To help prove its case that CBS is culpable, the FCC noted that Timberlake fondled the buttocks of British singer Kylie Minogue on a nationally televised awards show in that country last year, an event that, coupled with the racy content of his and Jackson's recordings, "should have given CBS cause for caution."
In testimony before Congress after what Timberlake called a "wardrobe malfunction" at the Super Bowl, then-CBS President Mel Karmazin and other broadcasters expressed frustration at the FCC's indecency rules, saying they were so vague they offered no guidance for programmers.
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Powell insisted yesterday that "it is not possible to write a 'red book' of do's and don'ts," but he said he was offering broadcasters some of the guidance they said they needed.
"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."
The morning after the Super Bowl broadcast, Powell announced that he was "outraged" and he took the unusual step of ordering a "thorough and swift" investigation of the incident. Typically, the FCC initiates investigations after viewers or listeners complain about television or radio content. Investigations can take more than a year.
While TV news outfits played the breast-baring over and over in the days after the broadcast, Hollywood scrambled to react. The National Academy of Recording Arts & Sciences uninvited Jackson from introducing a tribute to Luther Vandross during CBS's telecast of the Grammy Awards. Producers of an ABC biopic of Lena Horne that was to have starred Jackson bowed out after Horne insisted Jackson be dropped, effectively killing the project. Networks instituted five- or 10-second delays on live trophy shows populated by unpredictable celebrities. NBC even ordered cut from its medical drama "ER," over the objection of executive producer John Wells, a quick shot of an old woman lying on an operating table because her breasts were exposed briefly.
Meanwhile, Congress answered Powell's request to raise the amount his agency can levy in indecency fines. Bills in each house of Congress would do that, with one version upping the amount to $500,000 with a cap of $3 million per day. Both bills have been added to Department of Defense authorizations.
Further, the FCC has begun issuing fines for each indecency infraction. In the past, a radio or television show containing a number of violations would receive one fine. In April, the FCC fined six Clear Channel stations for three violations during one Howard Stern broadcast in 2003.
There was little or no reaction to yesterday's announcement in the creative community, reported one Hollywood agent who refused to be identified. The chill, he said, occurred back in February. People writing series for broadcast television "are already aware there's no sexuality and you have to be careful about how you approach certain scenes, which gives cable even more advantage because they can push things to the limit. It's stunning.