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Appeals court rejects FCC Super Bowl fine

PHILADELPHIA (BP)–A federal appeals court July 21 overturned a decision by the Federal Communications Commission to impose a $550,000 indecency fine on CBS Corp. for the controversial 2004 Super Bowl halftime show in which Janet Jackson’s breast was exposed.

A three-judge panel of the 3rd U.S. Circuit Court of Appeals in Philadelphia found that 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.”

Richard Land, president of the Southern Baptist Ethics & Religious Liberty Commission, expressed disappointment following the court’s ruling.

“This is one more in a long catalogue of examples of our court system having completely lost touch with the country’s population,” Land said. “Increasingly it seems that the courts live in one country and the people in another. Our forefathers gave us a way to rectify such situations — electing presidents and senators who will give us judges more in touch with the nation.”

Chief Judge Anthony J. Scirica wrote the opinion, noting the FCC “arbitrarily and capriciously departed from its prior policy excepting fleeting broadcast material from the scope of actionable indecency” when it issued the largest fine for indecency in television history in 2004.

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

The court said the Super Bowl incident was a “deceitful and manipulative act that lasted nine-sixteenths of one second” and that CBS was not responsible “for the acts of Janet Jackson and Justin Timberlake, independent contractors hired for the limited purposes of the Halftime Show.”

Scirica said the FCC failed to demonstrate that CBS willfully helped orchestrate the indecency, and such willfulness is “the constitutional minimum showing for penalizing the speech or expression of broadcasters.”

Judge Marjorie O. Rendell, wife of Pennsylvania Gov. Ed Rendell, dissented in part. She said the fine was unjustified but disagreed about the degree of willfulness the FCC was required to show, saying the “the act of broadcasting the indecent material” may be enough of a “conscious and deliberate act,” The Philadelphia Inquirer reported.

When it issued the fine nearly four years ago, the FCC said officials at CBS were aware of the overall sexual nature of the segment featuring Jackson and Timberlake dancing to “Rock Your Body.” Following other suggestive acts, Timberlake reached for Jackson’s bustier while singing, “Gonna have you naked by the end of this song.”

The commission said CBS even touted the halftime show as “shocking” to attract potential viewers. Judging by the 540,000 viewer complaints, the FCC said the segment “had its intended shocking effect.”

The $550,000 fine represented the maximum $27,500 levied against each of the network’s 20 owned-and-operated stations. FCC commissioner Michael Copps noted at the time that the fine needed “to be seen in the context of a broadcast in which each 30-second commercial costs more than $2 million. In other words, this fine represents less than 10 seconds of ad time on the Super Bowl and will be easily absorbed as a cost of doing business.”

CBS praised the court’s decision, saying the broadcast network had no control over the so-called “wardrobe malfunction.”

“We are gratified by the court’s decision, which we hope will lead the FCC to return to the policy of restrained indecency enforcement,” CBS said in a statement. “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.”

Tim Winter, president of the Parents Television Council, said he was not surprised to learn the legal venue “handpicked by CBS” would rule in favor of the network, but he was frustrated.

“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. “If the court doesn’t think that the event wasn’t shocking enough, even though it was the single largest news story for weeks when the nation was at war, then what is shocking enough?

“… The Third Circuit Court is wrong, and we urge the FCC to appeal this case to the U.S. Supreme Court,” Winter added. “We urge the public to speak up on this matter by contacting their congressional representatives and the White House too.”

The U.S. Supreme Court announced in March it will review a lower court’s ruling that had hindered that federal government’s attempt to restrict indecent language on television and radio broadcasts. The case, involving the Fox Channel’s live broadcasting, focuses on whether the “fleeting” use of indecent language violates federal standards.

The Protecting Children From Indecent Programming Act, S. 1780, would require the FCC to “maintain a policy that a single word or image may constitute indecent programming.” The Ethics & Religious Liberty Commission and other pro-family organizations have promoted the bill, and PTC urged Congress to vote on it immediately.

“Without passage of this critical legislation, the Broadcast Decency Enforcement Act passed two years ago will be rendered essentially meaningless,” Winter said.
Compiled by Baptist Press staff writer Erin Roach with reporting by Baptist Press editor Art Toalston.

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