency
enforcement” and its “stress[] [on] the critical nature of
context.” Id. at 13,308 ¶ 23. The Second Circuit granted
petitions for review and vacated that order, concluding
that the Commission had violated the Administrative
Procedure Act (APA), 5 U.S.C. 551 et seq., because it
had failed to provide an adequate explanation for its
change in policy. Fox Television Stations, Inc. v. FCC,
489 F.3d 444 (2007), rev’d, 556 U.S. 502 (2009).
b. This Court reversed. FCC v. Fox Television Sta-
tions, Inc., 556 U.S. 502 (2009) (Fox I). The Court ex-
plained that “the Commission’s decision to look at the
patent offensiveness of even isolated uses of sexual or
excretory words” conformed to “the context-based ap-
proach” that the Court had “sanctioned in Pacifica.” Id.
at 517. In expanding indecency enforcement in 1987
beyond the “seven dirty words,” the Court explained,
the FCC had “preserved a distinction between literal
and nonliteral (or ‘expletive’) uses of evocative lan-
guage.” Id. at 508 (quoting Pacifica Found., 2 F.C.C.R.

7
at 2699 ¶ 13). Under that expanded policy, “each literal
‘description or depiction of sexual or excretory functions
must be examined in context to determine whether it is
patently offensive,’ ” but “‘deliberate and repetitive use
. . . is a requisite to a finding of indecency’ when a com-
plaint focuses solely on the use of nonliteral expletives.”
Ibid. The Court held that the Commission had ade-
quately justified its decision to “step away from its old
regime where nonrepetitive use of an expletive was per
se nonactionable because that was ‘at odds with the Com-
mission’s overall enforcement policy.’” Id. at 518 (quot-
ing Remand Order, 21 F.C.C.R. at 13,308 ¶ 23).
c. After the Court remanded Fox to the Second Cir-
cuit for a decision on the broadcasters’ constitutional
claims, that court invalidated the Commission’s entire
indecency policy as unconstitutionally vague. See Fox
Television Stations, Inc. v. FCC, 613 F.3d 317 (2010),
cert. granted, No. 10-1293 (argued Jan. 10, 2012).
3. a. In a separate administrative proceeding, the
Commission found indecent a February 25, 2003, broad-
cast of an episode of the television show NYPD Blue, in
which an actress’s nude buttocks were displayed. After
receiving viewer complaints and issuing a notice of ap-
parent liability regarding the program, the Commission
imposed indecency forfeitures on several stations owned
or affiliated with ABC. Complaints Against Various
Television Licensees Concerning Their Feb. 25, 2003
Broad . of the Program “NYPD Blue,” 23 F.C.C.R. 3147
(2008). Applying the framework set out in its 2001 In-
dustry Guidance, the Commission first concluded that
the depiction of an adult woman’s naked buttocks in the
program constituted a depiction of sexual or excretory
organs and thus fell within the subject-matter scope of
the Commission’s indecency policy. Id . at 3149-3151

8
¶¶ 7-11. The Commission next determined that, “in con-
text and on balance, the complained-of material is pa-
tently offensive as measured by contemporary commu-
nity standards for the broadcast medium.” Id . at 3152
¶ 12. In particular, the Commission noted that the pro-
gram contained a “close range,” “fully visible” view of
the actress’s unclothed buttocks that was “sufficiently
graphic and explicit to support an indecency finding.”
Id . ¶ 13.
b. After ABC and its affiliates sought review of the
forfeiture order in the Second Circuit, the court of ap-
peals issued a summary order vacating the Commis-
sion’s order. ABC, Inc. v. FCC, 404 Fed. Appx. 530
(2011), cert. granted, No. 10-1293 (argued Jan. 10, 2012).
The court concluded that “there is no significant distinc-
tion between this case and Fox” because “[a]lthough this
case involves scripted nudity, the case turns on an appli-
cation of the same context-based indecency test that”
the court of appeals in Fox had “found ‘impermissibly
vague.’ ” Id . at 535.
4. This Court granted the government’s petition for
a writ of certiorari in Fox and ABC, see FCC v. Fox
Television Stations, Inc., 131 S. Ct. 3065 (2011), and it
heard argument in the combined cases on January 10,
2012.
5. a. The present case arises from the February 1,
2004, broadcast of the Super Bowl XXXVIII halftime
show. The 2004 Super Bowl was the most-watched
Super Bowl up to that time and was the highest-rated
program of the 2003-2004 television season (among chil-
dren of all ages as well as adults). App., infra, 113a,
142a. For the finale of the halftime show, at approxi-
mately 8:30 p.m. eastern standard time, Janet Jackson
performed a duet with Justin Timberlake entitled “Rock

9
Your Body.” Id. at 153a-154a, 156a-157a. At the close
of the performance, while singing, “gonna have you na-
ked by the end of this song,” Timberlake pulled off the
right portion of Jackson’s bustier, exposing her breast
to the television audience. Id. at 156a-157a.
The Commission received “an unprecedented num-
ber” of complaints about the broadcast. Complaints
Against Various Television Licensees Concerning Their
Feb. 1, 2004, Broad . of the XXXVIII Super Bowl Half-
time Show, 19 F.C.C.R. 19,230, 19,231 ¶ 2 (2004). After
considering CBS’s submissions in response to an FCC
letter inquiring about the incident, the Commission
issued a notice of apparent liability, concluding that
CBS had apparently violated the federal restrictions on
broadcast indecency, and proposing a total forfeiture of
$550,000 against the television stations that the network
owned and operated. Id. at 19,240 ¶ 24.
b. After receiving CBS’s opposition to the notice of
apparent liability, the Commission reaffirmed its tenta-
tive conclusions in a forfeiture order. App., infra, 152a-
212a. The Commission first found that the material fell
within the subject-matter scope of its indecency defini-
tion because the broadcast of an “exposed female
breast” depicted a sexual organ. Id. at 162a. The Com-
mission then determined, applying its three-factor con-
textual analysis, that the material was patently offensive
as measured by contemporary community standards for
the broadcast medium. Id. at 162a-168a.
First, the Commission concluded that the material
was graphic and explicit. App., infra, 163a-165a. Stat-
ing that “a scene showing nude sexual organs is graphic
and explicit if the nudity is readily discernible,” the
Commission found that the image of Jackson’s breast
was “clear and recognizable to the average viewer.” Id.

10
at 163a-164a. The Commission further found that the
explicitness of the image was reinforced by the presence
of Jackson and Timberlake (the show’s headline per-
formers) in the center of the screen and by the fact that
Timberlake’s dramatic action in tearing off Jackson’s
bustier drew the viewer’s attention to what was exposed.
Id. at 164a.
Second, the Commission concluded that the broad-
cast of Jackson’s exposed breast was shocking and
pandering. It noted that the exposure occurred just
as Timberlake sang “gonna have you naked by the end
of this song” and after “repeated references to sexual
activities” and sexually suggestive choreography. App.,
infra, 167a. The display was particularly “shocking to
the viewing audience,” the Commission stated, because
it occurred “during a prime time broadcast of a sport-
ing event that was marketed as family entertainment
and contained no warning that it would include nudity.”
Ibid.
Third, although Jackson’s breast was displayed only
briefly, the Commission concluded that the “brevity” of
the exposure alone did not compel the conclusion that
the broadcast was not indecent. App., infra, 165a-166a.
Rather, the FCC determined, that factor was out-
weighed by the explicitness and shocking nature of the
exposure. Id. at 168a.
c. CBS filed a petition for reconsideration. On re-
consideration, the Commission reaffirmed its conclusion
that the broadcast was indecent and that a forfeiture
was appropriate. App., infra, 112a-151a.
d. The court of appeals vacated and remanded the
Commission’s order upholding the forfeiture. 535 F.3d
167 (2008).

11
The court of appeals held that the Commission’s or-
der violated the Administrative Procedure Act because
it constituted an unexplained departure from what the
court understood to be a prior FCC policy exempting
“isolated or fleeting material” from “the scope of action-
able indecency.” 535 F.3d at 174. The FCC acknowl-
edged that from 1987 to 2004 it had recognized an excep-
tion to liability for non-repeated or “fleeting” expletives.
Id . at 188. The agency contended, however, that the
exception had never extended to “fleeting images.”
Ibid . (emphasis added). The court of appeals rejected
that characterization of prior FCC policy as against “the
balance of the evidence.” Ibid. Reviewing the FCC’s
precedents, the court held that “the Commission’s ex-
ception for fleeting material” had “treated images and
words alike.” Ibid .
The court of appeals stated that its analysis was not
affected by the Commission’s 2004 Golden Globe Awards
Order, in which the Commission had disavowed its prior
exception to indecency enforcement for “isolated or
fleeting broadcasts of the ‘F-word.’ ” Golden Globe
Awards Order, 19 F.C.C.R. at 4980 ¶ 12. The court con-
cluded that the Golden Globe Awards Order represented
the “first time the Commission distinguished between
formats of broadcast material or singled out any one
category of material for special treatment under its
fleeting material policy.” 535 F.3d at 181. The court
construed the order to modify the FCC’s prior policies
in only a limited way, “by excising only one category of
fleeting material—fleeting expletives.” Ibid. (emphasis
added). In the court’s view, the Golden Globe Awards
Order had left in effect “a residual policy on other cate-
gories of fleeting material—including all broadcast con-
tent other than expletives.” Ibid .

12
e. The government petitioned for certiorari, arguing
that the court of appeals had erred by relying on a sup-
posed “fleeting images” exemption to indecency enforce-
ment that in fact did not exist. Instead, the government
explained, the exception abolished in 2004 had applied
only to fleeting expletives. Noting the overlapping is-
sues in this case and Fox—including the fact that both
cases involve the contours of the Commission’s broad-
cast indecency policies as applied to offensive material
that is isolated or fleeting—the government argued that
the Court should hold the petition for certiorari pending
its disposition of Fox. Pet. at 13-14, FCC v. CBS Corp.,
556 U.S. 1218 (No. 08-653). After this Court in Fox I
reversed the Second Circuit’s APA ruling, it granted the
petition in this case, vacated the Third Circuit’s judg-
ment, and remanded the case for reconsideration in light
of Fox I. 556 U.S. 1218 (2009) (No. 08-653).
f. On remand, a divided panel of the Third Circuit
concluded that “Fox confirms our previous ruling in this
case.” App., infra, 2a. The majority acknowledged this
Court’s statement in Fox I that, under the Commission’s
prior indecency regime, “each literal ‘description or de-
piction of sexual or excretory functions must be exam-
ined in context to determine whether it is patently offen-
sive,’ but * * * ‘deliberate and repetitive use . . . is
a requisite to a finding of indecency’ when a complaint
focuses solely on the use of nonliteral expletives.” Id .
at 15a-16a (quoting Fox I, 556 U.S. at 508) (emphasis
added). The majority concluded, however, that this por-
tion of Fox I was “neither reasoning nor holding,” but
“mere characterization.” Id. at 16a. Concluding that
Fox I “does not alter our reasoning or initial resolution
of the case,” the majority readopted—virtually word for

13
word—the court of appeals’ prior opinion on the issue.
Id. at 22a; see id. at 23a-60a.1
g. Judge Scirica, the author of the panel’s prior
opinion, dissented from the court of appeals’ disposition
of the case on remand. Judge Scirica concluded that this
“Court’s intervening decision” in Fox I “requires us to
revise our prior APA holding.” App., infra, 63a. He
explained that the decision in Fox I “contradicts and
undermines our previous holding that FCC enforcement
policy embodied a general exemption for all fleeting ma-
terial.” Id . at 85a-86a. In Judge Scirica’s view, this
Court in Fox I “identifie[d] contextual analysis as the
default policy for all broadcast content, with the narrow
exception of nonliteral expletives.” Id . at 86a. Rather
than vacate the Commission’s indecency determination
without remand, Judge Scirica would have vacated and
remanded the FCC orders on review for the Commission
to consider whether CBS’s conduct met “the proper
mens rea standard” for imposition of a forfeiture. Id. at
110a.
h. On January 18, 2012, the court of appeals denied
the government’s petition for rehearing en banc, with
three judges dissenting. App., infra, 213a-214a.

REASONS FOR GRANTING THE PETITION

The court of appeals erred in overturning the Com-
mission’s determination that CBS’s broadcast of the
2004 Super Bowl halftime show violated federal inde-
cency prohibitions. In concluding that the FCC’s order
1 The Third Circuit’s prior opinion had contained a lengthy discus-
sion of the scienter required for a broadcast indecency forfeiture.
535 F.3d at 189-209. The panel declined to re-adopt that discussion,
concluding that it was no longer necessary to the disposition of the case.
See App., infra, 22a.

14
reflected an unexplained departure from the agency’s
prior precedent, the court relied on a supposed “fleeting
images” exemption from indecency enforcement. As the
Commission explained below, no such exemption has
ever existed. Rather, the exception to liability for fleet-
ing indecent matter that the FCC adopted in 1987 (but
later eliminated) applied only to isolated expletives—not
images or visual material. By adhering to a misconcep-
tion of the Commission’s policies on broadcast indecency
—despite the FCC’s contrary explanation, the support
for that explanation in agency precedent, and this
Court’s decision in Fox I—the court of appeals contra-
vened settled principles governing the deference due to
an administrative agency’s reasonable understanding of
its own decisions.
The respondents in FCC v. Fox Television Stations,
Inc., No. 10-1293 (argued Jan. 10, 2012) (Fox II), have
asserted a fair-notice challenge to the FCC’s imposition
of a forfeiture for the broadcast of nudity that the
broadcasters in that case characterize as brief. The
Court’s resolution of that fair-notice claim in Fox II may
shed light on the proper understanding of the pertinent
regulatory history. The Court should therefore hold this
petition for Fox II and then dispose of the petition as
appropriate in light of its decision in that case.
1. The court of appeals misconstrued the FCC’s poli-
cies on broadcast indecency and contravened settled
principles governing the deference due to an administra-
tive agency’s reasonable understanding of its own prece-
dent. An agency’s interpretation of its own regulations
is “of controlling weight unless it is plainly erroneous or
inconsistent with the regulation.” Bowles v. Seminole
Rock & Sand Co., 325 U.S. 410, 414 (1945). Likewise,
“[a]n agency’s interpretation of its own precedent is en-

15
titled to deference” and must be upheld if “reasonable.”
Boca Airport, Inc. v. FAA, 389 F.3d 185, 190 (D.C. Cir.
2004) (brackets in original) (quoting Cassell v. FCC, 154
F.3d 478, 483 (D.C. Cir. 1998)).
The Commission explained below that its indecency
rules and policies never included a “fleeting nudity” ex-
ception to indecency liability. The FCC’s explanation of
its own regulatory approach is well supported by the
agency’ prior guidance and decisions, as well as by the
commonsense distinction between words and images.
More than two decades ago, the Commission explained
that “deliberate and repetitive use in a patently offen-
sive manner is a requisite to a finding of indecency” only
when “a complaint focuses solely on the use of exple-
tives.” Pacifica Found., Inc., 2 F.C.C.R. 2698, 2699 ¶ 13
(1987). By contrast, “[w]hen a complaint goes beyond
the use of expletives, * * * repetition of specific words
or phrases is not necessarily an element critical to a de-
termination of indecency.” Ibid. Accordingly, the FCC
stated, “speech involving the description or depiction of
sexual or excretory functions must be examined in con-
text to determine whether it is patently offensive.” Ibid.
(emphasis added).
Those statements made clear that, under the Commis-
sion’s then-existing policy, repetition was essential to a
finding of indecency only where expletives were con-
cerned. An image, however, is not an expletive, and it
necessarily “involv[es] * * * depiction.” Pacifica
Found., Inc., 2 F.C.C.R. at 2699 ¶ 13. The Commission’s
1987 Pacifica decision therefore gave broadcasters no-
tice that the exception to the broadcast indecency re-
gime for isolated expletives did not extend to isolated
indecent images. Because the general policy of contex-
tual indecency analysis applied to both visual depictions

16
and verbal descriptions of sexual or excretory functions,
such depictions and descriptions could be found indecent
even if they were not repeated or extended.
This Court’s decision in Fox I further demonstrates
the reasonableness of the Commission’s understanding
of its own indecency policy, and the error in the court of
appeals’ contrary interpretation. As the Court ex-
plained, when the Commission expanded its indecency
policy in 1987 beyond the “seven dirty words,” the
agency “preserved a distinction between literal and non-
literal (or ‘expletive’) uses of evocative language.” FCC
v. Fox Television Stations, Inc., 556 U.S. 502, 508
(2009). Under that approach, “each literal ‘description
or depiction of sexual or excretory functions must be
examined in context to determine whether it is patently
offensive,’ ” while “deliberate and repetitive use” would
be “a requisite to a finding of indecency” only when a
complaint focuses solely on the use of nonliteral exple-
tives. Ibid. (quoting Pacifica Found ., 2 F.C.C.R. at
2699 ¶ 13). Relying on that understanding of the Com-
mission’s policy, the Court upheld as reasonable the
agency’s decision to eliminate the exception for fleeting
expletives. As the Court explained, “[t]he Commission
could rationally decide it needed to step away from its
old regime where nonrepetitive use of an expletive was
per se nonactionable because that was at odds with the
Commission’s overall enforcement policy.” Id. at 1813
(internal quotation marks and citation omitted).
Thus, as Judge Scirica observed in dissent below,
Fox I “compels the conclusion that the fleeting exemp-
tion was limited to a particular type of words” and did
not apply to images. App., infra, 63a. If (as the court of
appeals majority found) the FCC had historically recog-
nized an exception for fleeting nudity, elimination of the

17
fleeting-expletives exception could not have conformed
the Commission’s treatment of expletives with the agen-
cy’s “overall enforcement policy.” Fox I, 556 U.S. at 518
(citation omitted). The decision below is therefore “ir-
reconcilable with the reasoning by which the Supreme
Court upheld the FCC orders” in Fox I. App., infra, 89a
(Scirica, J., dissenting).
2. The Court’s decision in Fox II may shed light on
the proper resolution of this case. This petition there-
fore should be held for Fox II and then disposed of as
appropriate in light of the Court’s decision.
As explained above, one of the broadcasts at issue in
Fox II involved a visual depiction of nude female but-
tocks. In addressing the vagueness challenge raised by
the plaintiffs and endorsed by the Second Circuit, the
government has argued, inter alia, that ABC had fair
notice that the pertinent NYPD Blue episode was inde-
cent. Gov’t Br. at 24-26, 31-32, Fox II, supra (No.
10-1293). The respondents in Fox II, by contrast, have
argued that Commission precedent did not provide ABC
with adequate notice that what they characterize as the
“brief ” display of nudity in the NYPD Blue episode
would be considered indecent. See ABC Br. at 17-22, 24-
26, Fox II, supra (No. 10-1293); ABC Affiliates’ Br. at
34-39, Fox II, supra (No. 10-1293). Respondent ABC
Affiliates Association specifically contends that “prior to
the NYPD Blue Notice [of apparent liability], broadcast-
ers had no reason to believe that the broadcast of brief,
non-sexual nudity would be found indecent.” ABC Affili-
ates Br. at 35, Fox II, supra (No. 10-1293).
In resolving the parties’ dispute concerning the ade-
quacy of the notice given to regulated parties, the Court
in Fox II may analyze the history of the Commission’s
indecency enforcement policy, in the contexts of both

18
expletives and images. In particular, the Court may
consider the guidance available to ABC at the time it
broadcast the nude images in the NYPD Blue episode,
including whether the network had notice that the pro-
gram would be evaluated under the Commission’s gen-
eral contextual approach to indecency enforcement, and
the applicability (if any) of the agency’s supposed excep-
tion for fleeting images. The Court’s analysis of the fair-
notice claims in Fox II thus could bear directly on the
correctness of the Third Circuit’s decision in this case.
For these reasons, this petition should be held pending
the Court’s decision in Fox II and then disposed of as
appropriate in light of that decision.

CONCLUSION

The petition for a writ of certiorari should be held
pending this Court’s decision in FCC v. Fox Television
Stations, Inc., No. 10-1293 (argued Jan. 10, 2012), and
then disposed of as appropriate in light of that decision.
Respectfully submitted.
DONALD B. VERRILLI, JR.
Solicitor General
AUSTIN C. SCHLICK
STUART F. DELERY
General Counsel
Acting Assistant Attorney
PETER KARANJIA
General
Deputy General Counsel
MALCOLM L. STEWART
JACOB M. LEWIS
Deputy Solicitor General
Associate General Counsel
JOSEPH R. PALMORE
C. GREY PASH, JR.
Assistant to the Solicitor
Counsel
General
Federal Communications
THOMAS M. BONDY
Commission
Attorney
APRIL 2012

APPENDIX A

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 06-3575
CBS CORPORATION; CBS BROADCASTING INC.;
CBS TELEVISIONSTATIONS INC.; CBS STATIONS
GROUP OF TEXAS L.P.; AND KUTV HOLDINGS, INC.,
PETITIONERS
v.
FEDERAL COMMUNICATIONS COMMISSION;
UNITED STATES OF AMERICA, RESPONDENTS
Argued: Sept. 11, 2007
Decided: July 21, 2008
Certiorari Granted, Judgment Vacated and Remanded
from the Supreme Court of the United States
May 4, 2009
Argued on Remand from the
Supreme Court of the United States
Feb. 23, 2010
Before: SCIRICA, RENDELL and FUENTES, Circuit
Judges
(1a)

2a
(Opinion Filed Nov. 2, 2011)

OPINION OF THE COURT

RENDELL, Circuit Judge.
This matter comes before us on remand from the
United States Supreme Court in light of its ruling in
F.C.C. v. Fox Television Stations, Inc., 556 U.S. 502, 129
S. Ct. 1800, 173 L. Ed. 2d 738 (2009). This case, like
Fox, involves a tightening of the Federal Communica-
tions Commission’s standards for the broadcast of fleet-
ing indecent material. Fox concerned the FCC’s deci-
sion to abandon its safe harbor for expletives that are
not repeated; this case considers the FCC’s departure
from its earlier policy exempting fleeting images from
the scope of actionable indecency. While we can under-
stand the Supreme Court’s desire that we re-examine
our holdings in light of its opinion in Fox—since both
involve the FCC’s policy regarding “fleeting mate-
rial”—in Part A of this opinion we conclude that, if any-
thing, Fox confirms our previous ruling in this case and
that we should readopt our earlier analysis and holding
that the Commission acted arbitrarily in this case. See
CBS Corp. v. F.C.C., 535 F.3d 167 (3d Cir. 2008), vacated
by F.C.C. v. CBS Corp., — U.S. —, 129 S. Ct. 2176, 173
L. Ed. 2d 1153 (2009). Accordingly, in Part B of this
opinion we again set forth our reasoning and conclusion
that the FCC failed to acknowledge that its order in this
case reflected a policy change and improperly imposed
a penalty on CBS for violating a previously unannounced
policy. See id. at 188-89. We have reconsidered certain
other aspects of our previous opinion and will not re-

3a
mand, but, instead, will rule in Part B that CBS’s peti-
tion for review is granted in toto.

Part A: Our Prior Opinion and the Impact of Fox


I.

The treatment of fleeting indecency over the air-
waves has been the subject of much consideration by the
FCC and the courts over the last thirty years. This case
involves a February 1, 2004 incident: the exposure, for
nine-sixteenths of one second, of Janet Jackson’s bare
right breast during the live halftime performance of the
National Football League’s Super Bowl XXXVIII.1 The
FCC issued a forfeiture order against CBS in March
2006, imposing a penalty of $550,000. See In re Com-
plaints Against Various Television Licensees Concern-
ing Their February 1, 2004 Broadcast of the Super Bowl
XXXVIII Halftime Show, 21 F.C.C.R. 2760 (2006)
(“Forfeiture Order ”). We described the FCC’s reason-
ing in our previous opinion:
Affirming its preliminary findings, the Commission
concluded the Halftime Show broadcast was indecent
because it depicted a sexual organ and violated “con-
temporary community standards for the broadcast
medium.” Id. at ¶ 10. In making this determination,
the FCC relied on a contextual analysis to find the
broadcast of Jackson’s exposed breast was: (1) gra-
phic and explicit, (2) shocking and pandering, and
(3) fleeting. Id. at ¶ 14. It further concluded that the
brevity of the image was outweighed by the other
two factors. Id. The standard applied by the Com-
mission is derived from its 2001 policy statement set-
1 Our original opinion in this matter provided additional factual and
procedural background. See CBS Corp., 535 F. 3d at 171-74.

4a
ting forth a two-part test for indecency: (1) “the ma-
terial must describe or depict sexual or excretory
organs or activities,” and (2) it must be “patently of-
fensive as measured by contemporary community
standards for the broadcast medium.” In re Indus-
try Guidance on the Commission’s Case Law Inter-
preting 18 U.S.C. § 1464 and Enforcement Policies
Regarding Broadcast Indecency, 16 F.C.C.R. 7999,
8002 ¶¶ 7-8 (2001) (emphasis in original). . . .
Additionally, the FCC determined CBS’s actions in
broadcasting the indecent image were “willful” and
therefore sanctionable by a monetary forfeiture un-
der 47 U.S.C. § 503(b)(1). See Forfeiture Order at
¶ 15.
CBS Corp., 535 F.3d at 172. CBS sought reconsideration
under 47 C.F.R. § 1.106, which the FCC denied. See In
re Complaints Against Various Television Licensees
Concerning Their February 1, 2004 Broadcast of the
Super Bowl XXXVIII Halftime Show, 21 F.C.C.R. 6653
(2006). Neither of these two orders acknowledged, much
less explained, any change in the FCC’s enforcement
policy for fleeting indecent images.
CBS filed a petition for review in our Court, contend-
ing that the FCC’s ruling that the fleeting nude image
was actionable indecency constituted a change in policy,
and its application to CBS was, therefore, arbitrary and
capricious under the Administrative Procedure Act
(“APA”), 5 U.S.C. § 706. Specifically, CBS urged that,
before the incident in question, FCC policy provided
that the “isolated use of expletives in broadcasts did not
constitute actionable indecency under 18 U.S.C. § 1464.”
CBS Corp., 535 F.3d at 176 (citing See In re Application

5a
of Pacifica Found., 95 F.C.C. 2d 750, 1983 WL 182971
(1983)).
The FCC defended its actions on the basis that its
earlier fleeting-material policy applied only to fleeting
utterances and did not extend to fleeting images.2 We
rejected this contention:
During a span of nearly three decades, the Commis-
sion frequently declined to find broadcast program-
ming indecent, its restraint punctuated only by a few
occasions where programming contained indecent
material so pervasive as to amount to “shock treat-
ment” for the audience. Throughout this period, the
Commission consistently explained that isolated or
fleeting material did not fall within the scope of ac-
tionable indecency. At the time the Halftime Show
was broadcasted by CBS, the FCC’s policy on fleet-
ing material was still in effect. The FCC contends its
restrained policy applied only to fleeting utterances
—specifically, fleeting expletives—and did not ex-
tend to fleeting images. But a review of the Commis-
sion’s enforcement history reveals that its policy on
fleeting material was never so limited. The FCC’s
present distinction between words and images for
purposes of determining indecency represents a de-
parture from its prior policy.
2 The FCC abandoned its “restrained enforcement policy for fleeting
broadcast material,” at least as it applied to fleeting expletives, in its
March 2004 order in In re Complaints Against Various Broadcast
Licensees Regarding the Airing of the “Golden Globe Awards” Pro-
gram, 19 F.C.C.R. 4975 (2004) (“Golden Globes”). See CBS Corp., 535
F.3d at 180. Because that policy change post-dated the February 2004
broadcast at issue in this case, it cannot serve as the basis for the penal-
ty imposed on CBS. See id. at 180–81.

6a
Id. at 174-75.
Reviewing in detail the progression of FCC rulings
leading up to the present, we could not find the distinc-
tion advocated by the FCC. Indeed, we could only reach
the opposite conclusion:
[T]he balance of the evidence weighs heavily against
the FCC ’s contention that its restrained enforce-
ment policy for fleeting material extended only to
fleeting words and not to fleeting images. As de-
tailed, the Commission’s entire regulatory scheme
treated broadcasted images and words interchange-
ably for purposes of determining indecency. There-
fore, it follows that the Commission’s exception for
fleeting material under that regulatory scheme like-
wise treated images and words alike. Three decades
of FCC action support this conclusion.
Accordingly, we find the FCC’s conclusion on this
issue, even as an interpretation of its own policies
and precedent, “counter to the evidence before the
agency” and “so implausible that it could not be as-
cribed to a difference in view or the product of agen-
cy expertise.”
Id. at 188 (quoting Motor Vehicle Mfrs. Ass’n of U.S.,
Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43,
103 S. Ct. 2856, 77 L. Ed. 2d 443 (1983)).
Thus, we found that the ruling in this case repre-
sented a departure from prior policy that required an
explanation:
The Commission’s determination that CBS’s broad-
cast of a nine-sixteenths of one second glimpse of a
bare female breast was actionably indecent evi-

7a
denced the agency’s departure from its prior policy.
Its orders constituted the announcement of a policy
change—that fleeting images would no longer be ex-
cluded from the scope of actionable indecency. . . .
[A]n agency cannot ignore a substantial diversion
from its prior policies. See Ramaprakash v. FAA,
346 F.3d 1121, 1124 (D.C. Cir. 2003) (agency must
“provide a reasoned analysis indicating that prior
policies and standards are being deliberately
changed, not casually ignored”). As the Supreme
Court explained in State Farm, an agency must be
afforded great latitude to change its policies, but it
must justify its actions by articulating a reasoned
analysis behind the change. . . .
CBS Corp., 535 F.3d at 181-82 (citing State Farm, 463
U.S. at 42-43, 103 S. Ct. 2856).
We then noted that in Fox Television Stations, Inc.
v. F.C.C., the United States Court of Appeals for the
Second Circuit had analyzed under State Farm the
FCC’s change in its fleeting-expletive policy (announced
in its Golden Globes order, after the 2004 Halftime Show
broadcast at issue here) and had “rejected the agency’s
proffered rationale as ‘disconnected from the actual pol-
icy implemented by the Commission.’” Id. at 183 (quot-
ing 489 F.3d 444, 459 n. 8 (2d Cir. 2007), rev’d, Fox, 129
S. Ct. 1800). We then distinguished the FCC’s actions in
Fox from its order in this case:
There, as Judge Leval noted in dissent, the FCC pro-
vided an explanation for changing its policy on fleet-
ing expletives. The critical question splitting the
court was whether that explanation was adequate
under State Farm. Here, unlike in Fox, the FCC has
not offered any explanation—reasoned or otherwise

8a
—for changing its policy on fleeting images. Ra-
ther, the FCC asserts it never had a policy of exclud-
ing fleeting images from the scope of actionable inde-
cency, and therefore no policy change occurred when
it determined that the Halftime Show’s fleeting im-
age of Janet Jackson’s breast was actionably inde-
cent.
Id. (emphasis added). Because our analysis of three
decades of FCC enforcement contradicted the Commis-
sion’s assertion in this regard, we concluded that “the
FCC’s new policy of including fleeting images within the
scope of actionable indecency is arbitrary and capricious
under State Farm and the Administrative Procedure
Act, and therefore invalid as applied to CBS.” Id. at
189.
We next engaged in a discussion regarding the de-
gree of scienter necessary for the imposition of a forfei-
ture, and concluded the opinion by remanding to the
agency, finding this course of action to be appropriate
where the agency has issued an arbitrary decision. See
id. at 209.
Eight months later the Supreme Court issued its
decision in Fox, on certiorari from the Second Circuit.
See Fox, 129 S. Ct. 1800. As noted above, the issue in
that case was “the adequacy of the Federal Communica-
tions Commission’s explanation of its decision that [the
statutory prohibition on indecent language] sometimes
forbids the broadcasting of indecent expletives even
when the offensive words are not repeated,” not, as

9a
here, the question whether the FCC’s order amounted
to a policy change.3 Id. at 1805 (emphasis added).
The Court reviewed the statutory and regulatory
background in the introductory section of the opinion,
concluding with a discussion of the FCC’s ruling in
Golden Globes, where “the Commission took one step
further by declaring for the first time that a nonliteral
(expletive) use of the F- and S-Words could be action-
ably indecent, even when the word is used only once,”
Fox, 129 S. Ct. at 1807. The Supreme Court observed:
The [Golden Globes] order acknowledged that “prior
Commission and staff action have indicated that iso-
lated or fleeting broadcasts of the ‘F-Word’ . . . are
not indecent or would not be acted upon.” It explic-
itly ruled that “any such interpretation is no longer
good law.” It “clarif[ied] . . . that the mere fact
that specific words or phrases are not sustained or
repeated does not mandate a finding that material
that is otherwise patently offensive to the broadcast
medium is not indecent.” Because, however, “exist-
ing precedent would have permitted this broadcast,”
the Commission determined that “NBC and its affili-
3 In this regard, the Supreme Court noted that, in the orders at issue
in Fox:
The Commission forthrightly acknowledged that its recent actions
have broken new ground, taking account of inconsistent “prior Com-
mission and staff action” and explicitly disavowing them as “no longer
good law.” Golden Globes, 19 F.C.C.R. at 4980. . . . There is no
doubt that the Commission knew it was making a change. That is
why it declined to assess penalties; and it relied on the Golden Globes
Order as removing any lingering doubt. Remand Order, 21 F.C.C.R.
at 13308.
Fox, 129 S. Ct. at 1812.

10a
ates necessarily did not have the requisite notice to
justify a penalty.”
Id. at 1808 (internal citations omitted).
The Court next considered the case before it, which
involved two instances of celebrities’ use of the “F-
Word” in live broadcasts. Id. (discussing Cher’s and
Nicole Richie’s statements at two consecutive Billboard
Music Awards broadcasts). The Commission had ini-
tially issued Notices of Apparent Liability, but imposed
no fines. See In re Complaints Regarding Various Tele-
vision Broadcasts Between February 2, 2002 and March
8, 2005, 21 F.C.C.R. 2664 (2006). In further proceed-
ings, the Commission gave Fox the opportunity to ob-
ject, then upheld the indecency findings. See In re Com-
plaints Regarding Various Television Broadcasts Be-
tween February 2, 2002, and March 8, 2005, 21 F.C.C.R.
13299 (2006) (“Remand Order”). The FCC’s order ex-
plained its reason for departing from the position that
fleeting expletives were exempt from otherwise applica-
ble indecency standards:
In the Commission’s view, “granting an automatic
exemption for ‘isolated or fleeting’ expletives un-
fairly forces viewers (including children)” to take
“ ‘the first blow’ ” and would allow broadcasters “to
air expletives at all hours of a day so long as they did
so one at a time.”
Fox, 129 S. Ct. at 1809 (internal citations omitted). The
FCC appeared to hedge to some degree as to the extent
of, and timing of, its change in policy for fleeting mate-
rial, but, as the Supreme Court noted, it “made clear
[that] the Golden Globes Order eliminated any doubt
that fleeting expletives could be actionably indecent, and
the Commission disavowed the bureau-level decisions

11a
and its own dicta that had said otherwise.” Id. (internal
citations omitted).
Regarding the adequacy of the FCC’s explanation for
its policy change, the Court rejected the Second Cir-
cuit’s view that an agency must “make clear ‘why the
original reasons for adopting the [displaced] rule or pol-
icy are no longer dispositive’ as well as ‘why the new
rule effectuates the statute as well as or better than the
old rule.’ ” Fox, 129 S. Ct. at 1810 (quoting Fox, 489
F.3d at 456-57) (internal quotations omitted; alteration
in original). It held:
To be sure, the requirement that an agency provide
reasoned explanation for its action would ordinarily
demand that it display awareness that it is changing
position. An agency may not, for example, depart
from a prior policy sub silentio or simply disregard
rules that are still on the books. See United States v.
Nixon, 418 U.S. 683, 94 S. Ct. 3090, 41 L. Ed. 2d 1039
(1974). And of course the agency must show that
there are good reasons for the new policy. But it
need not demonstrate to a court’s satisfaction that
the reasons for the new policy are better than the
reasons for the old one; it suffices that the new policy
is permissible under the statute, that there are good
reasons for it, and that the agency believes it to be
better, which the conscious change of course ade-
quately indicates.
Id. at 1811.
The Court concluded that, in that case, the Commis-
sion’s “reasons for expanding the scope of its enforce-
ment activity were entirely rational”:

12a
It was certainly reasonable to determine that it made
no sense to distinguish between literal and nonliteral
uses of offensive words, requiring repetitive use to
render only the latter indecent. As the Commission
said with regard to expletive use of the F-Word, “the
word’s power to insult and offend derives from its
sexual meaning.” And the Commission’s decision to
look at the patent offensiveness of even isolated uses
of sexual and excretory words fits with the con-
text-based approach we sanctioned in [F.C.C. v.
Pacifica Foundation ], 438 U.S. [726], 750, 98 S. Ct.
3026 [57 L. Ed. 2d 1073 (1978) ]. Even isolated utter-
ances can be made in “pander[ing,] . . . vulgar and
shocking” manners, and can constitute harmful
“ ‘first blow[s]’ ” to children. It is surely rational (if
not inescapable) to believe that a safe harbor for sin-
gle words would “likely lead to more widespread use
of the offensive language.”
Fox, 129 S. Ct. at 1812-13 (internal citations omitted).
Notably, the Court’s discussion of the Commission’s ac-
tion concluded with the following statement: “[T]he
agency’s decision not to impose any forfeiture or other
sanction precludes any argument that it is arbitrarily
punishing parties without notice of the potential conse-
quences of their action.” Id. at 1813.
Accordingly, the Court reversed the Second Circuit’s
order and upheld the FCC’s decision.

