FCC to Revisit Wardrobe Malfunction

Commission asks to explain itself
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WASHINGTON: The Federal Communications Commission would like to clarify its censure of CBS for Janet Jackson’s 2004 Super Bowl “wardrobe malfunction,” reports indicate. The commission filed a brief with the U.S. Court of Appeals for the Third Circuit in Philadelphia, seeking an opportunity to “further explain its position on indecency,” Dow Jones Newswiressaid.

The FCC leveled a $500,000 fine against CBS in the wake of the incident, where Jackson’s duet partner, Justin Timberlake, ripped off a part of her costume and exposed her breast. The exposure was telecast live to nearly 90 million people for a split-second before the CBS crew cut away. The breast is considered a “sexual organ,” one of the determinants of FCC indecency rules.

Those rules were derived the 31-year-old Pacifica case where the Supreme Court determined that broadcast TV was “uniquely pervasive” and could therefore be regulated. The commission vigorously applied the rules in 2006 with an omnibus order levying a record $4.5 million in fines, including the CBS Super Bowl censure. Fox was also cited in the order for “fleeting expletives” uttered on the air during separate live telecasts of the “Golden Globe Awards.”

The determination rested on whether or not Nicole Ritchie’s and Cher’s use of the S- and F-words, respectively, were exclamatory adjectives or references to body parts and “excretory.. .activities.” Fox argued the censure violated the First Amendment. The U.S. Court of Appeals for the Second Circuit in New York simply ruled that the FCC had insufficient ground to levy finds for spontaneous cursing. Then in April, the Supreme Court backed the fleeting expletive censure 5-4, reversing the Second Circuit. The Supreme Court decision ordered the Second Circuit to take up the constitutional question as well.

The following month, the Justices bounced the CBS exposure case back to the Philly court for further review, where it remains. The FCC contends that the network should have been broadcasting the game on at a few-second delay, which most now do in light of the court battles.

More from TVB on broadcast indecency:
May 4, 2009: “SCOTUS Bounces Flash Dance”
The Supreme Court sent Janet Jackson’s breast back to a lower court today. The Justices reviewed a ruling that CBS was not liable for the 2004 incident in which Ms. Jackson’s breast was exposed during Super Bowl half-time in what came to be known as a “wardrobe malfunction.” The U.S. Court of Appeals for the Third Circuit in Philadelphia was instructed by the high court today to review the case again.

April 28, 2009: “Supreme Court Backs FCC’s Fleeting Expletives Ruling”
The Supreme Court today voted 5-4 to uphold a federal law against spontaneous cursing on broadcast TV. The ruling reverses an earlier decision by a federal appeals court dismissing the FCC’s determination that adjectival S- and F-words referred to bodily functions and were therefore indecent.

February 7, 2007: “Indecency Revisited”
By spring, a handful of judges will decide what is proprietary on broadcast television. One federal court is mulling the split-second exposure of a breast on primetime TV, while another contemplates the popularity of swear words among rock musicians and celebutantes.