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Before the
Federal Communications Commission
Washington, D.C. 20554

In the Matter of )
)
COMPLAINTS AGAINST VARIOUS ) File No. EB-03-IH-0110
BROADCAST LICENSEES )
REGARDING THEIR AIRING OF )
THE ``GOLDEN GLOBE AWARDS'' )
PROGRAM )
)

MEMORANDUM OPINION AND ORDER

Adopted: March 3, 2004 Released: March 18,
2004

By the Commission: Chairman Powell, Commissioners
Abernathy and Adelstein issuing separate statements;
Commissioners Copps and Martin approving in part, dissenting
in part and issuing separate statements.

I. INTRODUCTION

1. In this Memorandum Opinion and Order, issued
pursuant to section 1.115 of the Commission's rules,1 we
grant an Application for Review filed by the Parents
Television Council (``PTC'') on November 3, 2003. PTC seeks
reversal of an October 3, 2003, Memorandum Opinion and Order
(``Bureau Order'')2 issued by the Chief, Enforcement Bureau
(``Bureau'') that denied complaints alleging various
licensees violated restrictions regarding the broadcast of
obscene and indecent material by airing the ``Golden Globe
Awards'' on January 19, 2003.3

2. We conclude that, based on the specific facts
before us, the live broadcast of the ``Golden Globe
Awards'' included material in violation of the applicable
indecency and profanity prohibitions.

II. BACKGROUND

3. The Commission received numerous complaints from
individuals associated with PTC alleging that the licensees
named on the complaints broadcast the ``Golden Globe
Awards'' program, during which the performer Bono uttered a
phrase allegedly in violation of the FCC's rules restricting
the broadcast of indecent material.4 The Golden Globe
Awards are sponsored by the Hollywood Foreign Press
Association. Bono made the statement in response to winning
the award for ``Best Original Song.'' The complainants
maintained that such language was obscene and/or indecent,
and requested that the Commission levy sanctions against the
licensees for broadcasting the subject material. The
Bureau, however, concluded that the material was not obscene
or indecent, finding in particular with respect to indecency
that the language used by Bono did not describe, in context,
sexual or excretory organs or activities and that the
utterance was fleeting and isolated.5 In its Application
for Review, PTC maintains that the Bureau Order is legally
incorrect, that it is ``'patently offensive' to use the ``F-
Word'' in any shape, form or meaning on broadcast network
television,'' and requests that the Commission levy a
forfeiture against each licensee that aired the ``Golden
Globe Awards'' program.6 NBC opposes the Application for
Review and argues that the Bureau Order is consistent with
precedent.

III. DISCUSSION

A. Overview of Indecency Law

4. The Federal Communications Commission is
authorized to license radio and television broadcast
stations and is responsible for enforcing the Commission's
rules and applicable statutory provisions concerning the
operation of those stations. The Commission's role in
overseeing program content is very limited. The First
Amendment to the United States Constitution and section 326
of the Communications Act of 1934, as amended (the ``Act''),
prohibit the Commission from censoring program material and
from interfering with broadcasters' freedom of expression.7
The Commission does, however, have the authority to enforce
statutory and regulatory provisions restricting obscenity,
indecency and profanity. Specifically, it is a violation of
federal law to broadcast obscene, indecent or profane
programming. Title 18 of the United States Code, Section
1464 prohibits the utterance of ``any obscene, indecent or
profane language by means of radio communication.'' 8
Consistent with a subsequent statute and court case,9
section 73.3999 of the Commission's rules provides that
radio and television stations shall not broadcast obscene
material at any time, and shall not broadcast indecent
material during the period 6 a.m. through 10 p.m.10 The
Commission may impose a monetary forfeiture, pursuant to
Section 503(b)(1) of the Act,11 upon a finding that a
licensee has broadcast indecent material in violation of 18
U.S.C. § 1464 and section 73.3999 of the rules.

5. Any consideration of government action against
allegedly indecent or profane programming must take into
account the fact that such speech is protected under the
First Amendment.12 The federal courts consistently have
upheld Congress's authority to regulate the broadcast of
indecent speech, as well the Commission's interpretation and
implementation of the governing statute.13 Nevertheless,
the First Amendment is a critical constitutional limitation
that demands that, in such determinations, we proceed
cautiously and with appropriate restraint.14

6. The Commission defines indecent speech as language
that, in context, depicts or describes sexual or excretory
activities or organs in terms patently offensive as measured
by contemporary community standards for the broadcast
medium.15

Indecency findings involve at least
two fundamental determinations.
First, the material alleged to be
indecent must fall within the subject
matter scope of our indecency
definitionžthat is, the material must
describe or depict sexual or excretory
organs or activities. . . . Second,
the broadcast must be patently
offensive as measured by contemporary
community standards for the broadcast
medium.16

7. In making indecency determinations, the Commission
has indicated that the ``full context in which the material
appeared is critically important,''17 and has articulated
three ``principal factors'' for its analysis: ``(1) the
explicitness or graphic nature of the description or
depiction of sexual or excretory organs or activities; (2)
whether the material dwells on or repeats at length
descriptions 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.'' 18 In examining these
three factors, we must weigh and balance them to determine
whether the broadcast material is patently offensive because
``[e]ach indecency case presents its own particular mix of
these, and possibly, other factors.''19 In particular
cases, one or two of the factors may outweigh the others,
either rendering the broadcast material patently offensive
and consequently indecent,20 or, alternatively, removing the
broadcast material from the realm of indecency.21

B. Analysis

8. With respect to the first step of the indecency
analysis,22 we disagree with the Bureau and conclude that
use of the phrase at issue is within the scope of our
indecency definition because it does depict or describe
sexual activities. We recognize NBC's argument that the
``F-Word'' here was used ``as an intensifier.''23
Nevertheless, we believe that, given the core meaning of the
``F-Word,'' any use of that word or a variation, in any
context, inherently has a sexual connotation, and therefore
falls within the first prong of our indecency definition.
This conclusion is consistent with the Commission's original
Pacifica decision, affirmed by the Supreme Court, in which
the Commission held that the ``F-Word'' does depict or
describe sexual activities.24

