FCC to court: Uphold Super Bowl fine

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WASHINGTON -- Federal regulators urged a federal court in Philadelphia to reject a network petition that asks the court to throw out the $550,000 fine the FCC levied against CBS for Janet Jackson's breast exposure during the 2004 Super Bowl halftime show.

In its petition with the court filed late Friday, the FCC contends that its fine was justified because the federal government has a constitutional interest in protecting children.

"While CBS argues that the commission must exercise restraint in indecency enforcement, nothing in the First Amendment requires the agency to take a hands-off approach to the broadcast of 'brief' nudity on primetime television," the commission told the court.

The FCC also dismissed arguments by CBS that the V-chip is a viable alternative to intrusive FCC regulations and contends that CBS knew or should have known something like the Jackson-Justin Timberlake "wardrobe malfunction" would take place. CBS, former parent company Viacom, show producer MTV, Jackson and Timberlake all have denied that revealing the performer's breast was planned. Jackson and her choreographer added a "wardrobe reveal" just before the show aired, according to commission and court documents.

"CBS was itself at fault because the network consciously and deliberately chose not to take reasonable precautions to prevent the broadcast of indecent material during the halftime show," the FCC wrote. "CBS ignored numerous warning signs that the performers might behave inappropriately -- including a public statement from Jackson's choreographer promising that the show would include 'some shocking moments.' "

The case is one of two critical legal battles working their way through the courts this month that will go a long way toward deciding whether the government can slap broadcasters with big fines and threaten their licenses to operate because of a slip of the tongue. The other case is in the New York circuit and involves Nicole Richie's use of the word "shit" in 2003 during the Billboard Music Awards, which aired on Fox. Arguments were heard on that case on Dec. 20 (HR 12/21).

On Sept. 22, 2004, the FCC proposed fining all 20 of CBS' owned-and-operated stations the maximum $27,500 for the indecent broadcasts. It said that the network and Viacom, its parent company at the time, knew or should have known that Jackson's breast would be revealed.

At issue is the FCC policy adopted in response to U2 singer Bono's utterance of a version of the word "fuck" during the 2003 Golden Globes broadcast.

In the Bono decision, the commission changed its definition of "fleeting" use, deciding that a certain word can be so vile that it runs afoul of the nation's indecency laws.

The commission contends that the fines were necessary because of the attention the show generated and the threat that an unrestrained Hollywood poses to American sensibilities.

CBS says that is balderdash.

In its brief filed earlier, CBS told a federal court Monday that the government's new "zero tolerance" policy for indecent broadcasts is threatening to choke off free speech.

In its opening brief with the 3rd U.S. Circuit Court of Appeals in Philadelphia, CBS contends that commission's policy "is flatly inconsistent with the bedrock principle that First Amendment freedoms require breathing space to survive."

As defined by the FCC, material is indecent if it "in context, depicts or describes sexual or excretory activities or organs in a patently offensive manner as measured by contemporary community standards for the broadcast medium." Although obscene speech is not protected by the First Amendment, indecent speech is, as the federal courts and the FCC have ruled that such speech can safely be aired from 10 p.m.-6 a.m.
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