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Super Bowl 2004 indecency fine is rejected

When a federal appeals court overturned a decision to fine the CBS network $550,000 for Janet Jackson’s “wardrobe malfunction” during the 2004 Super Bowl broadcast, it signaled the beginning of the end of the Bush administration’s indecency crusade against broadcasters.

The U.S. Court of Appeals for the Third Circuit said the FCC “arbitrarily and capriciously departed from its prior policy” that exempted fleeting broadcast material from actionable indecency violations. Jackson’s right breast was exposed to almost 90 million TV viewers for a fraction of a second during the live 2004 Super Bowl football halftime show in what her fellow singer, Justin Timberlake, later called a “wardrobe malfunction.”

CBS apologized and paid the fine, $27,500 for each of the 20 stations it owns, but said it was not clued in ahead of time about the stunt and appealed the decision to the Philadelphia-based court. The appeals court said CBS could not be held responsible for what happened during the broadcast.

“The FCC cannot impose liability on CBS for the acts of Janet Jackson and Justin Timberlake, independent contractors hired for the limited purposes of the halftime show,” wrote Chief Judge Anthony J. Scirica for the three-judge panel that heard the case.

The aftermath of the court’s decision ignited comments from representatives of both major candidates in the presidential campaign and suggested an end to the aggressive indecency enforcement, regardless of who wins.

Former FCC chairman William Kennard, representing Democrat Sen. Barack Obama, said he hoped the decision would spur a broader debate about putting content control technologies in the hands of parents, rather than enforcement content standards against broadcasters.

“We have a lot of headlines about the Janet Jackson case, but it really doesn’t address the key issue, which is how we can protect our families and our kids from harmful content,” he told a Washington, D.C., audience at a Minority Media and Telecommunications Council forum last week after the court decision.

Kennard, who is now a managing director at The Carlyle Group, was joined by John Kneuer, senior vice president of Rivado Networks and former head of the National Telecommunications and Information Administration. Kneuer spoke for Republican hopeful Sen. John McCain of Arizona.

Kneuer agreed that the FCC’s indecency standards need rethinking, calling the current legal framework “overdue for examination.” He noted that that framework was created before cable and satellite were major competitors to broadcasters.

Kennard agreed, arguing that the indecency regulations do not take into account the reality of competitive media such as the Internet, cable and satellite. However, he emphasized Obama does not support expanding the FCC’s enforcement to those platforms. His focus is limited to using technology tools for parental control.

Though both sides seemed in general agreement on scaling back severe enforcement, both said they see a continuing role for the FCC in regulating broadcasters. Neither man clearly outlined that role, however.

Currently, television and radio broadcasters are barred from airing obscene material and are limited from broadcasting indecent materials between the hours of 6 a.m. and 10 p.m., when children are likely to be watching. The restrictions do not apply to cable, satellite or Internet media.