9. We now turn to the second step of the analysis -
whether the broadcast of the phrase at issue here is
patently offensive under contemporary community standards
for the broadcast medium and therefore indecent. We
conclude that the answer to this question is yes. The ``F-
Word'' is one of the most vulgar, graphic and explicit
descriptions of sexual activity in the English language.
Its use invariably invokes a coarse sexual image. The use
of the ``F-Word'' here, on a nationally telecast awards
ceremony, was shocking and gratuitous. In this regard, NBC
does not claim that there was any political, scientific or
other independent value of use of the word here, or any
other factors to mitigate its offensiveness.25 If the
Commission were routinely not to take action against
isolated and gratuitous uses of such language on broadcasts
when children were expected to be in the audience, this
would likely lead to more widespread use of the offensive
language.26 Neither Congress nor the courts have ever
indicated that broadcasters should be given free rein to air
any vulgar language, including isolated and gratuitous
instances of vulgar language.27 The fact that the use of
this word may have been unintentional is irrelevant; it
still has the same effect of exposing children to indecent
language. Our action today furthers our responsibility to
safeguard the well-being of the nation's children from the
most objectionable, most offensive language.

10. We also note that in this case NBC and other
licensees were on notice that an award presenter or
recipient might use offensive language during the live
broadcast, and it could have taken appropriate steps to
ensure that it did not broadcast such language. In this
regard, this is not the first case where such language has
been used by an award recipient in a live program. For
example, we note that, during the broadcast of the 2002
Billboard Awards Ceremony, Cher, in receiving an award,
reportedly used the ``F-Word.''28 Indeed, Bono himself
reportedly used the ``F-Word'' on the 1994 Grammy Awards
broadcast.29

11. We note also that technological advances have made
it possible as a general matter to prevent the broadcast of
a single offending word or action without blocking or
disproportionately disrupting the message of the speaker or
performer. NBC and other licensees could have easily
avoided the indecency violation here by delaying the
broadcast for a period of time sufficient for them to
effectively bleep the offending word. Indeed, we encourage
networks and broadcasters to undertake such technological
measures. The ease with which broadcasters today can block
even fleeting words in a live broadcast is an element in our
decision to act upon a single and gratuitous use of a vulgar
expletive.30

12. While prior Commission and staff action have
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. In
Pacifica Foundation, Inc., 2 FCC Rcd 2698, 2699 (1987)
(subsequent history omitted), for example, the Commission
stated as follows: ``If a complaint focuses solely on the
use of expletives, we believe that . . . deliberate and
repetitive use in a patently offensive manner is a requisite
to a finding of indecency.''31 The staff has since found
that the isolated or fleeting use of the ``F-Word'' is not
indecent in situations arguably similar to that here.32 We
now depart from this portion of the Commission's 1987
Pacifica decision as well as all of the cases cited in notes
31 and 32 and any similar cases holding that isolated or
fleeting use of the ``F-Word'' or a variant thereof in
situations such as this is not indecent and conclude that
such cases are not good law to that extent. We now clarify,
as we have made clear with respect to complaints going
beyond the use of expletives,33 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.

13. We also find, as an independent ground, that the
use of the phrase at issue here in the context and at the
time of day here constitutes ``profane'' language under 18
U.S.C. § 1464. The term ``profanity'' is commonly defined
as ``vulgar, irreverent, or coarse language.''34 The
Seventh Circuit, in its most recent decision defining
``profane'' under section 1464, stated that the term is
``construable as denoting certain of those personally
reviling epithets naturally tending to provoke violent
resentment or denoting language so grossly offensive to
members of the public who actually hear it as to amount to a
nuisance.''35 We find that the broadcast of the phrase at
issue here in the context and at the time of day qualifies
as ``profane'' under the Seventh Circuit nuisance
rationale.36 Use of the ``F-Word'' in the context at issue
here is also clearly the kind of vulgar and coarse language
that is commonly understood to fall within the definition of
``profanity.''

14. We recognize that the Commission's limited case
law on profane speech has focused on what is profane in the
context of blasphemy,37 but nothing in those cases suggests
either that the statutory definition of profane is limited
to blasphemy, or that the Commission could not also apply
the definition articulated by the Seventh Circuit.38
Broadcasters are on notice that the Commission in the future
will not limit its definition of profane speech to only
those words and phrases that contain an element of blasphemy
or divine imprecation, but, depending on the context, will
also consider under the definition of ``profanity'' the ``F-
Word'' and those words (or variants thereof) that are as
highly offensive as the ``F-Word,'' to the extent such
language is broadcast between 6 a.m. and 10 p.m.39 We will
analyze other potentially profane words or phrases on a
case-by-case basis.

15. But for the fact that existing precedent would
have permitted this broadcast, it would be appropriate to
initiate a forfeiture proceeding against NBC and other
licensees that broadcast the program prior to 10 p.m.
Given, however, that Commission and staff precedent prior to
our decision today permitted the broadcast at issue, and
that we take a new approach to profanity, NBC and its
affiliates necessarily did not have the requisite notice to
justify a penalty.40

16. Finally, our decision is not inconsistent with the
Supreme Court ruling in Pacifica. The Court explicitly left
open the issue of whether an occasional expletive could be
considered indecent.41 Just as the Court held that
Pacifica's broadcast of the George Carlin routine ``could
have enlarged a child's vocabulary in an instant,'' we
believe that even isolated broadcasts of the ``F-Word'' in
situations such as that here could do so as well, in a
manner that many, if not most, parents would find highly
detrimental and objectionable. Thus, finding broadcast of
this word indecent and profane here is consistent with the
``well-being of [the country's] youth'' and ``supporting
parents' claims to authority in their own household,'' which
the Court used as a basis for its decision in Pacifica, in
combination with the ``ease with which children may obtain
access to broadcast material . . . .''42

IV. CONCLUSION

17. We conclude, therefore, that NBC and other
licensees that broadcast Bono's use of the ``F-Word'' during
the live broadcast of the Golden Globe Awards violated 18
U.S.C. § 1464.43 By our action today, broadcasters are on
clear notice that, in the future, they will be subject to
potential enforcement action for any broadcast of the ``F-
Word'' or a variation thereof in situations such as that
here. We also take this opportunity to reiterate our recent
admonition (which took place after the behavior at issue
here) that serious multiple violations of our indecency rule
by broadcasters may well lead to the commencement of license
revocation proceedings, and that we may issue forfeitures
for each indecent utterance in a particular broadcast.44 We
note that one way broadcasters can easily ensure that they
are not subject to enforcement action under our decision
today is to adopt and successfully implement a
delay/bleeping system for live broadcasts.

