- The Washington Times - Tuesday, July 22, 2008

A federal appeals court Monday tossed out a $550,000 fine against CBS Corp. for airing pop singer Janet Jackson’s infamous “wardrobe malfunction” during the 2004 Super Bowl, dealing yet another blow to a Federal Communications Commission policy on “fleeting” broadcast material that is being reviewed by the Supreme Court this fall.

An estimated 90 million viewers were watching the 2004 halftime show when singer Justin Timberlake tugged Ms. Jackson’s bustier, revealing her breast for nine-sixteenths of a second. The FCC determined CBS’ actions were “willful” and that the broadcaster did not take “reasonable precautions” to avoid the incident.

But the 3rd U.S. Circuit Court of Appeals said the FCC’s decision to fine CBS for a brief glimpse of Ms. Jackson’s breast was “arbitrary and capricious” because it deviated from the agency’s longstanding policy of penalizing broadcasters for “indecent material so pervasive as to amount to ‘shock treatment’ for the audience.”

“Like any agency, the FCC may change its policies without judicial second-guessing,” Chief Judge Anthony J. Scirica wrote in the opinion. “But it cannot change a well-established course of action without supplying notice of a reasoned explanation for its policy departure.”

The FCC historically did not levy fines against fleeting, isolated instances of indecency. But the agency reversed that policy in March 2004 in response to a 2003 NBC broadcast of the Golden Globes awards show during which U2 frontman Bono uttered an expletive.

Monday’s ruling is not the first setback for the FCC’s policy on fleeting material. The Supreme Court later this year is revisiting indecency for the first time in 30 years after the commission appealed a case involving Fox Television stations where a fine was levied in response to “fleeting expletives” that were aired during two broadcasts of the Billboard Music Awards. Like the 3rd Circuit in the Jackson case, the 2nd U.S. Circuit Court of Appeals last summer called the policy “arbitrary and capricious.”

“The Third Circuit [case] is visual images as opposed to mere words, but I think they’re two sides of the same coin and it’s going to be very hard for the commission to distinguish between the two in terms of fundamental administrative law,” said Harry Cole, a communications lawyer with Fletcher Heald & Hildreth PLC in Arlington. “Image-wise you’ve got the problem of, what do you do with classical sculptures? If a breast is bad, can you show the ‘Venus de Milo’?”

FCC Chairman Kevin J. Martin, a Republican, said he was “surprised” and “disappointed” by the ruling.

“The Super Bowl is one of the most-watched shows on television, aired during the hours when children are most likely to be in the audience. Hundreds of thousands of people complained about the show, and a unanimous commission found that it was inappropriate for broadcast television,” Mr. Martin said. “In fact, following this incident, Congress said we should be assessing greater fines - as much as 10 times the amount we actually fined CBS - for incidents like these in the future.”

Indeed, the FCC stepped up its indecency fines after the incident, setting a record in 2006 when it levied a $3.6 million fine against CBS for a 2004 episode of “Without a Trace” that depicted a rape scene, albeit without nudity. ABC is appealing a $1.2 million fine for a 2003 episode of “NYPD Blue” that revealed a woman’s naked buttocks.

Family groups were quick to criticize Monday’s ruling.

“Once again, a three-judge panel has hijacked the will of the American people - not to mention the intent of the Congress acting on behalf of the public interest - when it comes to indecent content on the public airwaves,” the Parents Television Council said. “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?”

Free speech advocates, on the other hand, praised the court’s decision.

“Perhaps it is time to read the handwriting on the wall: The guardians of our First Amendment freedoms in the courts are not going to allow the FCC to play the role of media supernanny,” said Ken Ferree, president of the Progress & Freedom Foundation, a free-market advocacy group. “A free and vibrant, even if occasionally coarse, marketplace of speech is the cornerstone of a free society.”

The commission could appeal Monday’s ruling to the Supreme Court or bolster its explanation of its policy.

“It’s probably in the commission’s best interest to consolidate the whole thing and just have one big knock-down, drag-out fight on indecency,” Mr. Cole said. “Theoretically, it’ll be a showdown.”



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