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 STATEMENT  OF  CHAIRMAN  MICHAEL  K.  POWELL 
 Re:  Complaints  Against  Various  Television  Licensees  Concerning  Their  February  1,  2004,  Broadcast  of  the  Super  Bowl  XXXVIII  Halftime  Show 
 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  risqué  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-  baring  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 
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 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. 
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