FCC To Further Investigate Janet Jackson Super Bowl Reveal
Reasserts broadcast was indecent; says evidence is strong that CBS could have used delay
By John Eggerton -- Broadcasting & Cable, 9/15/2009 3:16:13 PM
The FCC has reasserted its power to regulate fleeting nudity and says it wants to further investigate "whether CBS' indecency violation [in the Janet Jackson/Justin Timberlake Super Bowl reveal] was willful."
"The evidence in this case strongly suggests that CBS had access to video delay technology at the time of the 2004 Super Bowl," the commission said Tuesday in a brief to the Third Circuit Appeals Court in the Janet Jackson Super Bowl reveal case. The FCC asked the court to remand the decision back to the FCC so it could investigate further its assertion that the violation was "willful."
The Third Circuit, in reversing the FCC's fine against the broadcast, said the evidence that delay technology was available at the time was "scant." The FCC disagrees and wants the chance to determine "whether CBS was reckless not to use video delay technology for this broadcast."
The commission also reasserted that the reveal was off limits for broadcast TV between the hours of 6 a.m. and 10 p.m. "[The FCC] reasonably determined in this case that the graphic and shocking, albeit brief, exposure of Janet Jackson’s bare right breast to a nationwide audience composed of millions of children and adults was indecent," the FCC said.
Back in June, the court asked for new briefs in the case after the Supreme Court's May 4 decision to vacate the Third Circuit's ruling that the Jackson fine was arbitrary and capricious.
The FCC relied heavily on the Fox decision in its brief, saying that "as the Fox Courts interpretation of the pertinent regulatory history now makes clear, the repetition requirement that exempted fleeting expletives from enforcement has no logical application to images."
Andrew Schwartzman of the Media Access Project, which is filing a brief in support of Fox's challenge to the FCC's fleeting profanity policy, says he is disappointed in the FCC decision, but not surprised. "The FCC's brief overlooks the fact that in this case the the Court has already rejected the FCC's claim that prior agency precedent supports its position about fleeting images," he said. "Nothing in the Supreme Court's decision helps the FCC on this."
Dan Isett of the Parents Television Council, whose member complaints helped generate the FCC indecency finding, said he thought the FCC brief was "important," but that whether or not CBS's action was wilfull "is not really the issue in terms of whether or not the FCC has the authority to enforce the law."
The Supremes vacated and remanded the Jackson decision that the FCC's defense of its fleeting nudity enforcement policy was arbitrary and capricious. That was prompted by its decision in FCC vs. Fox that the commission's fleeting profanity enforcement defense was not arbitrary and capricious.
In both cases, the lower courts can now consider the constitutional issues involved in the cases, which they did not in the first go-around. If so, that could ultimately land both those cases in the Supreme Court; Fox for the second time.
Both cases were decided narrowly on the grounds that the FCC had been arbitrary and capricious in reversing previous policy, in the Fox case its pursuit of fleeting profanity, in the Jackson case, fleeting nudity.
In July 2008, the Third Circuit threw out the $550,000 fine against CBS stations for their airing of the Janet Jackson Super Bowl reveal in 2004. That was the incident that helped prompt the Federal Communications Commission's crackdown on broadcast content, under pressure from Congress.
The Third Circuit in its July 2008 decision concluded that the FCC was arbitrary and capricious because it was changing a decades-old policy of not holding fleeting nudity indecent. The court conceded that the FCC has the authority to regulate indecent content, but it pointed to nearly three decades of "restraint" during which the agency "consistently explained that isolated and fleeting material did not fall within the scope of actionable indecency."
There is also another case involving ABC and NYPD Blue that is currently being considered by the same Second Circuit court that now has to reconsider its profanity decision.
The Third Circuit is collecting briefs, but has not decided whether to schedule new arguments in the case. If it does not, a decision could come sometime this fall. If it wants to hear new oral aruments, the decision would almost certainly not come until next year.
A CBS spokesperson had no comment, but the network gets to file its response to the court and the FCC by the end of this month.
The key question here is Who at the FCC is driving this? Are they keeping this alive as an easy sop to the right wing and "parents"? Why does the FCC have time to revive this issue with the Phila. 3rd Circuit when that same court has been waiting for 5 YEARS now for a response from the FCC on its remand on the local-media ownership relaxation -- a remand to which the court made it exceedingly easy for the FCC to provide a response (?!)
GuyFawkes - 9/16/2009 4:58:08 PM EDT
Is this a joke? The part was partly covered by jewelry in the form of a star, and all those "millions of children" supposedly being damaged by the image of a not very threatening female form have probably been seeing it during early childhood anyway.
Janet Jackson was fully clothed except for that exposure, and she wasn't exactly suggestive. And come on, it was five years ago. People are hysterical when it comes to the female body, they think feeding a baby is inapporiate. Go be hysterical about domestic violence, war, and guns instead.
(I have trouble posting this. I can't use ordinary language - and we are not talking four letter words.)
Ann Soder - 9/16/2009 10:45:51 AM EDT
The FCC is a joke and they need to move on. The only reason we are still talking about this, because of groups like The Parents Television Council, who submitted all these complaints. Normal, everyday viewers didn't submit these, the PTC did.
Mike Smith - 9/16/2009 9:07:54 AM EDT
With all the critical issues facing the communications industries, it is absolutely ludicrous and idiotic for the FCC to be wasting time and resources on a three year non issue which was blown out of all sets of perspective. In order to see anything you must record and freeze frame. Please let's stop beating the totally mutilated, destroyed and dead horse. FCC please get to work on "real issues" and stop wasting our taxpayers dollars trying to suck up to the idiot fringe
Frank Zappala - 9/15/2009 9:34:24 PM EDT
Seriously? This was five years ago! It was overblown then and it's ridiculous now. The only reason it got as much attention then is because for the first time we saw the power of the internet and DVRs. I saw it live and saw no "wardrobe malfunction". What I saw were two artists creating a memorable moment through a bit of shock value.
The "what about the children!" cries came from repeated viewing on DVRs and replays on the internet --for which is really what CBS is being unfairly held responsible.
Yes, MTV should hold some responsibility for putting the half-time show together that year and CBS should hold some responsibility for airing the half-time show that year regardless of what they did or did not know was going to be included.
However, the people who fanned the flames of panic over the so-called "nipplegate" should understand that in those days (yes, only five years ago) the power of the internet was not fully realized. Neither CBS nor MTV should be held responsible for what was seen on the internet or on repeated DVR viewings.
We now know better and understand that perpetuity must be kept in mind.
Until clear definitions of indecency are defined, this matter should be closed.
Terrence Moss - 9/15/2009 5:57:14 PM EDT
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