II.

We must decide the extent to which Fox affects our
previous ruling in this case. We conclude that, if any-
thing, the Supreme Court’s decision fortifies our original
opinion, in two ways.

13a
For one thing, in Fox, unlike in this case, the FCC
acknowledged that its orders had “broken new ground,”
as noted above. See 129 S. Ct. at 1812. The Supreme
Court specifically noted that the FCC’s “decision not to
impose any forfeiture or other sanction” in that case
signaled its recognition that assessing penalties based
on violations of previously unannounced policies would
amount to “arbitrarily punishing parties without notice
of the potential consequences of their actions.” Id. at
1813. The same logic implies that the FCC erred in im-
posing a fine on CBS in this case, as the chronology of
events that are the subject of these cases demonstrates.
The FCC Enforcement Bureau’s original, 2003 ruling
in Golden Globes applied its then-controlling policy of
exempting all fleeting indecent material from enforce-
ment, determining that the singer Bono’s use of the “F-
Word” (“this is really, really f—brilliant”) did “not fall
within the scope of the Commission’s indecency prohibi-
tion.” CBS Corp., 535 F.3d at 177 (quoting In re Com-
plaints Against Various Broadcast Licensees Regard-
ing Their Airing of the “Golden Globe Awards” Pro-
gram, 18 F.C.C.R. 19859, ¶ 6 (FCC Enforcement Bureau
2003)). But, in March 2004, the full Commission re-
versed the Enforcement Bureau’s decision, overruling
all of its prior cases that held fleeting expletives were
not actionable. The Commission declined to impose a
penalty on the Golden Globes broadcasters, however,
because “‘existing precedent would have permitted [the
Golden Globe Awards] broadcast’ and therefore it would
be ‘inappropriate’ to sanction licensees for conduct prior
to notice of policy change.” Id. at 178 (quoting Golden
Globes, 19 F.C.C.R. at 4981-82).

14a
The expletive utterances by Cher and Nicole Richie
that were considered in Fox took place, respectively,
during the 2002 and 2003 Billboard Music Awards tele-
casts, before the full Commission’s March 2004 Golden
Globes decision. Accordingly, and applying the same
rationale as in Golden Globes, the FCC declined to im-
pose a fine. As the Fox Court observed and affirmed,
the decision not to impose a fine in that case signaled the
FCC ’s understanding that imposing sanctions for con-
duct that occurred before the FCC’s policy change was
announced would raise due process concerns. See Fox,
129 S. Ct. at 1813.
The same principle applies here. The relevant Half-
time Show broadcast occurred in February 2004, preced-
ing the FCC’s ruling in Golden Globes. But despite its
earlier consistent policy exempting all fleeting mate-
rial—words and images—from its indecency rules, see
CBS Corp., 535 F.3d at 188, the FCC assessed a fine
against CBS. Fox confirms our earlier observation that
because the Commission did not announce any change in
its fleeting-material policy until March 2004, and be-
cause the offensive conduct in this case (like the offend-
ing conduct in Golden Globes and Fox) preceded that
date, the FCC’s assessment of a forfeiture and imposi-
tion of a penalty against CBS constitutes arbitrary, and
therefore unlawful, punishment. Fox, 129 S. Ct. at 1813;
see also CBS Corp., 535 F.3d at 180-81.
The FCC and our dissenting colleague contend that,
in all events, the FCC’s decision in Young Broadcasting
of San Francisco, Inc., 19 F.C.C.R. 1751 (2004), issued
just days before CBS’s Halftime Show, provided CBS
with adequate notice that the FCC might impose a for-
feiture for fleeting nude images. But as we pointed out

15a
in our earlier opinion, the 2004 Young Broadcasting de-
cision was a non-final notice of apparent liability; “the
final disposition of Young Broadcasting was still unre-
solved” at the time of the Halftime Show broadcast. Id.
at 187 & n. 18. The decision therefore reflects only
“tentative conclusions” of the FCC, and, in our view,
provides insufficient notice of the FCC’s official policy
on fleeting nude images, particularly when viewed in the
context of the agency’s consistent refusal over three
decades to consider such fleeting material indecent, to
justify the imposition of sanctions against CBS.
Therefore, we must reaffirm our conclusion that the
penalty imposed in this case is arbitrary unless we find,
contrary to the extensive analysis in our earlier opinion,
that the FCC’s pre-Golden Globes fleeting-material pol-
icy did not also apply to fleeting images. But, here
again, Fox supports our previous conclusion. The Com-
mission, and our dissenting colleague, point to one small
portion of the background section in the Supreme
Court’s lengthy Fox opinion as support for the position
that the FCC’s fleeting-material policy never applied to
images but was always restricted to words. But we dis-
cern no such meaning in the relevant passage, which
briefly observed:
Although the Commission had expanded its enforce-
ment beyond the “repetitive use of specific words or
phrases,” it preserved a distinction between literal
and nonliteral (or “expletive”) uses of evocative lan-
guage. The Commission explained that each literal
“description or depiction of sexual or excretory func-
tions must be examined in context to determine
whether it is patently offensive,” but that “deliberate
and repetitive use . . . is a requisite to a finding of

16a
indecency” when a complaint focuses solely on the
use of nonliteral expletives.
129 S. Ct. at 1807 (quoting In re Pacifica Found., Inc.,
2 F.C.C.R. 2698, 2699, ¶ 13 (1987)).
The FCC argues that images fall into the category of
literal “descriptions or depictions” of sexual organs or
functions, and that the Court’s language indicates that
the FCC’s previous fleeting-material policy applied only
to non-literal, or expletive, depictions or descriptions,
and not, as we previously concluded, to fleeting images
as well as expletives. We disagree.
First, we do not see how this summary recitation of
the Commission’s opinions affects the reasoning or re-
sult in our case. It appears in the Court’s background
discussion of the FCC’s historical approach to indecent
language, and is neither reasoning nor holding; it is
mere characterization. Second, this language narrowly
addresses words and phrases, with no discussion of im-
ages. Although the phrase “description or depiction,”
considered in isolation, could be construed to include
images, Justice Scalia is paraphrasing the language of
the FCC’s 1987 Pacifica Foundation opinion, involving
words alone, in which the complete phrase used by the
FCC was “speech involving the description or depiction
of sexual or excretory functions.”4 In re Pacifica
4 The full text of the relevant paragraph from Pacifica Foundation
is as follows:
While speech that is indecent must involve more than an isolated
use of an offensive word . . . , repetitive use of specific words or
phrases is not an absolute requirement for a finding of indecency.
If a complaint focuses solely on the use of expletives, we believe
that under the legal standards set forth in Pacifica, deliberate and
repetitive use in a patently offensive manner is a requisite to a

17a
Found., Inc., 2 F.C.C.R. 2698, 2699, ¶ 13 (1987), quoted
in Fox, 129 S. Ct. at 1807. As the dissent concedes, dis-
senting op. at 164-65 n. 7, Fox says nothing at all about
images. Nor does it suggest that the FCC’s previous
fleeting-material policy applied only to “words,” or dis-
tinguished between words and images, as the Commis-
sion originally argued to us (an argument we forcefully
rejected after reviewing three decades of rulings). In-
deed, the Fox Court had no occasion to consider the ap-
plication of the FCC’s pre-Golden Globes fleeting-mate-
rial policy to images, since that case involved the use of
spoken fleeting expletives.5
finding of indecency. When a complaint goes beyond the use of ex-
pletives, however, repetition of specific words or phrases is not nec-
essarily an element critical to a determination of indecency. Rat-
her, speech involving the description or depiction of sexual or ex-
cretory functions must be examined in context to determine wheth-
er it is patently offensive under contemporary community stan-
dards applicable to the broadcast medium. The mere fact that spe-
cific words or phrases are not repeated does not mandate a finding
that material that is otherwise patently offensive to the broadcast
medium is not indecent.
2 F.C.C.R. at 2699 ¶ 13 (emphases added).
5 Our dissenting colleague contends that the Supreme Court’s omis-
sion of any discussion of fleeting images in Fox “strongly suggests” that
images never fell within the FCC’s fleeting-material policy. Dissenting
op. at 165. By contrast, we are unwilling to read the Court’s silence as
overruling our conclusion, based on a careful review of three decades of
FCC precedent to discern the agency’s policy on precisely this issue,
that the FCC historically did not distinguish between fleeting images
and words. See 535 F.3d at 188 (“[T]he Commission’s entire regulatory
scheme treated broadcasted images and words interchangeably for pur-
poses of determining indecency. Therefore, it follows that the Commis-
sion’s exception for fleeting material under that regulatory scheme like-
wise treated words and images alike.”). Images simply were not in-
volved in the case.

18a
More to the point, read in context, this language does
not refer to the FCC’s pre-Golden Globes fleeting-mate-
rial policy at all. Instead, it describes the evolution of
the Commission’s overall approach to a separate issue,
i.e., whether “its enforcement power was limited to ‘de-
liberate, repetitive use of the seven words actually con-
tained in the George Carlin monologue.’ ” 6 Id. at 1807
(quoting Pacifica Found., 2 F.C.C.R. at 2699 ¶ 12).
Critically, the relevant portion of the Pacifica Founda-
tion opinion that Fox quoted clearly distinguished be-
tween these two concepts, explaining that “speech that
is indecent must involve more than an isolated,” i.e.,
fleeting, “use of an offensive word,” but that “repetitive
use of specific words or phrases” (i.e., the expletive
words or phrases from the Carlin monologue) was not
required. Pacifica Found., 2 F.C.C.R. at 2699 ¶ 13 (em-
phasis added). The Supreme Court in the quoted lan-
guage from Fox, and the FCC in the Pacifica Founda-
tion opinion that Fox quoted, were focused entirely
on the FCC’s earlier policy (arising out of the Carlin
monologue) regarding the “ ‘use of specific words or
phrases’” as a prerequisite to a finding of indecency, not
the question whether the reference to a particular word
or image that might otherwise be deemed indecent was
passing or fleeting in nature. Just as Fox involved spo-
ken fleeting expletives, not fleeting images, Pacifica
Foundation involved sustained, repeated use of exple-
tives and sexually explicit language, not fleeting words
or images.7
6 See Fox, 129 S. Ct. at 1806, and CBS Corp., 535 F.3d at 175, for ad-
ditional background on the Carlin monologue.
7 Pacifica Foundation concerned a radio station’s airing of a pro-
gram entitled “Shocktime America,” which allegedly contained a nar-
ration and song lyrics using words and phrases such as “eat shit,”

19a
Moreover, the very next paragraph of Fox confirms
that neither the Supreme Court nor the FCC inter-
preted Pacifica Foundation’s distinction between literal
and non-literal uses of specific words or phrases to im-
pact the otherwise applicable policy for fleeting mate-
rial. Fox, 129 S. Ct. at 1807. In that paragraph, quoting
an FCC policy statement from 2001, the Court made
clear that, even after Pacifica Foundation, the excep-
tion for fleeting material still applied, separate and
apart from any distinction arising between “literal” and
“non-literal” words referring to sexual or excretory
functions. Quoting a 2001 FCC policy statement, the
Court said, “ ‘No single factor,’ the Commission said,
‘generally provides the basis for an indecency finding,’
but ‘where sexual or excretory references have been
made once or have been passing or fleeting in nature,
this characteristic has tended to weigh against a finding
of indecency.’ ” Fox, 129 S. Ct. at 1807 (quoting In re
Industry Guidance on the Commission’s Case Law In-
terpreting 18 U.S.C § 1464 and Enforcement Policies
Regarding Broadcast Indecency, 16 F.C.C.R. 7999, 8003
¶ 10, 8008 ¶ 17 (2001) (“Industry Guidance”)) (emphasis
added).8
If we were to read the Supreme Court’s background
discussion in Fox as indicating that the history of FCC
“mother-fucker,” and “fuck the U.S.A.,” and a program featuring ex-
cerpts from a play with dramatic readings of sexual fantasies and con-
taining language highly descriptive of sexual and excretory activities.
Pacifica defended that the Shocktime remarks were not scripted, and
asserted that the language of the play was taken out of context and the
broadcast was at night when children would not be listening.
8 Interestingly, we cited this exact language as evidence of the FCC’s
“restrained enforcement policy” for fleeting indecent material in our
earlier opinion. See CBS Corp., 535 F.3d at 177.

20a
enforcement in the area of fleeting material recognized
an exception only for non-literal expletives, to the exclu-
sion of images, we would be accusing the Supreme Court
of rewriting history. This is because, in Young Broad-
casting, which involved a fleeting image of a body part
much like the one presented here, the Commission had
the opportunity to explain that, after Pacifica Founda-
tion, its fleeting-material policy did not apply to images.
But the FCC did not say that, nor did it mention, much
less rely on, Pacifica Foundation in analyzing the
broadcast images at issue in that case.9 See Young
Broadcasting, 19 F.C.C.R. at 1755 ¶ 12 & n. 35.
Instead, the FCC noted the fact that “the actual ex-
posure of the performer’s penis” in that case “was fleet-
ing in that it occurred for less than a second.” Id. It
then compared the overall circumstances in the case to
other cases in which it had applied the fleeting-material
exception, and held that Young Broadcasting was dif-
ferent—an exception to the exception—because “the
material was apparently intended to pander to, titillate
and shock viewers” and because the station knew in ad-
vance that “the interview involved performers who ap-
pear nude in order to manipulate and stretch their geni-
talia,” but “failed to take adequate precautions to ensure
that no actionably indecent material was broadcast.” Id.
at 1755-56 ¶¶ 12-13 & n. 35; see also CBS Corp., 535 F.3d
at 186 & n. 16-17.
9 Just as Young Broadcasting did not mention Pacifica Founda-
tion’s literal/non-literal distinction, Fox does not reference or attempt
to reconcile Young Broadcasting, confirming that the Court did not
consider, much less decide, whether the FCC’s pre-Golden Globes
fleeting-material policy applied to images as well as words.

21a
The Commission did not distinguish Young Broad-
casting because it involved images rather than words,
and its language demonstrates that it viewed the case as
just another “instance” involving “fleeting remarks in
live, unscripted broadcasts.” See Young Broadcasting,
19 F.C.C.R. at 1755 ¶ 12 (“We reject Young’s assertion
that this material is equivalent to other instances in
which the Commission has ruled that fleeting remarks
in live, unscripted broadcasts do not meet the indecency
definition.”). As we pointed out in our previous CBS
opinion, had the FCC believed that its fleeting-material
policy categorically did not apply to sexually explicit
images, it most certainly would have said so rather than
relying on distinctions that could apply to all fleeting
material—remarks and images alike. Id. at 187. The
FCC has not persuaded us that the fleeting-material
exception was ever limited to words or expletives, and it
cannot do so when in Young Broadcasting it treated a
fleeting image just as it would have treated fleeting
words.
Considering all of these facts, we do not see any basis
to conclude that Fox alters our previous analysis of the
fleeting-material exception. At bottom, the Commission
attempts to convert a passing reference in Fox’s back-
ground section into a holding that undermines what the
opinion otherwise makes clear: an agency may not apply
a policy to penalize conduct that occurred before the
policy was announced. The Commission’s argument also
rewrites history, marginalizing the Supreme Court’s
recognition in Fox that Golden Globes reflected a clear
change in FCC’s fleeting-material policy, and ignoring
the agency’s consistent practice—over three decades
before its order in this case—of exempting all fleeting

22a
material, whether words or images, from enforcement
under its indecency policy.10
Thus, we conclude that Fox does not alter our rea-
soning or initial resolution of this case.

Part B: Opinion Regarding the Merits


In reasoning through Part A of this opinion, we re-
ferred extensively to our prior opinion, which the Su-
preme Court vacated before remanding the case to us in
light of Fox. While we ordinarily would simply reinstate
our prior opinion after determining that Fox did not
undermine it, we cannot do that here, for two reasons.
First, the previous opinion was a unanimous opinion
authored by Judge Scirica, whereas the opinion we now
will issue is non-unanimous, with Judge Scirica dissent-
ing. Second, the new majority does not believe that the
earlier opinion’s discussion of the scienter required for
a violation was necessary, and we decline to readopt that
portion of the analysis.
Accordingly, we do not reinstate our previous opin-
ion. Instead, we incorporate below those portions of the
10 Our prior opinion chronicled that history at length. As we dis-
cussed:
The Commission’s conclusion on the nature and scope of its indecency
regime-including its fleeting material policy—is at odds with the
history of its actions in regulating indecent broadcasts. In the nearly
three decades between the Supreme Court’s ruling in Pacifica Foun-
dation and CBS’s broadcast of the Halftime Show, the FCC had nev-
er varied its approach to indecency regulation based on the format of
broadcasted content. Instead, the FCC consistently applied identical
standards and engaged in identical analyses when reviewing com-
plaints of potential indecency whether the complaints were based on
words or images.
CBS Corp., 535 F.3d at 184.

23a
opinion that we wish to readopt as part of our resolution
of this case.11
* * *
In this petition for review, CBS appeals orders of the
Federal Communications Commission imposing a mone-
tary forfeiture under 47 U.S.C. § 503(b) for the broad-
cast of “indecent” material in violation of 18 U.S.C.
§ 1464 and 47 C.F.R. § 73.3999. The sanctions stem
from CBS’s live broadcast of the Super Bowl XXXVIII
Halftime Show, in which two performers deviated from
the show’s script resulting in the exposure of a bare fe-
male breast on camera, a deceitful and manipulative act
that lasted nine-sixteenths of one second. CBS trans-
mitted the image over public airwaves, resulting in puni-
tive action by the FCC.
CBS challenges the Commission’s orders on constitu-
tional, statutory, and public policy grounds. Two of the
challenges are paramount: (1) whether the Commission
acted arbitrarily and capriciously under the Administra-
tive Procedure Act, 5 U.S.C. § 706, in determining that
CBS’s broadcast of a fleeting image of nudity was ac-
tionably indecent; and (2) whether the Commission, in
applying three theories of liability—traditional respon-
deat superior doctrine, an alternative theory of vicarious
liability based on CBS’s duties as a broadcast licensee,
and the “willfulness” standard of the forfeiture stat-
ute—properly found CBS violated the indecency provi-
sions of 18 U.S.C. § 1464 and 47 C.F.R. § 73.3999. We
will vacate the FCC’s orders.
11 We incorporate the pertinent portions of our previous opinion as
they were filed on July 21, 2008 and amended on August 6, 2008. Thus,
the citation information in Part B of our opinion is current as of that
date and does not reflect any subsequent updates.

24a

I.

On February 1, 2004, CBS presented a live broadcast
of the National Football League’s Super Bowl XXXVIII,
which included a halftime show produced by MTV Net-
works.12 Nearly 90 million viewers watched the Half-
time Show, which began at 8:30 p.m. Eastern Standard
Time and lasted about fifteen minutes. The Halftime
Show featured a variety of musical performances by con-
temporary recording artists, with Janet Jackson as the
announced headlining act and Justin Timberlake as a
“surprise guest” for the final minutes of the show.
Timberlake was unveiled on stage near the conclu-
sion of the Halftime Show. He and Jackson performed
his popular song “Rock Your Body” as the show’s finale.
Their performance, which the FCC contends involved
sexually suggestive choreography, portrayed Timber-
lake seeking to dance with Jackson, and Jackson alter-
nating between accepting and rejecting his advances.
The performance ended with Timberlake singing,
“gonna have you naked by the end of this song,” and
simultaneously tearing away part of Jackson’s bustier.
CBS had implemented a five-second audio delay to
guard against the possibility of indecent language being
transmitted on air, but it did not employ similar precau-
tionary technology for video images. As a result, Jack-
son’s bare right breast was exposed on camera for nine-
sixteenths of one second.
Jackson’s exposed breast caused a sensation and re-
sulted in a large number of viewer complaints to the
12 At that time, both CBS and MTV Networks were divisions of
Viacom, Inc.

25a
Federal Communications Commission.13 In response,
the Commission’s Enforcement Bureau issued a letter of
inquiry asking CBS to provide more information about
the broadcast along with a video copy of the entire
Super Bowl program. CBS supplied the requested ma-
terials, including a script of the Halftime Show, and is-
sued a public statement of apology for the incident. CBS
stated Jackson and Timberlake’s wardrobe stunt was
unscripted and unauthorized, claiming it had no advance
notice of any plan by the performers to deviate from the
script.
On September 22, 2004, the Commission issued a
Notice of Apparent Liability finding CBS had appar-
ently violated federal law and FCC rules restricting the
broadcast of indecent material. After its review, the
Commission determined CBS was apparently liable for
a forfeiture penalty of $550,000.14 CBS submitted its
Opposition to the Notice of Apparent Liability on No-
vember 5, 2004.
13 The record is unclear on the actual number of complaints received
from unorganized, individual viewers. In its brief, the FCC asserts it
received “ ‘an unprecedented number’ of complaints about the nudity
broadcast during the halftime show.” FCC Br. at 12 (citation omitted).
CBS disputes the calculation and significance of the viewer complaints.
See CBS Reply Br. at 15 n.6 (“Of the ‘over 542,000 complaints concern-
ing the broadcast’ the FCC claims to have received, over 85 percent are
form complaints generated by single-interest groups. Approximately
twenty percent of the complaints are duplicates, with some individual
complaints appearing in the record up to 37 times.” (citations omitted)).
14 This figure represented the aggregate of proposed penalties
against individual CBS stations. At the time the Commission issued its
Notice of Apparent Liability, forfeiture penalties for indecency vio-
lations were statutorily capped at $27,500. The Commission proposed
the maximum penalty for each CBS station.

26a
The Commission issued a forfeiture order over CBS’s
opposition on March 15, 2006, imposing a forfeiture pen-
alty of $550,000. In re Complaints Against Various
Television Licensees Concerning Their February 1,
2004 Broadcast of the Super Bowl XXXVIII Halftime
Show, 21 F.C.C.R. 2760 (2006) (“Forfeiture Order”).
Affirming its preliminary findings, the Commission con-
cluded the Halftime Show broadcast was indecent be-
cause it depicted a sexual organ and violated “contem-
porary community standards for the broadcast me-
dium.” Id. at ¶ 10. In making this determination, the
FCC relied on a contextual analysis to find the broad-
cast of Jackson’s exposed breast was: (1) graphic and
explicit, (2) shocking and pandering, and (3) fleeting. Id.
at ¶ 14. It further concluded that the brevity of the im-
age was outweighed by the other two factors. Id. The
standard applied by the Commission is derived from its
2001 policy statement setting forth a two-part test for
indecency: (1) “the material must describe or depict
sexual or excretory organs or activities,” and (2) it must
be “patently offensive as measured by contemporary
community standards for the broadcast medium.” In re
Industry Guidance on the Commission’s Case Law In-
terpreting 18 U.S.C. § 1464 and Enforcement Policies
Regarding Broadcast Indecency, 16 F.C.C.R. 7999, 8002
¶¶ 7-8 (2001) (emphasis in original). The Commission
had informed broadcasters in its 2001 policy statement
that in performing the second step of the test—measur-
ing the offensiveness of any particular broadcast—it
would look to three factors: “(1) the explicitness or gra-
phic nature of the description or depiction of sexual or
excretory organs or activities; (2) whether the material
dwells on or repeats at length descriptions of sexual or
excretory organs or activities; (3) whether the material

27a
appears to pander or is used to titillate, or whether the
material appears to have been presented for its shock
value.” Id. at ¶ 10 (emphasis omitted).
Additionally, the FCC determined CBS’s actions in
broadcasting the indecent image were “willful” and
therefore sanctionable by a monetary forfeiture under
47 U.S.C. § 503(b)(1). See id. at ¶ 15. Adopting the defi-
nition of “willful” found in section 312(f )(1) of the Com-
munications Act,15 the Commission offered three expla-
nations for its determination of willfulness. Id. First,
the FCC found CBS “acted willfully because it con-
sciously and deliberately broadcast the halftime show,
whether or not it intended to broadcast nudity. . . . ”
Id. Second, the FCC found CBS acted willfully because
it “consciously and deliberately failed to take reasonable
precautions to ensure that no actionably indecent mate-
rial was broadcast.” Id. Finally, the FCC applied a re-
spondeat superior theory in finding CBS vicariously
liable for the willful actions of its agents, Jackson and
Timberlake. Id.
On April 14, 2006, CBS submitted a Petition for Re-
consideration under 47 C.F.R. § 1.106, raising several
arguments against the Commission’s findings and con-
clusions. In its Order on Reconsideration, the FCC re-
jected CBS’s statutory and constitutional challenges and
reaffirmed its imposition of a $550,000 forfeiture. In re
Complaints Against Various Television Licensees Con-
15 This section of the Communications Act provides: “The term ‘will-
ful’, when used with reference to the commission or omission of any act,
means the conscious and deliberate commission or omission of such act,
irrespective of any intent to violate any provision of this Act or any rule
or regulation of the Commission authorized by this Act or by a treaty
ratified by the United States.” 47 U.S.C. § 312(f)(1).

28a
cerning Their February 1, 2004 Broadcast of the Super
Bowl XXXVIII Halftime Show, 21 F.C.C.R. 6653 (2006)
(“Reconsideration Order”). The Reconsideration Order
revised the Commission’s approach for determining
CBS’s liability under the willfulness standard. The
Commission reiterated its application of vicarious liabil-
ity in the form of respondeat superior and its determina-
tion that CBS was directly liable for failing to take ade-
quate measures to prevent the broadcast of indecent
material. See id. at ¶ 16. But it abandoned its position
that CBS acted willfully under 47 U.S.C. § 503(b)(1) by
intentionally broadcasting the Halftime Show irrespec-
tive of its intent to broadcast the particular content in-
cluded in the show. Instead, it determined CBS could be
liable “given the nondelegable nature of broadcast licens-
ees’ responsibility for their programming.” Id. at ¶ 23.
The Commission has since elaborated on this aspect of
the Reconsideration Order, explaining it as a separate
theory of liability whereby CBS can be held vicariously
liable even for the acts of its independent contractors
because it holds non-delegable duties as a broadcast
licensee to operate in the public interest and to avoid
broadcasting indecent material. See, e.g., FCC Br. at
44-45.
CBS timely filed a petition for review of the Recon-
sideration Order on July 28, 2006. It challenges the
FCC’s orders on several grounds, and both parties are
supported by briefing from several amici.

II.

Our standard of review of agency decisions is gov-
erned by the Administrative Procedure Act, 5 U.S.C.
§ 706. Under the Administrative Procedure Act, we
“hold unlawful and set aside agency action, findings, and

29a
conclusions” that are found to be “arbitrary, capricious,
an abuse of discretion, or otherwise not in accordance
with the law.” Id. § 706(2)(A); see, e.g., Motor Vehicle
Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S.
29, 41, 103 S. Ct. 2856, 77 L. Ed. 2d 443 (1983). The
scope of review under the “arbitrary and capricious”
standard is “narrow, and a court is not to substitute its
judgment for that of the agency.” State Farm, 463 U.S.
at 43, 103 S. Ct. 2856. Nevertheless, the agency must
reach its decision by “examin[ing] the relevant data,”
and it must “articulate a satisfactory explanation for its
action including a ‘rational connection between the facts
found and the choice made.’ ” Id. (quoting Burlington
Truck Lines, Inc. v. United States, 371 U.S. 156, 168, 83
S. Ct. 239, 9 L. Ed. 2d 207 (1962)). We generally find
agency action arbitrary and capricious where:
the agency has relied on factors which Congress has
not intended it to consider, entirely failed to consider
an important aspect of the problem, offered an expla-
nation for its decision that runs counter to the evi-
dence before the agency, or is so implausible that it
could not be ascribed to a difference in view or the
product of agency expertise. The reviewing court
should not attempt itself to make up for such defi-
ciencies; we may not supply a reasoned basis for the
agency’s action that the agency itself has not given.
Id. at 43, 103 S. Ct. 2856 (citing SEC v. Chenery Corp.,
332 U.S. 194, 196, 67 S. Ct. 1575, 91 L. Ed. 1995 (1947)).
Our review of the constitutional questions is more
searching. In cases raising First Amendment issues, we
have “an obligation ‘to make an independent examina-
tion of the whole record’ in order to make sure that ‘the
judgment does not constitute a forbidden intrusion on

30a
the field of free expression.’ ” United States v. Various
Articles of Merch., Schedule No. 287, 230 F.3d 649, 652
(3d Cir. 2000) (quoting Bose Corp. v. Consumers Union,
466 U.S. 485, 499, 104 S. Ct. 1949, 80 L. Ed. 2d 502
(1984) (citations omitted)).

III.

The FCC possesses authority to regulate indecent
broadcast content, but it had long practiced restraint in
exercising this authority. During a span of nearly three
decades, the Commission frequently declined to find
broadcast programming indecent, its restraint punctu-
ated only by a few occasions where programming con-
tained indecent material so pervasive as to amount to
“shock treatment” for the audience. Throughout this
period, the Commission consistently explained that iso-
lated or fleeting material did not fall within the scope of
actionable indecency.
At the time the Halftime Show was broadcasted by
CBS, the FCC’s policy on fleeting material was still in
effect. The FCC contends its restrained policy applied
only to fleeting utterances—specifically, fleeting exple-
tives—and did not extend to fleeting images. But a re-
view of the Commission’s enforcement history reveals
that its policy on fleeting material was never so limited.
The FCC’s present distinction between words and im-
ages for purposes of determining indecency represents
a departure from its prior policy.
Like any agency, the FCC may change its policies
without judicial second-guessing. But it cannot change
a well-established course of action without supplying
notice of and a reasoned explanation for its policy depar-
ture. Because the FCC failed to satisfy this require-
ment, we find its new policy arbitrary and capricious

31a
under the Administrative Procedure Act as applied to
CBS.

A.

Section 326 of the Communications Act prohibits the
FCC from censoring its licensees’ broadcasts.16 Subject
to this constraint, the FCC retains authority to regulate
obscene, indecent, or profane broadcast content. See
18 U.S.C. § 1464 (“Whoever utters any obscene, inde-
cent, or profane language by means of radio communica-
tion shall be fined under this title or imprisoned not
more than two years, or both.”). Indecency and obscen-
ity are distinct categories of speech. See FCC v.
Pacifica Found., 438 U.S. 726, 739-41, 98 S. Ct. 3026, 57
L. Ed. 2d 1073 (1978) (plurality opinion) (“Pacifica”).
Indecency, unlike obscenity, is protected by the First
Amendment. Sable Commc’ns of Cal., Inc. v. FCC, 492
U.S. 115, 126, 109 S. Ct. 2829, 106 L. Ed. 2d 93 (1989).
The FCC’s authority to restrict indecent broadcast con-
tent is nevertheless constitutionally permissible because
of the unique nature of the broadcast medium. Pacifica,
438 U.S. at 750-51, 98 S. Ct. 3026; see also id. at 755-56,
98 S. Ct. 3026 (Powell, J., concurring).
Congress authorized the FCC to impose forfeiture
penalties for violations of 18 U.S.C. § 1464 in 1960.17 But
16 See 47 U.S.C. § 326 (“Nothing in this chapter shall be understood
or construed to give the Commission the power of censorship over the
radio communications or signals transmitted by any radio station, and
no regulation or condition shall be promulgated or fixed by the Commis-
sion which shall interfere with the right of free speech by means of ra-
dio communication.”).
17 See 47 U.S.C. § 503(b)(1)(D) (“Any person who is determined by the
Commission . . . to have . . . violated any provision of section . . .
1464 of title 18 . . . shall be liable to the United States for a forfeiture
penalty.”).

32a
the FCC did not exercise its authority to find a broad-
cast statutorily “indecent” until 1975, when it issued a
forfeiture penalty against Pacifica Foundation for
broadcasting comedian George Carlin’s “Filthy Words”
monologue. See In re Citizen’s Complaint Against
Pacifica Found., Station WBAI(FM), N.Y., N.Y., 56
F.C.C. 2d 94, 1975 WL 29897 (1975). Carlin’s mono-
logue, which Pacifica aired on the radio in an early-
afternoon time slot, contained extensive and repetitive
use of several vulgar expletives over a period of twelve
minutes. See Pacifica, 438 U.S. at 739, 98 S. Ct. 3026.
Pacifica appealed the FCC’s forfeiture order to the
United States Court of Appeals for the D.C. Circuit.
The FCC issued a clarification order while Pacifica’s
appeal was pending, expressly limiting its prior forfei-
ture order to the specific facts of the Carlin monologue.
In re ‘A Petition for Clarification or Reconsideration’
of a Citizen’s Complaint Against Pacifica Found., Sta-
tion WBAI(FM), N.Y., N.Y., 59 F.C.C. 2d 892, 1976 WL
31850 (1976) (“Pacifica Clarification Order”). Express-
ly acknowledging the forfeiture order’s potential nega-
tive impact on broadcast coverage of live events where
“there is no opportunity for journalistic editing,” the
FCC stated its intention to exclude such circumstances
from the scope of actionable indecency. Id. at ¶ 4 n. 1.
Following the Pacifica Clarification Order, the D.C.
Circuit reversed the FCC’s forfeiture order against
Pacifica as vague and overbroad and found the agency’s
indecency regime constituted invalid censorship under
47 U.S.C. § 326. Pacifica Found. v. FCC, 556 F.2d 9, 14
(D.C. Cir. 1977). The FCC appealed and the Supreme
Court reversed in a narrow plurality opinion. See
Pacifica, 438 U.S. at 726, 98 S. Ct. 3026. The Court re-

33a
jected Pacifica’s statutory argument that the term “in-
decent” in 18 U.S.C. § 1464 only covered obscene speech.
Pacifica, 438 U.S. at 739, 98 S. Ct. 3026. But the Court
confirmed the general validity of the FCC’s indecency
regime, “emphasiz[ing] the narrowness of [its] holding,”
which it confined to the facts of the Carlin monologue.
Id. at 750, 98 S. Ct. 3026. Justices Powell and Blackmun
concurred in the judgment, writing separately in part to
reiterate the narrowness of the decision and to note the
Court’s holding did not “speak to cases involving the
isolated use of a potentially offensive word in the course
of a radio broadcast, as distinguished from the verbal
shock treatment administered by respondent here.” Id.
at 760-61, 98 S. Ct. 3026 (Powell, J., concurring).
Shortly after the Court’s ruling in Pacifica, a broad-
caster’s license renewal was challenged on the basis that
the broadcaster had aired indecent programming. See
In re Application of WGBH Educ. Found., 69 F.C.C. 2d
1250, 1978 WL 36042 (1978) (“WGBH”). Viewer com-
plaints alleged the broadcaster aired several programs
containing nudity and other allegedly offensive material.
Id. at ¶ 2. Distinguishing the facts of WGBH from the
Court’s ruling in Pacifica, the FCC rejected the chal-
lenge and denied that Pacifica afforded it any “general
prerogative to intervene in any case where words similar
or identical to those in Pacifica are broadcast over a
licensed radio or television station.” Id. at ¶ 10. The
FCC, noting it “intend[ed] strictly to observe the nar-
rowness of the Pacifica holding” and emphasizing the
language in Justice Powell’s concurring opinion, id. at
¶ 10, concluded the single use of an expletive in a pro-
gram “should not call for us to act under the holding of
Pacifica. Id. at ¶ 10 n. 6.

