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FCC hands CBS record fine for Super Bowl halftime show

WASHINGTON (BP)–The Federal Communications Commission issued the largest fine for indecency in television history Sept. 21, fining Viacom and its CBS stations $550,000 for the controversial Super Bowl halftime show in which Janet Jackson’s breast was exposed.

While CBS indicated it might fight the fine, two of the FCC commissioners expressed disappointment that the punishment was not more severe. Only 20 stations — those owned by Viacom — were fined.

The two commissioners, Michael Copps and Jonathan Adelstein, issued statements saying every station — including those not owned by Viacom — should have been fined. Copps and Commissioner Kevin J. Martin also said the commission should have considered penalizing Viacom for other parts of the halftime show.

Nevertheless, the fine recommended by the five-member commission was historic.

“[O]fficials of both CBS and MTV were well aware of the overall sexual nature of the Jackson/Timberlake segment, and fully sanctioned it — indeed, touted it as ‘shocking’ to attract potential viewers,” the commission wrote. “The record here demonstrates that CBS failed to take reasonable precautions to ensure that no actionably indecent material was broadcast.”

The commissioners were more outspoken in their individual statements. FCC Chairman Michael Powell asserted that Viacom was not “passively involved” and said the halftime show “clearly intended to push the limits of primetime television.”

“The song’s lyrics leave little doubt where the show was going: ‘Hurry up cause you’re taking too long … better have you naked by the end of this song,'” Powell wrote. “Well, [Timberlake] certainly did and judging by the complaints it had its intended shocking effect — and drew a penalty flag in the process.”

Noting that the halftime show resulted in a record 540,000 complaints, Powell gave a warning to networks about future broadcasts.

“Nudity, while not necessarily indecent in itself, certainly should raise a red flag for a broadcaster contemplating its airing during the hours in which the law restricts indecency because children are likely in the audience,” Powell wrote. “If a programmer opts to air nude content, he places great weight in the hope that its purpose and context will keep the program from running afoul of the law.”

Commissioners chose not to fine the non-Viacom-owned stations because they were not involved in the “selection, planning or approval” of the halftime show. Copps, though, argued that every station should have been fined.

“The Commission must be careful not to signal that we would excuse indecent broadcasts merely because a station did not control the production of the content,” Copps wrote. “Some level of fine would have been appropriate for these stations. The primary focus of our indecency enforcement under the statute must remain those who are licensed to use the public airwaves and we look to their vigilance to protect our children from indecent broadcasts.”

Adelstein agreed, saying the FCC was setting a “puzzling precedent.”

“Why announce such a thorough investigation if we just let some of the stations that broadcast this material completely off the hook?” he asked.

Both Copps and Adelstein said the fine should have been much larger.

“[L]et’s not kid ourselves that this fine will serve as a disincentive to multi-billion-dollar conglomerates broadcasting indecency,” Copps wrote. “This fine needs to be seen in the context of a broadcast in which each 30-second commercial cost 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.”

Adelstein put it another way: “The $550,000 fine measures up to only about a dollar per complaint for the more than 542,000 complaints that flooded into the FCC after the broadcast.”

Other aspects of the sexually charged halftime show also drew complaints from viewers, as did some of the commercials. But the commission decided that the complaints did not amount to indecency. Copps disagreed.

“The citizens that filed these complaints have a right to expect more of a Commission follow-through on their complaints,” he wrote.

Another one of the viewer complaints concerned performer Kid Rock’s wearing of an American flag. But the commission said that the costume, while “troubling to many viewers” does not “provide us a basis for action under” the law.

Brent Bozell, president of the Parents Television Council, called the fine “laughable” and said it underscores the need for Congress “to increase” the fines “at least tenfold.”

“[W]hile we applaud the FCC’s finding of a violation of the federal law, frankly the Commission didn’t go far enough,” Bozell said in a statement. “… All licensees who aired the indecent Super Bowl content should be held accountable for their actions. Every licensed station broadcasting over the public airwaves has a legal obligation to uphold community standards. They all violated the law and should be punished.”

In a statement, CBS said it had no prior knowledge of the Jackson/Timberlake episode.

“While we regret that the incident occurred and have apologized to our viewers, we continue to believe that nothing in the Super Bowl broadcast violated indecency laws,” CBS said. “Furthermore, our investigation proved that no one in our company had any advance knowledge about the incident. We are reviewing all of our options to respond to the ruling.”
The FCC’s full report is available online at www.fcc.gov.

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  • Michael Foust