Super Bowl Fine Is Voided

By Cecilia Kang
Washington Post Staff Writer
Tuesday, July 22, 2008

A federal court yesterday tossed out a $550,000 fine against CBS for the split-second television exposure of singer Janet Jackson's breast during the 2004 Super Bowl halftime show.

The decision was a blow to Kevin J. Martin, chairman of the Federal Communications Commission, who imposed the fine. He has pushed for stronger rules against broadcast indecencies and higher fines for violations.

But a three-judge panel of the U.S. Court of Appeals for the 3rd Circuit in Philadelphia ruled that the FCC "acted arbitrarily and capriciously" in issuing the fine against CBS for the fleeting image of nudity. It said 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."

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

In a statement, CBS said it hoped the decision would lead the FCC to return to a more "restrained" approach to indecency enforcement.

"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, despite best efforts," the network said.

Last spring, a separate federal court threw out the FCC's rules on "fleeting expletives," a decision that has been appealed by the Bush administration and will be heard by the Supreme Court later this year.

Martin said the court of appeals' decision yesterday would negatively affect children and families. He said that after the Super Bowl incident, Congress has said that the FCC should assess greater fines -- as much as 10 times the amount fined to CBS -- for similar incidents.

"Hundreds of thousands of people complained about the show, and a unanimous commission found that it was inappropriate for broadcast television," Martin said. "I continue to believe that this incident was inappropriate, and this only highlights the importance of the Supreme Court's consideration of our indecency rules."

Martin told reporters yesterday that the agency was considering appealing the ruling.

The brief nudity occurred when fellow performer Justin Timberlake sang, "Gonna have you naked by the end of this song," and reached for Jackson's bustier, exposing her breast. The incident became known as a wardrobe malfunction.

The 3rd Circuit judges ruled that the FCC deviated from its long-held approach of applying identical standards to words and images when reviewing complaints of indecency.

"The Commission's determination that CBS's broadcast of a nine-sixteenths of one second glimpse of a bare female breast was actionably indecent evidenced the agency's departure from its prior policy," the court found.

The Associated Press and Bloomberg News contributed to this report.

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