34a
The FCC’s restrained enforcement policy continued
in the years following Pacifica. Rejecting another chal-
lenge to a broadcaster’s license renewal based on the
airing of allegedly indecent material, the FCC reaf-
firmed that isolated use of expletives in broadcasts did
not constitute actionable indecency under 18 U.S.C.
§ 1464. See In re Application of Pacifica Found.,
95 F.C.C. 2d 750, 1983 WL 182971 (1983). The complaint
alleged the broadcaster had on multiple occasions aired
programming containing language such as “mother-
fucker,” “fuck,” and “shit.” Id. at ¶ 16. The FCC held
these facts did not constitute a prima facie showing of
actionable indecency under 18 U.S.C. § 1464, because
the complainant had failed to show the broadcasts
amounted to “verbal shock treatment” as opposed to
“isolated use.” Id. at ¶ 18.
In April 1987, the FCC issued three simultaneous
indecency decisions. See In re Pacifica Found., Inc.,
2 F.C.C.R. 2698 (1987); In re Regents of the Univ. of
Cal., 2 F.C.C.R. 2703 (1987); In re Infinity Broad.
Corp., 2 F.C.C.R. 2705 (1987). These decisions reaf-
firmed the Commission’s restrained enforcement policy
and reiterated the agency’s policy that isolated or fleet-
ing material would not be considered actionably inde-
cent. See, e.g., Regents of the Univ. of Cal. at ¶ 3
(“Speech that is indecent must involve more than an
isolated use of an offensive word.”).
Later in 1987, reconsidering these decisions, the
Commission abandoned the view that only the particular
“dirty words” used in the Carlin monologue could be
indecent.18 Instead, the FCC explained it would thereaf
18 See In re Infinity Broad. Corp., 3 F.C.C.R. 930, ¶ 5 (1987), vacated
in part on other grounds, Action for Children’s Television v. FCC, 852

35a
ter rely on the broader terms of its generic indecency
standard, which defined indecent material as “language
that describes, in terms patently offensive as measured
by contemporary community standards for the broad-
cast medium, sexual or excretory activities or organs,
when there is a reasonable risk that children may be in
the audience.” Id. at ¶¶ 2, 5.19 Even so, the FCC af-
firmed all three decisions on reconsideration, never indi-
cating disagreement with those decisions’ express state-
ments that isolated or fleeting material could not be ac-
tionably indecent. Id.
In 2001, the broadcast industry sought clarification
of the policies and rules of the FCC’s indecency enforce-
ment regime. Guidance for the industry came in the
form of a policy statement issued by the Commission.
See Industry Guidance on the Commission’s Case Law
Interpreting 18 U.S.C. § 1464 and Enforcement Policies
Regarding Broadcast Indecency, 16 F.C.C.R. 7999, ¶ 19
(2001) (“Industry Guidance”). The policy statement
F.2d 1332, 1337 (D.C. Cir. 1988) (“ACT I”), superseded by Action for
Children’s Television v. FCC, 58 F.3d 654 (D.C. Cir. 1995) (en banc)
(“ACT II”).
19 As described in greater detail infra, subsequent litigation deter-
mined what time of day broadcasters could reasonably air indecent
programming without expecting children to be in the audience. The
D.C. Circuit Court of Appeals rejected a total ban on indecency,
instructing the FCC to identify a precise time period during which
broadcasters could air indecent material. See ACT I, supra. In
response, the Commission adopted the safe-harbor rule of 47 C.F.R.
§ 73.3999. After further instruction from the D.C. Circuit in 1995, ACT
II, supra, the Rule was amended to its current form, which confines
enforcement of indecency restrictions to the hours “between 6:00 a.m.
and 10:00 p.m.” See 47 C.F.R. § 73.3999; In re Enforcement of Prohib-
itions Against Broadcast Indecency in 18 U.S.C. § 1464, 10 F.C.C.R.
10558 (1995).

36a
included multiple examples of FCC rulings as “case com-
parisons” highlighting the factors that had proved sig-
nificant in prior indecency determinations. One of the
factors noted as leading to prior determinations that a
program was not actionably indecent was the “fleeting
or isolated” nature of potentially indecent material in
the context of the overall broadcast. See id. at ¶¶ 17-18.
Soon after the Commission’s issuance of the Industry
Guidance policy statement, its restrained enforcement
policy changed. In an unscripted remark during a live
NBC broadcast of the Golden Globe Awards on January
19, 2003, musician Bono said “this is really, really
fucking brilliant” while accepting an award. See In re
Complaints Against Various Broadcast Licensees Re-
garding Their Airing of the “Golden Globe Awards”
Program, 19 F.C.C.R. 4975, ¶ 3 n. 4 (2004) (“Golden
Globes”). Viewers complained to the FCC about Bono’s
speech, but the Commission’s Enforcement Bureau re-
jected the complaints in part because the utterance was
fleeting and isolated and therefore did “not fall within
the scope of the Commission’s indecency prohibition.”
See In re Complaints Against Various Broadcast Li-
censees Regarding Their Airing of the “Golden Globe
Awards” Program, 18 F.C.C.R. 19859, ¶ 6 (FCC En-
forcement Bureau 2003). The Enforcement Bureau spe-
cifically reaffirmed that “fleeting and isolated remarks
of this nature do not warrant Commission action.” Id.
On March 3, 2004, the full Commission reversed the
Enforcement Bureau’s decision. See generally Golden
Globes, supra. Although the FCC acknowledged the
existence of its restrained enforcement policy for iso-
lated or fleeting utterances, it overruled all of its prior
cases holding such instances not actionable. Id. at

37a
¶ 12 (“While prior Commission and staff action have in-
dicated that isolated or fleeting broadcasts of the
‘F-Word’ such as that here are not indecent or would not
be acted upon, consistent with our decision today we
conclude that any such interpretation is no longer good
law.”). But the Commission made it clear that licensees
could not be held liable for broadcasting fleeting or iso-
lated indecent material prior to its Golden Globes deci-
sion. See id. at ¶ 15 & n. 40 (declining to impose a forfei-
ture penalty because “existing precedent would have
permitted [the Golden Globe Awards] broadcast” and
therefore it would be “inappropriate” to sanction licens-
ees for conduct prior to notice of policy change).20
The FCC’s new indecency policy created in Golden
Globes was soon challenged by the broadcast industry.
On February 21, 2006, the Commission issued an omni-
bus order resolving multiple indecency complaints
against television broadcasters in an effort to “provide
substantial guidance to broadcasters and the public
about the types of programming that are impermissible
under our indecency standard.” In re Complaints Re-
garding Various Television Broadcasts Between Febru-
ary 2, 2002 and March 8, 2005, 21 F.C.C.R. 2664, ¶ 2
(2006) (“Omnibus Order”). The Omnibus Order found
four programs indecent and profane: (1) Fox’s broad-
cast of the 2002 Billboard Music Awards, in which per-
former Cher used an unscripted expletive during her
acceptance speech; (2) Fox’s broadcast of the 2003 Bill-
20 The Commission also cited Trinity Broad. of Fla., Inc. v. FCC, 211
F.3d 618 (D.C. Cir. 2000), explaining that the court in Trinity “reversed
[a] Commission decision that denied a renewal application for abuse of
process in connection with the Commission’s minority ownership rules
because the court found the Commission had not provided sufficiently
clear notice of what those rules required.” Golden Globes at ¶ 15 n. 40.

38a
board Music Awards, in which presenter Nicole Richie
used two unscripted expletives; (3) ABC’s broadcast of
various episodes of its NYPD Blue series, in which as-
sorted characters used scripted expletives; and (4) a
CBS broadcast of The Early Show, in which a guest used
an unscripted expletive during a live interview. Id.
at ¶¶ 101, 112 n. 64, 125, 137. Applying its policy an-
nounced in Golden Globes, the Commission found the
broadcasts indecent despite the fleeting and isolated
nature of the offending expletives. Id. at ¶¶ 104, 116,
129, 140.
As in Golden Globes, the Commission recognized the
inequity in retroactively sanctioning the conduct of
broadcast licensees. Because the offending broadcasts
occurred prior to the issuance of its Golden Globes deci-
sion, the FCC concluded that existing precedent would
have permitted the broadcasts. Id. Accordingly, the
FCC did not issue forfeiture orders against any of the
licensees. Id. at ¶¶ 111, 124, 136, 145.
The networks appealed the Omnibus Order, and the
cases were consolidated before the United States Court
of Appeals for the Second Circuit. Granting a request
by the FCC, the court remanded the matter to allow the
Commission an opportunity to address the petitioners’
arguments. After soliciting public comment, the FCC
issued a new order on November 6, 2006, reaffirming its
indecency findings against Fox for the 2002 and 2003
Billboard Music Awards but reversing its finding
against CBS for The Early Show broadcast and dismiss-
ing the complaint against ABC on procedural grounds.
See In re Complaints Regarding Various Television
Broadcasts Between February 2, 2002 and March 8,
2005, 21 F.C.C.R. 13299 (2006) (“Fox Remand Order”).

39a
The networks’ original appeal to the Second Circuit
was reinstated on November 8, 2006, and consolidated
with a petition for review of the Fox Remand Order.
Fox Television Stations, Inc. v. FCC, 489 F.3d 444, 454
(2d Cir. 2007) (“Fox”), cert. granted, 552 U.S. 1255, 128
S. Ct. 1647, 170 L. Ed. 2d 352 (2008). The court granted
motions to intervene by other networks, including CBS,
and the networks collectively raised several challenges
to the validity of the Fox Remand Order essentially mir-
roring those raised in this case. See Fox, 489 F.3d at
454.
Undertaking a thorough review of the history of the
FCC’s indecency regime similar to that which we engage
in here, the Second Circuit found the FCC’s “consistent
enforcement policy” prior to the Golden Globes decision
excluded fleeting or isolated expletives from regulation.
Id. at 455. The court concluded “there is no question”
that the FCC changed its policy with respect to fleeting
expletives, and that the policy “changed with the issu-
ance of Golden Globes.Id. (citations omitted). Judge
Leval, dissenting in Fox for other reasons, agreed with
the majority’s conclusion that the FCC changed its posi-
tion on fleeting utterances, although he considered the
change of standard “relatively modest.” See id. at 469
(Leval, J., dissenting); see also id. at 470 (Leval, J., dis-
senting) (stating that the FCC changed its position and
finding that the FCC clearly acknowledges that its
Golden Globes and Fox Remand Order rulings were not
consistent with its prior standard). We agree that the
Golden Globes decision represented a policy departure
by the FCC. The extensive history detailed above dem-
onstrates a consistent and entrenched policy of exclud-
ing fleeting broadcast material from the scope of action-
able indecency.

40a
In spite of this history, the FCC contends that by
February 1, 2004 (the date of the Halftime Show), a
broadcaster in CBS’s position should have known that
even isolated or fleeting indecent material in program-
ming could be actionable. Despite its announced rever-
sal of prior policy in its Golden Globes decision on March
3, 2004, the Commission points to one sentence in its
2001 policy statement to support its position: “Even
relatively fleeting references may be found indecent
where other factors contribute to a finding of patent of-
fensiveness.” Industry Guidance at ¶ 19.21 But when
read in its original context rather than as an isolated
statement, this sentence does not support the Commis-
sion’s assertion here. The “relatively fleeting refer-
ences” identified by that sentence are distinguishable
21 In its 2001 policy statement, the Commission described the “prin-
cipal factors that have proved significant in [its] decisions to date” as:
“(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 of sexual or excretory or-
gans or activities; (3) whether the material appears to pander or is used
to titillate, or whether the material appears to have been presented for
its shock value.” Industry Guidance at ¶ 10 (emphasis in original). It
has since contended that its fleeting material policy was no policy at all,
asserting instead that the fleeting nature of material was only a consi-
deration under the second factor and could be outweighed by the other
two factors depending on the specific facts of a case. But as we detail
infra, this assertion contradicts the history of the Commission’s inde-
cency enforcement regime and is foreclosed by the agency’s admissions
in Golden Globes and Fox, which are controlling here, that its prior
policy was to exclude fleeting material from the scope of actionable
indecency. Although the FCC disputes the breadth of its policy, now
contending the policy was limited only to fleeting expletives or alter-
natively to fleeting utterances, the fleeting nature of broadcast material
was unquestionably treated by the FCC as more than one of several
contextual factors subject to balancing.

41a
from the truly “fleeting” broadcast material the FCC
had included in its fleeting material policy. The para-
graph cites, for instance, a notice of apparent liability
against WEZB-FM, New Orleans, to exemplify the kind
of “relatively fleeting references” the FCC considered
actionably indecent. See id. (citing EZ New Orleans,
Inc. (WEZB(FM)), 12 F.C.C.R. 4147 (MMB 1997)
(“WEZB-FM NAL”)). The citation to WEZB-FM NAL
specifically describes as indecent an “announcer joke”
involving incest, forceful sexual contact with children,
and a reference to cleaning “blood off [a] diaper.” Id.
The “announcer joke” is distinguishable on its face from
“fleeting” material such as a brief glimpse of nudity or
isolated use of an expletive. Moreover, the “announcer
joke” was merely one incident among dozens included in
a transcript supporting the forfeiture liability determi-
nation in the WEZB-FM NAL.22
Nevertheless, as it clarified at oral argument, the
FCC relies on its 2001 Industry Guidance to contend its
policy on fleeting or isolated material “was a policy with
respect to cases relying solely on the use of expletives.”
As the Commission explained at oral argument, “[t]here
was not a policy that all short utterances were exempt.”
This reading of the Commission’s policy on fleeting ma-
terial is untenable. Even the FCC’s Industry Guidance
22 The WEZB–FM NAL found a broadcast licensee apparently liable
for a forfeiture penalty of $12,000 for its broadcast of indecent material
during six radio broadcasts spanning fourteen hours of airtime over
nearly a one year period. The WEZB-FM NAL provides transcript ex-
cerpts from these broadcasts, which involved very graphic segments
discussing a variety of sexual topics in extended detail. The “announcer
joke” included in the FCC’s Industry Guidance was merely one of
these factual predicates for the broadcast licensee’s forfeiture liability
for indecency.

42a
fails to support such a narrow characterization. See,
e.g., Industry Guidance at ¶ 18 (quoting L.M. Commc’ns
of S. C., Inc. (WYBB(FM)), 7 F.C.C.R. 1595 (MMB
1992), for the proposition that “‘a fleeting or isolated ut-
terance . . . , within the context of live and spontane-
ous programming, does not warrant a Commission sanc-
tion.’ ”).
Accordingly, we find the Commission’s unsubstanti-
ated contentions in this regard contradict the lengthy
history of the Commission’s restrained enforcement pol-
icy. While “an agency’s interpretation of its own prece-
dent is entitled to deference,” Cassell v. FCC, 154 F.3d
478, 483 (D.C. Cir. 1998), deference is inappropriate
where the agency’s proffered interpretation is capri-
cious. Until its Golden Globes decision in March of 2004,
the FCC’s policy was to exempt fleeting or isolated ma-
terial from the scope of actionable indecency. Because
CBS broadcasted the Halftime Show prior to Golden
Globes, this was the policy in effect when the incident
with Jackson and Timberlake occurred.

B.

If the FCC’s restrained enforcement policy for fleet-
ing broadcast material was intact until the Golden
Globes decision in March of 2004, our inquiry would end
with a simple examination of the chronology of the
FCC’s actions. CBS broadcasted the Halftime Show
more than a month prior to Golden Globes. The Commis-
sion’s orders here would amount to a retroactive applica-
tion of the new policy it announced in Golden Globes,
which would raise due process concerns. The Commis-
sion has recognized the inequity in such an outcome. See
Omnibus Order, supra, at ¶¶ 111, 124, 136, 145 (declin-
ing to issue forfeiture orders because the offending

43a
broadcasts occurred prior to the issuance of its Golden
Globes decision, and therefore “existing precedent would
have permitted [the] broadcasts”); see also Trinity
Broad. of Fla., Inc., 211 F.3d at 628 (“Because ‘[d]ue
process requires that parties receive fair notice before
being deprived of property,’ we have repeatedly held
that ‘[i]n the absence of notice—for example, where the
regulation is not sufficiently clear to warn a party about
what is expected of it—an agency may not deprive a
party of property by imposing civil or criminal liability.’”
(citation omitted)).
But the FCC urges another reading of Golden
Globes, perhaps less obvious yet still plausible, which
interprets Golden Globes as addressing only the broad-
cast of fleeting expletives, not other fleeting material
such as brief images of nudity. Further, the Commis-
sion contends its fleeting material policy, as initially
adopted, was limited to fleeting words and did not ex-
tend to fleeting images. Under this view, Golden Globes
would be inapposite here—the Commission’s sanction
against CBS would be in line with its treatment of im-
ages as part of its historical indecency enforcement re-
gime. If, as the FCC contends, Golden Globes was lim-
ited to fleeting expletives, then its orders issuing forfei-
ture penalties in this case did not constitute a retroac-
tive application of the policy change in Golden Globes.
But even if we accept the FCC’s interpretation of
Golden Globes and read it as only addressing fleeting
expletives, the Commission’s view of the scope of its
fleeting materials policy prior to Golden Globes is unsus-
tainable. As we will explain, the Commission—before
Golden Globes—had not distinguished between catego-
ries of broadcast material such as images and words.

44a
Accordingly, even if, as the FCC contends, Golden
Globes only addressed expletives, it nevertheless repre-
sented the first time the Commission distinguished be-
tween formats of broadcast material or singled out any
one category of material for special treatment under its
fleeting material policy. That is, it altered the scope of
the FCC’s fleeting material policy by excising only one
category of fleeting material—fleeting expletives—from
the policy. And it therefore did not constitute an abdica-
tion of its fleeting material policy. Rather, a residual
policy on other categories of fleeting material—includ-
ing all broadcast content other than expletives—
remained in effect.
Accordingly, subsequent agency action was required
to change the fleeting material policy as it applied to
broadcast content other than expletives. By targeting
another category of fleeting material—fleeting im-
ages—in its orders against CBS in this case, the FCC
apparently sought to further narrow or eliminate the
fleeting material policy as it existed following Golden
Globes. The Commission’s determination that CBS’s
broadcast of a nine-sixteenths of one second glimpse of
a bare female breast was actionably indecent evidenced
the agency’s departure from its prior policy. Its orders
constituted the announcement of a policy change—that
fleeting images would no longer be excluded from the
scope of actionable indecency.
The question is whether the FCC’s departure from
its prior policy is valid and enforceable as applied to
CBS. As noted, agencies are free to change their rules
and policies without judicial second-guessing. See, e.g.,
Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc.,
467 U.S. 837, 863, 104 S. Ct. 2778, 81 L. Ed. 2d 694

45a
(1984). But an agency cannot ignore a substantial diver-
sion from its prior policies. See Ramaprakash v. FAA,
346 F.3d 1121, 1124 (D.C. Cir. 2003) (agency must “pro-
vide a reasoned analysis indicating that prior policies
and standards are being deliberately changed, not casu-
ally ignored”). As the Supreme Court explained in State
Farm, an agency must be afforded great latitude to
change its policies, but it must justify its actions by ar-
ticulating a reasoned analysis behind the change:
Petitioner . . . contend[s] that the rescission of an
agency rule should be judged by the same standard
a court would use to judge an agency’s refusal to pro-
mulgate a rule in the first place—a standard Peti-
tioner believes considerably narrower than the tradi-
tional arbitrary and capricious test and “close to the
borderline of nonreviewability.” We reject this view.
. . . Petitioner’s view would render meaningless
Congress’ authorization for judicial review of orders
revoking . . . rules. Moreover, the revocation of an
extant regulation is substantially different than a
failure to act. Revocation constitutes a reversal of
the agency’s former views as to the proper course. A
“settled course of behavior embodies the agency’s
informed judgment that, by pursuing that course, it
will carry out the policies committed to it by Con-
gress. There is, then, at least a presumption that
those policies will be carried out best if the settled
rule is adhered to.” Accordingly, “an agency chang-
ing its course by rescinding a rule is obligated to sup-
ply a reasoned analysis for the change beyond that
which may be required when an agency does not act
in the first instance.”
463 U.S. at 42-43, 103 S. Ct. 2856 (citations omitted).

46a
The agency’s obligation to supply a reasoned analysis
for a policy departure requires an affirmative showing
on record. It “must examine the relevant data and artic-
ulate a satisfactory explanation for its action including
a ‘rational connection between the facts found and the
choice made.’ ” Id. at 43, 103 S. Ct. 2856 (quoting
Burlington Truck Lines v. United States, 371 U.S. 156,
168, 83 S. Ct. 239, 9 L. Ed. 2d 207 (1962)). A reviewing
court “must ‘consider whether the decision was based on
a consideration of the relevant factors and whether
there has been a clear error of judgment.’ ” Id. (cita-
tions omitted). The agency’s actions will then be set
aside as “arbitrary and capricious” if the agency failed
to provide a “reasoned explanation” for its decision to
change course. Massachusetts v. EPA, 549 U.S. 497, 127
S. Ct. 1438, 1463, 167 L. Ed. 2d 248 (2007); see State
Farm, 463 U.S. at 42-43, 103 S. Ct. 2856; Nat’l Cable &
Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S.
967, 981, 125 S. Ct. 2688, 162 L. Ed. 2d 820 (2005) (“un-
explained inconsistency” in agency practice is a reason
for holding a policy reversal “arbitrary and capricious”
under the APA, unless “the agency adequately explains
the reasons for a reversal of policy”).
In Fox, the Second Circuit analyzed the FCC’s
changed policy on fleeting expletives under State
Farm,23 but the panel split on the outcome of its analy-
23 It was undisputed that the FCC changed its policy on fleeting ex-
pletives in Golden Globes, which was decided prior to Fox. But as the
Fox court explained, the actual moment the agency changed its course
was not pertinent in determining whether the change was valid under
State Farm:
[W]e . . . reject the FCC’s contention that our review here is nar-
rowly confined to the specific question of whether the two Fox

47a
sis. Judge Pooler, writing for the majority, found the
policy change arbitrary and capricious because the FCC
failed to provide a reasoned explanation for the change.
Fox, 489 F.3d at 455 (“The Networks contend that the
Remand Order is arbitrary and capricious because the
FCC has made a 180-degree turn regarding its treat-
ment of ‘fleeting expletives’ without providing a rea-
soned explanation justifying the about-face. We
agree.”). Scrutinizing the sufficiency of the Commis-
sion’s explanation for its policy change, the court re-
jected the agency’s proffered rationale as “disconnected
from the actual policy implemented by the Commission.”
Id. at 459 n. 8 (citation omitted).
Judge Leval, writing in dissent, also applied State
Farm, but he disagreed with the amount of deference
the majority afforded the FCC’s policy decision. Al-
though he agreed that the FCC was obligated to provide
a reasoned explanation for its policy shift, he found the
agency’s explanation sufficient. As Judge Leval ex-
plained:
In my view, in changing its position on the repetition
of an expletive, the Commission complied with these
requirements. It made clear acknowledgment that
broadcasts . . . were indecent. The [ Fox Remand Order ] applies
the policy announced in Golden Globes. If that policy is invalid,
then we cannot sustain the indecency findings against Fox. Thus,
as the Commission conceded during oral argument, the validity of
the new “fleeting expletive” policy announced in Golden Globes and
applied in the [ Fox Remand Order ] is a question properly before
us on this petition for review.
Fox, 489 F.3d at 454. To hold otherwise would create a situation ripe
for manipulation by an agency. Cf. ACT I, supra, 852 F.2d at 1337
(“[A]n agency may not resort to [ad hoc] adjudication as a means of
insulating a generic standard from judicial review.”).

48a
its Golden Globes and Remand Order rulings were
not consistent with its prior standard regarding lack
of repetition. It announced the adoption of a new
standard. And it furnished a reasoned explanation
for the change. Although one can reasonably dis-
agree with the Commission’s new position, its expla-
nation . . . is not irrational, arbitrary, or capricious.
The Commission thus satisfied the standards of the
Administrative Procedure[ ] Act.
Id. at 470 (Leval, J., dissenting).
In this case, State Farm also provides the correct
standard of review, but we need not engage in the sub-
stantive inquiry that divided the Second Circuit panel in
Fox. There, as Judge Leval noted in dissent, the FCC
provided an explanation for changing its policy on fleet-
ing expletives. The critical question splitting the court
was whether that explanation was adequate under State
Farm. Here, unlike in Fox, the FCC has not offered any
explanation—reasoned or otherwise—for changing its
policy on fleeting images. Rather, the FCC asserts it
never had a policy of excluding fleeting images from the
scope of actionable indecency, and therefore no policy
change occurred when it determined that the Halftime
Show’s fleeting image of Janet Jackson’s breast was
actionably indecent. Accordingly, we must determine
whether the FCC’s characterization of its policy history
is accurate. If it is not, then the FCC’s policy change
must be set aside as arbitrary and capricious, because it
has failed to even acknowledge its departure from its
former policy let alone supply a “reasoned explanation”
for the change as required by State Farm.
CBS contends the FCC’s indecency regime treated
words and images alike, so the exception for fleeting

49a
material applied with equal force to words and images.
The Commission rejects this assertion, contending its
prior policy on fleeting material was limited to words
alone. Although the FCC acknowledges it had never
explicitly distinguished between images and words for
the purpose of defining the scope of actionable inde-
cency, it contends the existence of such a distinction was
obvious, even if unstated.24
The Commission’s conclusion on the nature and scope
of its indecency regime—including its fleeting material
policy—is at odds with the history of its actions in regu-
lating indecent broadcasts. In the nearly three decades
between the Supreme Court’s ruling in Pacifica and
CBS’s broadcast of the Halftime Show, the FCC had
never varied its approach to indecency regulation based
on the format of broadcasted content. Instead, the FCC
consistently applied identical standards and engaged in
identical analyses when reviewing complaints of poten-
24 The FCC’s position is difficult to reconcile with the source of its
authority to regulate broadcast content. The text of 18 U.S.C. § 1464
provides: “Whoever utters any obscene, indecent, or profane language
by means of radio communication shall be fined under this title or
imprisoned not more than two years, or both.” Id. (emphasis added).
Although the text on its face only reaches spoken words, it is applied
broadly, as here, to reach all varieties of indecent content. But this
broad interpretation of the text requires that the FCC treat words and
images interchangeably in order to fit its regulation of indecent images
within the boundaries of its statutory authority. Where the FCC’s
entire enforcement regime is built on the agency’s treatment of words
and images as functionally identical, it is unclear how the difference be-
tween words and images is “obvious.” At minimum, the FCC cannot
reasonably expect the difference between words and images to be so
self-evident that broadcast licensees seeking to comply with indecency
standards would interpret FCC enforcement orders narrowly based on
whether the reviewed content consisted of words or images.

50a
tial indecency whether the complaints were based on
words or images.
In 2000, for example, the FCC rejected a complaint
of indecency based on scenes of nudity in a television
broadcast of the film “Schindler’s List.” In re
WPBN/WTOM License Subsidiary, Inc., 15 F.C.C.R.
1838 (2000). Finding the broadcasted images not action-
ably indecent, the FCC noted “nudity itself is not per se
indecent” and applied the identical indecency test the
agency used to review potentially indecent language. Id.
at ¶ 11. The Commission did not treat the nudity com-
plaint differently—factually or legally—from a com-
plaint for indecency based on a spoken utterance. See
id. at ¶ 10 n. 5 (“The Supreme Court has observed that
contextual assessments may involve (and are not limited
to) an examination of whether the actual words or depic-
tions in context are, for example, vulgar or shocking, a
review of the manner in which the words or depictions
are portrayed, and an analysis of whether the allegedly
indecent material is isolated or fleeting.” (emphasis
added)). The Commission even referred in a footnote to
its policy towards fleeting material, never suggesting
the policy would be inapplicable because the offending
broadcast content was an image rather than a word. See
id. at ¶ 5 n. 10 (explaining that contextual assessments
of whether certain programming is patently offensive,
and therefore actionably indecent, “may involve . . .
analysis of whether the allegedly indecent material is
isolated or fleeting”).
The Commission took the same approach when re-
viewing viewer complaints against a television station
for multiple broadcasts of programs containing exple-
tives, nudity, and other allegedly indecent material. See

51a
WGBH, supra[.]25 Categorically denying that the pro-
gramming in WGBH was actionably indecent,26 the FCC
distinguished the facts of WGBH from the Carlin mono-
logue in Pacifica by invoking its restrained enforcement
policy for fleeting or isolated material. See id. at ¶ 10
(“We intend strictly to observe the narrowness of the
Pacifica holding. . . . Justice Powell’s concurring opin-
ion . . . specifically distinguished ‘the verbal shock
treatment [in Pacifica]’ from ‘the isolated use of a po-
tentially offensive word in the course of a radio broad-
cast.’ . . . In the case before us, petitioner has made no
comparable showing of abuse by WGBH-TV of its pro-
gramming discretion.”); id. at ¶ 10 n. 6 (finding that
WGBH-TV’s programs “differ[ed] dramatically from the
concentrated and repeated assault involved in Pacif-
ica”). In its indecency analysis in WGBH, the FCC
25 Among several broadcasts at issue in WGBH were: (1) “numerous
episodes of Monty Python’s Flying Circus, which allegedly consistently
relie[d] primarily on scatology, immodesty, vulgarity, nudity, profanity
and sacrilege for humor”; (2) “a program entitled Rock Follies . . .
which [the petitioner] describe[d] as vulgar and as containing profanity”
including “obscenities such as shit, bullshit, etc., and action indicating
some sexually-oriented content in the program”; and (3) “other pro-
grams which allegedly contained nudity and/or sexually-oriented ma-
terial.” 69 F.C.C. 2d 1250 at ¶ 2 (internal quotation marks omitted).
26 The FCC contends WGBH is inapposite because it was a license
revocation proceeding rather than a direct complaint for indecency.
But its analysis in reaching its decision is instructive. Because the com-
plainant in WGBH challenged the broadcaster’s license based on a pat-
tern of allegedly indecent broadcasts, the Commission expressly an-
swered the threshold question of whether the broadcasts were indecent.
Separate from the question of whether the broadcaster’s actions were
sufficient to revoke its license, the Commission’s analysis illustrates
that “words” and “depictions” were treated identically for purposes of
determining whether a broadcast was actionably indecent.

52a
made no distinction between words and images (nudity
or otherwise).
As evidence that the FCC’s policy on fleeting mate-
rial, as it existed at the time of the Halftime Show, did
not distinguish between words and images, CBS pre-
sented several complaints viewers had submitted to the
FCC about allegedly indecent broadcasts. CBS Letter
Br., submitted pursuant to Fed. R. App. P. 28(j) (Aug.
13, 2007). Accompanying each complaint is a corre-
sponding reply letter by the FCC rejecting the inde-
cency allegation. Each complaint involves some variety
of sexually explicit imagery. One letter, for example,
describes the early-evening broadcast of a female adult
dancer at a strip club and alleges the broadcast con-
tained visible scenes of the woman nude from the waist
down revealing exposed buttocks and “complete genital
nudity” for approximately five to seven seconds. An-
other letter describes in part a Sunday-morning televi-
sion broadcast of the movie “Devices and Desires,”
which included “scenes of a topless woman in bed with
her lover, with her breast very clearly exposed, several
scenes of a topless woman running on the beach, and
several scenes of a nude female corpse, with the breasts
clearly exposed.”
Citing Pacifica and the indecency standard used to
review the broadcast of potentially indecent language,
the FCC summarily rejected each of these complaints as
“not actionably indecent.” The FCC contends these
“form letters” are irrelevant, as the letters “do not even
explain the grounds for the staff’s conclusions that the
broadcasts were not indecent, much less rely on the ‘fleet-
ing’ nature of any alleged nudity as a reason for reject-
ing the complaints.” FCC Letter Br., submitted pursu-

53a
ant to Fed. R. App. P. 28(j) (Aug. 27, 2007). But the rel-
evance of the FCC’s rejection letters is not found in
their specific reasons for finding the images not action-
ably indecent. Rather, the rejection letters illustrate
that the FCC used the identical form letters and inde-
cency analyses to address complaints of indecent nudity
that it had long used to address complaints of indecent
language.
Confronted with this history of FCC enforcement of
restrictions on broadcast indecency, the entirety of
which reveals no distinction in treatment of potentially
indecent images versus words, the FCC nevertheless
finds such a distinction evident in its prior decisions.
See, e.g., FCC Br. at 26-27. To support this view, the
FCC offers its Notice of Apparent Liability for Forfei-
ture in In re Young Broadcasting of San Francisco,
Inc., 19 F.C.C.R. 1751 (2004), issued four days before
CBS’s broadcast of the Halftime Show. See Reconsider-
ation Order at ¶¶ 10, 36; FCC Br. at 26-27. Young
Broadcasting involved a morning news show segment in
which two performers from a production titled “Pup-
petry of the Penis” appeared in capes but were other-
wise naked underneath the capes. Young Broadcasting
at ¶ 13. The two men, whose act involved manipulating
and stretching their genitalia to simulate various ob-
jects, performed a demonstration of their act with the
agreement of the show’s hosts and at the urging of
off-camera station personnel. Id. Although the perfor-
mance was directed away from the camera, the penis of
one performer was fully exposed on camera for less than
one second as the men turned away to act out their per-
formance. See id. at ¶¶ 12, 13. Based on these facts, the
Commission found the station apparently liable for a

54a
forfeiture penalty for broadcasting indecent material.
Id. at ¶ 16.
The FCC contends Young Broadcasting was not a
departure from its prior indecency regime. Rather, as
it explains, Young Broadcasting merely represented the
first instance in which the Commission expressly articu-
lated its pre-existing (but unstated) policy of treating
fleeting images differently from fleeting words.27 On
this view, according to the FCC, Young Broadcasting
should have dispelled any doubts about the historical
breadth of its fleeting material policy prior to the
Halftime Show because it was issued a few days before
CBS’s broadcast. But Young Broadcasting is unavailing
for this purpose. It makes no distinction, express or
implied, between words and images in reaching its inde-
cency determination. To the contrary, it discusses and
compares several other FCC determinations on poten-
tially indecent utterances and depictions, treating the
cases interchangeably and ultimately distinguishing
those cases’ outcomes without any indication that the
27 Several statements in the FCC’s own press release announcing the
Young Broadcasting Notice of Apparent Liability belie the agency’s
contention here that Young Broadcasting accorded with its prior
policies. See Press Release, FCC, Com m’ n Proposes to Fine Young
Broadcasting of San Francisco, Inc., Statutory Maximum for Ap-
parent Violation of Indecency Rules (Jan. 27, 2004) (statement of
Chairman Michael K. Powell: “Today, we open another front in our in-
creased efforts to curb indecency on our nation’s airwaves. . . . ”); id.
(statement of Commissioner Michael J. Copps: “I am pleased that this
Commission is finally taking an initial step against indecency on tele-
vision.”); id. (statement of Commissioner Kevin J. Martin: “I hope that
this step today represents the beginning of a commitment to consider
each indecency complaint seriously. . . . ”).

