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The FCC Fine Has No Clothes


CBS cleared of wrongdoing in "wardrobe malfunction" case.

If the price of oil has got you down, relax: A Federal appellate court says the CBS Network (CBS) is off the hook for Janet Jackson's breast-baring "wardrobe malfunction" during the 2004 Super Bowl.

A 3-judge panel of the Third U.S. Circuit Court of Appeals in Philadelphia ruled that the Federal Communications Commission "acted arbitrarily and capriciously" in slapping the network with a $550,000 fine for broadcasting a glimpse of Jackson's right breast that lasted 9/16ths of a second.

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

The court said imposing a stiff fine on CBS, amounting to $27,500 for each of the network's 20 owned-and-operated stations, "constituted the announcement of a policy change - that fleeting images would no longer be excluded from the scope of actionable indecency." The court said the FCC imposed the fine without giving proper advance notice of the new standard.

During the Super Bowl Halftime Show, Justin Timberlake sang, "Gonna have you naked by the end of this song." He then reached for Jackson's bustier and tore it, exposing her breast. She quickly covered up, feigning shock, horror and abject mortification.

The snap excuse became the now infamous "wardrobe malfunction," which prompted near-universal eye-rolling at the time.

In 2004, broadcasters didn't use a video delay for live events, a policy adopted within a week of mammary-gate.

The FCC argued that Jackson and Timberlake were CBS employees during the Halftime Show and therefore the network should be held responsible for their "willful" actions. Jackson said the decision to expose her right breast with only a sunburst covering her nipple was made after the final rehearsal.

Other flaps of cosmic significance are pending before the FCC. In 2004 U2 lead singer Bono uttered the dreaded "F-word" on NBC (GE). The FCC said the word "inherently has a sexual connotation" and therefore can trigger enforcement action. NBC has challenged the FCC's action, but the case has not yet been resolved.

In June 2007, a federal appeals court in New York nixed the government's policy banning casual or fleeting profanities uttered over the airwaves. The case stems from comments made by Cher and Nicole Richie on an awards show carried by Fox (NWS). The U.S. Supreme Court will hear arguments in the case this fall.

Do the networks think such foolishness will grab market share and build an audience? If so, have any considered that hardcore stuff is available to anyone with an Internet connection and Dell (DELL), Hewlett-Packard (HPQ) or Apple (AAPL) computer?

Oh well, this is TV and no one expects good taste. But with broadcast TV emerging as the PG version of mass entertainment and all the R-rated stuff moving to cable, you'd hope some smart management would be in order.

Think of all the legal wrangling as your tax dollars are hard at work. Feel better? Good. Now, let's get back to significant First Amendment issues - like nude dancing at bars.
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