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CBS appeals FCC fine for Super Bowl wardrobe malfunction

CBS is still at odds with the FCC’s indecency campaign and wants a $550,000 refund for Janet Jackson’s 2004 Super Bowl wardrobe malfunction.

Last week, CBS attorney Robert Corn-Revere asked a three-judge federal appeals panel to reverse the FCC finding in the Super Bowl case and to refund the $550,000 fine. The network argued that the exposure of Jackson’s bare breast was both fleeting and unauthorized.

“The FCC’s new zero-tolerance policy has already had a chilling effect on the broadcast industry, particularly with regard to television,” Corn-Revere told the court.

The CBS lawyer accused the FCC of violating due process by abandoning its 30-year policy of cautious enforcement of decency rules and substituting instead a zero-tolerance policy, which he said the commission had applied retroactively to the incident.

Several third parties, including two former FCC chairmen, filed briefs in support of CBS. Others in the entertainment industry said the FCC investigation and decision to levy the maximum fine against the network has had an effect on artists.

Eric D. Miller, an attorney representing the FCC, argued that broadcast licensees have a responsibility not to “transmit indecent material during the times of the day when the children are likely to be watching” and to make certain the performers knew the law.

The halftime show met the tests for indecency, Miller argued, because it was explicit, graphic and used for shock value.

The CBS case is the second recent test of the FCC’s authority to regulate broadcast content. In June, a federal appeals court in New York invalidated the government’s policy on fleeting profanities used in a live broadcast. The case involved remarks made by Cher and Nicole Richie on awards shows carried on FOX network stations.

The Third Circuit judges gave no indication when they would rule. The $550,000 fine represents the maximum $27,500 levied against each of the network’s 20 owned-and-operated stations.