55a
format of the offending material was a relevant consid-
eration. See, e.g., id. at ¶ 12 & n. 35; id. at ¶ 14.28
Accordingly, Young Broadcasting does not support
the FCC’s assertion here that its policy on fleeting ma-
terial had always excluded images and applied only to
words. Young Broadcasting appears instead to be best
understood as the Commission’s initial effort to abandon
its restrained enforcement policy on fleeting material.
While the final disposition of Young Broadcasting was
still unresolved,29 the overarching policy departure that
28 One of the cases the FCC distinguished in Young Broadcasting was
its Notice of Apparent Liability in Flambo Broadcasting, Inc.
(KFMH–FM), 9 F.C.C.R. 1681 (MMB 1994), which involved “a radio
station’s broadcast of sexual material in a crude joke” that was not
found actionably indecent. Young Broadcasting at ¶ 12 n. 35. As with
the other cases it discussed in its Young Broadcasting Notice of Ap-
parent Liability, the FCC did not draw any distinction between Young
Broadcasting and Flambo Broadcasting based on the subject material
there being words or images. But it did distinguish the two notices of
apparent liability in part because: “assuming that the joke [at issue in
Flambo Broadcasting ] was cut off immediately, the staff of the then-
Mass Media Bureau found that it would not have been actionably in-
decent because it was brief, live, unscripted and from an outside
source. Young Broadcasting at ¶ 12 n. 35 (emphasis added). Notably,
the facts here”a brief image of a bare female breast during the live
Halftime Show broadcast resulting from an unscripted stunt by Jack-
son and Timberlake—are remarkably similar to the Flambo Broadcast-
ing fact pattern that the FCC found readily distinguishable from the
actionably indecent material in Young Broadcasting.
29 Young Broadcasting was a notice of apparent liability, which is
non-final until the implicated licensee either declines to dispute the find-
ings in the notice or the licensee’s responsive opposition is fully adjudi-
cated. See FCC Br. at 13 (describing content of CBS Notice of Appar-
ent Liability as “tentative conclusions”); see also 47 U.S.C. § 504(c) (“In
any case where the Commission issues a notice of apparent liability
looking toward the imposition of a forfeiture under this chapter, that

56a
the Commission sought to accomplish there was effectu-
ated by a combination of its Golden Globes order and its
orders on appeal here. The Commission’s reasoning in
Young Broadcasting is therefore illuminating here.
In Young Broadcasting, the Commission distin-
guished that case’s facts from several of its prior orders.
But in so doing, the Commission overlooked the fact that
application of its fleeting material policy had been a de-
terminative factor in those prior orders. For example,
the licensee in Young Broadcasting cited for support
L.M. Communications, 7 F.C.C.R. 1595 (1992), in which
the radio broadcast of a single expletive was found not
actionably indecent. Young Broadcasting at ¶ 12 n. 35.
The FCC found L.M. Communications “distinguishable
because there was no finding that the material, in con-
text, was pandering, titillating or intended to shock the
audience.” Id. But L.M. Communications made no ref-
erence to the pandering, titillating or shocking nature of
the subject broadcast material. Rather, it determined
the material was not actionably indecent because the
“broadcast contained only a fleeting and isolated utter-
ance which, within the context of live and spontaneous
fact shall not be used, in any other proceeding before the Commission,
to the prejudice of the person to whom such notice was issued, unless
(i) the forfeiture has been paid, or (ii) a court of competent jurisdiction
has ordered payment of such forfeiture, and such order has become
final.”). At the time the Commission issued its Reconsideration Order
against CBS and after its determination in Golden Globes, the question
of whether the broadcast licensee in Young Broadcasting would contest
the Notice of Apparent Liability in that case was still unresolved. See
Reconsideration Order at ¶ 6 n. 25 (indicating the status of the Young
Broadcasting Notice of Apparent Liability as “response pending” at the
time of the Reconsideration Order’s issuance).

57a
programming, does not warrant a Commission sanc-
tion.” L.M. Commc’ns, 7 F.C.C.R. at 1595.
The Commission’s failure to acknowledge the exis-
tence of its prior policy on fleeting material in Young
Broadcasting is illustrative of its approach here. In
Young Broadcasting, it read the policy out of existence
by substituting new rationales for its prior indecency
determinations that had applied the policy. Here, the
Commission is foreclosed from adopting the same ap-
proach by its admission in Golden Globes that the fleet-
ing material policy existed. So it instead apparently
seeks to revise the scope of the policy by contending the
policy never included fleeting images. But extensive
precedent over thirty years of indecency enforcement
demonstrates otherwise.
Our reluctant conclusion that the FCC has advanced
strained arguments to avoid the implications of its own
fleeting indecency policy was echoed by our sister circuit
in Fox:
In [its Omnibus Order ], the FCC “reject[s] Fox’s
suggestion that Nicole Richie’s [use of two exple-
tives] would not have been actionably indecent prior
to our Golden Globes decision,” and would only con-
cede that it was “not apparent” that Cher’s [use of
one expletive] at the 2002 Billboard Music Awards
would have been actionably indecent at the time it
was broadcast. [Id.] at ¶¶ 22, 60. Decisions express-
ly overruled in Golden Globes were now dismissed as
“staff letters and dicta,” and the Commission even
implied that the issue of fleeting expletives was one
of first impression for the FCC in Golden Globes. Id.
at ¶ 21 (“[I]n 2004, the Commission itself considered
for the first time in an enforcement action whether a

58a
single use of an expletive could be considered inde-
cent.”).
Fox, 489 F.3d at 456 n. 6. When confronted with these
troublesome revisionist arguments, the FCC conceded
the existence of its prior policy. See id. at 456 (“[I]n its
brief to this court, the FCC now concedes that Golden
Globes changed the landscape with regard to fleeting
expletives.” (citations omitted)); see also id. at 470
(Leval, J., dissenting) (“[The FCC] made clear acknowl-
edgment that its Golden Globes and Remand Order rul-
ings were not consistent with its prior standard regard-
ing lack of repetition.”). But it has made no such conces-
sion here. Faced with extensive evidence to the con-
trary, the Commission nevertheless continues to assert
that its fleeting material policy was limited to words and
did not exclude fleeting images from the scope of action-
able indecency.
In sum, the balance of the evidence weighs heavily
against the FCC’s contention that its restrained enforce-
ment policy for fleeting material extended only to fleet-
ing words and not to fleeting images. As detailed, the
Commission’s entire regulatory scheme treated broad-
casted images and words interchangeably for purposes
of determining indecency. Therefore, it follows that the
Commission’s exception for fleeting material under that
regulatory scheme likewise treated images and words
alike. Three decades of FCC action support this conclu-
sion. Accordingly, we find the FCC’s conclusion on this
issue, even as an interpretation of its own policies and
precedent, “counter to the evidence before the agency”
and “so implausible that it could not be ascribed to a
difference in view or the product of agency expertise.”
State Farm, 463 U.S. at 43, 103 S. Ct. 2856.

59a
Because the Commission fails to acknowledge that it
has changed its policy on fleeting material, it is unable
to comply with the requirement under State Farm that
an agency supply a reasoned explanation for its depar-
ture from prior policy.30 See id.; cf. Ramaprakash, 346
F.3d at 1125 (“[F]ailure to come to grips with conflicting
precedent constitutes an [agency’s] inexcusable depar-
ture from the essential requirement of reasoned decision
making.”); LeMoyne-Owen College v. NLRB, 357 F.3d
55, 61 (D.C. Cir. 2004) (Roberts, J.) (“[W]here, as here,
a party makes a significant showing that analogous
cases have been decided differently, the agency must do
more than simply ignore that argument. . . . The need
for an explanation is particularly acute when an agency
is applying a multi-factor test through case-by-case ad-
judication.”). Consequently, the FCC’s new policy of
including fleeting images within the scope of actionable
indecency is arbitrary and capricious under State Farm
and the Administrative Procedure Act, and therefore
invalid as applied to CBS.

IV.

In finding CBS liable for a forfeiture penalty, the
FCC arbitrarily and capriciously departed from its prior
policy excepting fleeting broadcast material from the
scope of actionable indecency. Therefore, we will grant
30 In its brief and at oral argument, the Commission continues to as-
sert it has not changed its policy on fleeting material, yet it also sug-
gests several reasons why a policy including fleeting images within the
scope of actionable indecency is reasonable. But see State Farm, 463
U.S. at 50, 103 S. Ct. 2856 (“[T]he courts may not accept appellate coun-
sel’s post hoc rationalizations for agency action. It is well-established
that an agency’s action must be upheld, if at all, on the basis articulated
by the agency itself.” (internal citations omitted)).

60a
CBS’s petition for review and will vacate the Commis-
sion’s order in its entirety.
SCIRICA, Circuit Judge, Dissenting.
This case comes to us on remand from the Supreme
Court of the United States. CBS petitions for review of
orders by the Federal Communications Commission im-
posing a monetary forfeiture under 47 U.S.C. § 503(b)
for the broadcast of “indecent” material in violation of
18 U.S.C. § 1464 and 47 C.F.R. § 73.3999. I believe the
Supreme Court’s intervening opinion in FCC v. Fox
Television Stations, Inc., 556 U.S. 502, 129 S. Ct. 1800,
173 L. Ed. 2d 738 (2009), undermines the basis of our
prior holding on the Administrative Procedure Act.1
Accordingly, I respectfully dissent and would hold the
FCC’s imposition of a civil forfeiture here is neither ar-
bitrary nor capricious. Furthermore, I would hold pre-
cedent requires we remand to the FCC for it to apply
the proper standard for ordering a civil forfeiture for
the broadcast of indecent material.
The alleged indecency occurred during the Halftime
Show of Super Bowl XXXVIII, broadcast live by CBS on
February 1, 2004. The Show’s finale involved a routine
by Janet Jackson and Justin Timberlake. In an un-
scripted moment at the end of the performance, Timber-
lake tore away part of Jackson’s bustier, exposing her
bare right breast to the camera. The image was broad-
cast over public airwaves for nine-sixteenths of one sec-
ond.
1 My colleagues incorporate portions of our earlier decision in Part
B of their opinion. Since I believe Fox requires a different result, I
would omit our prior opinion.

61a
At issue is the responsibility of television broadcast-
ers for the transmission of unscripted “indecent” mate-
rial during live, contemporaneous television shows.
Broadcast television (as opposed to transmissions over
cable, satellite, or internet) is subject to greater over-
sight because the finite number of broadcast frequencies
are allocated among competing applicants. See Red
Lion Broad. Co. v. FCC, 395 U.S. 367, 376, 89 S. Ct.
1794, 23 L. Ed. 2d 371 (1969) (“Without government con-
trol, the medium would be of little use because of the
cacophony of competing voices, none of which could be
clearly and predictably heard.”); cf. FCC v. Pacifica
Found., 438 U.S. 726, 748, 98 S. Ct. 3026, 57 L. Ed. 2d
1073 (1978) (“[O]f all forms of communication, it is
broadcasting that has received the most limited First
Amendment protection.”). The “scarcity doctrine”—the
idea that limited broadcast spectrum and practical fac-
tors make television broadcasting unique among me-
dia—”has required some adjustment in First Amend-
ment analysis.” FCC v. League of Women Voters,
468 U.S. 364, 376-77, 104 S. Ct. 3106, 82 L. Ed. 2d 278
(1984).2
2 CBS and others have questioned whether broadcasting continues
to be a unique medium. The Court, however, has so far declined to
abandon the scarcity doctrine without the support of Congress or the
FCC. See League of Women Voters, 468 U.S. at 376 n.11, 104 S. Ct.
3106 (“The prevailing rationale for broadcast regulation based on spec-
trum scarcity has come under increasing criticism. . . . We are not
prepared, however, to reconsider our longstanding approach without
some signal from Congress or the FCC that technological developments
have advanced so far that some revision of the system of broadcast
regulation may be required.”); see also Petition for Writ of Certiorari
at 2-8, FCC v. Fox Television Stations, Inc., 131 S. Ct. 3065 (2011)
(No. 10-1293), 2011 WL 1540430 at *2-8 (providing the Solicitor

62a
In our earlier decision, we invalidated the FCC’s de-
termination that CBS’s broadcast of a fleeting image of
nudity was actionably indecent. Examining the history
of the FCC’s enforcement of the indecency standard, we
concluded the FCC’s policy had been to treat unscripted
fleeting material as per se exempt from regulation. Be-
cause we believed the FCC’s forfeiture orders against
CBS constituted an unacknowledged change in policy,
we held they violated the Administrative Procedure
Act’s (APA) prohibition on arbitrary and capricious
agency action. See 5 U.S.C. § 706(2)(A). Furthermore,
even assuming the fleeting image of nudity was action-
ably indecent, we concluded CBS could not be held liable
for the broadcast unless it acted with scienter, and it
was unclear whether the FCC had applied the proper
standard. Accordingly, we vacated the FCC’s orders
and remanded to allow the FCC an opportunity to recon-
sider its indecency standard and the mens rea for broad-
caster liability.
The FCC filed a petition for certiorari. While that
petition was pending, the Supreme Court decided FCC
v. Fox Television Stations, Inc., 556 U.S. 502, 129 S. Ct.
1800, 173 L. Ed. 2d 738 (2009). The question presented
in Fox was whether the FCC had violated the APA in
issuing orders holding Fox liable for isolated expletives
broadcast during the 2002 and 2003 Billboard Music
Awards. The Court held the FCC had adequately ex-
plained its decision such that its orders were neither
arbitrary nor capricious under the APA. Soon after de-
ciding Fox, the Court granted the FCC’s petition for
certiorari in this case, vacated our judgment, and re-
General’s view on the development of indecency policy and the unique
position of broadcast television).

63a
manded for us to reconsider the case in light of Fox.
FCC v. CBS Corp., — U.S. — , 129 S. Ct. 2176, 173
L. Ed. 2d 1153 (2009).
In Fox, unlike here, the FCC acknowledged it was
departing from precedent. Nevertheless, I believe the
Court’s intervening decision in Fox requires us to revise
our prior APA holding. Based on the Supreme Court’s
account of the history of the FCC’s enforcement policy,
we cannot adhere to our earlier determination that prior
FCC policy had granted a per se exemption to all fleet-
ing indecent material; instead, Fox compels the conclu-
sion that the fleeting exemption was limited to a particu-
lar type of words. Accordingly, under Fox, I cannot say
the orders in this case represented a change in agency
policy, and I would hold the FCC’s indecency finding
passes muster under the APA. The FCC, however, can-
not impose a forfeiture penalty unless CBS acted with
the requisite scienter. Because I believe the FCC’s for-
feiture orders rested on the wrong statutory provision,
and misapprehended the proper mens rea standard, I
would vacate the orders and remand for further pro-
ceedings.

I.

A.

Our previous opinion set forth the relevant facts:
On February 1, 2004, CBS presented a live broad-
cast of the national Football League’s Super Bowl
XXXVIII, which included a halftime show produced
by MTV Networks. Nearly 90 million viewers
watched the Halftime Show, which began at 8:30 p.m.
Eastern Standard Time and lasted about fifteen min-

64a
utes. The Halftime Show featured a variety of musi-
cal performances by contemporary recording artists,
with Janet Jackson as the announced headlining act
and Justin Timberlake as a “surprise guest” for the
final minutes of the show.
Timberlake was unveiled on stage near the con-
clusion of the Halftime Show. He and Jackson per-
formed his popular song “Rock Your Body” as the
show’s finale. Their performance, which the FCC
contends involved sexually suggestive choreography,
portrayed Timberlake seeking to dance with Jack-
son, and Jackson alternating between accepting and
rejecting his advances. The performance ended with
Timberlake singing, “gonna have you naked by the
end of this song,” and simultaneously tearing away
part of Jackson’s bustier. CBS had implemented a
five-second audio delay to guard against the possibil-
ity of indecent language being transmitted on air, but
it did not employ similar precautionary technology
for video images. As a result, Jackson’s bare right
breast was exposed on camera for nine-sixteenths of
one second.
CBS Corp. v. FCC, 535 F.3d 167, 171-72 (3d Cir. 2008)
(footnote omitted).
After fielding a large number of complaints from
viewers of the Halftime Show, the FCC issued a letter of
inquiry to CBS seeking additional information about the
broadcast. CBS complied. It also made “a public state-
ment of apology for the incident,” stating that “Jackson
and Timberlake’s wardrobe stunt was unscripted and
unauthorized” and “claiming it had no advance notice of
any plan by the performers to deviate from the script.”
Id. at 172.

65a
On September 22, 2004, the FCC issued a Notice of
Apparent Liability finding that CBS had apparently
violated federal law and FCC rules regulating the
broadcast of indecency and was apparently liable for a
forfeiture penalty of $550,000. CBS submitted its Oppo-
sition to the Notice.
On March 15, 2006, the FCC issued a forfeiture order
and imposed a penalty of $550,000. In re Complaints
Against Various Television Licensees Concerning Their
Feb. 1, 2004 Broad. of the Super Bowl XXXVIII
Halftime Show, 21 FCC Rcd. 2760 (2006) (“Forfeiture
Order ”). Applying the standard set forth in its 2001
policy statement, the FCC found the Halftime Show in-
cident satisfied the two-part test for indecency: (1) “the
material must describe or depict sexual or excretory
organs or activities,” and (2) it must be “patently offen-
sive as measured by contemporary community stan-
dards for the broadcast medium.” In re Industry Guid-
ance on the Comm’n’s Case Law Interpreting 18 U.S.C.
§ 1464 and Enforcement Policies Regarding Broad. In-
decency, 16 FCC Rcd. 7999, 8002, ¶¶ 7-8 (2001) (“Indus-
try Guidance”); see Forfeiture Order, 21 FCC Rcd. at
2764-65, ¶ 9. Finding the “broadcast of an exposed fe-
male breast” met the first part of the test, the FCC fo-
cused most of its analysis on whether the broadcast was
“patently offensive.” Forfeiture Order, 21 FCC Rcd. at
2764-67, ¶¶ 9-14.
The FCC’s 2001 policy statement had explained that
in determining whether broadcast material is patently
offensive, “the full context in which the material ap-
peared is critically important.” Industry Guidance,
16 FCC Rcd. at 8002, ¶ 9. Three factors are of principal
significance: “(1) the explicitness or graphic nature of

66a
the description or depiction of sexual or excretory or-
gans or activities; (2) whether the material dwells on or
repeats at length descriptions of sexual or excretory
organs or activities; (3) whether the material appears to
pander or is used to titillate, or whether the material
appears to have been presented for its shock value.” Id.
at 8003, ¶ 10 (emphasis removed). According to the pol-
icy statement, “[n]o single factor generally provides the
basis for an indecency finding”; the three factors “must
be balanced” to determine whether a given broadcast is
patently offensive. Id.
Applying these factors in its Forfeiture Order, the
FCC determined that, “in context and on balance,” the
Halftime Show material was “patently offensive.”
21 FCC Rcd. at 2765, ¶ 10. The FCC conceded the sec-
ond factor weighed against a finding of indecency be-
cause “the image of Jackson’s uncovered breast . . . is
fleeting.” Id. at 2766, ¶ 12. It noted, however, that
“‘even relatively fleeting references may be found inde-
cent where other factors contribute to a finding of pat-
ent offensiveness,’ ” and concluded “[i]n this case, . . .
the brevity of the partial nudity is outweighed by the
first and third factors of our contextual analysis.” Id.
(quoting Industry Guidance, 16 FCC Rcd. at 8009, ¶ 19).
In the FCC’s view, the image was “graphic and explicit”
because “although the camera shot is not a close-up, the
nudity is readily discernible[,] . . . Jackson and Tim-
berlake, 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.” Id. at 2765, ¶ 11. The FCC also be-
lieved, taken in context, the material appeared to shock,
pander to, or titillate the audience:

67a
The offensive segment in question did not merely
show a fleeting glimpse of a woman’s breast. . . .
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.”
Id. at 2767, ¶ 13. On the strength of these two factors,
the FCC found the image actionably indecent.
The Forfeiture Order also found that CBS was liable
under 47 U.S.C. § 503(b)(1) for Timberlake and Jack-
son’s performance. CBS claimed “it had no advance
knowledge that Timberlake planned to tear off part of
Jackson’s clothing to reveal her breast.” Id. at 2768,
¶ 17. The FCC did not dispute this contention, but it
nonetheless determined CBS was subject to a monetary
forfeiture. Id. at 2769-74, ¶ ¶ 18-25.
CBS submitted a Petition for Reconsideration chal-
lenging several aspects of the FCC’s analysis. In an
Order on Reconsideration filed on May 31, 2006, the
FCC reaffirmed the $550,000 forfeiture. In re Com-
plaints Against Various Television Licensees Concern-
ing Their Feb. 1, 2004 Broad. of the Super Bowl
XXXVIII Halftime Show, 21 FCC Rcd. 6653 (2006)
(“Reconsideration Order”). The Order rejected CBS’s
constitutional arguments and reiterated the FCC’s inde-
cency finding. The Reconsideration Order revised the
FCC’s approach for determining CBS’s liability under
§ 503(b)(1). According to the Order, there were three
independent bases for CBS’s liability. First, despite the
fact the network “was acutely aware of the risk of un-
scripted indecent material in [the Halftime Show],” it
“consciously and deliberately failed to take reasonable

68a
precautions to ensure that no actionably indecent mate-
rial was broadcast.” Reconsideration Order, 21 FCC
Rcd. at 6660, ¶ 17; accord id. at 6662, ¶ 23 (stating that
the FCC’s “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”). Sec-
ond, the FCC found Jackson and Timberlake performed
as employees of CBS, not independent contractors. Ac-
cordingly, CBS was vicariously liable for their actions
under the doctrine of respondeat superior. Id. at 6662-
64, ¶¶ 24-28. Third, even if Timberlake and Jackson
were independent contractors, CBS would still be liable
for their actions in the FCC’s view because of “the
nondelegable nature of broadcast licensees’ responsibil-
ity for their programming.” Id. at 6662, ¶ 23. For these
reasons, the FCC refused to rescind or reduce its forfei-
ture penalty.

B.

CBS timely filed a petition for review of the Recon-
sideration Order on July 28, 2006. In our previous opin-
ion, we agreed with CBS that the order’s indecency find-
ing violated the APA. CBS, 535 F.3d at 175. We ac-
knowledged that “[t]he scope of review under the
[APA’s] ‘arbitrary and capricious’ standard is ‘narrow,
and a court is not to substitute its judgment for that of
the agency,’” and that “[l]ike any agency, the FCC may
change its policies without judicial second-guessing.”
Id. at 174-75 (quoting Motor Vehicle Mfrs. Ass’n v. State
Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S. Ct.
2856, 77 L. Ed. 2d 443 (1983)). But we noted the FCC
“cannot change a well-established course of action with-
out supplying notice of and a reasoned explanation for
its policy departure.” Id. at 175.

69a
We concluded the FCC violated that principle here
by failing to acknowledge or explain a departure from “a
consistent and entrenched policy of excluding fleeting
broadcast material from the scope of actionable inde-
cency.” Id. at 179. In our view, it was not until its
Golden Globes decision, issued more than a month after
the Halftime Show, that the agency expressly “over-
ruled all of its prior cases holding [isolated or fleeting
material] not actionable.” Id. at 178; see In re Com-
plaints Against Various Broad. Licensees Regarding
Their Airing of the “Golden Globe Awards” Program,
19 FCC Rcd. 4975, 4980, ¶ 12 (2004) (“Golden Globes”)
(“While prior Commission and staff action had indicated
that isolated or fleeting broadcasts of the ‘F-Word’ such
as that here are not indecent or would not be acted upon,
consistent with our decision today we conclude that any
such interpretation is no longer good law.”). Before this
date, we believed, “the FCC’s policy was to exempt
fleeting or isolated material” from indecency regulation.
CBS, 535 F.3d at 180. “Because CBS broadcasted the
Halftime Show prior to Golden Globes, this was the pol-
icy in effect when the incident with Jackson and
Timberlake occurred.” Id. Accordingly, by finding the
fleeting image here to be actionably indecent, the FCC’s
orders in this case broke with agency policy. And since
these orders failed to acknowledge the existence of that
policy, we determined they were “unable to comply with
the [APA’s] requirement . . . that an agency supply a
reasoned explanation for its departure” from its prior
policy. Id. at 188.
As this account suggests, our construction of the
FCC’s enforcement history played a decisive role in our
previous opinion. That opinion recounted this history in
detail, see id. at 175-89, but a synopsis is necessary here

70a
in order to make clear the significance of the Supreme
Court’s decision in Fox. The FCC’s indecency policy
had its genesis in 1975, when the FCC issued a forfei-
ture penalty against Pacifica Foundation for broad-
casting comedian George Carlin’s “Filthy Words”
monologue.3 See In re Citizen’s Complaint Against
Pacifica Found., Station WBAI(FM), New York, N.Y.,
56 F.C.C. 2d 94, 1975 WL 29897 (1975). “Carlin’s mono-
logue, which Pacifica aired in an early-afternoon time
slot, contained extensive and repetitive use of several
vulgar expletives over a period of twelve minutes.” CBS,
535 F.3d at 175 (citing Pacifica, 438 U.S. at 739,
98 S. Ct. 3026). While Pacifica’s appeal was pending be-
fore the United States Court of Appeals for the D.C.
Circuit, the FCC “issued a clarification order . . . ex-
pressly limiting its prior forfeiture order to the specific
facts of the Carlin monologue.” Id. (citing In re a
Petition for Clarification or Reconsideration’ of a
Citizen’s Complaint against Pacifica Found., Station
WBAI(FM), New York, NY, 59 F.C.C. 2d 892, 1976 WL
31850 (1976)). The D.C. Circuit reversed the FCC’s for-
feiture order as vague and overbroad, Pacifica Found.
v. FCC, 556 F.2d 9, 14 (D.C. Cir. 1977), but the Supreme
Court upheld the agency’s action in a narrow plurality
opinion, 438 U.S. 726, 98 S. Ct. 3026, 57 L. Ed. 2d 1073
(1978). The plurality “confirmed the general validity of
the FCC’s indecency regime” while at the same time
“ ‘emphasiz[ing] the narrowness of [its] holding,’ which
it confined to the facts of the Carlin monologue.” CBS,
535 F.3d at 176 (quoting Pacifica, 438 U.S. at 750, 98 S.
3 “Congress authorized the FCC to impose forfeiture penalties for
violations of 18 U.S.C. § 1464 in 1960.” CBS, 535 F.3d at 175; see Com-
munications Act Amendments, 1960, Pub. L. No. 86-752, § 7, 74 Stat.
889, 894 (codified as amended at 47 U.S.C. § 503(b)(1)).

71a
Ct. 3026) (alterations in original). Justices Powell and
Blackmun concurred in the judgment and wrote sepa-
rately to underscore “the narrowness of the decision and
to note the Court’s holding did not ‘speak to cases in-
volving the isolated use of a potentially offensive word
in the course of a radio broadcast, as distinguished
from the verbal shock treatment administered by re-
spondent here.’ ” Id. (quoting Pacifica, 438 U.S. at 760-
61, 98 S. Ct. 3026 (Powell, J., concurring)).
Our previous opinion found that the FCC adopted a
“restrained enforcement policy . . . in the years follow-
ing Pacifica. Id. In a 1978 opinion, the FCC rejected
a challenge to “several programs containing nudity and
other allegedly offensive material.” Id.; see In re Appli-
cation of WGBH Educ. Found., 69 F.C.C. 2d 1250, 1978
WL 36042 (1978) (“WGBH”). The agency, noting it
“ ‘intend[ed] strictly to observe the narrowness of the
Pacifica holding’ and emphasizing the language in Jus-
tice Powell’s concurring opinion, concluded the single
use of an expletive in a program ‘should not call for us to
act under the holding of Pacifica.’” Id. (quoting WGBH,
69 F.C.C. 2d at 1254, ¶ 10 n.6) (alteration in CBS ).
In our view, three decisions issued in 1987 had “reaf-
firmed the Commission’s restrained enforcement policy
and reiterated the agency’s policy that isolated or fleet-
ing material would not be considered actionably inde-
cent.” Id. We acknowledged that, in a subsequent order
reconsidering these decisions, “the Commission aban-
doned the view that only the particular ‘dirty words’
used in the Carlin monologue could be indecent,” but we
observed that the order on reconsideration “never
indicat[ed] disagreement with those decisions’ express
statements that isolated or fleeting material could not be

72a
actionably indecent.” CBS, 535 F.3d at 177; see In re
Infinity Broad. Corp., 3 FCC Rcd. 930 (1987), vacated
in part on other grounds, Action for Children’s Televi-
sion v. FCC, 852 F.2d 1332, 1337 (D.C. Cir. 1988), super-
seded in part by Action for Children’s Television v.
FCC, 58 F.3d 654 (D.C. Cir. 1995) (en banc).
As noted, our earlier opinion concluded the Golden
Globes opinion of March 3, 2004, was the first time the
FCC indicated that fleeting material could be held inde-
cent. That case involved an unscripted remark during a
live NBC broadcast of the Golden Globe Awards on Jan-
uary 19, 2003, in which “musician Bono said ‘this is re-
ally, really f[ * * *] brilliant’ while accepting an award.”
CBS, 535 F.3d at 177; see Golden Globes, 19 FCC Rcd.
at 4976, ¶ 3 n.4. The FCC held the broadcast actionable,
but it declined to impose a forfeiture penalty because
“existing precedent would have permitted th[e] broad-
cast.” See Golden Globes, 19 FCC Rcd. at 4981-82, ¶ 15
n.40 (citing Trinity Broad. of Fla., Inc. v. FCC, 211 F.3d
618 (D.C. Cir. 2000)). We believed Golden Globes itself
“made it clear that licensees could not be held liable for
broadcasting fleeting or isolated indecent material prior
to its Golden Globes decision.” CBS, 535 F.3d at 178.
On February 21, 2006, the FCC issued an omnibus
order resolving multiple indecency complaints against
television broadcasters. See In re Complaints Regard-
ing Various Television Broads. Between Feb. 2, 2002
and Mar. 8, 2005, 21 FCC Rcd. 2664 (2006). The Order
found four programs, all of which involved the use of
expletives,4 to be indecent. But “[b]ecause the offending
4 The four programs were: “(1) Fox’s broadcast of the 2002 Billboard
Music Awards, in which performer Cher used an unscripted expletive
during her acceptance speech; (2) Fox’s broadcast of the 2003 Billboard

73a
broadcasts occurred prior to the issuance of its Golden
Globes decision, the FCC concluded that existing prece-
dent would have permitted the broadcasts. Accordingly,
the FCC did not issue forfeiture orders against any of
the licensees.” CBS, 535 F.3d at 178 (internal citations
removed).
The networks nonetheless appealed the Order,
which, as revised,5 was invalidated in a 2-1 decision by
the United States Court of Appeals for the Second Cir-
cuit. See Fox Television Stations, Inc. v. FCC, 489 F.3d
444 (2d Cir. 2007), rev’d, 556 U.S. 502, 129 S. Ct. 1800,
173 L. Ed. 2d 738 (2009). Our earlier opinion explicitly
refrained from engaging the issue that split the Second
Circuit panel, see CBS, 535 F.3d at 182-83; we focused
instead on that court’s unanimous finding that the
FCC’s enforcement policy “prior to the Golden Globes
decision [had consistently] excluded fleeting or isolated
expletives from regulation,” id. at 179 (citing Fox, 489
F.3d at 455). That conclusion, we believed, confirmed
our view that until Golden Globes, the FCC’s policy “was
Music Awards, in which presenter Nicole Richie used two unscripted
expletives; (3) ABC’s broadcast of various episodes of its NYPD Blue
series, in which assorted characters used scripted expletives; and (4) a
CBS broadcast of The Early Show, in which a guest used an unscripted
expletive during a live interview.” CBS, 535 F.3d at 178 (citing Various
Television Broads., 21 FCC Rcd. at ¶¶ 101, 112 n.64, 125, 137).
5 See In re Complaints Regarding Various Television Broads.
Between Feb. 2, 2002 and Mar. 8, 2005, 21 FCC Rcd. 13299 (2006). The
revised order reversed the finding that The Early Show broadcast was
indecent and dismissed the complaint against ABC on procedural
grounds. Id. at 13299, ¶ 1. The order reviewed by the Second Circuit
(and subsequently by the Supreme Court) thus contained indecency
determinations only as to the two Billboard Music Awards broadcasts.

74a
to exclude fleeting material from the scope of actionable
indecency.” Id. at 179 n.10.
The FCC did not categorically deny that its policy
had exempted fleeting content from regulation. But it
contended—and continues to contend—that the exemp-
tion had been limited to fleeting expletives and had
never applied to fleeting images such as the one at issue
here. According to the FCC, the Golden Globes opinion
simply eliminated the exceptional treatment of fleeting
expletives and subjected all broadcast content to the
same contextual, multi-factor test, in which the mate-
rial’s fleeting nature is but one consideration to be
weighed in the balance. Our previous opinion rejected
this interpretation. We concluded that, on the contrary,
“[i]n the nearly three decades between the Supreme
Court’s ruling in Pacifica and CBS’s broadcast of the
Halftime Show, the FCC had never varied its approach
to indecency regulation based on the format of broad-
casted content.” Id. at 184; see id. at 181 (“[T]he Com-
mission—before Golden Globes—had not distinguished
between categories of broadcast material such as images
and words.”); see also id. at 180 (“Until its Golden
Globes decision . . . the FCC’s policy was to exempt
fleeting or isolated material from the scope of actionable
indecency.” (emphasis added)). In our view, fleeting
images, like all other fleeting content, were immune
from regulation under the pre-Golden Globes regime.
Accordingly, we believed that if the FCC were right that
Golden Globes only addressed expletives, . . . a resid-
ual [per se exemption] policy on other categories of fleet-
ing material—including all broadcast content other than
expletives—remained in effect,” and that “subsequent
agency action was required to change the fleeting mate-

75a
rial policy as it applied” to these remaining categories.
Id. at 181.
The FCC had insisted that “any doubts about the
historical breadth of its fleeting material policy prior to
the Halftime Show” should have been “dispelled” by the
FCC’s decision in In re Young Broadcasting of San
Francisco, Inc., 19 FCC Rcd. 1751 (2004), issued a few
days before CBS’s Super Bowl broadcast. CBS, 535
F.3d at 186. There, the FCC issued a Notice of Appar-
ent Liability for Forfeiture to:
a morning news show segment in which two perform-
ers from a production titled “Puppetry of the Penis”
appeared in capes but were otherwise naked under-
neath the capes. The two men, whose act involved
manipulating and stretching their genitalia to simu-
late various objects, performed a demonstration of
their act with the agreement of the show’s hosts and
at the urging of off-camera station personnel. Al-
though the performance was directed away from the
camera, the penis of one performer was fully exposed
on camera for less than one second as the men
turned away to act out their performance.
Id. (citing Young Broad., 19 FCC Rcd. at 1755-56, ¶¶ 12,
13). The FCC conceded that the offending image was
“fleeting” but concluded it was nonetheless indecent
given its explicit and pandering qualities. Young
Broad., 19 FCC Rcd. at 1755-57, ¶¶ 11-14. In the FCC’s
view, Young Broadcasting should have made clear to
CBS that the fleetingness of an offending image would
not necessarily immunize the broadcaster from liability.
Our previous opinion found this argument unconvinc-
ing. We believed the FCC’s action in Young Broadcast-
ing was hobbled by the same flaw that afflicted the for-

76a
feiture orders against CBS: it “fail[ed] to acknowledge
the existence of [the FCC’s] prior policy on fleeting ma-
terial,” instead “read[ing] the policy [of exempting fleet-
ing material] out of existence by substituting new ratio-
nales for its prior indecency determinations that had
applied the policy.” CBS, 535 F.3d at 187. Because
Young Broadcasting was, we believed, an invalid “initial
effort to abandon [the FCC’s] restrained enforcement
policy on fleeting material,” id., that policy remained in
effect at the time of the Halftime Show. And since the
forfeiture orders against CBS similarly “fail[ed] to ac-
knowledge” a change in FCC policy “on fleeting mate-
rial,” they were “unable to comply with the requirement
. . . that an agency supply a reasoned explanation for
its departure from prior policy.” Id. at 188 (citing State
Farm, 463 U.S. at 43, 103 S. Ct. 2856). In sum, Young
Broadcasting did not alter our conclusion that the
FCC’s orders violated the APA.
This violation of the APA was not the only flaw we
identified in the FCC’s orders. Even assuming the
FCC’s indecency finding had been valid, we would have
found “the Commission [had] incorrectly determined
CBS’s liability for Jackson and Timberlake’s Halftime
Show performance.” Id. at 189. Two of the FCC’s three
arguments for liability were untenable. First, the
agency “contend[ed] the performers’ intent c[ould] be
imputed to CBS under the common law doctrine of
respondeat superior.Id. We concluded, however, that
“Jackson and Timberlake were independent contractors,
who are outside the scope of respondeat superior, rather
than employees as the FCC found.” Id. at 189-98. Sec-
ond, the FCC argued “because broadcast licensees hold
non-delegable duties to avoid the broadcast of indecent
material and to operate in the public interest,” they are

77a
vicariously liable for the acts of even their independent
contractors. Id. at 198. This proposition, we believed,
could not be reconciled with the First Amendment.
“[A]n unwitting broadcaster might be held liable for its
independent contractor’s negligence in monitoring and
maintaining a tower antenna without raising a constitu-
tional question,” but “the same cannot be said of impos-
ing liability for the speech or expression of independent
contractors.” Id. at 199. “A broadcast licensee,” we ex-
plained, “should not be found liable for violating the in-
decency provisions of [federal law] without proof the
licensee acted with scienter. Because the Commission’s
proffered ‘non-delegable duty’ theory of CBS’s vicarious
liability, which functionally equates to strict liability for
speech or expression of independent contractors, ap-
pears to dispense with this constitutional requirement,”
we concluded it could “not be sustained.” Id. at 203.
“As an alternative to vicarious liability, the FCC
found CBS directly liable for a forfeiture penalty . . .
for failing to take adequate precautionary measures to
prevent potential indecency during the Halftime Show.”
Id. According to the FCC, the touchstone under this
theory was whether CBS had “acted willfully.” Recon-
sideration Order, 21 FCC Rcd. at 6655, ¶ 5. The FCC
did “not dispute” that CBS “neither planned Jackson
and Timberlake’s offensive actions nor knew of the per-
formers’ intent to incorporate those actions into their
performance.” CBS, 535 F.3d at 189. But the FCC be-
lieved CBS had satisfied the “willfulness” requirement
based on the agency’s finding that “CBS was acutely
aware of the risk of unscripted indecent material” in the
Halftime Show, but had nonetheless “consciously and
deliberately failed to take reasonable precautions to
ensure that no actionably indecent material was broad-

78a
cast.” Reconsideration Order, 21 FCC Rcd. at 6660,
¶ 17.
Without ruling on whether this third theory might
ultimately sustain a finding of liability on the facts of
this case, we found certain key aspects of the FCC’s rea-
soning “unclear.” CBS, 535 F.3d at 189. First, we had
doubts about whether the agency had “properly applied
the forfeiture statute.” Id. at 203; see 47 U.S.C.
§ 503(b)(1). Under 47 U.S.C. § 503(b)(1)(B), the FCC
has authority to order forfeiture penalties upon deter-
mining that a person “willfully or repeatedly failed to
comply with any of the provisions of this chapter or of
any rule, regulation, or order issued by the Commission
under this chapter.” Another statutory subsection,
§ 503(b)(1)(D), authorizes forfeitures for violations of
several specific statutory provisions, including the
indecency statute, 18 U.S.C. § 1464. See 47 U.S.C.
§ 503(b)(1)(D). Although the FCC’s orders sometimes
specifically invoked § 503(b)(1)(B), see, e.g., Forfeiture
Order, 21 FCC Rcd. at 2778, ¶ 36, and its “willfulness”
standard appears to represent the agency’s interpreta-
tion of that subsection’s express mens rea element, the
orders referred in other places to § 503(b) or § 503(b)(1)
only generally, without specifying the applicable subsec-
tion, see, e.g., Forfeiture Order, 21 FCC Rcd. at 2760, ¶ 1
n.1; Reconsideration Order, 21 FCC Rcd. at 6655, ¶ 5.
Given that § 503(b)(1)(D) expressly authorizes forfei-
tures for indecency violations, we questioned “whether
the statutory scheme permits violations of 18 U.S.C.
§ 1464 to be penalized by forfeitures issued under sec-
tion 503(b)(1)(B) instead of, or in addition to, section
503(b)(1)(D).” CBS, 535 F.3d at 205.