V. ORDERING CLAUSES

18. Accordingly, IT IS ORDERED, pursuant to section
1.115 of the Commission's rules,45 that the Application for
Review filed on November 6, 2003, by the Parents Television
Council is hereby GRANTED to the extent set forth herein.

19. IT IS FURTHER ORDERED, that a copy of this
Memorandum Opinion and Order shall be sent by Certified Mail
Return Receipt Requested to The Parents Television Council,
707 Wilshire Boulevard, Los Angeles, California 90017, and
to NBC and its affiliates that are the subject of this
complaint. See Appendix.46

FEDERAL COMMUNICATIONS COMMISSION

Marlene H. Dortch
Secretary

APPENDIX

CALL SIGN COMMUNITY OF LICENSEE
LICENSE
KALB-TV Alexandria, Media General
LA Communica-
tions, Inc.
KARE(TV) Minneapolis, Multimedia
MN Holdings
Corp.
KARK-TV Little Rock, KARK-TV, Inc.
AR
KATV(TV) Little Rock, KATV, LLC
AR
KBTV-TV Port Arthur, Nexstar
TX Broadcast of
Beaumont/Port
Arthur,
L.L.C.
KCBD(TV) Lubbock, TX LIBCO, Inc.
KCEN-TV Temple, TX Channel 6,
Inc.
KCNC-TV Denver, CO CBS
Television
Stations Inc.
KCRA-TV Sacramento, KCRA Hearst-
CA Argyle
Television,
Inc.
KETK-TV Jacksonville, KETK Licensee
TX L.P.
KFDM-TV Beaumont, TX Freedom
Broadcasting
of Texas,
Inc.
KFOR-TV Oklahoma New York
City, OK Times
Management
Services
KGW(TV) Portland, OR King
Broadcasting
Company
KHAS-TV Hastings, NE Greater
Nebraska
Television,
Inc.
KING-TV Seattle, WA King
Broadcasting
Company
KKCO(TV) Grand Eagle III
Junction, CO Broadcasting,
LLC
KNBC(TV) Los Angeles, NBC
CA Subsidiary
(KNBC-TV),
Inc.
KNSD(TV) San Diego, CA Station
Venture
Operations,
LP
KOAA-TV Pueblo, CO Sangre De
Cristo
Communica-
tions, Inc.
KOB-TV Albuquerque, KOB-TV, LLC
NM
KPNX(TV) Mesa, AZ Multimedia
Holdings
Corporation
KPRC-TV Houston, TX Post-Newsweek
Stations,
Houston, LP
KRBC-TV Abilene, TX Mission
Broadcasting,
Inc.
KRIS-TV Corpus KVOA
Christi, TX Communica-
tions, Inc.
KTGF(TV) Great Falls, MMM License
MT LLC
KSBW(TV) Salinas, CA Hearst-Argyle
Stations,
Inc.
KSDK(TV) St. Louis, MO Multimedia
KSDK, Inc.
KSHB-TV Kansas City, Scripps
MO Howard
Broadcasting
Company
KSNF(TV) Joplin, MO Nexstar
Broadcasting
of Joplin,
L.L.C.
KTEN(TV) Ada, OK Channel 49
Acquisition
Corp.
KTIV(TV) Sioux City, KTIV
IA Television,
Inc.
KUSA-TV Denver, CO Multimedia
Holdings
Corp.
KWES-TV Odessa, TX Midessa
Television
Company
KWWL(TV) Waterloo, IA Raycom
America, Inc.
KXAS-TV Fort Worth, Station
TX Venture
Operations,
LP
KYTV(TV) Springfield, KY3, Inc.
MO
WANE-TV Fort Wayne, Indiana
IN Broadcasting,
LLC
WAVE(TV) Louisville, LIBCO, Inc.
KY
WBBH-TV Fort Myers, Waterman
FL Broadcasting
Corp. of
Florida
WBOY-TV Clarksburg, West Virginia
WV Media
Holdings, LLC
WBRE-TV Wilkes-Barre, Nexstar
PA Broadcasting
of
Northeastern
Pennsylvania,
L.L.C.
WCAU(TV) Philadelphia, NBC
PA Subsidiary
(WCAU-TV),
L.P.
WCNC-TV Charlotte, NC WCNC-TV, Inc.
WCSH(TV) Portland, ME Pacific and
Southern
Company, Inc.
WCYB-TV Bristol, VA Appalachian
Broadcasting
Corp.
WDIV-TV Detroit, MI Post-Newsweek
Stations,
Michigan,
Inc.
WDSU(TV) New Orleans, New Orleans
LA Hearst-Argyle
Television,
Inc.
WESH(TV) Daytona Orlando
Beach, FL Hearst-Argyle
Television,
Inc.
WFIE(TV) Evansville, LIBCO, Inc.
IN
WFLA-TV Tampa, FL Media General
Communica-
tions, Inc.
WFMJ-TV Youngstown, WFMJ
OH Television,
Inc.
WGAL(TV) Lancaster, PA WGAL Hearst-
Argyle
Television,
Inc.
WHDH-TV Boston, MA WHDH-TV
WHEC-TV Rochester, NY WHEC-TV, LLC
WHO-TV Des Moines, New York
IA Times
Management
Services
WILX-TV Onondaga, MI Gray
Midamerica TV
Licensee
Corp.
WJAR(TV) Providence, Outlet
RI Broadcasting,
Inc.
WJFW-TV Rhinelander, Northland
WI Television,
Inc.
WKYC-TV Cleveland, OH WKYC-TV, Inc.
WLWT(TV) Cincinnati, Ohio/Oklahoma
OH Hearst-Argyle
TV, Inc.
WMAQ-TV Chicago, IL NBC
Subsidiary
(WMAQ-TV),
Inc.
WMC-TV Memphis, TN Raycom
America, Inc.
WMFE-TV Orlando, FL Community
Communica-
tions, Inc.
WMGT(TV) Stillwater, Morris
MN Multimedia,
Inc.
WMTV(TV) Madison, WI Gray
Midamerica TV
Licensee
Corp.
WNBC(TV) New York, NY National
Broadcasting
Company, Inc.
WNDU-TV South Bend, Michiana
IN Telecasting
Corp.
WNYT(TV) Albany, NY WNYT-TV, LLC
WOAI-TV San Antonio, CCB Texas
TX Licenses,
L.P.
WOOD-TV Grand Rapids, WOOD License
MI Company, LLC
WOWT-TV Omaha, NE Gray
Midamerica TV
Licensee
Corp.
WPMI(TV) Mobile, AL Clear Channel
Broadcasting
Licenses,
Inc.
WPXI(TV) Pittsburgh, WPXI-TV
PA Holdings,
Inc.
WRC-TV Washington, NBC
DC Subsidiary
(WRC-TV),
Inc.
WRCB-TV Chattanooga, Sarkes
TN Tarzian, Inc.
WRIC-TV Petersburg, Young
VA Broadcasting
of Richmond,
Inc.
WSAV-TV Savannah, GA Media General
Communica-
tions, Inc.
WSAZ-TV Huntington, Emmis
WV Television
License Corp.
WSFA(TV) Montgomery, Libco, Inc.
AL
WSMV-TV Nashville, TN Meredith
Corp.
WTHR(TV) Indianapolis, Videoindiana,
IN Inc.
WTMJ-TV Milwaukee, WI Journal
Broadcast
Corp.
WTVY(TV) Dothan, AL Gray
Midamerica TV
Licensee
Corp.
WVLA(TV) Baton Rouge, Knight
LA Broadcasting
of Baton
Rouge Lic.
Corp.
WVTM-TV Birmingham, Birmingham
AL Broadcasting
(WVTM TV),
Inc.
WWBT(TV) Richmond, VA Jefferson-
Pilot
Communica-
tions Company
of Virginia
WWLP(TV) Springfield, WWLP
MA Broadcasting,
LLC
WXIA-TV Atlanta, GA Gannett
Georgia, L.P.
WYFF(TV) Greenville, WYFF Hearst-
SC Argyle
Television,
Inc.

