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CBS Tells Court It Took Precautions to Prevent Super Bowl ‘Wardrobe Malfunction’

Sep 11, 2007  •  Post A Comment

The court battle between CBS Corp. and the Federal Communications Commission over Janet Jackson’s infamous “wardrobe malfunction” at the 2004 Super Bowl is shaping up to be a full-frontal attack by the network on what it said is the agency’s new “zero tolerance” policy.
Arguing before a three-judge federal appeals court panel Tuesday in Philadelphia, CBS’ lawyer, Robert Corn-Revere, said the incident should not have resulted in any fines because the network had taken numerous precautions to prevent it.
Mr. Corn-Revere urged the judges to overturn a $550,000 fine imposed by the FCC, arguing the agency unfairly held the network responsible for the conduct of Jackson and singer Justin Timberlake, who while performing with Jackson ripped off a piece of her costume, exposing her breast.
“CBS neither planned nor approved this split-second incident,” Mr. Corn-Revere said.
But Eric Miller, a Justice Department lawyer, said Ms. Jackson and Mr. Timberlake were legally CBS employees that day, and that the network failed to exercise control over them despite warning signs that they were planning to do something “shocking.”
“CBS broadcast the spectacle of a man singing, ‘Gonna have you naked by the end of this song,’ while simultaneously grabbing a woman, ripping apart her clothing and exposing her breast to the largest television audience of any broadcast that year,” Mr. Miller said.
Although the exposure was brief, Mr. Miller said, the FCC imposed fines due to its graphic nature and the fact that it was done purely for shock value in a program that children were watching and that carried no warnings of possible adult content.
Mr. Miller was grilled by all three judges.
“How do you justify sanctioning CBS in circumstances where it had no prior knowledge that the event was going to take place and that was deliberately concealed from it?” Judge Julio M. Fuentes asked.
Mr. Miller said the performers themselves had knowledge and, as CBS employees, were “part of CBS.”
“That doesn’t seem to make sense at all,” Judge Fuentes said. “It sounds like a conclusion that was made out of convenience. I mean, they really weren’t employees of CBS, were they?”
Mr. Miller insisted that since the performers were under CBS’ control, they were acting as its employees. The “critical factor,” he said, is the right of the employer to control.
CBS had that right, Mr. Miller said, since it designed the sets for the performance, required the performers to attend rehearsals and exercised approval rights over their costumes and script.
“You can’t have it both ways,” Judge Marjorie O. Rendell said. “You say they had control and then you fault them for not exerting control over these individuals.”
But Mr. Miller said the test under the law is “the right to control.” A negligent employer, like CBS, he said, “doesn’t exercise that right properly.”
Mr. Corn-Revere argued that the FCC’s decision to impose fines on CBS—the maximum fine of $27,500 levied against each of the network’s 20 owned-and-operated stations—was wrong for several reasons.
First, he said, CBS had “no advance knowledge” of the incident—which was on-air for just 9/16ths of a second—so it was wrong for the FCC to hold the network responsible for the performers’ conduct.
The evidence, Mr. Corn-Revere said, showed CBS had made a “good-faith effort” to comply with broadcast standards by insisting on rehearsals where the performance was reviewed by Standards & Practices personnel.
The FCC’s ruling, Mr. Corn-Revere said, abandoned the agency’s nearly three-decade-old policy of not imposing fines for “fleeting” instances of indecency. And it also violated CBS’ due-process rights because it applied the FCC’s newly created “zero tolerance” policy to an incident that occurred before the agency adopted the new rule.
Judge Fuentes asked: “Could it be said that you failed to take reasonable precautions to find out what was going to take place?”
Mr. Corn-Revere insisted CBS had taken precautions, first by selecting performers it thought would adhere to broadcast standards and rejecting some it feared would not. Ms. Jackson and Mr. Timberlake were chosen because both had national television experience, Mr. Corn-Revere argued in his brief.
But Judge Rendell asked about a memo from NFL Commissioner Paul Tagliabue to CBS President Leslie Moonves that seemed to warn of problems with Ms. Jackson.
Mr. Corn-Revere disagreed, saying the memo was expressing only “general concerns” that related not to Jackson but to “an earlier incident where the NFL had been embarrassed by a performance by Britney Spears.”
The courtroom erupted with laughter when Mr. Corn-Revere added, “Of course, who hasn’t been?”
But Judge Rendell pressed her point, saying the memo “was saying that you need to anticipate that these performers who are trying to make a splash and a name for themselves, that they do things that get them some notoriety.”
Mr. Corn-Revere insisted CBS did exactly that, and that the evidence showed the network “took a prudent course” by rejecting performers it didn’t trust.
Chief Judge Anthony J. Scirica asked Mr. Corn-Revere if such incidents are less likely to occur now that the networks have implemented a “video delay” mechanism for use in live broadcasts.
“This event was unprecedented,” Mr. Corn-Revere said. “The video delay had to be invented after the Super Bowl; it simply did not exist before.”
The FCC’s position, Corn-Revere said, was that CBS should have used video delay, but that reasoning was based on “purely 20/20 hindsight.”
But Mr. Miller told the judges, “Video delay was available and could have been used. It was used one week later for the Grammy Awards, so it didn’t require the invention of some new technology.”
(Editor: Horowitz)

One Comment

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