Bloomberg News

Top Court Won’t Revive CBS Fine Over Super Bowl Exposure

June 29, 2012

The U.S. Supreme Court refused to revive a $550,000 fine against CBS Corp. (CBS:US) for showing Janet Jackson’s breast for a split second during the 2004 Super Bowl halftime show.

The high court rejected the Federal Communications Commission’s appeal of a lower-court ruling that said the agency imposed the fine arbitrarily.

“We are gratified to finally put this episode behind us,” Dana McClintock, a CBS spokesman, said in an e-mailed statement. “It’s been more than eight years since we expressed deep regret for the Super Bowl halftime show.”

Chief Justice John Roberts agreed with the decision to deny the FCC’s appeal. “Any future ‘wardrobe malfunctions’ will not be protected” from FCC sanctions on grounds that the agency’s policy isn’t clear, the basis for recent FCC court defeats, Roberts said in a statement.

“The networks are on notice,” Dan Isett, director of public policy for the Parents Television Council, a Los Angeles- based membership group that works against profanity in media, said in an interview. “Essentially he’s saying, this better not happen again.”

Entertainers’ Outbursts

Isett said the FCC should now review about 1.6 million indecency complaints that have accumulated during years of litigation over Jackson’s exposure and coarse outbursts by the singer Cher, the actress Nicole Richie, and singer Bono.

Neil Grace, an FCC spokesman, declined to comment.

Today’s action follows a June 21 Supreme Court ruling that invalidated sanctions imposed by the FCC against News Corp. (NWSA:US)’s Fox Television Stations Inc. and stations affiliated with Walt Disney Co. (DIS:US)’s ABC for fleeting nudity and expletives. The justices said the FCC hadn’t given fair notice to Fox and ABC about what was prohibited under its rules.

In the case acted on today, the 3rd U.S. Circuit Court of Appeals in Philadelphia ruled in November that the FCC hadn’t properly announced its policy on fleeting displays of nudity before fining CBS.

The FCC fined New York-based CBS after viewers got a glimpse of Jackson’s breast for 9/16 of a second during the halftime show. Her singing partner Justin Timberlake, who tore off part of Jackson’s bustier, later called the incident a “wardrobe malfunction.”

Roberts, in his statement, said the FCC’s policy on indecent images may have been more clear than the policy on bad language.

Words, Images

“As every schoolchild knows, a picture is worth a thousand words, and CBS broadcast this particular image to millions of impressionable children,” Roberts wrote.

Still, Roberts wrote, under today’s FCC policies, there’s no important distinction between standards for words and images.

“It is now clear that the brevity of an indecent broadcast -- be it word or image -- cannot immunize it from FCC censure,” Roberts wrote.

After Jackson’s exposure CBS immediately placed delays on live programs “so that we could safeguard against similar incidents of unintended and spontaneous snippets,” McClintock, the spokesman, said in his statement.

“Since then, all we ever sought was an affirmation of the long-established policy of balanced, consistent and deliberate indecency enforcement the FCC had followed for decades before the incident,” McClintock said.

Justice Ruth Bader Ginsburg also released a statement that said, as the court noted in its June 21 decision, the FCC now has “an opportunity to reconsider its indecency policy in light of technological advances” and the FCC’s “uncertain” standards over the years.

The case is Federal Communications Commission v. CBS Corp., 11-1240.

To contact the reporters on this story: Todd Shields in Washington at tshields3@bloomberg.net; Bob Drummond in Washington at bdrummond@bloomberg.net

To contact the editor responsible for this story: Steven Komarow at skomarow1@bloomberg.net


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