STATEMENT OF
CHAIRMAN MICHAEL K. POWELL

Re: Complaints Against Various Broadcast Licensees
Regarding Their Airing of the
``Golden Globe Awards'' Program

Today, we overturn the Enforcement Bureau's October
2003 decision and find that the use of the ``F-word'' during
last year's broadcast of the Golden Globes violates the
federal statute. This sends a signal to the industry that
the gratuitous use of such vulgar language on broadcast
television will not be tolerated.

For the first time, the Commission has applied the
profanity section of the statute for the broadcast of this
highly offensive word, an application I fully support. The
Commission has an important obligation to punish those who
violate our law. In administering our authority, the
Commission must afford parties fair warning and due process
and not let our zeal trample these fundamental protections.
Given that today's decision clearly departs from past
precedent in important ways, I could not support a fine
retroactively against the parties. Prospectively, parties
are on notice that they could now face significant penalties
for similar violations.

Going forward, as instructed by the Supreme Court, we
must use our enforcement tools cautiously. As I have said
since becoming a Commissioner, government action in this
area can have a potential chilling effect on free speech.
We guard against this by ruling when a clear line has been
crossed and the government has no choice but to act.

We will continue to respect the delicate balance of
protecting the interests of the First Amendment with the
need to protect our children.

STATEMENT OF
COMMISSIONER KATHLEEN Q. ABERNATHY

Re: Complaints Against Various Broadcast Licensees
Regarding Their Airing of the ``Golden Globe Awards''
Program, File No. EB-03-IH-0110

Today, we take a strong stand against indecency on our
public airwaves and a significant step in protecting our
children. Indeed, use of the ``f-word'' on a nationally
telecast awards ceremony is shocking, gratuitous, and
offensive. I am pleased that the Commission has signaled
that such language will no longer be tolerated.

I do recognize, however, that today's decision is a
departure from prior Commission's precedent and policy.
That is why I could not support a fine in this case. Prior
Commissions not only failed to take action against an
isolated use of the f-word, but in fact sanctioned such
behavior. The Commission stated in the past that ``[i]f a
complaint focuses solely on the use of expletives, we
believe that . . . deliberate and repetitive use in a
patently offensive manner is a requisite to a finding of
indecency.''47 A series of prior Commission and staff
decisions, moreover, have indicated that isolated or
fleeting broadcasts of the f-word, such as the case here,
are not indecent.48

Nor do I believe it is reasonable to suggest that
broadcasters should have been on notice that we would find
this incident to be profane. Although I support applying
the definition of ``profane'' as discussed in Tallman49 to
this particular incident, this too is a new finding by the
Commission. The courts never applied the standard in
Tallman to an isolated broadcast of the f-word and the FCC
has never used this definition in any analysis of
``profane'' content, let alone the use of expletives.
Rather, ``profane language'' has historically been
interpreted in a legal sense to mean blasphemy.50 Moreover,
the Mass Media Bureau in a document entitled ``The Public
and Broadcasting'' stated that ``[p]rofanity that does not
fall under one of the above two categories [indecency or
obscenity] is fully protected by the First Amendment and
cannot be regulated.''51

