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CBS Appeal Against FCC Could Redefine Indecency

Sep 2, 2007  •  Post A Comment

Three years after the “wardrobe malfunction” that bared Janet Jackson’s right breast during CBS’ Super Bowl halftime show, the controversy is heading for a high-stakes court ruling that could reshape indecency standards on broadcast television.
On Sept. 11, a three-judge panel of the 3rd U.S. Circuit Court of Appeals in Philadelphia will hear arguments in the network’s appeal of a $550,000 fine levied by the Federal Communications Commission against CBS.
If CBS carries the day, decency advocates say, broadcast TV is liable to become coarser, more like cable. If the FCC wins, according to free-speech activists, broadcasters’ ability to entertain and enlighten will be hobbled.
Especially worrisome to broadcasters is that the indecency stakes have grown. The FCC fined 20 CBS owned-and-operated stations the maximum $27,500 each for broadcasting the flash of Ms. Jackson’s jewelry-adorned breast. Infuriated over the Jackson incident, Congress subsequently raised the maximum fine to $275,000 per station.
CBS has mounted a broad First Amendment challenge to the FCC’s fine, saying it didn’t know of the stunt that led to Ms. Jackson’s breast-baring, which lasted 9/16 of a second. In court filings CBS calls the FCC’s approach “zero tolerance” and contends the agency overstepped its authority.
The network also is urging the court to re-examine the legal rationale for the FCC’s power to limit content, citing technology advances such as the V-chip that could protect consumers without limiting speech.
The FCC argues that it has the authority to regulate indecency of the sort it found in the CBS case.
Lawyers say the Super Bowl legal fight, along with a second one involving so-called “fleeting” expletives, have potential to reshape the broadcast landscape
Both cases challenge the FCC’s revision of its traditional stance that fleeting incidents aren’t actionable. Broadcasters warn that if the agency can sanction unexpected, brief obscenity, tape delays would be mandatory on most live programming.
The policies of the FCC under Chairman Kevin Martin already have had real-world impact. PBS, distributing Ken Burns’ 15-hour World War II documentary to air starting Sept. 23, created two versions of the show.
In the original, the narrator explains “snafu” and “fubar” using the acronyms’ profane root words, and two veterans use profanities in describing their war experiences. In the edited version, produced to address some stations’ fear they could be fined, the four profanities are gone.
“These cases are damn important,” said John Crigler, a lawyer and indecency expert. “If you can’t do a live broadcast … if you can’t run a PBS program on the war … if you can’t run a Martin Scorsese documentary on blues musicians, that is the government leaning on your shoulder.”
Some observers say broadcasters’ decency standards are to some extent self-imposed and that they won’t air anything that will threaten revenue by alienating advertisers.
“It’s been our view all along that the contention that … broadcasters are itching to air f-words and s-words is ridiculous,” said Dennis Wharton, the National Association of Broadcasters’s executive VP for media relations. “We have the ability to do that now after 10 p.m. and don’t. Bare breasts in broadcast programs is not going to happen in our lifetime.”

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