CBS rallies against FCC fine

Network argues case in federal court

PHILADELPHIA — The Federal Communications Commission’s $550,000 fine against CBS for the Janet Jackson breast flash during the 2004 Super Bowl halftime show was an unjustified departure from established practice and a violation of due process, the Eye argued in federal court Tuesday.

CBS’ attorney, Robert Corn-Revere, told a three-judge panel of the U.S. 2nd Circuit Court of Appeals that the fine was similar to related indecency fines that another federal court recently tossed out and should thus be treated in similar fashion.

Corn-Revere contended that the flash, lasting barely half a second, was a fleeting, one-time instance of the sort that the FCC has not held actionable in decades because the 1978 Supreme Court decision that upheld the commission’s authority to police the airwaves made a clear exemption for such instances.

With the breast flash, however, the agency initiated a zero-tolerance approach to indecency, which they failed to adequately justify or explain to broadcasters, Corn-Revere said.

Fox Television made a similar argument against fines the FCC slapped on the net in 2006 for fleeting expletives uttered on two separate, live broadcasts. Last June, the U.S. 3rd Circuit Court of Appeals agreed, invalidated the fines and ordered the FCC to justify and explain. The agency has yet to do so.

Attempting to distinguish the breast flash from the fleeting expletives case, FCC attorney Eric Miller, who also represented the agency in that case, countered that indecency regulations do not apply identically to words and images. “Even fleeting images can be indecent when other factors are present,” he said.

Miller said the entire context of the performance — not just the flash itself — had to be considered. He cited lyrics of the song that Justin Timberlake was singing to Jackson — “Gonna have you naked” — and noted that Timberlake pulled at her costume throughout the song until the end, when the breast pocket area tore loose.

Since CBS was aware of the “highly sexual nature” of the performance, which was rehearsed twice (without the flash), the net should have known that a violation could happen and thus been more active in preventing it.

“How can you justify the fine when the flash was deliberately concealed from CBS?” asked Judge Julio M. Fuentes.

Miller said the FCC concluded that Timberlake and Jackson were “employees” of CBS for the time they were onstage and thus the net should be held accountable, as other employers often are.

“That sounds like a conclusion made out of convenience,” Fuentes said.

Judge Marjorie O. Rendell demanded to know how the FCC had arrived at such a “sweeping conclusion,” asking for other specific cases. Miller said he wasn’t aware of any.

Anthony J. Scirica, chief judge of the court, pressed Corn-Revere on whether a standard that would make broadcasters liable could be based on recklessness and gross negligence for potential indecency.

Yes, the attorney replied, but in this case, “CBS had no knowledge” the flash was coming and had done everything a reasonable and responsible broadcaster would do to guard against potential indecency.

Scirica also told Corn-Revere that his criticism of the FCC’s action is essentially asking the agency “to meet a high standard” in trying to navigate often difficult territory.

“Regulating protected speech requires a high standard,” Corn-Revere said.

“The judges showed considerable skepticism toward the FCC’s position, much more so than to CBS,” said Andrew Schwartzman, president of the Media Access Project watchdog group. “If I had to put money on it, I’d say some sort of reversal will happen.”

The court will likely decide the case in the coming months, possibly before the end of the year. Experts and observers believe the losing side will petition the Supreme Court for review. Given that the last Supreme Court case on broadcast indecency occurred in a vastly smaller media universe almost 30 years ago — and that it involved radio, not television — chances are good the court would take the case.

At that level, the constitutionality of the FCC’s entire indecency authority could be called into question.

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