FCC Commissioner Jonathan Adelstein took issue with some parts of the FCC's order upholding its $550,000 fine against the Janet Jackson 2004 super Bowl reveal (actually, Justin Timberlake did the revealing).
In a partial dissent from the Wednesday order, his criticisms were several, including that the FCC had not clarified its complaint policy and hadn't fined enough stations.
Calling the Jackson action "arguably one of the most shocking incidents in the history of live broadcast television," Adelstein said, as he did in his partial dissent from the initial order, that the FCC should have fined all the CBS stations, not just the CBS-owned stations. That would have boosted the total fine to several million dollars.
"Notwithstanding the fact that this Commission has always purported to apply a national indecency standard on the broadcast medium," said Adelstein, "the Commission has failed to penalize the vast majority of stations that actually broadcast the offending halftime performance."
Adelstein also says the order did not clarify the FCC's new policy that it can only levy fines for broadcasts that were actually the subject of viewer complaints. That means to fine a station, a complaint has to cite that station. "It is still unclear how the Commission determines the sufficiency of a viewer’s complaint in light of this new enforcement policy," he said.
Adelstein also said there was insufficient clarity on how to treat a complaint where it was unclear the complainant had seen the show in the market complained about, as well as whether it had been viewed over cable or broadcast.
There is one theory that holds that a broadcast viewed on cable has the same protections from FCC indecency enforcement as any cable network carried on the pay service, though others argue that must-carry rules make TV stations uniquely pervasive in cable homes as well.Adelstein explained his confusion in a footnote to the statement: "In the Omnibus TV Order [a March 15 order proposing fines against about a hundred stations over a dozen or so programs], the sole guidance the Commission provided was that it would propose forfeiture against only the licensee whose broadcast of the material was actually the subject of a viewer complaint. Yet in the same order, based on a California viewer’s complaint of indecent material against a local Washington, D.C. affiliate and the entire network, the Commission proposed forfeiture only against the local D.C. affiliate. The California viewer did not even assert that she viewed the program in Washington, D. C. Further, in the same case, it as completely unclear whether the complainant even watched the program on over- the- air broadcasting or on cable. The Commission is obligated to resolve or clarify these legitimate concerns." Adelstein also said that the order's citing of opinion polls relating to community standards was out of line. "While the Commission, in [the] Order, maintains that it rejects the use of third- party polls as 'determinative,'" he said, "and that it does not 'rely' upon any third-party polls, we should provide clear guidance as to whether the Commission, as a matter of policy, even 'considers' polls in its indecency analysis. The answer to that inquiry should be an unequivocal 'no.'