It is a fundamental principle of due process that a
licensee must be on notice that its actions would be in
violation of our rules before this Commission may impose
sanctions.52 Given that prior Commission statements and
staff action in fact permitted the broadcast at issue here,
retroactive application of our new policy to these
broadcasters would have been fundamentally unfair, not to
mention unlawful. I emphasize, however, that the law has
now changed and all licensees are on notice that even
isolated and fleeting broadcasts of the f-word may violate
our restrictions on indecency and profanity. STATEMENT OF
COMMISSIONER MICHAEL J. COPPS,
APPROVING IN PART, DISSENTING IN PART

Re: Complaints Against Various Broadcast Licensees
Regarding Their Airing of the ``Golden Globe Awards,''
Memorandum Opinion and Order

I support the decision to find the utterance of the f-
word on NBC's broadcast of the ``Golden Globe Awards'' to be
both indecent and profane. I found ludicrous the
Enforcement Bureau's decision that a word that might
otherwise be indecent is not indecent or profane merely
because it is used as an adjective or expletive. The f-
word clearly meets the definition of indecency whether used
as an adjective, expletive, ``intensifier'' (as NBC
curiously argues here), or any other part of speech.

I do not agree with all aspects of the majority's
analysis. While I am pleased that the majority recognizes
that profanity is not limited to blasphemy, I disagree that
we need to give notice before we apply the law of the land.
The better argument is that the statute itself gives due
notice. Along these same lines, I disagreed last year when
a majority at the Commission similarly found that notice was
required prior to sending an indecency case to a hearing for
license revocation, notwithstanding that the statute
expressly provides for such an action. In past cases, when
there have been truly outrageous violations or repeat
offenses, I have sought to have cases sent to hearings to
determine if the license should be revoked. This may not be
a case where a revocation of license is in order. But
neither is it a case that warrants no penalty at all. I
believe the Commission would be fully within its rights to
impose a fine for this particular instance of profanity and
indecency. We send entirely the wrong signal by failing to
do so. STATEMENT OF
COMMISSIONER KEVIN J. MARTIN
APPROVING IN PART, DISSENTING IN PART

Re: Complaints Against Various Broadcast Licensees
Regarding Their Airing Of The ``Golden Globe Awards''
Program, Memorandum Opinion And Order, March 3, 2004

I am pleased that the Commission finally is making
clear that the use of the ``F-word'' during this prime-time
broadcast was both indecent and profane, regardless of
whether used as an adjective, adverb, or gerund. I am
particularly pleased that, at long last, the Commission is
enforcing the statutory prohibition against the broadcast of
profanity. Better late than never.

I firmly support these conclusions, and approve these
aspects of this Order.

I disagree, however, with the Order's characterization
of our precedent on indecency, and the corresponding
conclusion that licensees were not on notice that the F-word
is indecent.

Even more troubling is the conclusion that we cannot
issue a fine for the use of profanity. The majority argues
that there is no notice. How ironic that the majority
relies on the Commission's own failure to enforce its
statutory mandate as the basis for NBC not knowing that the
F-word is prohibited profanity.53 Taking a step back, I
can't help but think NBC was ``on notice'' that the F-word
was profane. In fact, NBC hasn't even claimed that they
were not on notice that the F-word was profane. Yet the
majority concludes otherwise, and issues no fine. I cannot
support this analysis, and therefore dissent in part. STATEMENT OF
COMMISSIONER JONATHAN S. ADELSTEIN

Re: Complaints Against Various Broadcast
Licensees Regarding Their Airing of the ``Golden
Globe Awards'' Program; Memorandum Opinion and
Order

The Commission today takes a major step in safeguarding
the well-being of our nation's children. By reversing the
Bureau order, we deliver a loud and clear decree that
gratuitous broadcasts of the F-word will not be tolerated on
our airwaves. Many studies show that the use of the F-word
and other vulgarities is becoming more prevalent in our
society, and in our media. Broadcasters have a
responsibility to serve the public interest, and fail to
meet it if they contribute to this trend.

By today's action, the Commission steps up to its
responsibility to enforce statutory and regulatory
provisions restricting broadcast indecency and profanity.
Recognizing that the First Amendment requires a delicate
balance, the Supreme Court has held that the Commission can
constitutionally regulate indecent broadcasts in the
interests of protecting children from vulgarities broadcast
over public airwaves to the public at large. The same
statute also proscribes broadcast profanity, and I am
pleased that we apply a profanity definition endorsed by the
courts to give meaning to our statutory directive.54 While
we have historically interpreted ``profane'' to mean
blasphemy, I support our application of the statute to the
F-word, a highly offensive and commonly understood
``profanity.''

I agree with the courts that what is indecent is
largely a function of context, and cannot adequately be
judged in an abstract, or per-se, manner. In large part,
the character of an act is informed by the circumstances in
which it is done. Yet, even for live award shows, where
technology allows for the removal of isolated words, the
gratuitous broadcast of the F-word is not justified. The
tens of thousands of emails, calls and letters that poured
in to the Commission opposing this broadcast are telling of
the sexual connotation and offensiveness of that word. And
its offensiveness does not depend on whether it is used as
an adjective, adverb, verb or gerund.

Today's action does not fail to appreciate the cultural
creativity and pluralism of our society. There was no
suggestion that the use of the F-word in this case was
traced to any literary, artistic, political or scientific
value. Its use here was both gratuitous and easily
avoidable.

There should be no doubt, my strong preference here
would have been to assess a fine against the licensees in
this case. Despite this preference, as a legal matter,
today's action can be said to represent a departure from a
previous line of cases issued before I joined the
Commission. Those cases routinely failed to take action
against isolated uses of the F-word, an approach that was
endorsed in our April 2001 Policy Statement.55 Our action
today also represents a fresh, new approach to enforcing our
statutory responsibility with respect to profane
broadcasts.56 Regardless of my personal view, in such
instances, licensees should have fair notice that the use of
this language in a setting such as this would be found
actionably indecent and profane. Given the delicate
authority the courts have permitted us under the First
Amendment to enforce the indecency laws, the Commission must
exercise care in affording licensees firm yet fair
treatment. Nonetheless, it should be abundantly clear from
today's action that we are setting a clear line to broadcast
indecency and profanity to which all licensees should adhere
and which from now on will result in forfeitures and other
enforcement sanctions.

