Court Overrules FCC on Super Bowl 'Indecency'

CBS Hails Victory for 'Entire Broadcasting Industry'

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WASHINGTON (AdAge.com) -- Janet Jackson's wardrobe malfunction during the 2004 Super Bowl halftime show may have been exciting, but it didn't violate TV indecency standards, a federal appeals court ruled today in a blow to the Federal Communications Commission's hope to step up indecency standards.
In the infamous halftime performance, one of Janet Jackson's breasts was exposed by Justin Timberlake.
In the infamous halftime performance, one of Janet Jackson's breasts was exposed by Justin Timberlake. Credit: AP

A unanimous 3rd Circuit Court of Appeals in Philadelphia overturned the FCC's fining of 20 CBS stations in a broad 102-page ruling in which the court said the FCC acted retroactively to distinguish between video and sound indecency and questioned the finding that CBS was liable. It said the fine disregarded the FCC's long history of overlooking "fleeting" incidents.

'Strained' reasoning
The court called the FCC's reasoning "strained."

"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," said the court's ruling.

"The commission's entire regulatory scheme treated broadcasted images and words interchangeably for purposes of determining indecency. ... Three decades of FCC action support this conclusion. Accordingly we find the FCC's conclusion on this issue ... counter to the evidence before the agency."

The court's reaction to CBS being held accountable for the incident was even stronger. Two of the three judges said the FCC failed to adequately consider whether Ms. Jackson and fellow performer Justin Timberlake were CBS employees and suggested they were "independent contractors."

Was mishap willful?
"The First Amendment precludes the FCC from sanctioning CBS for the indecent expressive conduct of its independent contractors without offering proof of scienter as an element of liability," the court said. "And it is unclear whether the FCC correctly applied a 'willfulness' standard to find CBS liable for failing to prevent the halftime show's indecency."

CBS said it was "gratified by the Court's decision" and hoped it "will lead the FCC to return to the policy of restrained indecency enforcement it followed for decades."

"This is an important win for the entire broadcasting industry because it recognizes that there are rare instances, particularly during live programming, when it may not be possible to block unfortunate fleeting material, despite best efforts."

The court's ruling came in reaction to the steps the FCC took after Ms. Jackson's right breast was displayed to 140 million viewers during the highest-rated program of 2004. The FCC ruled the incident was of an "overall sexually provocative nature" and an indecency violation. The FCC had fined CBS a total of $550,000 -- $27,500 for each station owned and operated by the network.

CBS had argued that the fine -- the maximum per station at the time -- was unjustified because the "malfunction" was nowhere in the script and the network had taken all reasonable precautions to see what was supposed to air. It also said that the decision reversed longstanding FCC standards for treating the airing of "fleeting, isolated or unintended" content.

FCC's second setback
Today's decision is the second against the FCC, which under former Chairman Michael J. Powell began to ramp up enforcement against fleeting profane imagery and language on TV. Current Chairman Kevin J. Martin has continued the push.

A New York appellate court panel on a 2-to-1 decision in 2007 overruled the FCC's determination that Fox TV stations violated FCC indecency standards when they aired Nicole Richie and Cher's fleeting vulgar expletives during broadcasts of the 2002 and 2003 Billboard Music Awards. The government's appeal of that decision is to be heard by the Supreme Court next fall. The FCC, which didn't fine Fox stations, wanted to use the case to signal its tightening of indecency standards.

The FCC subsequently has taken several indecency actions that included fines. One was to fine 45 ABC stations a total of $1,237,500 for airing a 2003 episode of "NYPD Blue" showing a woman's naked buttocks. ABC is appealing that fine in the 2nd Circuit Appellate court. The FCC also levied a fine of $91,000 against 13 Fox stations for airing a 2003 episode of "Married by America" featuring strippers attending a bachelor and bachelorette party. Fox refused to pay the fine, and the FCC has sued to collect.

The Janet Jackson incident was part of a halftime show put on by MTV. At the conclusion of a song, Mr. Timberlake and Ms. Jackson planned a surprise: Mr. Timberlake would pull a strap on Ms. Jackson's costume corset and reveal a red bustier. Instead Ms. Jackson's right breast was shown. The incident infuriated Congress, which after several hearings with CBS and NFL officials, raised the maximum fine the FCC could impose on broadcasters to $275,000 per station.
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