79a
As noted, our previous opinion determined that “a
showing of scienter is constitutionally required to penal-
ize broadcast indecency.” Id. Although § 503(b)(1)(B)
contained an express mens rea standard, i.e. willfulness,
and § 503(b)(1)(D) did not, we believed both provisions
must be interpreted to “set a bar” to liability “at least as
high as scienter.” Id. A key question, then, was what
level of scienter was necessary to sustain a penalty for
indecent expression. “Where a scienter element is read
into statutory text,” we observed, “scienter would not
necessarily equate to a requirement of actual knowledge
or specific intent.” Id. at 206. Instead, “[t]he presump-
tion in favor of scienter requires a court to read into a
statute only that mens rea which is necessary to sepa-
rate wrongful conduct from otherwise innocent con-
duct.” Id. (quoting Carter v. United States, 530 U.S.
255, 269, 120 S. Ct. 2159, 147 L. Ed. 2d 203 (2000)). Ap-
plying this principle, we surmised that recklessness was
a sufficiently culpable mental state for purposes of 18
U.S.C. § 1464. “It is likely,” we explained, “that a reck-
lessness standard would effectively separate wrongful
conduct from otherwise innocent conduct of broadcast-
ers without creating an end-around indecency restric-
tions that might be encouraged by an actual knowledge
or intent standard.” Id. (internal quotation marks and
citation omitted). Moreover, we noted that recklessness
had been found to be an adequate scienter standard in
other contexts, including First Amendment contexts.
Id. at 206-07.
The parties here had disputed whether CBS took
adequate precautions with regard to the risk of inde-
cency in the Halftime Show. The parties disagreed
about whether certain events leading up to the broad-
cast—including public comments by Jackson’s choreog-

80a
rapher that the performance would include “some shock-
ing moments”—indicated a high risk of indecent mate-
rial. Another point of contention involved the role of
video delay technology. Although CBS utilized a
five-second audio delay, it did not delay its video broad-
cast. We found “[b]ecause the Commission carries the
burden of showing scienter, it should have presented
evidence to demonstrate, at a minimum, that CBS acted
recklessly and not merely negligently when it failed to
implement a video delay mechanism for the Halftime
Show broadcast.” Id. at 208. Because we found the “re-
cord at present” was wanting in this regard, we were
“unable to decide whether the Commission’s determina-
tion that CBS acted ‘willfully’ was proper in light of the
scienter [i.e., recklessness] requirement.” Id.
Having determined the FCC’s enforcement actions
here were arbitrary and capricious, our previous deci-
sion vacated the forfeiture orders and remanded. Al-
though we recognized the FCC could “not retroactively
penalize CBS” for material that was not indecent under
FCC policy at the time of broadcast, we explained the
agency could still enter a declaratory order on remand,
“set[ting] forth a new policy and proceed[ing] with its
indecency determination even though a retroactive mon-
etary forfeiture [would be] unavailable.” Id. at 209. The
remand also afforded the agency an opportunity to ad-
dress the constitutionally required scienter element of
the indecency standard.

C.

While the FCC’s petition for certiorari in this case
was pending, the Supreme Court decided Fox. As noted,
Fox reviewed the Second Circuit’s decision invalidating
monetary forfeitures issued against Fox and its affiliates

81a
for several unscripted expletives broadcast live during
two different Billboard Music Awards ceremonies.6 The
FCC’s forfeiture orders for fleeting expletives in Fox,
unlike its orders penalizing a fleeting image here,
“forthrightly acknowledged that [they were breaking]
new ground.” Fox, 129 S. Ct. at 1812. Nonetheless, the
Second Circuit had found the agency’s explanation for
its policy change inadequate. In reviewing this determi-
nation, the Supreme Court gave its own account of the
FCC’s enforcement history.
The Court’s chronicle, like ours, began with Pacif-
ica’s sanction of George Carlin’s “Dirty Words” routine.
Id. at 1806. The Court explained that “[i]n the ensuing
years, the Commission took a cautious, but gradually
expanding, approach to enforcing the statutory prohibi-
tion against indecent broadcasts.” Id. Like our previ-
ous opinion, Fox noted the FCC decided in 1987 that its
enforcement power was not limited to “the seven words
actually contained in the George Carlin monologue.” Id.
at 1807 (quoting In re Pacifica Found., Inc., 2 FCC Rcd.
2698, 2699, ¶ 12 (1987)). But the Court in Fox observed
something in the 1987 decisions that we had not men-
tioned: it found the FCC opinions expanding the scope
of the agency’s enforcement also
preserved a distinction between literal and nonliteral
(or ‘expletive’) uses of evocative language. The Com-
6 The first incident occurred during the 2002 Awards, “when the
singer Cher exclaimed, ‘I’ve also had critics for the last 40 years say-
ing that I was on my way out every year. Right. So f * * * ’ em.’ ” Fox,
129 S. Ct. at 1808. The second took place during the 2003 Awards, when
Nicole Richie “proceeded to ask the audience, ‘Why do they even call
it “The Simple Life”? Have you ever tried to get cow s * * * out of a
Prada purse? It’s not so f * * * ing simple.’ ” Id.

82a
mission explained that each literal “description or
depiction of sexual or excretory functions must be
examined in context to determine whether it is pa-
tently offensive,” but that “deliberate and repetitive
use . . . is a requisite to a finding of indecency”
when a complaint focuses solely on the use of
nonliteral expletives.
Id. (quoting Pacifica Found., 2 FCC Rcd. at 2699, ¶ 13)
(alteration in original) (citation omitted).
The Court in Fox found the Golden Globes decision
was “the first time” the FCC declared “that a nonliteral
(expletive) use of the F- and S-words could be actionably
indecent, even when the word is used only once.” Id.
Because the broadcasts at issue in Fox had occurred
prior to the Golden Globes order, the FCC had “declined
to assess penalties.” Id. at 1812. Accordingly, the inde-
cency determinations in Fox did not pose a notice or due
process problem, and the Court’s majority opinion lim-
ited itself exclusively to the question of whether the
FCC’s explanation for holding fleeting or isolated exple-
tives indecent—which largely echoed the justification
proffered in Golden Globes—passed muster under the
APA.
The Court answered that question in the affirmative.
The Court rejected the principle (espoused by the Sec-
ond Circuit) that “agency action that changes prior pol-
icy” requires “a more substantial explanation” than does
action in an area previously untouched. Id. at 1810.
Although “[a]n agency may not . . . depart from a
prior policy sub silentio or simply disregard rules that
are still on the books . . . it need not demonstrate to a
court’s satisfaction that the reasons for the new policy
are better than the reasons for the old one.” Id. at 1811.

83a
Accordingly, the Court concluded an “agency need not
always provide a more detailed justification than what
would suffice for a new policy created on a blank slate.”
Id.
Judged under this clarified standard, the FCC or-
ders at issue in Fox were not arbitrary and capricious.
Id. at 1812-19. The FCC acknowledged its change in
policy, and the Court found its reasons for including
fleeting expletives within the scope of actionable inde-
cency to be “entirely rational.” Id. at 1812. In making
this determination, the Court compared the FCC’s pol-
icy toward fleeting expletives with its treatment of other
offensive material. “It was certainly reasonable,” the
Court believed, for the agency “to determine that it
made no sense to distinguish between literal and non-
literal uses of offensive words, requiring repetitive use
to render only the latter indecent.” Id. The per se ex-
emption for fleeting expletives, the Court explained, had
been an anomaly:
When confronting other requests for per se rules
governing its enforcement of the indecency prohibi-
tion, the Commission ha[d] declined to create safe
harbors for particular types of broadcasts. The
Commission could rationally decide it needed to step
away from its old regime where nonrepetitive use of
an expletive was per se nonactionable because that
was at odds with the Commission’s overall enforce-
ment policy.
Id. at 1813 (internal citations and quotation marks omit-
ted). Because “[e]ven isolated utterances can be made
in pand[ering,] . . . vulgar and shocking manners,” the
Court found it rational for the FCC to cease providing
“a safe harbor for single words” and subject them in-

84a
stead to the agency’s general “context-based” test for
“patent offensiveness.” Id. at 1812-13 (internal quota-
tion marks omitted) (second alteration and omission in
original).

II.

According to the FCC, Fox stands for the proposition
that the safe harbor had extended only to isolated exple-
tives, i.e. non-literal language, and not, as we had origi-
nally concluded, to all fleeting material. The FCC points
to Fox’s statement that FCC policy historically sub-
jected “description[s] or depiction[s]” of sexual organs
or functions to a contextual standard, reserving a safe
harbor only for “nonliteral expletives.” Id. at 1807
(quoting Pacifica Found., 2 FCC Rcd. at 2699, ¶ 13).
Because images are “depictions,” the FCC argues, Fox
tells us that images were not entitled to a safe harbor.
CBS, by contrast, denies that anything in Fox under-
mines our previous conclusion that the FCC’s forfeiture
orders represented a change in policy. “Fox,” CBS ar-
gues, “does not involve allegedly indecent images, and
focuses solely on words uttered.” CBS Letter-Brief 6
(Jan. 29, 2010). In CBS’s view, Fox’s discussion of the
1987 FCC opinion Pacifica Foundation is “utterly irrel-
evant” to the issue before us. Id. at 1. In its view, Fox’s
identification of a distinction between the treatment of
literal utterances and nonliteral expletives is merely
background information incidental to the Supreme
Court’s holding and therefore dicta. The FCC, on the
other hand, argues the Court’s description of the FCC’s
historic enforcement policy is integral to its holding that
the FCC orders in Fox complied with the APA.
I believe Fox’s distinction between the FCC’s his-
toric treatment of different kinds of fleeting material

85a
undermines a key premise of our earlier opinion. Our
opinion did not rest on an explicit statement by the FCC
that fleeting images would be per se exempt from inde-
cency regulation. Instead, we identified FCC decisions
that had held certain isolated words immune from the
enforcement regime. See, e.g., CBS, 535 F.3d at 176
(quoting WGBH, 69 F.C.C. 2d at 1254, ¶ 10 n.6). In ad-
dition, after reviewing the entirety of the agency’s en-
forcement history up until the Halftime Show, we found
“the FCC had never varied its approach to indecency
regulation based on the format of broadcasted content.”
Id. at 184. Accordingly, we concluded the FCC’s en-
forcement policy had contained a blanket rule exempting
all fleeting material, without qualification, from the in-
decency standard.
In Fox, however, the Supreme Court states that FCC
policy did, in fact, make distinctions “based on the for-
mat of broadcasted content.” As the Court interpreted
the FCC’s pre-Golden Globes enforcement history, “lit-
eral ‘description[s] or depiction[s] of sexual or excretory
functions’” were subject to a multi-factor test and could
potentially be found indecent notwithstanding their
fleeting or nonrepetitive character, Fox, 129 S. Ct. at
1807 (quoting Pacifica Found., 2 FCC Rcd. at 2699,
¶ 13); the safe harbor for fleetingness encompassed only
the “use of nonliteral expletives,” id. “Although the
Commission had expanded its enforcement beyond the
‘repetitive use of specific words or phrases,’ it preserved
a distinction between literal and nonliteral (or ‘exple-
tive’) uses of evocative language.” See id. at 1807. Fox
therefore contradicts and undermines our previous hold-
ing that FCC enforcement policy embodied a general

86a
exemption for all fleeting material.7 Moreover, Fox de-
scribes the narrow safe harbor for fleeting “nonliteral
expletives” or “evocative language” as a deviation from
the default rule of contextual analysis. The per se ex-
emption, Fox explains, was “at odds with the Commis-
sion’s overall enforcement policy.” Id. at 1813. “When
confronting other requests for per se rules governing its
enforcement of the indecency prohibition, the Commis-
sion ha[d] declined to create safe harbors for particular
types of broadcasts.” Id.
In other words, Fox identifies contextual analysis as
the default policy for all broadcast content, with the nar-
row exception of nonliteral expletives. Although my
colleagues emphasize the omission of any specific discus-
sion of images in Fox, our earlier opinion’s finding of a
safe harbor for fleeting images was premised on a per se
exemption for fleeting content generally. As Fox por-
trays the FCC’s enforcement history, however, no such
general policy existed. Instead, the Court concluded
that the safe harbor for fleeting nonliteral expletives
was an isolated exception rather than an instance of a
more general rule. It reasoned that the removal of this
7 I acknowledge that the allegedly indecent material at issue in Fox
involved only words, and that Fox’s discussion of the FCC enforcement
policy is not on its face addressed to the agency’s treatment of images.
But the Court’s account of FCC enforcement policy and history limits
the fleeting exemption solely to nonliteral use of “evocative language.”
See id. at 1807. The Court noted that the FCC had rejected other types
of exemptions. See id. at 1813 (“When confronting other requests for
per se rules governing its enforcement of the indecency prohibition, the
Commission has declined to create safe harbors for particular types of
broadcasts.”). The structure of the Court’s discussion conveys that the
Court viewed the exception for nonliteral expletive language as an
exception at odds with the FCC’s treatment of all other material, in-
cluding images.

87a
exception allowed the FCC to bring treatment of fleet-
ing indecent language into harmony with its overall en-
forcement policy. Fox, 129 S. Ct. at 1813. The existence
of a similar safe harbor for fleeting images would have
undermined this key holding of Fox. The Court’s omis-
sion of any discussion of fleeting images strongly sug-
gests that, rather than constituting a per se exception,
such instances fell within the contextual approach that
the Court identified as the “Commission’s prior enforce-
ment practice.” Fox, 129 S. Ct. at 1814. It follows that
the FCC’s decision to apply a contextual analysis to the
fleeting image in this case did not represent a change in
policy.
The Court’s holding expressly relied on the distinc-
tions it identified in the FCC’s historic treatment of dif-
ferent types of fleeting content. In concluding the
agency’s reasons for eliminating a safe harbor for fleet-
ing “nonliteral expletives” were “entirely rational,” the
Court explained that “[i]t was certainly reasonable to
determine that it made no sense to distinguish between
literal and nonliteral uses of offensive words, requiring
repetitive use to render only the latter indecent.” Id. at
1812. The very fact that the safe harbor for fleeting ex-
pletives was an isolated exception to the FCC’s general
contextual standard was itself, the Court said, a defensi-
ble reason for the policy change announced in Golden
Globes and Fox: “The Commission could rationally de-
cide it needed to step away from its old regime where
nonrepetitive use of an expletive was per se nonact-
ionable because that was at odds with the Commission’s
overall enforcement policy.” Id. at 1813 (internal quota-
tion marks omitted).

88a
As this examination of Fox makes clear, the Supreme
Court’s account of the FCC’s pre-Golden Globes en-
forcement policy is not characterization, but central to
Fox’s holding. Given that account, I would hold that the
FCC’s indecency determination in this case did not con-
stitute a change of policy—unacknowledged or other-
wise—and was not arbitrary and capricious under the
APA.8
In our earlier opinion, we determined that if the pol-
icy change set forth in Golden Globes and Fox addressed
8 Our previous opinion identified several FCC decisions in which the
FCC had found that certain fleeting images did not violate the
indecency standard. See CBS, 535 F.3d at 184-86. We believed these
decisions supported our conclusion that FCC policy had afforded a safe
harbor to all fleeting material. In none of these cases, however, did the
FCC state that fleeting images were per se nonactionable. In light of
Fox, I believe that these decisions are also compatible with a contextual
standard. Precisely because the reasoning in many of these opinions is
sparse, they may be read as holding not that the fleeting quality of the
images was per se dispositive but rather that, in the particular context
presented, the image’s transience outweighed any countervailing
factors.
CBS argues that even if fleeting material did not enjoy a per se
exemption under FCC policy, the agency applied its contextual stand-
ard differently here that it had in earlier cases where fleetingness
proved dispositive. “[P]atently inconsistent applications of agency stan-
dards to similar situations are by definition arbitrary.” South Shore
Hosp., Inc. v. Thompson, 308 F.3d 91, 103 (1st Cir. 2002). But CBS has
not shown that the facts in this case are materially indistinguishable
from a case in which the agency found no indecency. As we have
recognized, “an agency’s interpretation of its own precedent is entitled
to deference.” CBS, 535 F.3d at 180 (quoting Cassell v. FCC, 154 F.3d
478, 483 (D.C. Cir. 1998)). Given the nature of the FCC’s contextual
standard, each case is likely to present a unique balance of factors, and
I cannot say that the FCC acted unreasonably in determining that the
fleetingness of the image here was outweighed by its graphic and
pandering qualities.

89a
only fleeting expletives, as the FCC has asserted, then
it left in place a safe harbor for all other fleeting con-
tent. CBS, 535 F.3d at 181. Fox held precisely the
opposite—that in eliminating a safe harbor for fleeting
expletives in Golden Globes and Fox, the FCC made a
reasonable decision to abolish an anomalous exception
and establish a uniform contextual test for all allegedly
indecent material. The rationale of the FCC decision
suggested by our earlier opinion—to eliminate a safe
harbor for presumptively less offensive fleeting exple-
tives while maintaining a per se exemption for fleeting
literal utterances and potentially graphic images—
would appear more dubious. In short, our earlier opin-
ion is irreconcilable with the reasoning by which the
Supreme Court upheld the FCC orders in Fox.
CBS argues that even if the indecency determination
here did not constitute a change of policy, the forfeiture
penalty must be invalidated because CBS was not suffi-
ciently “on notice” of its potential liability for fleeting
images. “Because due process requires that parties re-
ceive fair notice before being deprived of property . . .
in the absence of notice—for example, where the regula-
tion is not sufficiently clear to warn a party about what
is expected of it—an agency may not deprive a party of
property by imposing civil or criminal liability.” Trinity
Broad. of Fla., Inc. v. FCC, 211 F.3d 618, 628 (D.C. Cir.
2000) (internal quotation marks and alterations omit-
ted). Referring to the 1987 FCC decision quoted by
Fox, CBS submits that “no fine [in this case] can be jus-
tified based on a cryptic reference in dictum that was
never discussed or applied for over two decades.” CBS
Letter-Brief at 18.

90a
CBS’s argument implicitly assumes that the 1987
decision was the only indication by the FCC that fleeting
images were potentially actionable. But that is not the
case. At the very least, the FCC’s opinion in Young
Broadcasting, which involved somewhat similar facts
and was issued only days before the Halftime Show,
made clear that fleeting images of nudity could be found
indecent if presented in a sufficiently explicit and pan-
dering fashion. In issuing its Notice of Apparent Liabil-
ity in that case, the FCC explained that “although the
actual exposure of the performer’s penis was fleeting in
that it occurred for less than a second,” this mitigating
factor was outweighed by the explicitness and pandering
quality of the image’s presentation. Young Broad.,
19 FCC Rcd. at 1754-55, ¶¶ 10-12; see also id. (“In par-
ticular cases, one or two of the factors may outweigh the
others, either rendering the broadcast material patently
offensive and consequently indecent, or, alternatively,
removing the broadcast material from the realm of inde-
cency.” (footnotes omitted)).9
9 It is true, as we noted in our previous opinion, that Young Broad-
casting “makes no distinction, express or implied, between words and
images.” CBS, 535 F.3d at 186. The FCC’s opinion suggests that all
fleeting content is subject to a contextual standard and fails to acknow-
ledge even the limited safe harbor for fleeting expletives identified in
Fox. See Young Broad., 19 FCC Rcd. at 1754-55, ¶¶ 10, 12 n.35; see also
Industry Guidance, 16 FCC Rcd. at 8003, ¶ 10 (stating, without any
mention of a per se exemption for fleeting expletives, that under the
FCC’s analytical framework, “[n]o single factor generally provides the
basis for an indecency finding”). That Young Broadcasting overstated
the historic scope of liability, however, does not preclude that case from
furnishing adequate notice of broadcast licensees’ potential liability for
fleeting images; if anything, this error served to underscore the risk of
liability. The FCC’s forfeiture order here reflected the FCC’s under-
standing that all fleeting material would be subject to a contextual

91a
In our earlier opinion, we acknowledged that Young
Broadcasting found a nude image indecent despite its
fleetingness, but we declined to give effect to the FCC’s
decision because we believed it amounted to an unac-
knowledged change in policy in contravention of the
APA. See CBS, 535 F.3d at 187 (describing Young
Broadcasting as “the Commission’s initial effort to
abandon its restrained enforcement policy on fleeting
material”). We held, in other words, that Young Broad-
casting could not have validly changed the FCC’s policy
with regard to fleeting material and could not therefore
have relieved the FCC of the obligation to acknowledge
and explain its new policy. As noted, however, I would
revisit and revise our APA conclusion on the basis of
Fox and no longer find that FCC policy historically im-
munized fleeting material from regulation.10 The finding
of indecency for the fleeting imagery in Young Broad-
casting put CBS on notice that FCC policy did not af-
ford fleeting images an automatic exemption from inde-
cency regulation.
My colleagues offer an alternate interpretation of
Young Broadcasting as an application of “an exception
within the [per se] exception.” 11 Majority op. at 133.
standard. See Forfeiture Order, 21 FCC Rcd. at 2766, ¶ 12 (concluding
that “even though we find that the partial nudity [broadcast at the end
of the Halftime Show] was fleeting, the brevity of the partial nudity is
outweighed by the first and third factors of our contextual analysis”).
10 I will not address CBS’s constitutional challenge to the indecency
standard. See infra Section IV.
11 It bears noting that the FCC in this case made the same finding as
in Young Broadcasting that “the material was apparently intended to
pander to, titillate and shock viewers.” Forfeiture Order, 21 FCC Rcd.
at 2763, ¶ 3, 2766-67, ¶ 13. If there is indeed an “exception within the

92a
They also believe that Young Broadcasting could not
provide CBS with notice because it was a non-final no-
tice of apparent liability. Id. at 130. Both interpreta-
tions are inapposite. The most straightforward reading
of Young Broadcasting reveals the FCC applying a con-
textual standard rather than a set of nested exceptions,
weighing all three factors with no one being determina-
tive.12 Moreover, despite my colleagues’ emphasis on
notice, this standard was not a new departure for the
FCC. Young Broadcasting’s use of a contextual stan-
dard is consistent with the FCC’s 2001 Industry Guid-
ance and the Court’s account of FCC enforcement in
Fox. The case’s unexceptional application of an estab-
lished legal standard was sufficient to alert CBS to the
possibility that fleeting images might be deemed inde-
cent.
Following Fox, I cannot say that the FCC changed
its policy by applying its contextual, three-factor stan-
dard to a fleeting image. Therefore I cannot join the
majority’s holding that the forfeiture orders were arbi-
trary and capricious under the APA. Under Young
exception” for titillating and shocking content, it would appear to apply
in this instance as well.
12 My colleagues argue that the FCC recognized an exemption in
Young Broadcasting because it cited prior FCC decisions concluding
that the fleetingness of an image tended to weigh in favor of a finding
of no liability. Majority op. at 133. But the FCC discussed fleetingness
in Young Broadcasting in the context of the three-factor contextual
standard. See Young Broad., 17 FCC Rcd. at 1755 (“In particular
cases, one or two of the factors may outweigh the others, either render-
ing the broadcast material patently offensive and consequently inde-
cent, or, alternatively, removing the broadcast material from the realm
of indecency. In this case, we examine all three factors. . . . ” (foot-
note omitted)). It did not state there was a per se exception for all fleet-
ing images.

93a
Broadcasting, it was apparent before the Halftime Show
that fleeting images could, depending on the context, be
deemed indecent. For this reason, CBS was adequately
on notice of the policy the FCC applied in this case.

III.

Whether Jackson and Timberlake’s performance was
indecent is a distinct question from whether CBS can be
held liable for the live broadcast of that performance.
Because I would uphold the FCC’s orders under the
APA, the latter question, which we examined in our
prior ruling, has heightened importance.

A.

CBS challenges the ability of Congress or the FCC
to regulate any indecency on broadcast television within
the bounds of the First Amendment. It contends tech-
nological change has undercut the traditional rationale
for providing lesser protection to broadcasting in rela-
tion to other modes of speech. In Pacifica, the plurality
noted the scarcity of available frequencies and the need
for licensing has always subjected broadcasters’ speech
to greater regulation—including restrictions on speech
that is indecent but not obscene. See Pacifica, 438 U.S.
at 748, 98 S. Ct. 3026 (“[I]t is broadcasting that has re-
ceived the most limited First Amendment protection.
Thus, although other speakers cannot be licensed except
under laws that carefully define and narrow official dis-
cretion, a broadcaster may be deprived of [its] license
and [its] forum if the Commission decides that such an
action would serve ‘the public interest, convenience, and
necessity.’”). Pacifica noted that broadcast television is
uniquely pervasive in American life and uniquely acces-
sible to children. Id. at 748-50, 98 S. Ct. 3026. Given the
array of media currently available, CBS argues broad-

94a
cast television no longer inhabits the unique and ubiqui-
tous role in American society that the Court found made
it deserving of lesser First Amendment protection. Not-
withstanding this criticism, the Supreme Court has
given no hint it views subsequent technological changes
as undermining Pacifica’s rationale that the unique
characteristics of this medium allows Congress to regu-
late indecent speech on broadcast television.

B.

After oral argument on remand, we requested sup-
plemental briefing on the proper standard of scienter.
The FCC no longer presses theories of vicarious liability
and non-delegable duty we rejected in our prior deci-
sion. Nor does it appear to contest our prior judgment
that CBS can be held liable only if it acted recklessly in
broadcasting the offending image. Accordingly, the
FCC requests a remand so that it may determine wheth-
er CBS acted with the required mens rea. CBS disputes
the FCC’s characterization of the scienter threshold and
contends there is no factual basis for a forfeiture pen-
alty.
Congress has authorized the FCC to impose mone-
tary forfeitures in several circumstances. See 47 U.S.C.
§ 503(b)(1). Two provisions are relevant here. Section
503(b)(1)(B) permits a penalty for “willfully or repeat-
edly fail[ing] to comply with any of the provisions of this
chapter or of any rule, regulation, or order issued by the
Commission under this chapter,” and § 503(b)(1)(D)
authorizes a forfeiture for “violat[ing] any provision of
section . . . 1464 . . . of Title 18.” 47 U.S.C.
§ 503(b)(1)(B), (D). Although the FCC referenced
§ 503(b)(1)(D), its forfeiture orders in this case appear
to rest solely on the authority of § 503(b)(1)(B). See,

95a
e.g., Forfeiture Order, 21 FCC Rcd. at 2776, ¶ 29 n.103
(explaining that because the FCC had found CBS liable
under § 503(b)(1)(B), there was no need to “address
whether [CBS] could also be held responsible under Sec-
tion 503(b)(1)(D)”).
Our previous opinion expressed skepticism about the
applicability of § 503(b)(1)(B) to indecency violations.
CBS, 535 F.3d at 203-04. I would hold Congress in-
tended the FCC to proceed under § 503(b)(1)(D) when
sanctioning indecency violations. “Ordinarily, where a
specific provision conflicts with a general one, the spe-
cific governs.” Edmond v. United States, 520 U.S. 651,
657, 117 S. Ct. 1573, 137 L. Ed. 2d 917 (1997). Here,
§ 503(b)(1)(B) speaks generally of violations of “any of
the provisions of this chapter or of any rule, regulation,
or order issued by the Commission under this chapter.”
Section 503(b)(1)(D), on the other hand, refers specifi-
cally to having “violated any provision of section . . .
1464 . . . of Title 18.”
The history of the forfeiture statute supports the
view that Congress intended § 503(b)(1)(D) as the vehi-
cle to impose forfeitures for airing indecent material.
Both forfeiture provisions were originally enacted as
part of the same set of amendments to the Communica-
tions Act. See Communications Act Amendments, 1960,
Pub. L. No. 86-752, § 7, 74 Stat. 889, 894. At the time
of enactment, § 503(b)(1)(B) could not have applied to
indecency violations because 18 U.S.C. § 1464 was the
only provision of federal law proscribing indecency;
none of the “provisions of th[e] chapter” containing
§ 503(b)(1)(B), nor “any rule, regulation, or order issued
by the Commission under th[at] chapter” addressed
the subject of indecency. The FCC has argued that

96a
47 C.F.R. § 73.3999, which was not promulgated until
1988, brought the indecency standard within the scope
of § 503(b)(1)(B). But § 73.3999, which is entitled “En-
forcement of 18 U.S.C. § 1464,” merely establishes the
hours of the day when 18 U.S.C. § 1464 will be enforced.
Given the statutory history, I believe Congress intended
violations of 18 U.S.C. § 1464 to be enforced under
47 U.S.C. § 503(b)(1)(D) and not § 503(b)(1)(B). And
since 47 C.F.R. § 73.3999 merely enforces 18 U.S.C.
§ 1464’s substantive standard, it did not serve to
bring indecency violations under the authority of
§ 503(b)(1)(B).
Even if § 503(b)(1)(B) were applicable to indecency
actions, I am skeptical that it would authorize a forfei-
ture in this case. The provision requires a showing that
a licensee “willfully or repeatedly” violated a statutory
or regulatory standard. According to the statutory defi-
nition, “the term ‘willful,’ when used with reference to
the commission or omission of any act, means the con-
scious and deliberate commission or omission of such
act.” 47 U.S.C. § 312(f). The FCC does not contend that
CBS knew that Timberlake would expose Jackson’s
breast, or intended that display to occur. Instead, the
FCC believes CBS’s actions were “willful” insofar as the
network “consciously and deliberately” failed to take
precautions despite the alleged existence of a known or
obvious risk that indecent material would be broadcast.
But since the act that must be “willful” is, in this con-
text, the violation of 18 U.S.C. § 1464, it would appear
that CBS cannot be held liable unless it “consciously and
deliberately” broadcast the specific material deemed
indecent. The FCC argues the act can be either a com-
mission or omission—here (in the view of the FCC) the
failure to take necessary precautions. But even if an

97a
omission can support a finding of a violation of
§ 503(b)(1)(B), the omission still must be “willful.” The
reckless omission of “precautions” would seem insuffi-
cient to satisfy the willfulness requirement of
§ 503(b)(1)(B).
Although I would find the FCC’s orders relied on
inapposite statutory authority, I do not believe this er-
ror precludes the FCC from applying § 503(b)(1)(D) on
remand. See WorldCom, Inc. v. FCC, 288 F.3d 429, 430
(D.C. Cir. 2002) (remanding rulemaking where the FCC
had relied on an inapposite statutory provision “[b]e-
cause there may well be other legal bases for adopting
the rules chosen by the Commission”); see also
Castaneda-Castillo v. Gonzales, 488 F.3d 17, 25 (1st Cir.
2007) (“If the agency decision is flawed by mistaken le-
gal premises, . . . remanding to give the agency an
opportunity to cure the error is the ordinary course.”
(emphasis omitted)); cf. SEC v. Chenery Corp., 332 U.S.
194, 200-01, 67 S. Ct. 1575, 91 L. Ed. 1995 (1947) (“The
fact that the [agency] had committed a legal error in its
first disposition of the case certainly gave [the preju-
diced party] no vested right to receive the benefits of
such an order.”).
The Supreme Court has directed as a general matter:
If the record before the agency does not support
the agency action, if the agency has not considered
all relevant factors, or if the reviewing court simply
cannot evaluate the challenged agency action on the
basis of the record before it, the proper course, ex-
cept in rare circumstances, is to remand to the agen-
cy for additional investigation or explanation.
Florida Power & Light Co. v. Lorion, 470 U.S. 729, 744,
105 S. Ct. 1598, 84 L. Ed. 2d 643 (1985). There have

98a
been few instances where courts have found “rare cir-
cumstances.” One such circumstance is “when there has
been a strong showing in support of a claim of bad faith
or improper behavior on the part of agency decision-
makers or where the absence of formal administrative
findings makes such investigation necessary in order to
determine the reasons for the agency’s choice.” Sierra
Club v. Peterson, 185 F.3d 349, 369 (5th Cir. 1999) (quot-
ing Nat’l Audubon Soc’y v. Hoffman, 132 F.3d 7, 14 (2d
Cir. 1997)). Of course, remand is not required where a
proper application of the correct standard could yield
only one possible result. See George Hyman Constr. Co.
v. Brooks, 963 F.2d 1532, 1539 (D.C. Cir. 1992) (“[W]e
find that a remand would be futile on certain matters as
only one disposition is possible as a matter of law.”).
But where “the answer the [agency] might give were it
to bring to bear on the facts the proper administrative
and statutory considerations” is “[s]till unsettled,” re-
mand is the proper course. Chenery, 332 U.S. at 200, 67
S. Ct. 1575. As I believe, following Fox, the FCC did not
act in an arbitrary and capricious manner, whether CBS
can be held liable for its broadcast of the Halftime Show
is still unsettled.13 That is the case here; the “function”
of applying the proper liability standard to the facts of
this case “belongs exclusively to the Commission in the
first instance.” Id.
13 Accordingly, I believe, as our prior opinion held, that even if the
FCC’s forfeiture order were arbitrary and capricious, the FCC could
on remand issue a finding of indecency without a civil forfeiture as it
did in Golden Globes. CBS, 535 F.3d at 209.

99a

C.

