Commissioners unanimous but not eye-to-eye
The Commissioners voted 5-0 to nail Viacom for the Super Bow incident, but in so doing did not see things as one. Four of them, all but Kathleen Abernathy, appended personal comments to the NAL. A big area of disagreement was the decision to fine the 20 Viacom O&Os while letting some 200 additional affiliates off the hook.
Chairman Michael Powell said that the affiliates are responsible for what goes out over their airwaves, but could be exonerated in this instance since nobody anticipated the indecent turn the Super Bowl half time show took. Not so for Viacom, which "was not so passively involved." Powell said, "Unquestionably, Viacom consciously took the risk, and, thus, now bears responsibility.
Both Michael Copps and Jonathan Adelstein thought all stations airing the material should have been indicted, and that the fine was worth ten seconds or less of commercial air time, hence not much of a fine, even if it is the biggest in television history. Copps and Kevin Martin noted that complaints sent to the FCC cited much more than just the wardrobe malfunction as examples of indecency, and that the ruling should not have been narrowly confined to that one incident.
But why have us talk about it. Here are the statements of those commissioners issuing them.
Michael Powell
"No television event has ever received as many complaints from the American public - - over 540,000 - - as the Super Bowl XXXVIII halftime show produced by CBS. As countless families gathered around the television to watch one of our Nation's most celebrated events, they were rudely greeted with a halftime show stunt more fitting of a burlesque show. The show, clearly intended to push the limits of prime time television, ultimately violated federal law that restricts indecent programming to times when children are less likely to be watching. The U.S. Constitution is generous in its protection of free expression, but it is not a license to thrill. 'Anything goes,' is not an acceptable mantra for those that elect to earn their profit using the public's airwaves.
Indecency determinations, however, must be made cautiously and with appropriate restraint. There is always a substantial danger that a regulatory authority buoyed by an outraged public will overstep and fail to heel to the commands of the First Amendment. Our decision stays in bounds, but I am troubled at the suggestion of some on the Commission that we should reach further and drop the hammer for the musical performances themselves - - divorced from the infamous wardrobe malfunction - - or for the commercials. I agree that some of the performances were risque and that commercials were frequently crass and sophomoric, but they were hardly indecent within the bounds of federal law. To let loose governmental sanction on such a thin premise is to stray from our limited role in enforcing the indecency laws, into the role of national nanny - - arbiter of taste, values and propriety.
One critical way in which we exercise restraint is by analyzing the alleged indecent material in the context in which it is presented to the viewer or listener. Broadcasters plead frequently that there should be clear prescriptions to guide their choices. While the desire for such comfort is understandable, it is not possible to write a 'red book' of dos and don'ts, nor is it wise. There are simply too many subtleties and too many contexts in which a given form of speech might occur to generalize a set of rules. The individual facts and the context are critical to separating protected speech from unlawful speech.
Nonetheless, the Commission should explain the central elements of its decision in order to permit broadcasters to make reasonable assessments in their programming choices, based on analogous precedents. Nudity, while not necessarily indecent in itself, certainly should raise a red flag for a broadcaster contemplating its airing during the hours in which the law restricts indecency because children are likely in the audience. If a programmer opts to air nude content, he places great weight in the hope that its purpose and context will keep the program from running afoul of the law. In this case, the context of the half time show leads us to conclude that the breast-bearing finale was intended (in the vernacular of the indecency law) 'to pander, titillate and shock' those watching. The song's lyrics leave little doubt where the show was going: 'Hurry up cause you're taking too long. . . better have you naked by the end of this song.' Well, he certainly did and judging by the complaints it had its intended shocking effect - - and drew a penalty flag in the process.
Finally, although individual licensees are indeed responsible for what is broadcast over the airwaves to their individual communities, fundamental fairness dictates that in this instance we not sanction those affiliates not owned by Viacom. The Super Bowl is widely regarded as a family event with as many as one in five children watching this year's edition. Past half time productions have generally reflected the family-friendly character of the event. While affiliates certainly are not exempt from their responsibility to guard against the airing of indecent material, I do not believe it is warranted under the circumstances before us, where one would not have reasonably anticipated the dramatic departure.
In contrast, Viacom was not so passively involved. Viacom is the parent company of not only the CBS network, which aired the program, but also of MTV, which developed, rehearsed and produced the program. The Viacom organization knew, or surely should have known, what was to come. The fact that Viacom promoted the half time show before it aired as one that would be shocking, gives credence to their culpability. Unquestionably, Viacom consciously took the risk and, thus, now bears the responsibility.
Enforcing the indecency laws is no easy task, but it is one that falls to the FCC. We must respond to public complaints and give meaning to the indecency prohibitions on the public airwaves. Just as importantly, however, we must exercise great care not to overstep our own Constitutional limits and smother the free expression that is the central tenet of our democracy."
