FCC, CBS argue indecency

Agency defends fine against net

The FCC defended its decision to fine CBS $550,000 for Janet Jackson's "wardrobe malfunction," arguing Tuesday in federal court that the network ignored signs that the provocative performance was about to go too far.

FCC lawyer Eric Miller told a three-judge appeals panel in Philadelphia that CBS was indifferent to the risk that "a highly sexualized performance" might cross the line.

During Jackson's performance with Justin Timberlake at the 2004 Super Bowl, Timberlake sang the lyrics, "Gonna have you naked by the end of this song," and that's exactly what happened, Miller said.

The commission also noted that Jackson's choreographer was quoted three days earlier as saying the performance would include "some shocking moments."

But CBS lawyer Robert Corn-Revere told the court that the network did not ignore its responsibilities as it took many precautions, including choosing Jackson and Timberlake over more provocative performers; reviewing the script; voicing concerns about ad-libbed remarks; and applying a 5-second audio delay.

"I think the precautions CBS took even satisfied the FCC's standards," Corn-Revere said.

Tuesday's arguments took nearly 90 minutes as the judges questioned the attorneys about the incident. According to one industry executive who attended the hearings, Corn-Rever pointed out the commission's inconsistency enforcing indecency regulations, noting that a CBS documentary on 9/11 that included language the commission has found indecent in other incidents was cleared by the FCC.

"Win, lose or draw, we put our case directly in front of them," the executive said.

CBS officials refused to say whether they were prepared to take the case to the U.S. Supreme Court if the appelate court ruled in favor of the government. The court may not make a direct ruling on the First Amendment issues, or it could send the case back to the FCC, ordering the agency to rework its decision. That decision could take months.

The network said it was pleased to get the issue before the court.

"That incident, although inappropriate and regrettable, was not and could not have been anticipated by CBS and does not justify the penalty imposed by the FCC," CBS said. "We are hopeful the court will agree, since what occurred surprised CBS as much as our audience. Whatever the court decides, CBS has taken extraordinary steps to help prevent anything like this incident in the future."

The Associated Press contributed to this report.