1.
Section 503(b)(1)(D), unlike § 503(b)(1)(B), does not
contain an express scienter requirement. On remand,
both parties agree that scienter is a prerequisite of lia-
bility under § 503(b)(1)(D) and 18 U.S.C. § 1464, but
they dispute what mental state is required. The FCC
contends that recklessness suffices, while CBS insists it
can be liable only if it had knowledge the Halftime Show
would contain indecent material and it intended to vio-
late the indecency standard.
In most criminal or civil actions for obscenity or in-
decency, the element of scienter as to the broadcast’s
content will not be in doubt as “the defendant will neces-
sarily know the contents of his utterances.” United
States v. Smith, 467 F.2d 1126, 1129 (7th Cir. 1972).
Scienter will be an issue in forfeitures under § 1464,
where, as here, live, unscripted events are broadcast.
The broadcaster may not have forewarning of a poten-
tially-indecent unscripted or spontaneous event. Nor
might the conduct of a third-party or independent con-
tractor necessarily be imputed to the broadcaster. Live
broadcasts, as opposed to scripted or “taped” program-
ming, will always carry the possibility or risk of trans-
mitting indecent material.
Against this backdrop, I believe recklessness is the
constitutional minimum standard for scienter when im-
posing forfeiture penalties. “The presumption in favor
of scienter requires a court to read into a statute only
that mens rea which is necessary to separate wrongful
conduct from otherwise innocent conduct.” Carter v.
United States, 530 U.S. 255, 269, 120 S. Ct. 2159, 147
L. Ed. 2d 203 (2000) (internal quotation marks omitted).

100a
Recklessness provides sufficient protection under the
First Amendment to speech in similar contexts. See
New York Times Co. v. Sullivan, 376 U.S. 254, 280,
84 S. Ct. 710, 11 L. Ed. 2d 686 (1964) (allowing the impo-
sition of liability upon a showing that the defendant pub-
lished a statement with “reckless disregard” of the risk
it was false); see also CBS, 535 F.3d at 206-07 (citing
Osborne v. Ohio, 495 U.S. 103, 110 S. Ct. 1691, 109
L. Ed. 2d 98 (1990)) (“Also instructive here are other
cases determining recklessness to be an adequate level
of scienter for imposing liability in related First Amend-
ment contexts where speech or expression is restricted
based on its content.”).14
Imposing a higher scienter standard than reckless-
ness, such as the actual knowledge or intent standard
urged by CBS, dilutes the duty imposed by Congress in
18 U.S.C. § 1464 and risks creating an end-around inde-
cency restrictions.15 Such a standard could permit “will-
14 At common law, the concept of recklessness could be expressed in
a variety of ways. Historically, terms such as malicious or wanton
“were used interchangeably with recklessness.” David M. Treiman,
Recklessness and the Model Penal Code, 9 Am. J. Crim. L. 281, 293
(1981).
15 CBS also argues that the FCC must show it specifically intended
to violate the indecency prohibition in § 1464. CBS relies on pre-
Pacifica case law addressing prosecutions for scripted broadcasts of
obscene or indecent material. See United States v. Smith, 467 F.2d
1126 (7th Cir. 1972); Tallman v. United States, 465 F.2d 282 (7th Cir.
1972); Gagliardo v. United States, 366 F.2d 720 (9th Cir. 1966). These
cases have limited value as they address criminal prosecutions for
scripted content. See Pacifica, 438 U.S. at 747 n.25, 98 S. Ct. 3026
(Stevens, J., plurality op.) (differentiating precedents addressing crim-
inal prosecutions and the First Amendment by noting “[e]ven the
strongest civil penalty at the Commission’s command does not include
criminal prosecution”). Furthermore, Pacifica did not require the FCC

101a
ful blindness” or allow broadcasters to fail to take rea-
sonably available precautions (such as implementing
delay technologies) despite any obvious risks, and then
evade responsibility if indecent material is broadcast,
claiming they neither intended nor were aware that the
indecent material would be broadcast. End runs might
also be effected through the use of independent contrac-
tors. Accordingly, I do not believe liability for indecent
broadcasts requires a showing of actual knowledge, ac-
tual awareness, or intent on the part of the broad-
caster.16
show specific intent for the civil forfeiture at issue there nor did the
Court cite to any of the cases on which CBS relies.
Even under the pre-Pacifica cases, this “specific intent” requirement
of § 1464 is satisfied if one should have known the utterance or
broadcasting of such speech would violate the law. In Tallman v.
United States, upon which CBS relies, the Seventh Circuit in interpret-
ing § 1464 concluded that “specific intent” is present under the standard
traditionally used at common law “if the defendant knew or reasonably
should have known that uttering the words he did over the air was a
public wrong.” 465 F.2d at 288; see also Smith, 467 F.2d at 1130 n.2
(citing Tallman for the proposition “an appropriate instruction as to
specific intent under this statute might be that ‘the defendant knew or
reasonably should have known that uttering the words he did over the
air was a public wrong’ ”). Even these pre-Pacifica precedents addres-
sing criminal prosecutions recite an “objective” or “reasonable person”
standard for scienter.
16 The cases cited by CBS in defense of its proposed mens rea stand-
ard are inapposite, because in each case Congress had already provided
a scienter standard as to some elements of the statutory offense. See
Flores-Figueroa v. United States, 556 U.S. 646, 129 S. Ct. 1886, 173
L. Ed. 2d 853 (2009); United States v. X-Citement Video, Inc., 513 U.S.
64, 115 S. Ct. 464, 130 L. Ed. 2d 372 (1994). In each of these cases, the
statute in question contained some mental state language, such as
“knowingly,” that when read naturally did not appear to modify all the
elements in the statute, see 18 U.S.C. § 1028A(a)(1); 18 U.S.C. § 2252.
The Court only addressed whether the express scienter term applied

102a
2.
The question remains what is the proper standard of
recklessness under § 1464. As an alternative argument,
CBS contends there is more than one possible definition
of recklessness, and the more demanding criminal stan-
dard ought to apply here. As the Supreme Court has
explained:
[t]he civil law generally calls a person reckless who
acts or (if the person has a duty to act) fails to act in
the face of an unjustifiably high risk of harm that is
either known or so obvious that it should be known.
The criminal law, however, generally permits a find-
ing of recklessness only when a person disregards a
risk of harm of which he is aware.
Farmer v. Brennan, 511 U.S. 825, 836-37, 114 S. Ct.
1970, 128 L. Ed. 2d 811 (1994) (internal citations omit-
ted); see also Safeco Ins. Co. of Am. v. Burr, 551 U.S.
47, 68 n.18, 127 S. Ct. 2201, 167 L. Ed. 2d 1045 (2007)
(“Unlike civil recklessness, criminal recklessness also
requires subjective knowledge on the part of the of-
fender.”).
In my view, the FCC may on remand seek a civil for-
feiture under 47 U.S.C. § 503(b)(1)(D), but CBS’s al-
leged liability is predicated on its violation of 18 U.S.C.
§ 1464, a criminal statute. For this reason, CBS con-
tends the level of scienter cannot vary based on whether
the FCC pursues civil remedies or the Department of
to every element of the statutory offense or whether the term modified
a single element of the offense. These cases do not address what
mental state requirement should be read into provisions like 47 U.S.C.
§ 503(b)(1)(D) and 18 U.S.C. § 1464 that contain no mens rea language
whatsoever.

103a
Justice charges criminal offenses. Notwithstanding the
civil character of the forfeiture action, CBS contends it
can be held liable for a forfeiture penalty only if it were
criminally reckless—if it disregarded an unjustifiably
high risk of broadcast indecency of which it was aware.
Farmer, 511 U.S. at 836-37, 114 S. Ct. 1970. The FCC
counters that in Pacifica the Supreme Court already
interpreted the standard for civil forfeitures for inde-
cency violations independent from § 1464’s criminal ap-
plications, making clear the civil recklessness standard
applies.
I believe a civil standard best comports with Con-
gressional intent. In 1960, Congress expanded the civil
forfeiture provisions of the Federal Communications Act
to allow the FCC greater flexibility to regulate the
broadcast medium. Before the 1960 Act, the FCC’s reg-
ulatory tools were limited to revoking the broadcaster’s
license or asking the Department of Justice to com-
mence criminal proceedings.17 Communication Act
Amendments, 1960, H.R. Rep. No. 86-1800, at 17, 1960
U.S.C.C.A.N. 3516, 3532. The FCC asked Congress to
“provide it with an effective tool in dealing with viola-
tions where revocation or suspension does not appear to
be appropriate.” Id. The House Report explaining the
amendments indicated that to achieve the desired flexi-
bility the civil forfeiture provisions should be read as
independent from other enforcement provisions. The
Report states “the FCC will not be precluded from or-
dering a forfeiture merely because another type of sanc-
17 Prior to 1960, § 503 only authorized forfeitures for accepting re-
bates or offsets that deviated from the tariff rates for the transmission
of wire or radio messages. Federal Communications Act of 1934,
Pub. L. No. 73-416, § 503, 48 Stat. 1064, 1101 (1934).

104a
tion or penalty has been or may be applied to the li-
censee or permittee.” Id.
The most telling argument in favor of a civil standard
is the Supreme Court’s opinion in Pacifica. As noted by
the FCC, the plurality in Pacifica recognized that Con-
gress intended the civil provisions of the Communica-
tions Act to be interpreted and applied apart from the
criminal provisions. The plurality stated in footnote 13:
The statutes authorizing civil penalties incorporate
§ 1464, a criminal statute. See 47 U.S.C. §§ 312(a)(6),
312(b)(2), and 503(b)(1)(E) (1970 ed. and Supp. V).
But the validity of the civil sanctions is not linked to
the validity of the criminal penalty. The legislative
history of the provisions establishes their independ-
ence. As enacted in 1927 and 1934, the prohibition on
indecent speech was separate from the provisions
imposing civil and criminal penalties for violating the
prohibition. Radio Act of 1927, §§ 14, 29, and 33,
44 Stat. 1168 and 1173; Communications Act of 1934,
§§ 312, 326, and 501, 48 Stat. 1086, 1091, and 1100,
47 U.S.C. §§ 312, 326, and 501 (1970 ed. and Supp. V).
The 1927 and 1934 Acts indicated in the strongest
possible language that any invalid provision was sep-
arable from the rest of the Act. Radio Act of 1927,
§ 38, 44 Stat. 1174; Communications Act of 1934,
§ 608, 48 Stat. 1105, 47 U.S.C. § 608. Although the
1948 codification of the criminal laws and the addi-
tion of new civil penalties changed the statutory
structure, no substantive change was apparently in-
tended. Cf. Tidewater Oil Co. v. United States,
409 U.S. 151, 162, 93 S. Ct. 408, 34 L. Ed. 2d 375
[(1972)]. Accordingly, we need not consider any

105a
question relating to the possible application of § 1464
as a criminal statute.
Pacifica, 438 U.S. at 739 n.13, 98 S. Ct. 3026. Under
Pacifica, the level of scienter to prove a violation of
§ 1464 need not be the same for both criminal and civil
applications. Of course, the respective penalties are
different. Violation of 18 U.S.C. § 1464 carries a statu-
tory maximum penalty of up to two years imprisonment
and a fine of up to $ 250,000 for individuals and $500,000
for organizations. 18 U.S.C. §§ 1464, 3571(b)-(c). At
the time of the alleged violation,18 a forfeiture under
47 U.S.C. § 503(b)(1) carried a maximum forfeiture of
[$] 27,500 for each station. Reconsideration Order,
21 FCC Rcd. at 6654, ¶ 2. As the FCC found twenty sta-
tions aired the indecent material in the Halftime Show,
it imposed a forfeiture on CBS of $550,000 (twenty viola-
tions at the maximum $ 27,500 per violation). Id.
CBS relies on FCC v. American Broadcasting Co.,
347 U.S. 284, 74 S. Ct. 593, 98 L. Ed. 699 (1954). In
ABC, the FCC desired to ban “give away” contests
where radio and television stations would distribute
prizes to listeners and viewers who called in and cor-
rectly answered a question or solved a puzzle. 347 U.S.
at 286-87, 74 S. Ct. 593. To this end, the FCC promul-
gated regulations interpreting 18 U.S.C. § 1304, which
prohibits broadcasting “any advertisement of or infor-
mation concerning any lottery, gift enterprise, or similar
scheme, offering prizes dependent in whole or in part
18 In 2006, Congress added 47 U.S.C. § 503(b)(2)(C) which raised max-
imum penalties for those found “to have broadcast obscene, indecent,
or profane language” to $ 325,000 per violation, not to exceed an aggre-
gate of $ 3 million for any single act of failure to act. Broadcast Decency
Enforcement Act of 2005, Pub. L. No. 109-235, 120 Stat. 491, 491 (2006).

106a
upon lot or chance.” Id. at 285, 74 S. Ct. 593. The FCC
defined games of chance to include “give away” contests.
Id. at 286, 74 S. Ct. 593. Prior to adopting the regula-
tion, the FCC had failed to persuade the Department of
Justice to pursue criminal actions against such pro-
grams and had urged Congress unsuccessfully to amend
the law. Id. at 296, 74 S. Ct. 593. Additionally, the Post
Office, which administered a similar statute involving
the mails, and the Department of Justice had inter-
preted the same statutory language to exclude the type
of program the FCC wished to regulate. Id. at 294,
74 S. Ct. 593. The Court concluded “[t]here cannot be
one construction for the Federal Communications Com-
mission and another for the Department of Justice.” Id.
at 296, 74 S. Ct. 593; see also Leocal v. Ashcroft, 543 U.S.
1, 11-12 n.8, 125 S. Ct. 377, 160 L. Ed. 2d 271 (2004);
United States v. Thompson/Center Arms Co., 504 U.S.
505, 506-07, 112 S. Ct. 2102, 119 L. Ed. 2d 308 (1992)
(plurality).19 CBS contends we must construe § 1464 in
19 In Leocal v. Ashcroft, 543 U.S. 1, 125 S. Ct. 377, 160 L. Ed. 2d 271
(2004), when interpreting the definition of “crime of violence” contained
in 18 U.S.C. § 16 as applied to a civil deportation proceeding, the Court
noted that if the definition were ambiguous it would apply the rule of
lenity used in criminal proceedings because the statute “has both crim-
inal and noncriminal applications.” Id. at 12 n.8, 125 S. Ct. 377. Sim-
ilarly, in United States v. Thompson/Center Arms Co., the Court had to
define when a firearm was “made” to determine if a tax on the “making”
was owed to the government. 504 U.S. 505, 506-07, 112 S. Ct. 2102, 119
L. Ed. 2d 308 (1992) (plurality). To resolve the issue, the Court applied
the rule of lenity because “although it is a tax statute that we construe
now in a civil setting, the [statute] has criminal applications.” Id. at 517,
112 S. Ct. 2102; see also id. at 523, 112 S. Ct. 2102 (Scalia, J., concurring
in judgment).

107a
the exact same manner as if this were a criminal prose-
cution.20
There is some merit in CBS’s position that, as a gen-
eral matter, a statute should be read consistently in its
criminal and civil applications. But in ABC (and also
Leocal and Thompson ), the Court construed the literal
text of a statute, finding no good reason to apply differ-
ent constructions for civil actions and criminal prosecu-
tions. In this case, there is no text to interpret. The
statutes (18 U.S.C. § 1464 and 47 U.S.C. § 503(b)(1)(D))
are silent on scienter; as a consequence, we must apply
the constitutionally required level of scienter. Further-
more, “[i]f [Congress’s] intent is made plain, it is unnec-
essary for us to refer to other canons of statutory con-
struction, and indeed we should not do so.” In re Am.
Home Mortg. Holdings, Inc., 637 F.3d 246, 254-55 (3d
Cir. 2011). As I have noted, the Supreme Court in
Pacifica concluded Congress intended the specific provi-
sion at issue to be interpreted for civil forfeitures with-
out regard to its application in criminal prosecutions.
Pacifica, 438 U.S. at 739 n.13, 98 S. Ct. 3026. Accord-
ingly, I would read into the statute only the scienter
necessary in this context for a civil forfeiture order—the
objective standard of civil recklessness.
3.
If we were to reject, as I think we should, CBS’s ar-
guments under the APA, at issue would be whether the
standard of recklessness for a civil forfeiture under
§ 503(b)(1)(D) is subjective (knowledge or awareness of
20 Justice Stewart’s dissent raised the argument CBS raises here that
the statute must be read in keeping with ABC, Pacifica, 438 U.S. at 780
n.8, 98 S. Ct. 3026 (Stewart, J., dissenting), a proposition the plurality
rejected in footnote 13.

108a
an unjustifiably high risk of harm) or objective (should
have been aware of such a risk). I believe an objective
standard for recklessness is sufficient to separate
wrongful from otherwise innocent conduct.21 Adoption
of a subjective standard, namely that for live television
broadcasts the broadcaster must know or be aware inde-
cency will occur, risks encouraging deliberate ignorance
or failure to use available preventive measures such as
delay technology.
In addition to comporting with Congress’s intent in
creating the civil forfeiture provision of § 503(b)(1)(D),
a civil recklessness standard provides protection com-
mensurate with indecency’s constitutional status. The
First Amendment requires we apply “only that mens rea
21 In practice the distinction between a subjective or an objective
standard may not always result in differences on liability. The law has
traditionally allowed the use of objective evidence to prove a party’s
subjective state of mind. See Schiavone Constr. Co. v. Time, Inc.,
847 F.2d 1069, 1090 (3d Cir. 1988) (“[O]bjective circumstantial evidence
can suffice to demonstrate actual malice.”). The Supreme Court has
noted:
We might observe that it has been some time now since the law
viewed itself as impotent to explore the actual state of a man’s
mind. See [Roscoe] Pound, The Role of the Will in Law, 68 Harv.
L. Rev. 1 [1954]. Cf. American Communications Ass’n, C.I.O., v.
Douds, 339 U.S. 382, 411, 70 S. Ct. 674, 94 L. Ed. 925 [1950].
Eyewitness testimony of a bookseller’s perusal of a book hardly
need be a necessary element in proving his awareness of its con-
tents. The circumstances may warrant the inference that he was
aware of what a book contained, despite his denial.
Smith v. California, 361 U.S. 147, 154, 80 S. Ct. 215, 4 L. Ed. 2d 205
(1959); see also Colorado v. Hall, 999 P.2d 207, 220 (Colo. 2000) (“In
addition to the actor’s knowledge and experience, a court may infer the
actor’s subjective awareness of a risk from what a reasonable person
would have understood under the circumstances.”).

109a
which is necessary to separate wrongful conduct from
‘otherwise innocent conduct.’ ” Carter v. United States,
530 U.S. 255, 269, 120 S. Ct. 2159, 147 L. Ed. 2d 203
(2000) (quoting X-Citement Video, 513 U.S. at 72,
115 S. Ct. 464). The issue presents a difficult question
of constitutional law, as the plurality in Pacifica noted
when it stated, “the constitutional protection accorded
to a communication containing such patently offensive
sexual and excretory language need not be the same in
every context” and noted the Court “tailored its protec-
tion” of speech “to both the abuses and the uses to which
it might be put.” Pacifica, 438 U.S. at 747 & n.24, 98 S.
Ct. 3026. At a minimum, the FCC must show CBS had
a sufficient level of culpability to justify a civil forfei-
ture. Because displays of indecent material “surely lie
at the periphery of the First Amendment concern” an
objective standard is appropriate. Fox, 129 S. Ct. at
1819 (quoting Pacifica, 438 U.S. at 743, 98 S. Ct. 3026).
Furthermore, an objective standard is not without pre-
cedent.22
22 In other areas such as use of “fighting words”—words inherently
likely to provoke a violent reaction—the Court has looked at what
reaction a reasonable speaker would expect from the utterance of her
speech. See Chaplinsky v. New Hampshire, 315 U.S. 568, 573, 62 S. Ct.
766, 86 L. Ed. 1031 (1942). Recent Supreme Court cases have reaf-
firmed that some categories of speech are entitled to lesser or even no
constitutional protection. There are traditional, though limited, cate-
gories where the First Amendment has not protected those who would
“disregard these traditional limitations.” United States v. Stevens,
U.S. —, 130 S. Ct. 1577, 1584, 176 L. Ed. 2d 435 (2010) (internal quota-
tion omitted). These categories (including obscenity) “are ‘well-defined
and narrowly limited classes of speech, the prevention and punishment

110a
It is not sufficient to show that CBS should have
acted differently or was merely negligent. Inadvertence
or common negligence will not suffice. CBS contends
there is no evidence to support a finding that it acted
recklessly. But this is a question of proof committed to
the FCC in the first instance. CBS and the FCC con-
tinue to contest critical issues. One consideration is the
availability of delay technology. CBS and the FCC dis-
pute whether video delay technology could have been
implemented at the time of the incident. They also dis-
pute whether CBS should have anticipated that indecent
material could be broadcast—e.g., whether Jackson’s
choreographer’s “shocking moments” prediction should
have put CBS on notice. Since the FCC appears to have
based its forfeiture orders on an erroneous—or, at the
least, unclear—standard of liability, after rejecting
CBS’s APA arguments, I would remand to allow the
agency to measure CBS’s conduct against the proper
mens rea standard.

IV.

In addition to the arguments addressed, CBS con-
tests the FCC’s forfeiture orders on the ground that the
agency’s multi-factor, contextual indecency standard is
unconstitutionally vague. In its most recent decision in
of which have never been thought to raise any Constitutional prob-
lem.’ ” Id. (quoting Chaplinsky, 315 U.S. at 571-72, 62 S. Ct. 766).
Unlike obscenity, indecency enjoys some constitutional protection,
but of a lesser kind. See Pacifica, 438 U.S. at 748, 98 S. Ct. 3026
(“Patently offensive, indecent material presented over the airwaves
confronts the citizen, not only in public, but also in the privacy of the
home, where the individual’s right to be left alone plainly outweighs the
First Amendment rights of an intruder.”). An objective standard
comports with this peripheral status.

111a
Fox, the United States Court of Appeals for the Second
Circuit endorsed this view, see Fox Television Stations,
Inc. v. FCC, 613 F.3d 317 (2d Cir. 2010), and CBS en-
courages us to follow suit. In Fox, however, the consti-
tutional question was the primary, if not exclusive, issue
left in the case after the Supreme Court’s remand.
Here, it may be possible to dispose of the action without
resolving the constitutional question.
“A fundamental and longstanding principle of judicial
restraint requires that courts avoid reaching constitu-
tional questions in advance of the necessity of deciding
them.” Lyng v. Nw. Indian Cemetery Protective Assn.,
485 U.S. 439, 445, 108 S. Ct. 1319, 99 L. Ed. 2d 534
(1988). Therefore, I would not address the constitu-
tional issue.

V.

For the foregoing reasons, I would grant the petition
for review, vacate the FCC’s forfeiture orders, and re-
mand for consideration of the forfeiture order under the
proper standard.

112a

APPENDIX B

BEFORE THE
FEDERAL COMMUNICATIONS COMMISSION
WASHINGTON, D.C. 20554
File No. EB-04-IH-0011
NAL/Acct. No. 200432080212
IN THE MATTER OF COMPLAINTS AGAINST VARIOUS
TELEVISION LICENSEES CONCERNING THEIR
FEBRUARY 1, 2004 BROADCAST OF THE SUPER BOWL
XXXVIII HALFTIME SHOW
Adopted: May 4, 2006
Released: May 31, 2006

ORDER ON RECONSIDERATION

By the Commission: Commissioner Adelstein concur-
ring 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 Commis-
sion’s rules,1 we deny the Petition for Reconsideration of
Forfeiture Order (“Petition”) filed by CBS Broadcasting
1 47 U.S.C. § 405(a); 47 C.F.R. § 1.106(j).

113a
Inc. (“CBS”) in this forfeiture proceeding.2 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 televi-
sion stations involved in this proceeding, for the viola-
tion of 18 U.S.C. § 1464 and the Commission’s rule regu-
lating the broadcast of indecent material.3 We find that
CBS has failed to present any argument warranting re-
consideration 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 tele-
vision stations in the CBS Network (the “CBS Stations”)
on February 1, 2004, at approximately 8:30 p.m. Eastern
Standard Time.4 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.5 At
the end of the musical finale of the halftime show, Justin
Timberlake pulled off part of Janet Jackson’s bustier,
2 Petition for Reconsideration of Forfeiture Order by CBS, dated
April 14, 2006 (“Petition”).
3 See Complaints Against Various Television Licensees Concerning
Their February 1, 2004 Broadcast of the Super Bowl XXXVIII Half-
time Show, Forfeiture Order, FCC 06-19 at 1 ¶ 1 & n.2, 2006 FCC
LEXIS 1267 (rel. March 15, 2006) (“Forfeiture Order”) (citing 18 U.S.C.
§ 1464 and 47 C.F.R. § 73.3999).
4 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 concern-
ing the February 1, 2004 broadcast of the Super Bowl XXXVIII half-
time show. See Forfeiture Order at 1 ¶ 1, n.4 and Appendix.
5 VNU Media and Marketing Guide for Super Bowl, (http://www.
nielsenmedia.com/newsreleases/2005/2005SuperBowl.pdf).

114a
exposing one of her breasts to the television audience.
After conducting an investigation, the Commission is-
sued a Notice of Apparent Liability (the “NAL”) finding
the ultimate parent company of the licensees of the CBS
Stations6 apparently liable for violating 18 U.S.C. § 1464
and section 73.3999, the Commission’s rule regulating
the broadcast of indecent material.7 The NAL proposed
a forfeiture in the amount of $27,500, the statutory maxi-
mum forfeiture amount, against each of the CBS Sta-
tions, for a total forfeiture amount of $550,000.8
6 The NAL was directed to Viacom, Inc., which was the ultimate cor-
porate 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 com-
pany named Viacom Inc. At the time of the violations, however, the
CBS Stations and MTV Networks were corporate affiliates under
common control.
7 See Complaints Against Various Television Licensees Concerning
Their February 1, 2004, Broadcast of the Super Bowl XXXVIII Half-
time Show, Notice of Apparent Liability, 19 FCC Rcd 19230, n.4 (2004)
(“NAL”) (citing 18 U.S.C. § 1464 and 47 C.F.R. § 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 pro-
duction 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 ¶ 25. Accordingly, the NAL did not
propose a forfeiture by any such licensee.
8 Id., 19 FCC Rcd at 19240 ¶ 24.

115a
3. CBS submitted its Opposition to the NAL on No-
vember 5, 2004.9 CBS argued that the material broad-
cast was not actionably indecent under the Commission’s
existing case law.10 CBS further argued that the broad-
cast of Jackson’s breast was accidental, and therefore
not “willful” under section 503(b)(1)(B) of the Act.11
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.12
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 ar-
guments 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.13 With respect to the second principal
9 Opposition to Notice of Apparent Liability for Forfeiture by CBS,
dated November 5, 2004 (“Opposition”).
10 Opposition at 13-34.
11 Id. at 35-38.
12 Id. at 44-77.
13 Forfeitue Order at 6-7 ¶ 11.

116a
factor in the Commission’s contextual analysis, the Com-
mission 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.14 The
third principal factor is whether the material is pander-
ing, 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 presenta-
tion.15 The Commission rejected CBS’s claim that the
segment in question merely involved an accidental, fleet-
ing glimpse of a woman’s breast. Rather, the segment
was part of a halftime show that featured “perfor-
mances, song lyrics, and choreography [that] discussed
or simulated sexual activities.”16 These sexually sugges-
tive performances culminated in the spectacle of Tim-
berlake tearing off a portion of Jackson’s clothing to re-
veal her naked breast during a highly sexualized perfor-
mance while he sang “gonna have you naked by the end
of this song.”17 The Commission stated: “Clearly, the
nudity in this context was pandering, titillating and
shocking to the viewing audience.”18 The Commission
therefore held that, on balance, the graphic, explicit,
pandering, titillating and shocking nature of the mate-
rial outweighed its brevity in the contextual analysis.19
14 Id. at 7 ¶ 12.
15 Id. at 7 n.44.
16 NAL, 19 FCC Rcd at 19236 ¶ 14.
17 Forfeiture Order at 8 ¶ 13.
18 Id.
19 Id. at 8 ¶ 14.

117a
5. The Forfeiture Order also rejected CBS’s claim
that the violation was accidental rather than willful un-
der section 503(b)(1) of the Act. The Commission dis-
missed 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.20 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 in-
decent material was broadcast.21 The Commission fur-
ther held that CBS Corporation was vicariously liable
under the doctrine of respondeat superior for the willful
actions of the performers and choreographer that it se-
lected and over whose performance it exercised exten-
sive control.22
6. The Forfeiture Order also rejected CBS’s consti-
tutional arguments, concluding that the Commission’s
indecency standard has been upheld in a series of deci-
sions and has not been invalidated by subsequent devel-
opments in the legal or technological landscape.23 The
Forfeiture Order further held that the upward adjust-
ment 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
20 Id. at 8-9 ¶ 15.
21 Id. at 8-13 ¶¶ 15-22.
22 Id. at 13-15 ¶¶ 23-25.
23 Id. at 17-19 ¶¶ 30-35.

118a
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 disincen-
tives to violate the Act and the indecency rule.24 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,25 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.26

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 determina-
tion that the material at issue here falls within the sub-
ject matter scope of our indecency definition because it
“describe[d] or depict[ed] sexual or excretory organs or
activities.”27 Rather, CBS takes issue with our conclu-
sion 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
24 Id. at 15-16 ¶¶ 26-28.
25 Young Broadcasting of San Francisco, Inc., Notice of Apparent
Liability for Forfeiture, 19 FCC Rcd 1751 (2004) (“Young Broadcast-
ing”) (response pending).
26 Id. at 16-17 ¶ 29.
27 Forfeiture Order at 5 ¶ 9.

119a
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 expos-
ing her bare breast, where the image of the nude breast
is clear and recognizable to the average viewer, is gra-
phic and explicit,”28 arguing that this conclusion is incon-
sistent with determinations reached by the Commission
in the Omnibus Order.29 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 inde-
cency complaints.
9. CBS’s attempt to compare Ms. Jackson’s “ward-
robe malfunction” to the material addressed in the Om-
nibus Order from The Today Show and The Amazing
Race 6 is unavailing. In both of those cases, the com-
plained—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 flood-
waters in news footage. As the Commission indicated,
“the overall focus of the scene [was] on the rescue at-
tempt, not on the man’s sexual organ.”30 As a result,
many viewers may not have even noticed the briefly ex-
28 Id. at 6 ¶ 11.
29 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”).
30 Omnibus Order at ¶¶ 215.

120a
posed 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.31 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.32 As we stated in the Forfeiture
Order, “Jackson and Timberlake, as the headline per-
formers, are in the center of the screen, and Timber-
lake’s hand motion ripping off Jackson’s bustier draws
the viewer’s attention to her exposed breast.”33 Fur-
thermore, even though CBS claims that “this action oc-
curred 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’ atten-
tion.34 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
31 See Omnibus Order at ¶¶ 189-92.
32 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.
33 Forfeiture Order at 6 ¶ 11.
34 See id.

121a
breast.35 We also reject CBS’s repeated attempt to con-
flate the first and second factors of the Commission’s
contextual analysis. While we acknowledge that the ex-
posure of Jackson’s breast was relatively brief, this does
not alter the fact that it was explicit.36 For all of these
reasons, we reaffirm our conclusion that the televised
35 In support of its claim that “the event became recognizable as nudi-
ty 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 cover-
age 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 rea-
sons 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).
36 See Young Broadcasting.

122a
image of Timberlake tearing off Jackson’s clothing to
reveal her bare breast was explicit.37
11. Second, CBS maintains that the Commission
misconstrued the third prong of our contextual analysis.
Tellingly, CBS does not directly dispute the Commis-
sion’s conclusion that the material was presented in a
pandering, titillating and shocking manner. At the con-
clusion 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 Jack-
son’s bustier and exposing her breast while he sang
‘gonna have you naked by the end of this song.”’38
37 To the extent that CBS attempts to compare, for purposes of ex-
plicitness, the exposure of Jackson’s breast during the Super Bowl half-
time show to the brief exposure of an infant’s naked buttocks on Amer-
ica’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 Vid-
eos “somewhat explicit” but that factor was outweighed in that case by
the scene’s brevity and the absence of any shocking, pandering, or titil-
lating effect on the audience. Omnibus Order at ¶ 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 con-
sidered 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.
38 Forfeiture Order at 8 ¶ 13.

123a
12. Understandably, given these facts, CBS does not
make any effort to argue that the material was not pre-
sented 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 inde-
cent, we examine the material itself and the manner in
which it is presented, not the subjective state of mind of
the broadcaster.39 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 man-
ner. 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.40 In this
39 Contrary to CBS’s assertion, see Petition at 7, n. 10, the Commis-
sion in Young Broadcasting used the same approach that we have
employed in this case. In Young Broadcasting, the Commission con-
cluded 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 “Pup-
petry of the Penis” to conduct a nude demonstration.
40 See Petition at 7.

124a
case, at the conclusion of a highly sexualized perfor-
mance in which Timberlake, among other things, rubbed
up against Jackson in a manner simulating sexual inter-
course 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 argu-
ment 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.”41 In light of the public up-
roar 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. More-
over, while we continue to reject the use of third-party
polls as determinative in our assessment of contempo-
rary 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.”42
The polls cited by CBS do not indicate whether the
Super Bowl broadcast was patently offensive under con-
temporary community standards for the broadcast me-
41 Petition at 9.
42 Petition at 9.

125a
dium.43 Moreover, we note that other survey informa-
tion suggests that most Americans were indeed offended
43 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 Foun-
dation 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 Jack-
son 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 chil-
dren who watched the Super Bowl halftime show. Contrary to the sug-
gestion of CBS, it certainly does not show that the community at large
was “not upset about the Super Bowl broadcast.”  Petition at 9. Sim-
ilarly, 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 con-
cerning 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 de-
termining whether broadcast material is indecent under the statute and
our rule.

126a
by the Super Bowl halftime incident and did not believe
that it was appropriate broadcast material.44 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, testi-
fying before the House Energy and Commerce Commit-
tee, 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.”45 Sim-
ilarly, at the same hearing, the Commissioner of the
NFL said that he was “deeply disappointed and of-
44 For example, when specifically asked by survey researchers whe-
ther the $550,000 forfeiture proposed by the FCC against CBS was ap-
propriate 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 Ameri-
can people with the Janet Jackson-Justin Timberlake halftime show
during the Super Bowl).
45 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).

127a
fended by the inappropriate content of the show.”46 Fi-
nally, we reject CBS’s argument that the Commission
generally does not evaluate material using contempo-
rary community standards for the broadcast medium.
As we have stated before, “We rely on our collective ex-
perience 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.”47
15. In sum, we reaffirm our conclusion in the Forfei-
ture Order that “the Super Bowl XXXVIII halftime
show contained material that was graphic, explicit, pan-
dering, titillating, and shocking and, in context and on
balance, was patently offensive under contemporary
community standards for the broadcast medium and
thus indecent.”48 As we found in the Forfeiture Order,
“[a]though the patently offensive material was brief, its
brevity is outweighed in this case by the first and third
factors in our contextual analysis.”49
16. Whether Violation Was Willful.” Seeking to ab-
solve itself of responsibility for the Super Bowl halftime
show broadcast, CBS challenges the Commission’s find-
ing 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
46 Id. at 30 (statement of Paul Tagliabue).
47 Infinity Radio License, Inc., Memorandum Opinion and Order, 19
FCC Recd 5022, 5026 (2004).
48 Forfeiture Order at ¶ 14.
49 Id.

128a
respondeat superior. We conclude that there is no basis
to reconsider our decision on either ground.
17. CBS contends that the “only question” in deter-
mining 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.”50 The Commission dis-
agrees. Not only is that not the “only question,” it is not
the question at all. CBS acted willfully because it con-
sciously and deliberately broadcast the halftime show
and consciously and deliberately failed to take reason-
able precautions to ensure that no actionably indecent
material was broadcast.51 The record shows that CBS
was acutely aware of the risk of unscripted indecent ma-
terial in this production, but failed to take adequate pre-
cautions that were available to it to prevent that risk
from materializing.52 Under these circumstances, the
Commission was justified in finding CBS responsible for
the indecent broadcast based on its conscious and delib-
erate omissions even if it did not intend for Ms. Jackson
to bare her breast.53
18. While defending its “meticulous efforts to ensure
the performance adhered to broadcast standards and
that no unforeseen incidents or departures from script
occurred,”54 and dismissing the record evidence on
which the Commission relied, CBS fails to address sev-
eral important facts cited by the Commission. For ex-
50 Petition at 12.
51 Forfeiture Order at 8-13 ¶¶ 15-22.
52 Id.
53 See 47 U.S.C. § 312(f)(1).
54 Petition at 14.

