It's Time FCC Weans Itself From Super Bowl Incident

An Ad Age Editorial

Published on .

If we never again hear about the wrangling between the Federal Communications Commission and CBS, it will be too soon.

Consider this: The war in Iraq wasn't even a year old when the first shot was fired in the Battle of the Boob. During the 2004 Super Bowl, Janet Jackson and Justin Timberlake were engaged in an otherwise forgettable halftime show when a "wardrobe malfunction" caused Ms. Jackson's breast to be exposed to millions of unsuspecting viewers for one-tenth of a second.

This, the FCC decided, could not stand. A line had been crossed.

The FCC ruled the incident was of a "sexually provocative nature" and fined CBS a total of $550,000 -- $27,500 for each station owned and operated by the network. CBS argued that the fine -- the maximum per station at the time -- was unjustified because the malfunction wasn't in the script. It also said the decision reversed longstanding FCC standards for treating the airing of "fleeting, isolated or unintended" content.

Last week, a unanimous Third Circuit Court of Appeals in Philadelphia agreed with CBS and overturned the FCC fines.

And there is a place for such rules. Most Americans don't want R-rated material on the tube and expect the government to impose some standards on public airwaves.

But "some" standards are never enough for government types, it seems. That is one of the reasons Ad Age usually argues against government regulation in this space. Even if we were to ignore attempts by some in Congress to extend these standards to cable content, it became impossible to ignore this Super Bowl farce conducted by the FCC.

It's not just a matter of government overreach, however. This is the sort of capricious and silly maneuvering that actually leads to more disrespect for the laws in place. After all, if the FCC is going to be this arbitrarily heavy-handed, why pay attention to any of the rules at all?

Of course, we're working under the naïve assumption that this court decision is the final word. As we write this, some of the brightest minds in government are figuring out a way to keep the Janet Jackson issue alive.

But before the FCC and politicians waste any more time, they should keep in mind that many of those poor unsuspecting children traumatized for life by the scene are now adults.
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