FCC asks court to uphold CBS fine

Regulators say network was 'at fault,' should pay up

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 re-straint 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).