129a
ample, 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 Jack-
son’s choreographer predicted that Jackson’s perfor-
mance would include some “shocking moments.”55 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 re-
main in the dark based on implausible assumptions re-
garding their meaning.56 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.57
Similarly, CBS says nothing about the fact that a ques-
tion 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.58 And CBS does not dispute that
the show’s sponsor, the NFL, raised specific concerns
about Timberlake’s scripted line “gonna have you naked
55 Forfeiture Order at 10 ¶ 19.
56 See Opposition at 7-8.
57 See Forfeiture Order at 12 n.74.
58 Forfeiture Order at 10 ¶ 19; Con. App. 6.

130a
by the end of this song,” which anticipated the stunt re-
sulting in the broadcast nudity.59
19. CBS dismisses as irrelevant the fact that it
learned the morning of the show of plans to use tear-
away cheerleading outfits for dancers in another half-
time 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 tear-
away of Jackson’s bustier (and had, incidentally, worried
the NFL). CBS claims that this “reveals that, in care-
fully examining the costumes before the show, CBS rein-
forced its prohibition on reveals or other stunts that
could go wrong and implicate indecency concerns.”60
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.61 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 ex-
plain at all how it “reinforced its prohibition on reveals
or other stunts that could go wrong and implicate inde-
cency concerns.”62
59 Forfeiture Order at 10 ¶ 19; Con. App. at 5.
60 Petition at 15-16.
61 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.”).
62 Petition at 15-16.

131a
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 de-
lay mechanism.63 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.64
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 sug-
gests otherwise. For example, it takes issue with the
Commission’s characterization that MTV was seeking to
“push the envelope” in its halftime production, but coun-
ters only with the argument that MTV did not use that
term to mean pushing the bounds of propriety in terms
of sexually provocative content.65 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 risqué a direc-
tion suggests that MTV was in fact trying to push the
envelope of propriety, without regard to whether MTV
chose to use that term.66
63 See para. 22 infra regading CBS’s decision to implement a 5-second
delay.
64 Forfeiture Order at ¶ 20.
65 See Petition at 14-15.
66 See Forfeiture Order at 10 ¶ 18. See also Con. App. 1, 5.

132a
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-sec-
ond delay. It asserts that this did not reflect a “calcu-
lated 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.”67 It also
claims that the NFL was concerned only about audio,
not visual, departures from the script.68 Contrary to
CBS’s contention, however, the record indicates that the
NFL’s expressed concerns were not limited to audio
deviation,69 and, perhaps even more importantly, that
CBS/MTV understood that the risks were not limited to
audio deviations as well.70 Furthermore, if the standard
industry delay practice was inadequate to alleviate the
concerns under the circumstances, then CBS was obli-
gated to do more.71 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.
67 Petition at 15.
68 Id. at n.24.
69 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 con-
cern 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.
70 See Con. App. 5, 8.
71 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.

133a
23. Holding CBS responsible for the indecent broad-
cast 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,72 and it is particularly
appropriate here given the nondelegable nature of
broadcast licensees’ responsibility for their program-
ming.
24. We find CBS’s arguments concerning our applica-
tion of the doctrine of respondeat superior equally un-
persuasive. CBS’s assertion that the Commission ap-
plied “unusually strict rules” of vicarious liability in the
Forfeiture Order is inaccurate.73 The Commission ap-
plied traditional agency principles, which “ordinarily
make principals or employers vicariously liable for acts
of their agents or employees in the scope of their author-
ity or employment.”74 Under these principles, the FCC
concluded that Jackson, Timberlake and Jackson’s cho-
reographer 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.75 CBS’s assertion that
72 47 U.S.C. §§ 312(f)(1), 503(b)(1).
73 Petition at 16 (internal quotes omitted).
74 Forfeiture Order at 13 ¶ 23, quoting Meyer v. Holley, 537 U.S. 280,
285 (2003) (citation omitted).
75 Id. at 13-15 ¶¶ 24-25. This decision was consistent with Holley. In
that case, the Supreme Court held that, absent a statutory basis, vicar-
ious liability could not be imposed based solely on the right to control.
Rather, evidence was also needed that the employee acted in the scope

134a
the Commission “seeks to impose nontraditional vicari-
ous liability” appears to be founded on the three’s al-
leged status “as independent contractors, not employ-
ees.”76 The factors on which CBS relies, however, are
not strongly indicative of independent contractor status
in the circumstances before us, and CBS does not dis-
pute 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 nu-
merous factors in determining a hired party’s status
under common law agency principles.77   “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.”78 In addition, the relative weight of com-
of employment. See Meyer v. Holley, 537 U.S. at 286. Here, the Com-
mission determined that the performers were both subject to CBS’s
control and acting in the scope of their authority.
76 Petition at 17.
77 Community for Creative Non-Violence v. Reid, 490 U.S. 730, 751-
52 (1989), citing Restatement (Second) of Agency § 220(2) (1957) (Re-
statement).
78 Eisenberg v. Advance Relocation & Storage, Inc., 237 F.3d 111, 114
(2nd Cir. 2000) (“The first factor is entitled to this added weight be-
cause, under the common law of agency, an employer-employee rela-
tionship 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 § 220(1) cmt. D (“control or right to control the phy-
sical conduct of the person giving service is important and in many

135a
mon law factors also varies according to the legal con-
text in which the agency issue arises,79 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.80
26. CBS does not dispute the Commission’s finding
that the halftime show performance was subject to ex-
acting control by Viacom/CBS. However, its suggestion
that it exercised no more control than necessary “to en-
sure a proper result or end-product of the work”81 belies
the evidence that every aspect of the performance, in-
cluding the exact time, length, location, material, set,
script, staging, and wardrobe, was subject to the control
of Viacom/CBS through its corporate affiliate MTV.82
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.83 Rather, it
situations is determinative” of whether that person is an employee or
independent contractor).
79 See, e.g., id. at 116.
80 See Restatement § 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.”).
81 Petition at 17.
82 Forfeiture Order at 13-14 ¶ 24. See Lorenz Schneider Co. v. NLRB,
517 F.2d 445, 451 (2nd Cir. 1975) (“the more detailed the supervision
and the stricter the enforcement standards, the greater the likelihood
of an employer-employee relationship”).
83 See Petition at 18, n.31 and accompanying text (relying on Com-
munity for Creative Nonviolence v. Reid, 490 U.S. 730, 752-53 (1989)
(sculptor was an independent contractor under the work-for-hire doc-
trine) and Carpet Exch. Of Denver, Inc. v. Indus. Claim Appeals Office,

136a
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.84 Viacom/CBS developed the creative concepts for
the show, scripted every word uttered on stage, and re-
viewed every article of clothing worn by the perform-
ers.85 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 compara-
ble to this situation.86 Reid is also a work-for-hire copy-
right case in which factors related to compensation and
859 P.2d 278, 281 (Colo. App. 1993) (workers who installed floor cov-
ering purchased by company’s customers were not employees for pur-
poses 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 perform-
ers were subject to extensive control over their means and methods.
84 See CBS Response, App. C at Bates stamped pgs. 312, 355-57, 370.
85 Forfeiture Order at 13-14 ¶ 24. See CBS Response, App. C. at
Bates stamped pgs. 318, 452, 459-69, 518-19.
86 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 com-
pleted a draft, and the editors subsequently made few substantive
changes.”).

137a
benefits are generally accorded more weight than they
are entitled to in other legal contexts.87
27. In this context, the contractual terms related to
compensation and benefits cited by CBS are not strong-
ly indicative of independent contractor status.88 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.89 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 hesi-
tated to hold entertainers and artists to be employees of
the parties that hire them.90 We recognize that some of
87 As the Second Circuit has explained, special consideration of such
factors “may make sense in the copyright work-for-hire context be-
cause, 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 signifi-
cance 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.”).
88 Petition at 17.
89 See Forfeiture Order at ¶ 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-discrimi-
nation context because special consideration of benefits and tax treat-
ment factors “would allow workers and firms to use individual employ-
ment contracts to opt out of the anti-discrimination statutes.”).
90 See Carter v. Helmsley-Spear, Inc., 71 F.3d 77, 87 (2nd Cir. 1995)
(sculptors held to be employees despite their “artistic freedom and

138a
the common law factors are not indicative of agency.
Again, however, the relative weight of common law fac-
tors varies according to the legal context in which the
agency issue arises. The central issue here is the par-
ties’ relationship for the specific purpose of imposing
vicarious liability for the performers’ actions in that per-
formance that were harmful to the public (rather than
for copyright, workers’ compensation, anti-discrimina-
tion or other purposes). In this context, the Commission
properly concluded that the evidence clearly demon-
strating Viacom/CBS’s right to control the halftime
show performance was decisive.91
skill”); Jack Hammer Assoc., Inc. v. Delmy Productions, Inc., 499
N.Y.S. 2d 418, 419-20 (1st 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 Fas-
hion Fabrics, Inc., 160 F.3d 106, 113 (2nd Cir. 1998) (evidence would
support a holding that artist who developed a fabric design was an em-
ployee 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 ¶ 25 n.87.
91 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.

139a
28. CBS’s assertion that the performers’ actions were
outside the scope of authority conferred by its agree-
ments with them also lacks merit.92 As the Commission
explained, their conduct is fully attributable to CBS if it
was “incident to the performance rather than ‘an inde-
pendent course of conduct intended to serve no purpose
of the employer.”’93 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 provid-
ing a spectacular finale.94 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.”95 How-
ever, as we stated in the Forfeiture Order, “viewers in
markets served by each of the CBS Stations filed com-
plaints with the Commission concerning the February 1,
92 Petition at 19.
93 Forfeiture Order at 14-15 ¶ 25, quoting Restatement (Third) of
Agency § 7.07 (T.D. No.5 2004).
94 See Forfeiture Order at 10 ¶¶ 18-19; CBS Response, App. B at
Bates stamped pgs. 130, 135.
95 Petition at 19-20.

140a
2004 broadcast of the Super Bowl XXXVIII halftime
show.”96 Accordingly, it was appropriate for the Com-
mission 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 let-
ters, it misunderstands the enforcement policy an-
nounced by the Commission in the Omnibus Order. Un-
der 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 pro-
gram 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.97 However,
as we explained in the Forfeiture Order, CBS’s culpabil-
ity for the broadcast of indecent material in this case
was far greater than that of other owners of CBS sta-
tions.98   “CBS admits that it was closely involved in the
production of the halftime show, and that its MTV affili-
ate produced it.”99 Under these circumstances, it was
within the Commission’s enforcement discretion to im-
pose fines on the stations owned by CBS but not on affil-
iates 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
96 Forfeiture Order at 1 ¶ 1, n.4.
97 Petition at 20.
98 Forfeiture Order at 15 ¶ 27.
99 Id.

141a
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 “intention-
ally flout[] FCC rules.”100 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.”101 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.102 While CBS observes that inde-
cency 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 ensure
compliance with our rules.103 Moreover, as we noted in
the Forfeiture Order, the gravity of this violation is
100
Petition at 21.
101
Forfeiture Order at 16 ¶ 28.
102
“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.”).
103
Contrary to CBS’s suggestion in its Petition, this does not mean,
of course, that the Commission will always impose a maximum forfeit-
ure anytime that a large company violates our rules. However, con-
sistent with section 503(b)(2)(D) of the Act, a company’s “ability to pay”
is a factor that weighs in our analysis.

142a
heightened because the indecent material was broadcast
to “an enormous nationwide audience,”104 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,105 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.106 By contrast, the sec-
ond most-watched program of the 2003-2004 television
season, the series finale of Friends, only drew an aver-
age of 52.5 million viewers.107 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 17.108 Finally, we continue to believe that the particu-
lar nature of this violation weighs in favor of the statu-
tory maximum forfeiture. In this case, unsuspecting
viewers were confronted during the Super Bowl halftime
show, which was not rated as content inappropriate for
children,109 by a highly sexualized performance in which
Timberlake tore off a piece of clothing to reveal Jack-
son’s breast while singing “gonna have you naked by the
end of this song.” While CBS now argues that this con-
duct was not patently offensive, we disagree.
104
Forfeiture Order at 16 ¶ 28.
105
See “Viewer Track: Top-rated programs of 2003-04” (www.tvb.
org/rcentral/viewertrack/trends/top2003.asp).
106
See VNU Media and Marketing Guide for Super Bowl,
(http://www.nielsenmedia.com/newsreleases/2005/2005SuperBowl.pdf).
107
See Joal Ryan, “52 Million Friends See Off ‘Friends”’ (May 7,
2004) (http://att.eonline.com/News/Items/0,1,14056,00.html).
108
See Nielsen Media Research, TV National People Meter Data
9/22/2003 - 5/26/2004.
109
Indeed, the program was not rated at all.

143a
33. Constitutional Issues. We also adhere to our re-
jection of CBS’s facial and as-applied constitutional chal-
lenges to the imposition of a forfeiture in this case.
34. The Commission’s authority to enforce the statu-
tory restrictions against the broadcast of indecent pro-
gramming during times of day in which children are
likely to be in the audience was upheld against constitu-
tional challenge by the Supreme Court in Pacifica more
than a quarter-century ago, and has been reaffirmed
since then.110 Under our standards implementing this
settled precedent, as we have explained, CBS’s broad-
cast was actionably indecent.
35. We reject CBS’s contention that the Forfeiture
Order abandons the policy of restraint upon which Pa-
cifica was based.111 The Order does no such thing. On
the contrary, the Commission remains “sensitive to the
impact of our decisions on speech.”112 In this case, how-
ever, 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 sport-
ing events, to a vast nationwide audience that included
numerous children.113 As we have found, the broadcast
was “planned by CBS and its affiliates under circum-
stances where they had the means to exercise control
110
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).
111
Petition at 23.
112
Forfeiture Order at 19 ¶ 35.
113
Id. at 28.

144a
and good reason to take precautionary measures.”114
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 pow-
ers to impose a forfeiture in this case.
36. We also reject CBS’s argument that Pacifica lim-
its the Commission’s authority “to penalize isolated and
fleeting transmissions of indecent material.”115 On the
contrary, in upholding the Commission’s power to pro-
ceed 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.116 In addition, the Commission has
never itself held, as CBS suggests,117 that a brief display
of televised nudity could not be found actionably inde-
cent. To the contrary, in Young Broadcasting (released
shortly before the Super Bowl halftime show was broad-
cast), we made clear that a televised display of male
frontal nudity, though comparably brief, constituted an
apparent violation of our indecency rules.118
114
Id. at 19 ¶ 35.
115
Petition at 23 n.42.
116
Pacifica, 438 U.S. at 750; see Golden Globes, 19 FCC Rcd 4975,
4982 ¶ 16 (2004).
117
Petition at 24.
118
19 FCC Rcd 1751, 1755 ¶ 12 (2004). In WGBH Educ. Found., 68
FCC 2d 1250 (1978), we granted the renewal of a public television sta-
tion 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 ¶ 2. In holding that the complaints did not make out
a case that the station’s continued operation would be inconsistent with

145a
37. Finally, we reiterate our rejection of CBS’s con-
tention that changes in law and technology have under-
mined Pacifica and its progeny.119 CBS asserts that
every court decision that applies to every medium that
allows targeted blocking of content has struck down
broadcast-type indecency regulation.”120 But those same
decisions recognize that there remain “special justifica-
tions” that allow for more extensive government regula-
tion of broadcast speech.121 Among them is that broad-
casting continues to have “a uniquely pervasive presence
in the lives of all Americans,”122 a presence that is partic-
ularly 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,123 and on newer sets the evidence shows that
the public interest, id. at 1255, ¶ 13, we nowhere suggested that the
televised broadcast of nudity could never be actionably indecent.
119
Petition at 25.
120
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)).
121
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 broad-
casts may properly be subject to different—and often more restric-
tive—regulation than is permissible for other media under the First
Amendment”).
122
See ACT III, 58 F.3d at 659 (quoting Pacifica, 438 U.S. at 748).
123
As of January 1, 2000, all television sets manufactured in the Uni-
ted 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

146a
most parents are unaware of the V-chip’s existence or
the manner of its operation.124 The V-chip also depends
on accurate program ratings,125 but as the Commission
explained in the Forfeiture Order, sporting events are
not included in the V-chip ratings system,126 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
Enable Blocking of Video Programming Based on Program Ratings,
13 FCC Rcd 11248 (1998); 47 C.F.R. § 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.
124
See Forfeiture Order at ¶ 34 n.117 (citing broadcaster’s state-
ments 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).
125
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).
126
Implementation of Section 551 of the Telecommunications Act
of 1996, Report and Order, 13 FCC Rcd 8232, 8242-43, ¶ 21 (1998).

147a
the availability of blocking technology is completely ir-
relevant 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 be-
lieve that the $550,000 forfeiture imposed on CBS here
is appropriate.

IV. ORDERING

CLAUSES

39. Accordingly, IT IS ORDERED, pursuant to sec-
tion 405(a) of the Act, and section 1.106(j) of the Commis-
sion’s rules,127 that the Petition for Reconsideration of
Forfeiture Order filed by CBS on April 14, 2006 is DE-
NIED.
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., 6th 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
127
47 U.S.C. § 405(a); 47 C.F.R. § 1.106(j).

148a

STATEMENT OF

COMMISSIONER JONATHAN S. ADELSTEIN CON-

CURRING IN PART, DISSENTING IN PART

Re: Complaints Regarding Various Television Licens-
ees Concerning Their February 1, 2004 Broadcast
of the Super Bowl XXXVIII Halftime Show, Order
on Reconsideration
The Super Bowl XXXVIII halftime show was argu-
ably 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 televi-
sion season and American viewers, collectively, ex-
pressed their disappointment and disapproval. The
Commission, entrusted with the responsibility to exe-
cute 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 inde-
cency enforcement. In addition, I dissent in part be-
cause 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 per-
vades 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 inde-
cent as measured by contemporary community stan-

149a
dards. 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.1
I also have grave concerns with the failure of this Or-
der to provide clear guidance on the nature of the Com-
mission’s new fine imposition policy announced in the
March 15th, 2006, Omnibus TV Order. Rather than stat-
ing what the new policy is not, as today’s Order does,2
the Commission should state affirmatively the key fea-
tures of our new “more limited approach towards the
imposition of forfeiture penalties.”3 After all, it is still
unclear how the Commission determines the sufficiency
1 While the Commission, in today’s Order, maintains that it rejects
the use of third-party polls as “determinative” and that it does not “re-
ly” 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 une-
quivocal “no.” Rather than making this point clear, the Commission en-
gages 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 un-
der contemporary community standards.” Order at ¶ 14. This discus-
sion is misleading because the Commission does not consider polling
data, notwithstanding the artfulness of the questions asked by pollsters.
2 Order at ¶ 30.
3 Complaints Regarding Various Television Programs Broadcast Be-
tween February 2, 2002 and March 8, 2005, FCC 06-17 (released March
15, 2006) (Omnibus TV Order) at ¶ 71.

150a
of a viewer’s complaint in light of this new enforcement
policy.4
Finally, I dissented in part in our initial Super Bowl
decision (the September 22nd, 2004, Notice of Apparent
Liability),5 and I do so again today. I continue to be-
lieve the Commission has decided erroneously to fine
only CBS owned and operated stations, not all stations
that broadcasted the indecent material. Notwithstand-
ing 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
4 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 ¶ 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 for-
feiture only against the local D.C. affiliate. The California viewer did
not even assert that she viewed the program in Washington, D.C. Fur-
ther, in the same case, it was completely unclear whether the complain-
ant even watched the program on over-the-air broadcasting or on cable.
The Commission is obligated to resolve or clarify these legitimate con-
cerns.
5 See Complaints Against Various Television Licensees Concerning
Their February 1, 2004, Broadcast of the Super Bowl XXXVIII Half-
time Show, Notice of Apparent Liability for Forfeiture, FCC 04-209 (re-
leased September 22, 2004) (Commr. Jonathan S. Adelstein, approving
in part and dissenting in part).

151a
majority of stations that actually broadcasted the of-
fending halftime performance.
I believe now, as I believed then, that this is not the
restrained enforcement policy the Supreme Court ad-
vised in Pacifica. Consistent with the values of First
Amendment, this Commission should exercise restraint
and caution in its determination of the type of expres-
sion that is indecent. But once the indecency determina-
tion 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 Commis-
sion is obligated to enforce a consistent fine imposition
policy across the broadcast medium. Sadly, today’s Or-
der fails to meet our obligation on both counts. Accord-
ingly, I concur in part and dissent in part to this Order
on Reconsideration.

152a

APPENDIX C

BEFORE THE
FEDERAL COMMUNICATIONS COMMMISSION
WASHINGTON, D.C. 20554
File No. EB-04-IH-0011
NAL/Acct. No. 200432080212
IN THE MATTER OF COMPLAINTS AGAINST VARIOUS
TELEVISION LICENSEES CONCERNING
THEIR FEBRUARY 1, 2004 BROADCAST OF THE SUPER
BOWL XXXVIII HALFTIME SHOW
Adopted: Feb. 21, 2006
Released: Mar. 15, 2006

FORFEITURE ORDER

By the Commission: Chairman Martin, Commissioners
Copps and Tate issuing separate statements; Commis-
sioner Adelstein concurring and issuing a statement.

I. INTRODUCTION

1. In this Forfeiture Order (“Order”), issued pursu-
ant to section 503(b) of the Communications Act of 1934,
as amended (the “Act”), and section 1.80 of the Commis-
sion’s rules,1 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
1 47 U.S.C. § 503(b); 47 C.F.R. § 1.80.

153a
licensees of the television stations listed in the Appendix
(“CBS Stations”).2 We find that CBS violated 18 U.S.C.
§ 1464 and the Commission’s rule regulating the broad-
cast of indecent material3 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.4
2 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 Sta-
tions was changed to CBS Corporation. Accordingly, we generally re-
fer to the company herein as CBS even for periods preceding the re-
organization. As part of the reorganization, certain non-broadcast busi-
nesses, 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.
3 47 C.F.R. § 73.3999.
4 We note that viewers in markets served by each of the CBS Sta-
tions filed complaints with the Commission concerning the February 1,
2004 broadcast of the Super Bowl XXXVIII halftime show.

154a

II. BACKGROUND

2. The halftime show in question was a live broad-
cast of music and choreography produced by MTV Net-
works (“MTV”), which was then a Viacom, Inc. subsid-
iary. The halftime show lasted approximately fifteen
minutes and aired over the CBS Stations and other tele-
vision stations affiliated with the CBS Television Net-
work. The show received considerable notoriety due to
an incident at the end of its musical finale, in which Jus-
tin Timberlake pulled off part of Janet Jackson’s bus-
tier, exposing one of her breasts to the television audi-
ence.
3. Following the Super Bowl broadcast and the re-
ceipt of complaints, the Enforcement Bureau (“Bureau”)
issued a letter of inquiry (“LOI”) to CBS, seeking infor-
mation about the halftime show, followed by a letter re-
questing videotapes of the complete Super Bowl pro-
gramming broadcast over the CBS Television Network
stations on February 1, 2004, including the halftime
show (collectively, the “Broadcast Videotape”).5 In re-
sponse, CBS provided a videotape of the broadcast of
the halftime show to the Bureau on February 3, 2004,6
5 See Letter from William D. Freedman, Deputy Chief, Investiga-
tions and Hearings Division, Enforcement Bureau, Federal Communi-
cations 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, En-
forcement Bureau, Federal Communications Commission, to Robert
Corn-Revere, Esquire, dated February 10, 2004.
6 See Letter from Robert Corn-Revere, Esquire to William D.
Freedman, Deputy Chief, Investigations and Hearings Division, En-
forcement Bureau, Federal Communications Commission, dated Feb-
ruary 3, 2004.

155a
an “interim response” to the Bureau’s inquiries on Feb-
ruary 10, 2004,7 the Broadcast Videotape on February
14, 2004,8 and a complete response to the LOI on March
16, 2004.9
4. The script and Broadcast Videotape of the half-
time show provided by CBS confirm that the show con-
tained 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
7 Letter from Robert Corn-Revere, Esquire to William D. Freed-
man, Deputy Chief, Investigations and Hearings Division, Enforcement
Bureau, Federal Communications Commission, dated February 10,
2004 (the “CBS Interim Response”).
8 Letter from James S. Blitz, Esquire to William D. Freedman, Dep-
uty Chief, Investigations and Hearings Division, Enforcement Bureau,
Federal Communications Commission, dated February 14, 2004.
9 Letter from Susanna M. Lowy, Esquire to William D. Freedman,
Deputy Chief, Investigations and Hearings Division, Enforcement Bur-
eau, Federal Communications Commission, dated March 16, 2004 (the
CBS Response”). Although many of CBS’s responses to the LOI’s in-
quiries 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, how-
ever, we limit ourselves to describing or characterizing the substance
of the materials and providing record citations herein, rather than ac-
tually quoting the materials or otherwise incorporating them into the
Order. The Confidential Appendix, however, contains quotations to
various documents in the record.

156a
Shakin’ that thing
Like I never did see
Got a nice package alright
Guess I’m gonna have to ride it tonight.10
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 perfor-
mance, P. Diddy and Nelly presented a medley of
songs containing occasional references to sexual activi-
ties, emphasized by Nelly’s crotch-grabbing gestures.11
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.12 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
10 Broadcast Videotape. See also CBS Response, Ex. 9 at 7-10;
www.azlyrics.com/lyrics/janetjackson/allforyou.html.
11 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.” Broad-
cast Videotape. See also CBS Response, Ex. 9 at 16, 18; www.
lyricsstyle.com/n/nelly/hotinherre.html.
12 Broadcast Videotape. See also CBS Response, Ex. 9 at 36-37;
www.lyricsondemand.com/j/justintimberlakelyrics/rockyourbodylyrics.
html.

157a
portion of Jackson’s bustier, exposing her breast to the
television audience.13
5. The Commission released its NAL on September
22, 2004, pursuant to section 503(b) of the Act and sec-
tion 1.80 of the Commission’s rules, finding that CBS ap-
parently violated the federal restrictions regarding the
broadcast of indecent material.14 We noted that our in-
decency analysis involves two basic determinations. The
first determination is whether the material in question
depicts or describes sexual or excretory organs or activi-
ties.15 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.16
The second determination is whether the material is
patently offensive as measured by contemporary com-
munity standards for the broadcast medium.17 We ob-
13 Broadcast Videotape.
14 See 18 U.S.C. § 1464; 47 C.F.R. § 73.3999 ; and 47 U.S.C. § 503(b).
15 See Industry Guidance on the Commission’s Case Law Interpret-
ing 18 U.S.C. § 1464 and Enforcement Policies Regarding Broadcast
Indecency, Policy Statement, 16 FCC Rcd 7999, 8002, ¶ 7 (2001) (“Inde-
cency Policy Statement”).
16 NAL, 19 FCC Rcd at 19235, ¶ 11.
17 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, ¶ 8 and n.15. CBS suggests that we should rely on third-party
public opinion polls to determine whether the material is patently offen-
sive as measured by contemporary community standards for the broad-
cast 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 le-
gal support for a departure from that approach.

158a
served that, in our assessment of whether broadcast
material is patently offensive, “the full context in which
the material appeared is critically important.”18 Three
principal factors are significant to this contextual ana-
lysis: (1) the explicitness or graphic nature of the de-
scription 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 excre-
tory organs or activities; and (3) whether the material
appears to pander or is used to titillate or shock.19 In
examining these three factors, we stated that we must
weigh and balance them on a case-by-case basis to deter-
mine whether the broadcast material is patently offen-
sive because “[e]ach indecency case presents its own
particular mix of these, and possibly, other factors.”20
We noted that, in particular cases, one or two factors
may outweigh the others, either rendering the broadcast
material patently offensive and consequently indecent21
or, alternatively, removing the broadcast from the realm
of indecency.22
18 NAL, 19 FCC Rcd at 19235, ¶ 12, quoting Indecency Policy
Statement, 16 FCC Rcd at 8002, ¶ 9 (emphasis in original).
19 Indecency Policy Statement, 16 FCC Rcd at 8002-15, ¶¶ 8-23.
20 NAL, 19 FCC Rcd at 19235, ¶ 12, quoting Indecency Policy State-
ment, 16 FCC Rcd at 8003, ¶ 10 .
21 NAL, 19 FCC Rcd at 19235, ¶ 12; Indecency Policy Statement, 16
FCC Rcd at 8009, ¶ 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 na-
ture of references to sex with children outweighed the fleeting nature
of the references.
22 NAL, 19 FCC Rcd at 19235, ¶ 12; Indecency Policy Statement, 16
FCC Rcd at 8010, ¶ 20 (noting that “the manner and purpose of a

159a
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 broad-
cast of partial nudity in this instance was explicit and
graphic and appeared to pander to, titillate and shock
the viewing audience. Therefore, the Commission deter-
mined that the material was patently offensive as mea-
sured by contemporary community standards for the
broadcast medium, even though the nudity was brief.23
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 maxi-
mum forfeiture of $27,500 to each CBS Station, for
broadcasting indecent material in apparent violation of
18 U.S.C. § 1464 and section 73.3999 of the Commission’s
rules.24 In contrast, the Commission proposed no forfei-
ture 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
presentation may well preclude an indecency determination even
though other factors, such as explicitness, might weigh in favor of an
indecency finding.”)
23 NAL, 19 FCC Rcd at 19235-36, ¶¶ 12-14.
24 Id. at 19236-40, ¶¶ 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 there-
fore do not apply here. See Amendment of Section 1.80(b) of the Com-
mission’s Rules, Adjustment of Forfeiture Maxima to Reflect Infla-
tion, Order, 19 FCC Rcd 10945, 10946, ¶ 6 (2004).

160a
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.25 On November 5, 2004, CBS submitted its
Opposition to the NAL.26
25 Id., 19 FCC Rcd at 19240-41, ¶ 25.
26 “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 programing over their stations, but this is not a new require-
ment. See NAL, 19 FCC Rcd at 19241, ¶ 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. § 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 in-
terest). Another such filing by Litigation Recovery Trust (“LRT”) is
styled a “Petition for Reconsideration” but fails to meet the require-
ments of Section 1.106(b)(1) of our rules for petitions for reconsidera-
tion 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 un-
der 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. § 1.106(b)(1). In sub-
stance, LRT’s filing is a supplement to a prior request for rulemaking

161a
8. CBS does not dispute that the halftime show in-
cluded 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.27 CBS nonetheless argues that the mate-
rial broadcast was not actionably indecent.28 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.29 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.30 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 in-
terpretation of the term “willful” and also address spe-
cific circumstances indicating that: (1) CBS consciously
on a matter that is outside the scope of, and is not affected by, this de-
cision.
27 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 Inde-
cency Policy Statement, 16 FCC Rcd at 8003, ¶ 10 (“Each indecency
case presents its own particular mix of these [three], and pos-sibly
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.”).
28 Opposition at 13-34.
29 Id. at 35-38.
30 Id. at 44-77.

162a
omitted the actions necessary to ensure that actionably
indecent material would not be aired; and (2) the per-
formers’ willful actions here were attributable to CBS
under established principles of agency and respondeat
superior. Finally, we reject CBS’s constitutional argu-
ments, as the courts have repeatedly upheld the consti-
tutionality of the Commission’s indecency framework
and our analysis of the halftime show is consistent with
that framework. We therefore conclude that the broad-
cast of this material by the Viacom Stations violated 18
U.S.C. § 1464 and our rule against indecent broadcasts
between 6 a.m. and 10 p.m., and that the maximum stat-
utory forfeiture is warranted.
9. Indecency Analysis. The indecency analysis un-
dertaken in the NAL followed the approach that the
Commission has consistently applied. First, the mate-
rial alleged to be indecent must fall within the subject
matter scope of our indecency definition, i.e., “the mate-
rial must describe or depict sexual or excretory organs
or activities.”31 The NAL properly concluded that the
broadcast of an exposed female breast met this defini-
tion.32 The halftime show broadcast therefore warrants
further scrutiny to determine whether or not it was pa-
tently offensive as measured by contemporary commu-
nity standards for the broadcast medium.
10. As discussed above, in our assessment of whether
broadcast material is patently offensive, “the full con-
text in which the material appeared is critically impor-
31 Indecency Policy Statement, 16 FCC Rcd at 8002, ¶ 7.
32 NAL, 19 FCC Rcd at 19235, ¶ 11 .

163a
tant.”33 In cases involving televised nudity, the contex-
tual analysis necessarily involves an assessment of the
entire segment or program, and not just the particular
scene in which the nudity occurs.34 Accordingly, in this
case, our contextual analysis considers the entire half-
time show, not just the final segment during which Jack-
son’s breast is uncovered. We find that, in context and
on balance, the complained-of material is patently offen-
sive as measured by contemporary community stan-
dards for the broadcast medium.
11. Turning to the first principal factor of our contex-
tual 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.35 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
33 Indecency Policy Statement, 16 FCC Rcd at 8002, ¶ 9 (emphasis in
original).
34 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 (¶¶ 11-13); and distinguishes an earlier case involv-
ing 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” (¶ 14)).
35 We note that, although Jackson wore a piece of jewelry on her nip-
ple, it only partially covered her nipple and did not cover her breast.

164a
graphic involved a televised broadcast of a woman’s
breast.36 We reject CBS’s argument that our conclusion
regarding this factor is flawed. The NAL correctly re-
lied on Young Broadcasting, which supports the propo-
sition that a scene showing nude sexual organs is gra-
phic and explicit if the nudity is readily discernible.37 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 cen-
ter 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.38 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
36 Opposition at 21.
37 NAL, 19 FCC Rcd at 19235, ¶ 13 and n.42. CBS attempts to dis-
tinguish 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.
38 See Opposition at 25 n.35. See also id. at 22. We agree that the ex-
posure of Jackson’s breast was not in the official script submitted by
CBS, but CBS has not shown that it was unplanned. Clearly, the “cos-
tume 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. Timber-
lake’s Declaration disavows any knowledge on his part that the costume
reveal would lead to exposure of Jackson’s breast, but Jackson’s state-
ment does not address her knowledge or intentions, and Duldulao did
not provide a statement. See CBS Response, Ex. 7 and Ex. 8.

165a
logic or law.39 Rather, the first factor in our contextual
analysis focuses on the explicitness of the broadcast
from the viewer’s or listener’s standpoint. Notwith-
standing CBS’s claimed befuddlement at how the tele-
vised image of a man tearing off a woman’s clothing to
reveal her bare breast could be deemed explicit, we be-
lieve that conclusion is clearly warranted by the facts
here and fully consistent with the case law.40
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
39 CBS compares this case to a decision that it claims involves pro-
gramming that is “considerably more explicit and clearly premedi-
tated,” 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 ma-
terial at issue here is graphic and explicit.
40 CBS argues that our recent dismissals of complaints about pro-
gramming that we found not to be graphic or explicit requires a similar
decision here. Opposition at 23-25, citing KSAZ Licensee, Inc., Memo-
randum 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.

166a
halftime show is fleeting.41 However, “even relatively
fleeting references may be found indecent where other
factors contribute to a finding of patent offensiveness.”42
In this case, even though we find that the partial nudity
was fleeting, the brevity of the partial nudity is out-
weighed 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.43 The NAL found that “the manner of pre-
sentation of the complained-of material over each [CBS
Station], for which Viacom failed to take adequate pre-
cautions, was pandering, titillating and shocking.”44 The
NAL noted that the exposure of Jackson’s breast fol-
lowed “performances, song lyrics and choreography
41 See NAL, 19 FCC Rcd at 19236, ¶ 14.
42 Indecency Policy Statement, 16 FCC Rcd at 8009, ¶ 19. See also
Young Broafcasting; 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).
43 Indecency Policy Statement, 16 FCC Rcd at 8010, ¶20.
44 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 audi-
ence.” Id. at ¶ 14. To the extent that the language in the NAL could be
interpreted to suggest that the broadcaster’s state of mind is a deci-
sional 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, ¶ 10 (emphasis in original). In making this determi-
nation, 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, ¶¶ 13-14.

167a
[that] discussed or simulated sexual activities.”45 Jack-
son’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 perfor-
mance 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 activities46 and choreogra-
phy in which Timberlake grabbed Jackson, slapped her
buttocks, and rubbed up against her in a manner simu-
lating sexual activity. These sexually suggestive perfor-
mances culminated in the spectacle of Timberlake rip-
ping 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 audi-
ence, particularly during a prime time broadcast of a
sporting event that was marketed as family entertain-
ment and contained no warning that it would include
nudity.47 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
45 NAL, 19 FCC Rcd at 19236, ¶ 14.
46 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.
47 Indeed, CBS appears to concede that it was shocking, but maintains
that “the ‘costume reveal’ was as much a shock to Viacom as to ever-
yone else.” Opposition at iii.