Michael Copps
"Few incidents have focused such widespread attention on the issue of indecency on the airwaves or garnered more complaints than last year's Super Bowl. Millions of Americans watched what should have been an all-American evening for the entire family. Instead, we got something far different - an outrageous stunt and over 540,000 complaints from people all across the country.
I agree that the Super Bowl halftime show violated the indecency statute and am pleased that we are taking this step to address a deplorable incident. I remain troubled, however, by certain aspects of the decision and therefore do not approve it in its entirety.
First, I am concerned by the precedent we establish in failing to assess a penalty against non-Viacom-owned affiliates that aired the Super Bowl. I recognize that the affiliates likely did not expect that this national event would include such indecency. Yet, many stations air programming that they do not produce themselves. The Commission must be careful not to signal that we would excuse indecent broadcasts merely because a station did not control the production of the content. Some level of fine would have been appropriate for these stations. The primary focus of our indecency enforcement under the statute must remain those who are licensed to use the public airwaves and we look to their vigilance to protect our children from indecent broadcasts.
Second, the Commission received complaints about other aspects of the halftime show and some of the commercials. Yet, the Order dismisses these complaints in a footnote with hardly any analysis or explanation. The FCC relies on viewers and listeners to file complaints about indecent broadcasts and places a heavy burden on complaining citizens. The citizens that filed these complaints have a right to expect more of a Commission follow-through on their complaints.
Finally, although the Commission is imposing the largest fine in history for indecency on television, let's not kid ourselves that this fine will serve as a disincentive to multi-billion dollar conglomerates broadcasting indecency. This fine needs to be seen in the context of a broadcast in which each 30-second commercial cost more than $2 million. In other words, this fine represents less than 10 seconds of ad time on the Super Bowl and will be easily absorbed as a cost of doing business. We must continue to demonstrate to citizens that their complaints will receive prompt and vigorous attention and to the broadcast industry that Commission involvement in these issues is not a passing fancy."
Kevin Martin
"I write separately to express two concerns.
First, hundreds of thousands of viewers across the country filed complaints asking us to find various aspects of the Super Bowl halftime show indecent. Some even complained that the whole show was indecent. This Notice, however, analyzes only one segment of the show. We have a duty to the public to fully analyze all of the complaints that we receive.
Second, as I have said before, we need to affirm local broadcasters' ability - - and responsibility - - to reject inappropriate programming. This obligation is critical to local broadcasters' ability to keep coarser network programming off the air in their communities. The network affiliates asked us to clarify that this right over three years ago. We still have not acted, and thus I concur in the decision not to fine the affiliates in this instance."
Jonathan Adelstein
"Based on a careful review of the record, I find today's remedy totally inadequate. After all the bold talk, it's a slap on the wrist that can be paid with just 7 1/2 seconds of Super Bowl ad time. The $550,000 fine measures up to only about a dollar per complaint for the more than 542,000 complaints that flooded into the FCC after the broadcast.
The Commission is required by Congress to enforce federal restrictions against the broadcast of indecent material, and I agree with the indecency finding here. We were deluged with a record number of complaints about the Super Bowl halftime show, and took the unusual step of launching an investigation. But after a major announcement and months of investigation, today's enforcement action goes out of its way to focus narrowly on the exposure of Janet Jackson's breast on twenty CBS-owned stations.
Most troubling, this decision sets a puzzling precedent by failing to hold all licensees responsible for the material broadcast over their stations. Why announce such a thorough investigation if we just let some of the stations that broadcast this material completely off the hook? It is true that the CBS affiliates are as much the innocent victims as the families who were stunned to see such gratuitous nudity during a family viewing event. In this case CBS affiliates - - like the general public - - had no idea what was coming, but this is true for most live programming. This aspect of today's action shows the lack of a coherent long-term framework that should form the basis of all our indecency enforcement efforts.
Compliance with federal broadcast decency restrictions is the responsibility of the station that chooses to air the programming, not the performers. Less than a week before the Super Bowl, the Commission fined a television station for a similar case of gratuitous brief on-camera nudity. Since the Super Bowl outcry, Viacom has acted responsibly by apologizing, by instituting measures such as time delays to keep indecency off the airwaves, and by cooperating fully with our investigation. Viacom should be commended for these steps. Nevertheless, subsequent actions cannot excuse the fact that indecent material was broadcast to 100 million viewers, including one in five American children.
While the Commission must always proceed cautiously in broadcast decency cases, this type of graphic and gratuitous nudity is not a close call. The millions of our nation's children who were ambushed by the Super Bowl halftime show deserve better protection. A fine of 71/2 seconds of ad time is scarcely any deterrent. The shockwaves are still being felt by this shameful episode. I fear that today we're responding to a 'wardrobe malfunction' with a regulatory malfunction."
Are you reading this from a forwarded email?