Broadcasters, themselves, bear much of the
responsibility to keep our airwaves decent. As stewards of
the public airwaves, they are in the position to showcase
the best of our country's tremendous cultural heritage.
Their choices will ultimately guide our future enforcement,
as their transgressions will result in increasingly severe
and swift action.
_________________________

1 47 C.F.R. § 1.115.

2 Complaints Against Various Broadcast Licensees Regarding
Their Airing of the ``Golden Globe Awards,'' 18 FCC Rcd
19859 (EB rel. Oct. 3, 2003).

3 See 18 U.S.C. § 1464 (2002); 47 C.F.R. § 73.3999 (2002).

4 The hundreds of complaints varied in their
characterization of Bono's comments as either ``this is
really, really fucking brilliant,'' or ``this is fucking
great,'' and the Bureau's analysis applied equally to both
versions. On November 17, 2003, the National Broadcasting
Company, Inc. (``NBC'') filed an Opposition to Application
for Review. In that filing, NBC stated that Bono said the
following: ``This is really, really, fucking brilliant.
Really, really great.'' NBC Opposition at 3. We note that
NBC filed its Opposition on behalf of its owned and operated
affiliates that were the subject of the complaints. All
references to ``NBC'' here are to those owned and operated
affiliates, as Commission licensees.

5 Bureau Order at 3.

6 Application for Review at 3, 5. National Religious
Broadcasters and Morality in Media filed Comments in Support
of the Application for Review on December 2, 2003, and
December 3, 2003, respectively. We are treating these
filings as amicus curiae brief comments. There has also
been a lot of public criticism of the Bureau's decision, and
thousands of individuals contacted the Commission in this
regard.

7 U.S. CONST., amend. I; 47 U.S.C. § 326 (2002).

8 18 U.S.C. § 1464.

9 Public Telecommunications Act of 1992, Pub. L. No. 102-
356, 106 Stat. 949 (1992), as modified by Action for
Children's Television v. FCC, 58 F.3d 654 (D.C. Cir. 1995)
(en banc), cert. denied, 516 U.S. 1043 (1996) (``ACT III'').

10 See 47 C.F.R. § 73.3999. Only some of the stations at
issue here broadcast the offending language contained in the
program before 10:00 p.m.

11 See 47 U.S.C. § 503(b)(1). See also 47 U.S.C. §
312(a)(6) (authorizing license revocation for indecency
violations).

12 U.S. CONST., amend. I; See Action for Children's
Television v. FCC, 852 F.2d 1332, 1344 (D.C. Cir. 1988)
(``ACT I'').

13 FCC v. Pacifica Foundation, 438 U.S. 726 (1978). See
also ACT I, 852 F.2d at 1339; Action for Children's
Television v. FCC, 932 F.2d 1504, 1508 (D.C. Cir. 1991),
cert. denied, 503 U.S. 914 (1992) (``ACT II''); ACT III.

14 ACT I, 852 F.2d at 1344 (``Broadcast material that is
indecent but not obscene is protected by the First
Amendment; the FCC may regulate such material only with due
respect for the high value our Constitution places on
freedom and choice in what people may say and hear.''); id.
at 1340 n.14 (``the potentially chilling effect of the FCC's
generic definition of indecency will be tempered by the
Commission's restrained enforcement policy.'').

15 Infinity Broadcasting Corporation of Pennsylvania, 2 FCC
Rcd 2705 (1987) (subsequent history omitted) (citing
Pacifica Foundation, 56 FCC 2d 94, 98 (1975), aff'd sub nom.
FCC v. Pacifica Foundation, 438 U.S. 726 (1978)).

16 Industry Guidance on the Commission's Case Law
Interpreting 18 U.S.C. §1464 and Enforcement Policies
Regarding Broadcast Indecency (``Indecency Policy
Statement''), 16 FCC Rcd 7999, 8002 (2001) (emphasis in
original).

17 Id. (emphasis in original). In Pacifica, the Court
``emphasize[d] the narrowness of [its] holding and noted
that under the Commission rationale that it upheld,
``context is all-important.'' 438 U.S. at 750.

18 Indecency Policy Statement, 16 FCC Rcd at 8003 (emphasis
in original).

19 Id.

20 Id. at 8009 (citing Tempe Radio, Inc (KUPD-FM), 12 FCC
Rcd 21828 (MMB 1997) (forfeiture paid) (extremely graphic or
explicit nature of references to sex with children
outweighed the fleeting nature of the references); EZ New
Orleans, Inc. (WEZB(FM)), 12 FCC Rcd 4147 (MMB 1997)
(forfeiture paid) (same).

21 Indecency Policy Statement 16 FCC Rcd at 8010, ś 20
(``the manner and purpose of a presentation may well
preclude an indecency determination even though other
factors, such as explicitness, might weigh in favor of an
indecency finding'').

22 PTC does not allege in the Application for Review that
the language was obscene. In any case, we agree with the
Bureau's conclusion that the language was not obscene since
it did not meet the three-prong test set forth in Miller v.
California. Miller v. California, 413 U.S. 15, 24 (1973)
(holding that, to be obscene, the material must meet the
following three-prong test: (1) the average person,
applying contemporary community standards, must find that
the material, as a whole, appeals to the prurient interest;
(2) the material must depict or describe, in a patently
offensive way, sexual conduct specifically defined by
applicable law; and (3) the material, taken as a whole, must
lack serious literary, artistic, political or scientific
value).

23 NBC Opposition at 5-6, citing American Heritage
Dictionary (2d College Ed.) at 537 (1991) (definition of
``fucking'' as including ``really'' or ``very'').

