After more than two months of behind-the-scenes negotiations, Federal Communications Commission Chairman Michael Powell has lined up a majority of commissioners for his plan to fine the CBS-owned TV stations a total of $550,000 as a penalty for Janet Jackson’s breast flash during the Super Bowl in early February.
This clears the way for an official conclusion to the agency’s investigation of the highly publicized “wardrobe malfunction,” probably within several weeks.
The commissioners voted in private and will take time to fine-tune the agency’s order and prepare statements elaborating their positions on the alleged violation of FCC indecency rules.
The investigation was first announced by Mr. Powell shortly after the incident, which set off a firestorm of protest in Washington and beyond and brought a record deluge of complaints-more than 500,000 pieces-to the FCC offices. At the time, Mr. Powell promised a “thorough and swift” investigation.
CBS has already said it probably will challenge the fines in court. Leslie Moonves, Viacom co-president and co-chief operating officer, told reporters last month that the company does not feel it is fair to punish CBS and its stations for an action company officials did not know was coming and never approved.
“Viacom has steadfastly maintained that it had no knowledge that the incident was planned and has taken every step to ensure that it doesn’t happen again,” a Viacom spokesman said last week.
The endorsement of the fine represents a victory for Mr. Powell, a Republican, who originally proposed it to his agency colleagues about two months ago. While fellow Republican FCC Commissioner Kathleen Abernathy immediately agreed to support Mr. Powell’s plan, it has taken eight more weeks to get the third vote he needs for a majority of the five-member commission.
Mr. Powell finally secured his third vote last week, when GOP Commissioner Kevin Martin and Democratic Commissioner Michael Copps endorsed the plan.
As of late last week, FCC Commissioner Jonathan Adelstein, the agency’s other Democrat, had not voted, according to agency sources. Mr. Adelstein did not return telephone calls.
Sources said Mr. Copps and Mr. Adelstein raised questions about whether the agency should fine all 219 of CBS’s affiliates-not just the 20 CBS owned-and-operated stations-for carrying the alleged indecency.
But one agency source said Mr. Powell felt it would be unfair to punish affiliates that had no way of knowing what their network would be feeding them live. Instead, Mr. Powell believed that the responsibility for the incident had to fall on Viacom, which owns MTV-the producer of the halftime show-and CBS, the network offering the programming.
In the seven months since pop singer Justin Timberlake ripped off Ms. Jackson’s top in front of millions of Super Bowl halftime viewers, the FCC’s investigation has been only part of the fallout. A number of bills have been entered in Congress dealing with the issue of indecency on broadcast TV.
Pending legislation includes huge increases in the amount of fines for future incidents. These bills are expected to be acted on this fall when Congress returns from its summer recess.
Both networks and TV stations have taken measures to keep indecency off the air, including time delays on some previously live programming.
The amount of the fines being proposed by the FCC against CBS is based on the law as it existed at the time of the incident. The commission could have chosen to just fine a single station or a smaller number of stations.
Separately, broadcasters are arguing against a proposed FCC regulation that would require them to keep recordings of their programs for at least 60 days. A number of stations have complained about the cost involved in keeping recordings of all broadcasts from 6 a.m. until 10 p.m., the 16-hour period when the rules apply.
Other stations have said the mandate is not needed because their formats would never be considered indecent. The FCC could include exemptions based on company size or station format.