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FCC Super Bowl fine out of bounds, court says

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A federal appeals court today decided CBS Corp. will not have to pay a $550,000 fine for the 2004 Super…

A federal appeals court today decided CBS Corp. will not have to pay a $550,000 fine for the 2004 Super Bowl half-time show’s “wardrobe malfunction.”

In the half-time show, pop singer Justin Timberlake reached for Janet Jackson’s costume as he sang the lyrics, "Gonna have you naked by the end of this song." A moment later, Timberlake tugged on the fabric, and millions of Americans watched Janet Jackson’s breast flash across their television screens.

The Federal Communications Commission slapped CBS with a $550,000 fine, one of the highest ever over a broadcast.

The U.S Court of Appeals in Philadelphia (3rd Cir.) on Monday found that the FCC acted “arbitrarily and capriciously” in deviating from its 30-year-practice of only fining broadcasters when indecent programming was so “pervasive as to amount to ‘shock treatment’ for the audience.”

The FCC had claimed the fine was authorized under a two-part test published in a 2001 policy statement. Under the test, a broadcast is considered indecent if it depicts or describes sexual organs and is “patently offensive as measured by contemporary standards for the broadcast medium.”

However, because the FCC did not provide broadcasters with adequate notice before beginning to fine fleeting indecency, the fine cannot stand, Judge Anthony J. Scirica ruled.

The FCC’s indecency enforcement activities have undergone constant evolution in the last 30 years, with stricter controls coming during the Bush Administration.

While indecency, unlike obscenity, is protected by the First Amendment, the Supreme Court upheld regulation of indecency in the broadcast arena in FCC v. Pacifica Foundation, the 1978 case involving the late comedian George Carlin’s monologue of dirty words “you can’t say on television.”

In later cases interpreting the Pacifica decision, the FCC acknowledged it was a narrow holding under which the “single use of an expletive in a program should not call for us to act,” according to Monday’s opinion. Fleeting use of expletives was not considered actionable.

After Pacifica, the FCC extended the definition of indecency beyond Carlin’s seven words, saying it would thereafter rely on a broader indecency standard under which indecent material was “language that describes, in terms patently offensive as measure by contemporary community standards for the broadcast medium, sexual or excretory activities or organs, when there is a reasonable risk that children may be in the audience.”

The commission became more aggressive in 2003, after U2 singer Bono blurted out "fucking brilliant" upon accepting an award during a live broadcast of The Golden Globe Awards on NBC. In 2004, ruling on the Golden Globe case, the FCC dumped its own guideline that fleeting expletives would not lead to indecency fines.

Then in 2006, the FCC issued a statement meant to guide broadcasters, calling four recent airings indecent — including the use of fleeting expletives at the 2002 Billboard Music Awards and scripted expletives in ABC’s “NYPD Blue.” All were indecent, the FCC said, despite “the fleeting and isolated nature of the offending expletives.”

Since the four examples occurred before the Golden Globe decision, the FCC took no action against the offenders.

The networks appealed the agency’s decision. In March, the U.S. Supreme Court agreed to hear the case in its next session.

Although CBS broadcast the half-time show more than a month prior to the Golden Globe decision, the FCC contended CBS should have been aware of the FCC’s change in policy based upon a single sentence in its 2001 policy statement.

The court disagreed, finding CBS did not have adequate notice of any policy change.

The court found that CBS took reasonable safeguards at the time to prevent any indecent material from slipping into the half-time show. And despite the FCC”s contentions that CBS should have used “video delay technology” to censor the image of nudity, the court found it plausible that no such technology existed or was widely available at the time of the incident.

Scirica on Monday ordered the case remanded to the district court so the FCC can reconsider its policy. Judge Marjorie Rendell, in dissent, noted that CBS “should not be forced to be a party to any such remand, with its attendant time and expense.”

CBS, in an e-mail statement, said it hopes Monday’s decision will lead the FCC to return to its earlier policy of not taking action against fleeting indecency: “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 statement said.