24 Citizen's Complaint Against Pacifica Foundation Station
WBAI(FM), New York, New York, 56 FCC 2d 94, 99 (1975),
recon. granted in part, 59 FCC 2d 892 (1976), aff'd sub nom.
FCC v. Pacifica Foundation, 438 U.S. 726 (1978).

25 Compare Peter Branton, 6 FCC Rcd 610 (1991) (subsequent
history omitted) (under specific circumstances at issue,
``repetitious'' use of the ``F-Word'' in a recording of a
wiretap of an organized crime figure broadcast on a newscast
not indecent because, inter alia, use of the word was not
gratuitous but rather ``was an integral part of a bona fide
news story''). This is not to suggest that the fact that a
broadcast had a social or political value would necessarily
render use of the ``F-Word'' permissible. See Action for
Children's Television, 852 F.2d at 1340. (``Some material
that has significant social value may contain language and
descriptions as offensive, from the perspective of parental
control over children's exposure, as material lacking such
value''). See also id. at n.13 (``The Carlin monologue
itself may be an example of indecent material possessing
significant social value . . . . Other examples that come
readily to mind include certain passages in the works of
Joyce, words and phrases found in the writings of D.H.
Lawrence, James Baldwin . . . .''). With respect to
political speech, we note the no-censorship provision of 47
U.S.C. § 315(a) regarding ``uses'' of broadcast stations by
candidates for public office.

26 See, e.g., ``Watch Your Mouth!: An Analysis of
Profanity Uttered by Children on Prime Time Television,''
Barbara K. Kaye, Ph.D., University of Tennessee - Knoxville,
and Barry S. Sapolsky, Ph.D., Florida State University
(2003) (noting frequency of use of offensive language on
prime time programming rated acceptable for viewing by
children and teenagers, and the use of profane language by
children and young adults).

27 That the statute applies to whoever ``utters'' any
obscene, indecent, or profane language, without reference to
repeated or sustained utterances, seems to imply that a
single, isolated use is sufficient.

28 See note 32, infra. See also
www.eonline.com/News/Items/0,1,10954,00.html (reporting on
Cher's comments). The fact that, in advance of the program,
NBC simply ``warned all participants that proper decorum was
expected,'' NBC Opposition at 2, is insufficient to absolve
itself of liability.

29 See http://zooeuropa.com/quotes/bono.html.

30 We do not envision that today's action will lead to
licensees abandoning program material solely over
uncertainty surrounding whether the isolated use of a
particular word is indecent.

31 In this 1987 Pacifica decision, along with two other
cases decided the same day, the Commission broadened its
approach to indecency beyond the so-called ``Seven Dirty
Words'' approach but maintained its policy that isolated use
of expletives was not indecent. See also Infinity
Broadcasting Corporation of Pennsylvania, Inc., 2 FCC Rcd
2705 (1987) (subsequent history omitted); The Regents of the
University of California, 2 FCC Rcd 2703 (1987) (subsequent
history omitted) (``Speech that is indecent must involve
more than the isolated use of an offensive word.'').

32 See Lincoln Deller, Renewal of License for Stations
KPRL(AM) and KDDB(FM), 8 FCC Rcd 2582, 2585 (MMB 1993) (news
announcer's statement ``Ooops, fucked that one up'' found
not to be indecent); L.M. Communications of South Carolina,
Inc., 7 FCC Rcd 1595 (MMB 1992) (``The hell I did, I drove
mother-fucker. oh. Oh.'' found not to be indecent. These
two cases were cited in the Indecency Policy Statement as
``cases where material was found not indecent because it was
fleeting and isolated.'' 16 FCC Rcd at 8008. Unpublished
staff decisions have also held that the fleeting or isolated
use of the ``F-Word''or a variation thereof is not indecent
in situations such as that presented here. Recent examples
include the following: E-mail from Charles W. Kelley, EB-
02-IH-0861-MT (Dec. 18, 2002) (broadcast of Cher saying
``fuck `em'' in receiving award on Billboard awards show not
indecent); Letter from Charles W. Kelley, EB-01-IH-0639/DJB
(Nov. 14, 2001) (broadcast of baseball player's use of
``motherfucker'' during a playoff game not indecent); Letter
from Charles W. Kelley, EB-01-IH-0046/RBP (May 4, 2001)
(broadcast of a football player's use of ``motherfucker''
during the introduction ceremonies of the Super Bowl not
indecent).

33 See Pacifica, 2 FCC Rcd at 2699.

34 Black's Law Dictionary 1210 (6th ed. 1990) (citing 18
U.S.C. § 1464). See also American Heritage College
Dictionary 1112 (4th ed. 2002) (definition of profane
includes ``[v]ulgar, coarse.'')

35 Tallman v. United States, 465 F.2d 282, 286 (7th Cir.
1972). In United States v Simpson, 561 F.2d 53 (7th Cir.
1977), the court called into question the nuisance rationale
for the regulation of offensive speech set forth in Tallman,
suggesting that it might not survive cases such as Cohen v
California, 403 U.S. 15 (1971). Id. at 58 & n.7. But the
Supreme Court's Pacifica decision subsequently upheld an
indecency finding that "rested entirely on a nuisance
rationale." 438 U.S. at 750. See also 12 Am. Jur. 2d
Blasphemy and Profanity 9 (citing Tallman standard in
connection with section 1464).

36 Nuisance has been defined as including ``a condition of
things which is prejudicial to the . . . sense of decency or
morals of the citizens at large . . . .'' Ballentine's Law
Dictionary (3d ed. 1969).

37 See, e.g., Raycom, Inc, 18 FCC Rcd 4186 (2003)
(referring to God as a ``sonofabitch'' not profane under
section 1464) (citing Gagliardo v. United States, 366 F.2d
720, 725 (9th Cir. 1966) (``God damn it'' not profane under
section 1464) and Warren B. Appleton, 28 FCC 2d 36 (B'cast
Bur. 1971) (``damn'' not profane under section 1464) (also
citing Gagliardo). See also Duncan v. United States, 48
F.2d 128, 134 (9th Cir. 1931) (conviction under section 1464
for using profane language upheld where ``the defendant . .
. referred to an individual as `damned,' . . . used the
expression `By God' irreverently, and . . . announced his
intention to call down the curse of God upon certain
individuals'').