168a
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.48 This broadcast
thus presents a much different case than would, for ex-
ample, 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 offen-
sive material was brief, its brevity is outweighed in this
case by the first and third factors in our contextual anal-
ysis. 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 Commis-
sion’s rules,49 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 sup-
port of this argument, CBS cites definitions of “willful”
from criminal and copyright law cases.50 These defini-
48 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 “willful-
ness” factor.
49 47 C.F.R. § 73.3999.
50 See Opposition at 37-38.

169a
tions, however, are inapposite. Rather than borrowing
definitions from unrelated areas of law, the Commission
appropriately applies the definition of “willful” that ap-
pears 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.51 As discussed in detail below,
CBS acted willfully because it consciously and deliber-
51 The Conference Report to the 1982 amendment to the Act that ad-
ded 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, 97th 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 Cali-
fornia 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 pur-
ported offender need not intend to violate the Act or an FCC rule, or
even be aware the action in question constitutes a violation.” Opposi-
tion 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 re-
quire “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 admi-
nistrative sanctions. We disagree with CBS’s contention that criminal
law definitions of “willful” are apt because 18 U.S.C. § 1464 is a criminal
statute. Id. In Pacifica, the Supreme Court declined to consider ques-
tions relating to possible application of section 1464 as a criminal sta-
tute in upholding a broadcast indecency forfeiture imposed by the Com-
mission. 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).

170a
ately broadcast the halftime show, whether or not it in-
tended to broadcast nudity, and because it consciously
and deliberately failed to take reasonable precautions to
ensure that no actionably indecent material was broad-
cast.52 CBS also is vicariously liable for the willful ac-
tions of the performers under the doctrine of respondeat
superior.
16. The Commission’s forfeiture authority was en-
acted “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.”53 The obligation of licensees to
52 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.
53 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 for-
feiture).

171a
adopt measures to ensure compliance with the Act and
the Commission’s rules has particular force when it co-
mes to broadcasters’ responsibility for the programming
that they broadcast to the public. Under well-estab-
lished 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 dele-
gated .”54
17. CBS claims that it had no advance knowledge that
Timberlake planned to tear off part of Jackson’s cloth-
ing 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 precau-
tions that were available to it to prevent that risk from
materializing.
54 Report and Statement of Policy re: Commission en banc Program-
ming Inquiry, 44 FCC Rcd 2303, 2313 (1960). See also Yale Broadcast-
ing 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 broad-
casting music dealing with drug use); Gaffney Broadcasting, Inc., 23
2d 912, 913 (1970) (“licensees are responsible for the selec-tion and
presentation of program material over their stations, including . . .
acts or omissions of their employees”); Alabama Educational Televi-
sion Commission, 50 FCC 2d 461, 464 (1975) (AETC lost its license in
part because it failed to maintain exclusive authority over all of its pro-
gramming decisions); WCHS-AM-TV Corp., 8 FCC 2d 608, 609 (1967)
(maintenance of control over programming is a most fundamental
obligation of the licensee).

172a
18. It is disingenuous for CBS to argue that “the ‘cos-
tume reveal’ was as much a shock to Viacom as to every-
one else.”55 CBS clearly recognized that the live broad-
cast of the Super Bowl halftime show posed a significant
risk that indecent material would be aired. The exten-
sive 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 pro-
vocative performers and material.56 In fact, the NFL
expressed concerns about whether the planned halftime
show might be heading in too risqué a direction and re-
buffed 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.57 MTV sought to overcome the NFL’s ob-
jections 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.58
55 Opposition at iii.
56 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 ¶ 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.”). Con-
fidential Appendix 1.
57 See CBS Response, App. B at Bates stamped pgs. 72, 96, 195, 218-
19. Confidential Appendix 2.
58 See CBS Response, App. B at Bates stamped pgs. 123, 355, 447.
Confidential Appendix 3.

173a
19. CBS maintains that it selected Jackson and Tim-
berlake “to minimize the possibility of the unexpected,”59
but CBS was well aware that their selection did not obvi-
ate this risk. The NFL specifically expressed concerns
to CBS about the costume that Jackson would wear dur-
ing the halftime show.60 Moreover, the NFL raised con-
cerns about Timberlake’s scripted line “gonna have you
naked by the end of this song” that anticipated the stunt
resulting in the broadcast nudity.61 There were other
warning signs as well. In a January 28, 2004 news item
posted on MTV’s website, Jackson’s choreographer pre-
dicted 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 . . .”62
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.63 Further, MTV
learned the morning of the Super Bowl telecast of plans
59 Opposition at 18. See CBS Response at 9 (stating that Jackson and
Timberlake were “proven, experienced talent”).
60 See CBS Response, App. B at Bates stamped p. 72. Confidential
Appendix 4.
61 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, ¶ 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).
62 See Super Bowl NAL, 19 FCC Rcd at 19238-39, ¶ 19; CBS Re-
sponse, App. D at Bates stamped pgs. 2659.
63 See CBS Response, App. B at Bates stamped p. 462. Confidential
Appendix 6.

174a
to use tearaway cheerleading outfits for dancers in an-
other 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”).64 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 perfor-
mance.65 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 de-
part from script and staging, and this is particularly
true of Jackson and Timberlake given the sexually-pro-
vocative 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.”66 Based on examination of the record, we
64 See CBS Response, App. B at Bates stamped p. 458. Confidential
Appendix 7.
65 See CBS Response, App. B at Bates stamped pgs. 503-04, 511, 527.
Confidential Appendix 5, 8. See also supra, ¶ 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 perform-
ers’ and the producers’ desire for a high-impact grand finale to the
show. Confidential Appendix 9.
66 See Super Bowl NAL, 19 FCC Rcd at 19237, ¶ 17 n.54, citing Com-
plaints 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

175a
conclude that CBS recognized the high risk that this
broadcast raised of airing indecent material.67
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 stag-
ing—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 inde-
cent images.68 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
costume reveal, not whether it had notice of the Golden Globe Awards
Order.
67 See, e.g., supra, ¶¶ 2, 4 and n.4.
68 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 ma-
terial before it is broadcast. Although both the audio and visual trans-
mission 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.

176a
broadcast.”69 CBS asserts that the delay used for the
2004 Grammy Awards was “unprecedented.”70 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 stan-
dards staff to implement” than the delay that CBS actu-
ally used hardly excuses its omission under these cir-
cumstances.71 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.72 In addition, the record contains no evidence
that MTV or CBS communicated CBS’s broadcast stan-
dards and practices to Jackson, Timberlake, or Jack-
son’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 commu-
nicate those standards and practices to all performers.73
69 CBS Response at 5.
70 Id. at 5, n.13.
71 CBS Response at 5, n.13.
72 CBS Response, App. B-C at Bates stamped pgs. 168-72, 431-34,
2152-2332, 2336-42, 2469. Confidential Appendix 10. CBS did not pro-
vide an executed agreement for either Jackson or Timberlake in re-
sponse 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 ref-
erences.
73 See Confidential Appendix 10. Because CBS’s failure to take rea-
sonable precautions to prevent the broadcast of actionably indecent

177a
21. CBS also overstates the level of care it exercised
in overseeing the halftime production. Critically, it
failed to investigate Jackson’s choreographer’s “shock-
ing moments” prediction, which was posted on MTV’s
website, despite CBS’s concern about unscripted re-
marks or actions.74 In addition, contrary to its conten-
material was conscious and deliberate, its reliance on Mega Communi-
cations 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 un-
foreseeable violation nevertheless occurred.”). The Bureau held in
Mega that a licensee did not commit a willful violation of the Commis-
sion’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 rescind-
ed 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.
74 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

178a
tion,75 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.”76 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.77
22. Under these circumstances, we believe that CBS
can and should be held responsible for the patently of-
fensive material that it broadcast to a nationwide audi-
ence. A contrary result would permit a broadcast li-
censee 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 dis-
avow responsibility—leaving no one legally responsible
for the result. We believe that these are fully appropri-
that the quote referred to “moments” in the plural, whereas it would
have been expected to refer to a “moment” if it only concerned Tim-
berlake’s appearance. CBS has never provided a statement from Jack-
son’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.
75 Opposition at 4. See CBS Response at 9-10.
76 See CBS Response, App. B at Bates stamped p. 458.
77 See CBS Response at 9, App. B at Videotapes 6, 8 (Jackson/Timber-
lake Dress Rehersal).

179a
ate circumstances for application of the “conscious and
deliberate . . . omission” basis for finding “willfulness”
incorporated by Congress into Section 503(b) of the
Act.78 Indeed, given the nondelegable nature of broad-
cast 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 dif-
ficult to conceive of a more appropriate context in which
to apply that standard.
23. Further, CBS is legally responsible here for an-
other reason; it is fully responsible for the actions of
Jackson, Timberlake, and Jackson’s choreographer un-
der the doctrine of respondeat superior. “It is well es-
tablished that traditional vicarious liability rules ordi-
narily make principals or employers vicariously liable
for acts of their agents or employees in the scope of
their authority or employment.”79 The Commission has
long held licensees responsible for the unauthorized acts
of their agents under this doctrine.80 Respondeat supe-
rior subjects a principal to vicarious liability when its
agent-employee commits a tort while acting within the
78 47 U.S.C. § 503(b)(1); 47 U.S.C. § 312(f).
79 Meyer v. Holley, 537 U.S. 280, 285 (2003) (citations omitted).
80 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 § 503(b)(1) ); Wagenvoord Broadcasting
Co., 35 FCC 2d 361 (1972); Eure Family Ltd. Partnership, 17 FCC
Rcd 7042, 7044 ¶ 7 (Enf. Bur. 2002) (“it is a basic tenet of agency law
that the actions of an employee or contractor are imputed to the em-
ployer and ‘the Commission has consistently refused to excuse licensees
from forfeiture penalties where actions of employees or independent
contractors have resulted in violations.’ ”).

180a
scope of employment.81 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.82 An agent-em-
ployee acts within the scope of employment when per-
forming work assigned by the employer or engaging in
a course of conduct subject to the employer’s control.83
24. It is appropriate to impose vicarious responsibil-
ity on CBS for the willful actions of Jackson, Timber-
lake, 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 per-
formers did. Timberlake’s declaration acknowledges a
premeditated plan for him to tear off part of Jackson’s
clothing during the performance.84 Jackson, Timber-
lake, 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 dur-
ing the halftime show, and Gil Duldulao contractually
81 Restatement (Second) of Agency § 219(l) (1957) (2nd Restatement).
See also Restatement (Third) of Agency § 7.07 (T.D. No. 5 2004) (3rd
Restatement).
82 2nd Restatement § 220. See also 3rd Restatement § 7.07.
83 2nd Restatement § 228.
84 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 cos-
tume and revealing the undergarment beneath. I had neither the in-
tention 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.”).

181a
agreed to choreograph the dance.85 Based on examina-
tion 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 ad-
vance and a script of the halftime show was reviewed
by the CBS Program Practices Department. In ad-
dition, employees of CBS, MTV, and the NFL at-
tended two full run-throughs of the halftime show on
Thursday, January 29 to review the production. The
run throughs were videotaped, and reviewed by rep-
resentatives of CBS and the NFL. MTV producers
then used the tape to individually review the re-
hearsal performances with the talent to instruct them
on changes to be made in the actual performance on
Super Bowl Sunday. Based on these procedures, cer-
tain 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. Jack-
son was not in costume during the run-throughs, an
executive producer subsequently checked to make
85 See CBS Response, App. B-C at Bates stamped pgs. 168-72, 431-34,
2152-2332, 2336-42; 2nd Restatement § 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.

182a
sure that Ms. Jackson’s wardrobe would conform to
broadcast standards during the actual performance.86
25. Thus, CBS exercised control over all aspects of
the performers’ conduct in the performance of the
halftime show, including the script, staging and ward-
robe 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 activ-
ities.87 Many courts have held entertainers to be em-
ployees for respondeat superior and other purposes un-
der similar circumstances.88 Finally, the perform
86 CBS Response at 9-10. Although CBS had the right to exercise
control over the halftime show, and in fact exercised considerable con-
trol, 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.
87 Id. at Bates-stamped pgs. 168-72, 431-34, 2336-42. See 2nd Restate-
ment § 220; 3rd Restatement § 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 per-
form it”).
88 See P.T. Barnum’s Nightclub v. Duhamell, 766 N.E.2d 729 (Ind.
App. 2002) (referring to 2nd 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 dis-
playing adult entertainers (primarily female), but did not dictate the
stylistic aspects of Ajishegiri’s performance”); White v. Frenkel, 615

183a
ers’ actions were clearly within the scope of their em-
ployment. 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.89
Put differently, their conduct was incident to the per-
formance rather than “an independent course of conduct
intended to serve no purpose of the employer.”90 Accord-
So.2d 535, 538-40 (La. App. 3 Cir. 1993) (professional wrestler was em-
ployee 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); Jeff-
coat v. State Dept. of Labor, 732 P.2d 1073, 1075-78 (Alaska 1987) (danc-
er 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 (1st Dept. 1986)
(actor was employee for purposes of determining availability of work-
ers’ 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.
89 2nd Restatement § 228.
90 3rd Restatement § 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

184a
ingly, the performers’ willful actions are fully attribut-
able 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 im-
posed on those affiliates of the CBS Television Network
that are not owned by CBS.91 Second, CBS argues that
the NAL improperly cites “the history of recent inde-
cent broadcasts by CBS owned radio stations” with a
footnote to cases that are not completely adjudicated.92
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.93 Fourth, CBS argues
that it had no prior notice that a brief scene of partial
determine whether an employee’s tortious conduct falls within the
scope of employment. These tests vary somewhat in how they articu-
late 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 fore-
seeable consequence of the enterprise undertaken by the employer or
is incident to it.”).
91 Opposition at 14.
92 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 forfei-
ture 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.
93 Id. at 41-43.

185a
nudity constituted actionable indecency and thus should
not be subject to any forfeiture.94
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 ad-
mits 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 his-
tory 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.95 Accordingly, we no longer rely on that history of
indecent broadcasts in reaching our determination here.
94 Id. at 43.
95 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 pre-
viously rejected, CBS’s interpretation of section 504(c). We have made
it clear that the Commission may rely on the underlying facts that pro-
vide 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, ¶¶ 3-5 (1999) (“Forfeiture Policy Statement”),
recon. denied, 17 FCC Rcd 303 (1999).

186a
Nevertheless, we remain convinced that the upward ad-
justment 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 broad-
cast, and CBS’s ability to pay.96 The crux of CBS’s de-
fense 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 addi-
tion, 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,97 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 fi-
96 See 47 U.S.C. § 503(b)(2)(D) (the Commission “shall take into ac-
count 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, ¶ 17.
97 See http://www.usatoday.com/sports/football/super/2004-02-02-rat-
ings_ x.htm (stating that Super Bowl XXXVIII was “most-watched Su-
per Bowl in history” with estimated 143.6 million viewers and 41.3 na-
tional rating).

187a
nancial disincentives to violate the Act and rules,98 we
find that CBS’s size and resources, without question,
support an upward adjustment to the maximum statu-
tory 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.99
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 1993,100 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 dis-
play of male frontal nudity was an apparent violation of
that rule, was released shortly before the subject Super
Bowl broadcast.101 Thus, CBS was on notice that the
98 See 47 C.F.R. § 1.80, Note to Paragraph (b)(4), Section II, Upward
Adjustment Criterion No. 2.
99 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).
100
See Enforcement of Prohibitions Against Broadcast Indecency,
Report and 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 .
101
Young Broadcasting, 19 FCC Rcd at 1751 (release date of
January 27, 2004) .

188a
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.102 We have never held, however,
that fleeting nudity is not actionably indecent. On the
contrary, as discussed above, we held that fleeting nu-
dity 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 exam-
ple, 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 refer-
ences 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.103
102
Opposition at 19, 27-28.
103
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 Sec-
tion 503(b)(1)(D) without a showing of willfulness.

189a
30. Constitutional Issues. CBS offers a number of
arguments attacking then constitutional underpinnings
of the Commission’s indecency framework. We find no
merit in those arguments.
31. We reject CBS’s arguments that the Commis-
sion’s indecency standard is vague, overbroad, and vests
the Commission with excessive discretion.104 Courts have
upheld the indecency standard applied in the NAL and
in this Order against facial vagueness and overbreadth
challenges.105 The D.C. Circuit also has rejected the ar-
gument that the Commission’s indecency standard is
overbroad because it may encompass material with seri-
ous merit.106 We do not believe that requiring broad-
casters 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.
104
Opposition at 65-77.
105
See ACT III, 58 F.3d at 659 (upholding the Commission’s inde-
cency 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. Simi-
larly, 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).
106
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”).

190a
Circuit observed, “some degree of self-censorship is in-
evitable and not necessarily undesirable so long as
proper standards are available.”107
32. We also disagree with CBS that the NAL is incon-
sistent with the Supreme Court’s Pacifica decision.108
Pacifica stressed the importance of contextual analysis
such as that reflected in this Order.109 Accordingly, we
do not read Pacifica as precluding an indecency finding
based on a brief depiction of partial nudity. The Su-
preme 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 com-
edy) would justify any sanction.110 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
107
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.”).
108
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.
109
Pacifica, 438 U.S. at 742 (“indecency is largely a function of
context—it cannot be adequately judged in the abstract”).
110
Id., 438 at 750; see id. at 760-61 (Powell, J., concurring).

191a
except in situations involving extended or repetitious
expletives or depictions of sexual or excretory organs or
activities.111
33. CBS also claims that the constitutional validity of
our indecency enforcement practice has been under-
mined by a changed legal and technological landscape,
citing the Supreme Court’s decisions in United States v.
Playboy Entertainment Group, Inc.,112 Reno v. ACLU,113
and Denver Area Educational Telecommunications
Consortium v. FCC,114 and pointing to the pervasiveness
of cable and satellite television, and the development of
online media and media recording technology (e.g., vid-
eocassette recorders, DVD recorders and personal video
recorders featuring time-shifting technology) and the V-
chip.115 Again, we disagree. In striking down as uncon-
stitutional an Internet indecency standard, the Supreme
Court expressly recognized in Reno the “special justifi-
cations for regulation of the broadcast media,” citing
Red Lion and Pacifica.116 Moreover, in Denver Area,
111
Id. at 750. The D.C. Circuit upheld the Commission’s interpreta-
tion 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.”).
112
529 U.S. 803 (2000).
113
521 U.S. 844 (1997).
114
518 U.S. 717 (1996).
115
Opposition at 53-61.
116
Similarly, in Playbody, the Court distinguished broadcast ser-
vices from cable due to differences in the nature of those media. See
United States v. Playboy Entertainment Group, Inc., 529 U.S. at 815.

192a
the Court addressed the constitutionality of a Commis-
sion order implementing provisions of the 1992 Cable
Television Consumer Protection and Competition Act
that concerned indecent and obscene cable program-
ming, 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 tech-
nologies 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.117 Nevertheless, even if the V-chip could
be used to block sporting events, based on CBS’s repre-
sentations 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 im-
posing sanctions in this case will have a chilling effect on
117
See Implementation of Section 551 of the Telecommunications
Act of 1996, Report and Order, 13 FCC Rcd 8232, 8242-43, ¶ 21 (1998)
(news programming, sports programming and advertisements are not
included in the V-chip ratings system). Outside of the context of ex-
empt 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 an-
nounced their participation with the Advertising Council in an educa-
tional 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 An-
nounce 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.

193a
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.”118 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 exer-
cise control and good reasons to take precautionary
measures. These circumstances are obviously com-
pletely 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.119 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.120 The Com-
mission will then issue a forfeiture if it finds by a pre-
118
Opposition at 53, quoting Pacifica Reconsideration Order, 59
FCC 2d at 893. See also Opposition at ix, x, 46, 48-53.
119
47 U.S.C. § 503(b)(1)(B); 47 C.F.R. § 1.80(a)(1).
120
47 U.S.C. § 503(b); 47 C.F.R. § 1.80(f ).

194a
ponderance 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 lia-
ble for a forfeiture for its willful violation of 18 U.S.C. § 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.121 The Forfeiture Policy State-
ment also specifies that the Commission shall adjust a
forfeiture based upon consideration of the factors enu-
merated in section 503(b)(2)(D) of the Act, 47 U.S.C.
§ 503(b)(2)(D) , such as “the nature, circumstances, ex-
tent 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 jus-
tice may require.”122 In this case, taking all of these fac-
tors 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 Act123, and sections 0.311 and
1.80(f)(4) of the Commission’s Rules124, CBS Corporation
IS LIABLE FOR A MONETARY FORFEITURE in
the amount of $550,000 for willfully violating 18 U.S.C.
§ 1464 and section 73.3999 of the Commission’s rules.
121
Forfeiture Policy Statement, 12 FCC Rcd at 17113.
122
Id., 12 FCC Rcd at 17100-01, ¶ 27.
123
47 U.S.C. § 503(b).
124
47 C.F.R. §§ 0.311 , 1.80(f )(4).

195a
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.125 Pay-
ment of the forfeiture must be made by check or similar
instrument, payable to the order of the Federal Commu-
nications Commission. The payment must include the
NAL/Acct. No. referenced above and the FRN(s) refer-
enced in the Appendix. Payment by check or money
order may be mailed to Federal Communications Com-
mission, 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—Fin-
ancial Operations, 445 12th Street, S.W., Room 1-A625,
Washington, D.C. 20554.126
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., Washing-
ton, DC 20005.
125
47 U.S.C. § 504(a).
126
See 47 C.F.R. § 1.1914.

196a
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
Secretary

197a

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; Com-
plaints Regarding Various Television Broadcasts
Between February 2, 2002 and March 8, 2005; Com-
plaints Against Various Television Licensees Con-
cerning Their December 31, 2004 Broadcast of the
Program “Without A Trace”
Congress has long prohibited the broadcasting of in-
decent and profane material and the courts have upheld
challenges to these standards. But the number of com-
plaints 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 deci-
sions released today the Commission is resolving hun-
dreds of thousands of complaints against various broad-
cast 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

198a
Halftime Show was actionably indecent. We appropri-
ately reject the argument that CBS continues to make
that this material is not indecent. That argument runs
counter to Commission precedent and common sense.


199a

STATEMENT OF

COMMISSIONER MICHAEL J. COPPS

Re: Complaints Regarding Various Television Broad-
casts 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 Appar-
ent Liability
Complaints Against Various Television Licensees
Concerning Their February 1, 2004 Broadcast Of
The Super Bowl XXXVII Halftime Show, Forfei-
ture Order
In the past, the Commission too often addressed inde-
cency complaints with little discussion or analysis, rely-
ing instead on generalized pronouncements. Such an ap-
proach served neither aggrieved citizens nor the broad-
cast 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 nev-
er 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 pre-
cedents. This measured process, common in jurispru-
dence, 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.

200a
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 whe-
ther there is a link between increasing media consolida-
tion 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 ci-
tations have gone to a few huge media conglomerates.
One recent study showed that the four largest radio sta-
tion 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 pro-
gramming we are fed may be that people feel increas-
ingly 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 pro-
gramming decisions are made. Years ago we had inde-
pendent programming created from a diversity of
sources. Networks would then decide which program-
ming to distribute. Then local affiliates would independ-
ently decide whether to air that programming. This pro-
vided some real checks and balances. Nowadays so
many of these decisions are made by vertically-integra-
ted conglomerates headquartered far away from the
communities they are supposed to be serving—entities

201a
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 par-
ents, 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 graph-
ic 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 Psycho-
logical Association, the American Medical Association,
and countless other medical and scientific organizations
that have studied this issue have reached the same con-
clusion: exposure to graphic and excessive media vio-
lence has harmful effects on the physical and mental
health of our children. We need to complete this pro-
ceeding.

202a

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, Forfei-
ture Order
I have sworn an oath to uphold the Constitution1 and
to carry out the laws adopted by Congress.2 Trying to
find a balance between these obligations has been chal-
lenging in many of the indecency cases that I have de-
cided. 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.3 I there-
fore 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 ex-
ercise that authority with the utmost restraint, lest we
inhibit constitutional rights and transgress constitu-
tional limitations on government regulation of protected
1 U.S. Const., amend. I.
2 Congress has specifically forbidden the broadcast of obscene, in-
decent or profane language. 18 U.S.C. § 1464. It has also forbidden
censorship. 47 U.S.C. § 326.
3 See, e.g., N.Y. v. Ferber, 458 U.S. 747, 756-57 (1982).

203a
speech.4 Given the Court’s guidance in Pacifica, the
Commission has repeatedly stated that we would judi-
ciously walk a “tightrope” in exercising our regulatory
authority.5 Hence, within this legal context, a rational
and principled “restrained enforcement policy” is not a
matter of mere regulatory convenience. It is a constitu-
tional requirement.6
Accordingly, I concur with today’s Super Bowl Order,
but concur in part and dissent in part with the compan-
ion Omnibus Order7 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. Addi-
tionally, while today’s Omnibus decision appropriately
identifies violations of our indecency laws, not every
instance determined to be indecent meets that standard.
4 See FCC v. Pacifica Foundation, 438 U.S. 726, 750 (1978) (empha-
sizing 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.”).
5 See Brief for Petitioner, FCC, 1978 WL 206838 at *9.
6 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 defin-
ition of indecency will be tempered by the Commission’s restrained en-
forcement policy.”).
7 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”).

204a
We have previously sought to identify all broadcast-
ers who have aired indecent material, and hold them
accountable. In the Omnibus Order, however, the Com-
mission inexplicably fines only the licensee whose broad-
cast of indecent material was the subject of a viewer’s
complaint, even though we know millions of other Amer-
icans 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 re-
quires us to prohibit the broadcast of indecent material,
period. This means that we must enforce the law any-
where 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 tar-
get of viewer complaints. How can we impose a fine
solely on certain local broadcasters, despite having re-
peatedly said that the Commission applies a national
indecency standard—not a local one?8
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.9 It is patently arbi-
trary to hold some stations but not others accountable
8 See, e.g., In re Sagittarius Broadcasting Corporation, Memoran-
dum Opinion and Order, 7 FCC Rcd 6873, 6876 (1992) (subsequent his-
tory omitted).
9 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.

205a
for the same broadcast. We recognized this just two
years ago in Married By America.10 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.11 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 Omni-
bus Order.
The Commission is constitutionally obligated to de-
cide broadcast indecency and profanity cases based on
the “contemporary community standard,” which is “that
of the average broadcast viewer or listener.” The Com-
mission has explained the “contemporary community
standard,” as follows:
10 See Complaints Against Various Licensees Regarding Their
Broadcast of the Fox Television Network Program “Married by Amer-
ica” 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” calcu-
lation, and directing an investigation into stations owned by other licen-
sees that broadcast the indecent program). In the instant Omnibus Or-
der, 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 ¶ 71.
11 See Complaints Against Various Television Licensees Concerning
Their February 1, 2004, Broadcast of the Super Bowl XXXVIII Half-
time Show, Notice of Apparent Liability, 19 FCC Rcd 19230 (2004).

206a
We rely on our collective experience and knowledge,
developed through constant interaction with lawmak-
ers, courts, broadcasters, public interest groups and
ordinary citizens, to keep abreast of contemporary
community standards for the broadcast medium.12
I am concerned that the Omnibus Order overreaches
with its expansion of the scope of indecency and profan-
ity law, without first doing what is necessary to deter-
mine the appropriate contemporary community stan-
dard.
The Omnibus Order builds on one of the most difficult
cases we have ever decided, the Golden Globe Awards
case,13 and stretches it beyond the limits of our prece-
dents 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 major-
ity 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
12 In re Infinity Radio License, Inc., Memorandum Opinion and Or-
der, 19 FCC Rcd 5022, 5026 (2004).
13 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 reconsidera-
tion pending.

207a
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 au-
thority 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 ap-
proach to the acclaimed Martin Scorsese documentary,
“The Blues: Godfathers and Sons.” It is clear from a
common sense viewing of the program that coarse lan-
guage 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 consis-
tent with our decisions in Saving Private Ryan14 and
Schindler’s List.15
14 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, Memoran-
dum 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 dim-
inished the power, realism and immediacy of the film experience for
viewers.”). See also Peter Branton, Letter by Direction of the Com-
mission, 6 FCC Rcd 610 (1991) (concluding that repeated use of the f-
word in a recorded news interview program not indecent in context).
15 In the Matter of WPBN/WTOM License Subsidiary, Inc., 15 FCC
Rcd 1838 (2000).

208a
The Commission has repeatedly reaffirmed, and the
courts have consistently underscored, the importance of
content and context. The majority’s decision today dan-
gerously departs from those precedents. It is certain to
strike fear in the hearts of news and documentary mak-
ers, 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.16 Writing for the Court, he ob-
served:
[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 over-
all message sought to be communicated.17
Given all of these considerations, I find that the Omni-
bus 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 chil-
dren that it exercises so vigorously.

16 403 U.S. 15 (1971).
17 Id. at 26 (“We cannot indulge the facile assumption that one can
forbid particular words without also running a substantial risk of sup-
pressing ideas in the process.”).

209a

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, Forfei-
ture Order; Complaints Regarding Various Televi-
sion 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 re-
sponsibility to enforce the federal statute prohibiting
the airing of obscene, indecent or profane language.1 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 land-
marks, these are scarce and finite resources that must
be preserved for the benefit of all Americans. If num-
bers 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
1 See 18 U.S.C. § 1464.

210a
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. Pa-
rental 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 par-
ent, however, cannot be expected to protect their chil-
dren from indecent material broadcast during live sport-
ing events or in commercials that appear during what is
marketed to be “appropriate” programming.
Today, we are making significant strides toward ad-
dressing 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

211a
of The Simpsons. The Order concludes that this seg-
ment 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 chil-
dren and adults simultaneously. Nevertheless, the fact
remains that children were extremely likely to have
been in the viewing audience when this scene was broad-
cast. 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 ex-
posing young people to such content. By their very na-
ture, 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 opin-
ion, 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. Cen-
tral 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 inde-
cency. Without question, this scene is violent, graphi-
cally so. Moreover, it is presented in a way that appears
clearly designed to maximize its shock value. And there-
in lies my concern. One of the primary ways that this
scene shocks is that it leads the viewer to believe that

212a
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 vio-
lence as the “punch line” of titillating sexual innuendo
should not insulate broadcast licensees from our author-
ity. To the contrary, the use of sexual innuendo may,
depending on the specific case, subject a licensee to po-
tential forfeiture, regardless of the overall violent na-
ture 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.

213a

APPENDIX D

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 06-3575
CBS CORPORATION; CBS BROADCASTING INC.;
CBS TELEVISION STATIONS INC.; CBS STATIONS
GROUP OF TEXAS L.P.; AND KUTV HOLDINGS, INC.,
PETITIONERS
v.
FEDERAL COMMUNICATIONS COMMISSION;
UNITED STATES OF AMERICA, RESPONDENTS
Jan. 18, 2012
Petition for Review of Orders of the
Federal Communications Commission
FCC Nos. 06-19 and 06-68

SUR PETITION FOR REHEARING

WITH SUGGESTION FOR REHEARING IN BANC

Present: MCKEE, Chief Judge, SLOVITER, SCIRICA,
RENDELL, AMBRO, FUENTES, SMITH, FISHER,
CHAGARES, JORDAN, GREENAWAY, JR., and VANASKIE,
Circuit Judges.
The petition for rehearing filed by Respondent FCC

214a
having been submitted to all judges who participated in
the decision of this court, and to all the other available
circuit judges in active service, and a majority of the
judges who concurred in the decision not having asked
for rehearing, and a majority of the circuit judges of the
circuit in regular active service not having voted for re-
hearing by the court in banc, the petition for rehearing
is hereby DENIED. Judges Scirica, Smith and Jordan
would have granted rehearing.
By the Court,
/s/ MARJORIE O. RENDELL
MARJORIE O. RENDELL
Circuit Judge
Dated: Jan. 18, 2012
CMD/dmm/cc: All Counsel of Record

215a

APPENDIX E

1. 18 U.S.C. 1464 provides:
Broadcasting obscene language
Whoever utters any obscene, indecent, or profane
language by means of radio communication shall be
fined under this title or imprisoned not more than two
years, or both.
2. 47 U.S.C. 312 provides in relevant part:

Administrative sanctions

(a) Revocation of station license or construction permit
The Commission may revoke any station license or
construction permit—
(1) for false statements knowingly made either in
the application or in any statement of fact which may be
required pursuant to section 308 of this title;
(2) because of conditions coming to the attention of
the Commission which would warrant it in refusing to
grant a license or permit on an original application;
(3) for willful or repeated failure to operate sub-
stantially as set forth in the license;
(4) for willful or repeated violation of, or willful or
repeated failure to observe any provision of this chapter
or any rule or regulation of the Commission authorized
by this chapter or by a treaty ratified by the United
States;

216a
(5) for violation of or failure to observe any final
cease and desist order issued by the Commission under
this section;
(6) for violation of section 1304, 1343, or 1464 Title
18; or
(7) for willful or repeated failure to allow reason-
able access to or to permit purchase of reasonable
amounts of time for the use of a broadcasting station,
other than a non-commercial educational broadcast sta-
tion, by a legally qualified candidate for Federal elective
office on behalf of his candidacy.
(b) Cease and desist orders
Where any person (1) has failed to operate substan-
tially as set forth in a license, (2) has violated or failed to
observe any of the provisions of this chapter, or section
1304, 1343, or 1464 Title 18, or (3) has violated or failed
to observe any rule or regulation of the Commission au-
thorized by this chapter or by a treaty ratified by the
United States, the Commission may order such person
to cease and desist from such action.
* * * * *

217a
3. 47 U.S.C. 503 provides in relevant part:

Forfeitures

* * * * *
(b)

Activities constituting violations authorizing im-
position of forfeiture penalty; amount of penalty;
procedures applicable; persons subject to penalty;
liability exemption period

(1) Any person who is determined by the Commis-
sion, in accordance with paragraph (3) or (4) of this sub-
section, to have—
(A) willfully or repeatedly failed to comply sub-
stantially with the terms and conditions of any li-
cense, permit, certificate, or other instrument or au-
thorization issued by the Commission;
(B) willfully or repeatedly failed to comply with
any of the provisions of this chapter or of any rule,
regulation, or order issued by the Commission under
this chapter or under any treaty, convention, or
other agreement to which the United States is a
party and which is binding upon the United States;
(C) violated any provision of section 317(c) or
509(a) of this title; or
(D) violated any provision of section 1304, 1343,
or 1464 of Title 18; shall be liable to the United
States for a forfeiture penalty. A forfeiture penalty
under this subsection shall be in addition to any
other penalty provided for by this chapter; except
that this subsection shall not apply to any conduct
which is subject to forfeiture under subchapter II of
this chapter, part II or III of subchapter III of this
chapter, or section 507 of this title.

218a
* * * * *
4. Public Telecommunications Act of 1992, Pub. L. No.
102-356, § 16(a), 106 Stat. 949, provides:
FCC REGULATIONS.—The Federal Communica-
tions Commission shall promulgate regulations to pro-
hibit the broadcasting of indecent programming—
(1) between 6 a.m. and 10 p.m. on any day by any
public radio station or public television station that
goes off the air at or before 12 midnight; and
(2) between 6 a.m. and 12 midnight on any day
for any radio or television broadcasting station not
described in paragraph (1).
The regulations required under this subsection shall be
promulgated in accordance with section 553 of title 5,
United States Code, and shall become final not later
than 180 days after the date of enactment of this Act.
5. 47 C.F.R. 73.3999 provides:

Enforcement of 18 U.S.C. 1464 (restrictions on the
transmission of obscene and indecent material).

(a) No licensee of a radio or television broadcast sta-
tion shall broadcast any material which is obscene.
(b) No licensee of a radio or television broadcast sta-
tion shall broadcast on any day between 6 a.m. and 10
p.m. any material which is indecent.

Note: We are currently transitioning our documents into web compatible formats for easier reading. We have done our best to supply this content to you in a presentable form, but there may be some formatting issues while we improve the technology. The original version of the document is available as a PDF, Word Document, or as plain text.

close
FCC

You are leaving the FCC website

You are about to leave the FCC website and visit a third-party, non-governmental website that the FCC does not maintain or control. The FCC does not endorse any product or service, and is not responsible for, nor can it guarantee the validity or timeliness of the content on the page you are about to visit. Additionally, the privacy policies of this third-party page may differ from those of the FCC.