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CBS attorney: Network was careful with Super Bowl halftime show

By The Associated Press
09.11.07

PHILADELPHIA — CBS took many precautions before the 2004 Super Bowl halftime show that aired with Janet Jackson's "wardrobe malfunction," an attorney for the company said today.

The broadcaster is challenging a $550,000 fine issued by the Federal Communications Commission. The two sides offered arguments before three federal appeals judges who must decide whether the brief glimpse of Jackson's barley covered breast was indecent, or merely a fleeting and accidental glitch that shouldn't be punished.

CBS Corp. lawyer Robert Corn-Revere said the network took many precautions, including choosing Jackson and Justin 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.

FCC lawyer Eric Miller argued that CBS was indifferent to the risk that "a highly sexualized performance" might cross the line.

Timberlake sang the lyrics, "Gonna have you naked by the end of this song," and that's exactly what happened, Miller said.

CBS should have known ahead of time what it was going to broadcast, the FCC said. The commission noted that Jackson's choreographer was quoted three days earlier as saying the performance would include "some shocking moments."

The case is the second recent test of the federal government's powers to regulate broadcast indecency. Last June, a federal appeals court in New York invalidated the government's policy on fleeting profanities uttered over the airwaves.

Some 90 million Americans watched Timberlake pull off part of Jackson's bustier, briefly exposing her right breast, which had only a silver sunburst "shield" covering her nipple, during the halftime show. The episode was later explained as a problem with her costume.

CBS challenged the FCC's fine, claiming "fleeting, isolated or unintended" images should not automatically be considered indecent. The agency noted it has long held that "even relatively fleeting references may be found indecent where other factors contribute to a finding of patent offensiveness."

Miller argued that Jackson and Timberlake were employees of CBS and that CBS should have to pay for their "willful" actions, given the network's lack of oversight.


Update
Court tosses FCC 'wardrobe malfunction' fine
3rd Circuit panel rules that agency 'acted arbitrarily and capriciously' in punishing fleeting nudity during 2004 Super Bowl halftime show. 07.21.08

Previous
3rd Circuit to study 'wardrobe malfunction'
Panel to decide whether 2004 Super Bowl halftime incident was indecent or fleeting, accidental glitch that shouldn't be punished. 09.11.07

Related

2nd Circuit: FCC's policy on accidental expletives is arbitrary

Court sides with Fox TV's challenge, says agency's policy might not survive First Amendment scrutiny. 06.05.07

Senate panel moves to restore FCC indecency policy
In bid to counteract 2nd Circuit ruling, committee approves bill that would allow agency to fine television, radio broadcasters for airing profanities, even if they are fleeting references. 07.20.07

Supreme Court takes broadcast-indecency case
First such case in 30 years concerns FCC policy allowing fines against broadcasters for 'fleeting expletives' on their programs. 03.17.08

Court tosses FCC 'wardrobe malfunction' fine
3rd Circuit panel rules that agency 'acted arbitrarily and capriciously' in punishing fleeting nudity during 2004 Super Bowl halftime show. 07.21.08

FCC chairman pans common-sense ruling on ‘fleeting expletives’
By Gene Policinski In case involving Cher, Nicole Richie, 2nd Circuit decision won't unleash torrent of televised indecency that agency says it fears. 06.17.07

Freud, the FCC & the doctrine of respondeat superior
By Ronald K.L. Collins CBS argues before 3rd Circuit that Janet Jackson's breast-baring at 2004 Super Bowl was not only unintentional, but FCC was also way out of bounds in imposing a $550,000 fine. 09.21.07

The FCC's Regulation of Indecency

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