FCC to Revisit Wardrobe Malfunction

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 Newswires said.

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.