38 In this regard, the Supreme Court noted in Pacifica that
``[t]he words `obscene, indecent, or profane' are written in
the disjunctive, implying that each has a separate
meaning.'' 438 U.S. at 739-40.

39 See Pacifica, 438 U.S. at 749-750.

40 See Trinity Broadcasting of Florida, Inc. v. FCC, 211
F.3d 618 (D.C. Cir. 2000) (court reversed 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). In addition, given that existing precedent would
have permitted this broadcast, we will not require any of
the stations that broadcast the program to report our
finding here to us as part of its renewal application and we
will not consider the broadcast of this program adversely to
such licensees as part of the renewal process.

41 438 U.S. at 750. See also id. at 760-61 (Powell, J.
concurring) (``the Commission's holding, and certainly the
Court's holding today, does not speak to cases involving the
isolated use of a potentially offensive word in the course
of a radio broadcast'').

42 Id. at 749-50.

43 To the extent discussed above, we depart from the
following seven published decisions: Raycom, Inc., 18 FCC
Rcd 4186 (2003); Infinity Broadcasting Corp. of
Pennsylvania, Inc., 2 FCC Rcd 2703 (1987) (subsequent
history omitted); The Regents of the University of
California, 2 FCC Rcd 2703 (1987) (subsequent history
omitted); Pacifica Foundation, Inc., 2 FCC Rcd 2698 (1987)
(subsequent history); Lincoln Dellar, Renewal of License for
Stations KPRL(AM) and KDDB(FM), 8 FCC Rcd 2582 (MMB 1993);
L.M. Communications of South Carolina, Inc., 7 FCC Rcd 1595
(MMB 1992); Warren B. Appelton, 28 FCC 2d 36 (B'cast Bur.
1971).

44 See Infinity Broadcasting Operations, Inc.(WKRK-FM),
Forfeiture Order, 18 FCC Rcd 6915, 6919, ś 13 (2003); see
also AMFM Radio Licenses LLC (WWDC-FM), Notice of Apparent
Liability for Forfeiture, 18 FCC Rcd 19917, ś16 (2003)
(forfeiture paid).

45 47 C.F.R. § 1.115.

46 It appears that many of the stations are not proper
subjects of the complaint because they aired the program on
a delayed basis after NBC had deleted the offending
material. Nevertheless, in light of our decision not to
initiate an enforcement proceeding and not to use our
decision adversely against stations during the renewal
process, we will not initiate an investigation here solely
to determine which complaints could have been dismissed on
this basis. See NBC Opposition at 8 n. 24.

47 Pacifica Foundation, Inc., 2 FCC Rcd 2698, 2699 (1987)
(subsequent history omitted); see also Infinity Broadcasting
Corporation of Pennsylvania, 2 FCC Rcd 2705 (1987) (``Speech
that is indecent must involve more than the isolated use of
an offensive word.'').

48 See, e.g. Industry Guidance on the Commission's Case Law
Interpreting 18 U.S.C. § 1464 and Enforcement Policies
Regarding Broadcast Indecency, 16 FCC Rcd 7999 (2001) and
cases cited in note 32 of this decision.

49 Tallman v. United States, 465 F.2d 282, 286 (7th Cir.
1972).

50 See, e.g., Duncan v. U.S., 48 F.2d 128, 133-134 (9th
Cir. 1931) (``[T]he defendant having referred to an
individual as `damned,' having used the expression `By God'
irreverently, and having announced his intention to call
down the curse of God upon certain individuals, was properly
convicted of using profane language within the meaning of
that term as used in the act of Congress prohibiting the use
of profane language in radio broadcasting.''), cert. denied,
383 U.S. 863 (1931).

51 I recognize that the document itself states that ``[t]his
manual provides only a general review of our broadcast rules
and policies. It is not intended to be a comprehensive or
controlling statement of these rules and policies.'' Yet,
if the Mass Media Bureau was clearly unaware that the
Commission would find any language to be profane, I fail to
see how licensees are supposed to be on notice that we would
find the isolated use of an expletive to be profane.

52 See Trinity Broadcasting of Florida, Inc. v. FCC, 211
F.3d 618 (D.C. Cir. 2000).

53 I note that the Order explains that current case law,
including a recent decision interpreting the very statutory
provision at issue, defines profanity according to its
common interpretation. Order at ś13. Treatises document
the rejection of old case law that had found profanity to
mean blasphemy. 12 Am. Jur. 2d Blasphemy and Profanity 9.
But even the very old case law equating profanity with
blasphemy did not limit profanity to blasphemy. Moreover,
the Commission's own precedent has never implied that
profanity was limited to blasphemy. Indeed, the only case
on point found blasphemous language did not constitute
profanity. Raycom America, Inc., Licensee of Station WMC-
TV, Memphis, TN, Memorandum Opinion and Order, 18 FCC Rcd.
4186, 4187 (2003).

54 See Tallman v. United States, 465 F.2d 282, 286 (7th
Cir. 1972).

55 See, e.g., Pacifica Foundation, Inc., 2 FCC Rcd 2698,
2699 (1987); Infinity Broadcasting Corporation of
Pennsylvania, Inc., 2 FCC Rcd 2705 (1987); Industry Guidance
on the Commission's Case Law Interpreting 18 U.S.C. § 1464
and Enforcement Policies Regarding Broadcast Indecency, 16
FCC Rcd 7999 (2001) (2001 Policy Statement) and cases cited
in note 32 of this decision. Included in these examples is
a broadcast of Cher saying the F-word on the 2002 Billboard
Awards Ceremony which was found not indecent.

56 See 2001 Policy Statement (stating that ``[p]rofanity
that does not fall under one of the above two categories
[obscenity or indecency] is fully protected by the First
Amendment and cannot be regulated.'').