Court tosses FCC 'wardrobe malfunction' fine

[July 22, 2008]  PHILADELPHIA (AP) -- Among the most notorious on-screen gaffes ever, Janet Jackson's breast-baring "wardrobe malfunction" on CBS during the 2004 Super Bowl halftime show drew a $550,000 indecency fine from the Federal Communications Commission. Now a federal appeals court has thrown it out.

A panel of the 3rd U.S. Circuit Court of Appeals ruled Monday that the FCC "acted arbitrarily and capriciously" in issuing the fine for the fleeting image of nudity, which it noted lasted just over half a second. An estimated 90 million people watching the Super Bowl heard Justin Timberlake sing, "Gonna have you naked by the end of this song," as he reached for Jackson's bustier.

The court said the FCC deviated from its nearly 30-year practice of fining indecent broadcast programming only when it was so "pervasive as to amount to 'shock treatment' for the audience."

Duke University law professor Stuart M. Benjamin, a telecommunications law expert, called the decision "a slap in face for the FCC." But the long-term significance of Monday's ruling is uncertain, given the Supreme Court's decision to take up a broadcast indecency case later this year -- the first since 1978.

FCC Chairman Kevin J. Martin said he was "surprised by today's decision and disappointed for families and parents."

"I continue to believe that this incident was inappropriate, and this only highlights the importance of the Supreme Court's consideration of our indecency rules this fall," Martin said.

Lurking behind the case, Benjamin said, is a "really big First Amendment issue: Is there really any difference between broadcast and cable, Internet, books, et cetera?"

"If we apply the same First Amendment scrutiny to broadcast as we do to other forms of communication, all these broadcast indecency rules are almost certainly unconstitutional," he said.

In siding with CBS, the 3rd Circuit panel found that the FCC strayed from its long-held approach of applying identical standards to words and images when reviewing complaints of indecency.

"Like any agency, the FCC may change its policies without judicial second-guessing," the court said. "But it cannot change a well-established course of action without supplying notice of and a reasoned explanation for its policy departure."

CBS said it hoped the decision "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 network said.

Andrew Jay Schwartzman of the Media Access Project, which filed a friend-of-the-court brief on behalf of a group of TV writers, directors and producers, said the ruling helps preserve creative freedom on the air.

"The court agreed with us: the FCC's inconsistent and unexplained departure from prior decisions leaves artists and journalists confused as to what is, and is not, permissible," he said.

But Tim Winter of the watchdog organization Parents Television Council said the decision "borders on judicial stupidity."

"If a striptease during the Super Bowl in front of 90 million people -- including millions of children -- doesn't fit the parameters of broadcast indecency, then what does?" Winter said.

The FCC had argued that Jackson's nudity, albeit fleeting, was graphic and explicit and CBS should have been forewarned.

At the time, broadcasters did not employ a video delay for live events, a policy remedied within a week of the game.

In challenging the fine, CBS said that "fleeting, isolated or unintended" images should not automatically be considered indecent. But the FCC said Jackson and Timberlake were employees of CBS and that the network should have to pay for their "willful" actions, given its lack of oversight.

The $550,000 fine represented the maximum $27,500 levied against each of the network's 20 owned-and-operated stations.

Shortly after the 2004 Super Bowl, the FCC changed its policy on fleeting indecency following an NBC broadcast of the Golden Globes awards show on which U2 lead singer Bono uttered an unscripted expletive. The FCC said at the time that the F-word in any context "inherently has a sexual connotation" and can trigger enforcement.

NBC challenged the decision, but that case has yet to be resolved.

In June 2007, a federal appeals court in New York invalidated the government's policy on fleeting profanities uttered over the airwaves in a case involving remarks by Cher and Nicole Richie on awards shows carried on Fox stations. The Supreme Court will hear the case this fall.

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On the Net:

CBS v. FCC:
http://www.ca3.uscourts.gov/
opinarch/063575p.pdf

[Associated Press; By JOANN LOVIGLIO]

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