The Federal Communications Commission has officially proposed the long-rumored its $550,000 fine against CBS for the Super Bowl Janet Jackson/Justin Timberlake incident, saying that the partial nudity of the brief -- less than one second -- revealing of most of one breast was in "apparent" violation of its indecency standard.
The fine is the maximum $27,500 applied to all 20 of Viacom's CBS owned-and-operated stations, pointing to the involvement of Viacom/CBS in the planning of the half-time show. The commission did not fine other CBS affiliates, pointing to the surprise nature of the event.
The U.S. Constitution is generous in its protection of free expression, but it is not a license to thrill," said FCC Chairman Michael Powell. “Anything goes,” is not an acceptable mantra for those that elect to earn their profit using the public’s airwaves. "
The commission also invoked Howard Stern, at least obliquely, saying that another reason for the fines was "the history of indecency violations by Infinity Broadcasting Corporation subsidiaries," though that could have been a reference to Opie & Anthony and the "sex in St. Patrick's" incident.
All the commissioners voted for the fine, with Commissioner Jonathan Adelstein dissenting in part. Adelstein said the fine was far too little. "After all the bold talk, it’s a slap on the wrist that can be paid with just 7½ seconds of Super Bowl ad time," he said in his dissenting statement. "The $550,000 fine measures up to only about a dollar per complaint for the more than 542,000 complaints that flooded into the FCC after the broadcast."
Commissioner Michael Copps approved in part and concurred in part, which is less than a dissent but more than approval. Copps wanted a fine, though not necessarily the maximum, levied against all the CBS affiliates, not just the owned stations, saying he didn't want to send the wrong message: "[M]any stations air programming that they do not produce themselves. The Commission must be careful not to signal that we would excuse indecent broadcasts merely because a station did not control the production of the content."
Copps also thought the fine was too small, and criticized the FCC's summary dismissal of other parts of the half-time show that drew complaints--bumping and grinding and such.
Commissioner Kevin Martin agreed that the commission should have addressed other aspects of the half-time show.
Powell disagreed, saying "I am troubled at the suggestion of some on the Commission that we should reach further and drop the hammer for the musical performances themselves—divorced from the infamous wardrobe malfunction—or for the commercials. I agree that some of the performances were risqué and that commercials were frequently crass and sophomoric, but they were hardly indecent within the bounds of federal law. To let loose governmental sanction on such a thin premise is to stray from our limited role in enforcing the indecency laws, into the role of national nanny—arbiter of taste, values and propriety."
Powell and company may be more exercised than the public about the Jackson incident. Although Powell again Wednesday invoked the 540,000 complaints the commission received to suggest it was responding to a broad-based complaint, hundreds of thousands of those were generated by a single group, The Parent's Television Council (somewhere between 230,000 and 250,000 according to PTC).
The parents in PTC notwithstanding, a study by the Kaiser Family Foundation to be released Thursday is expected to suggest that parents generally aren't nearly as upset about the incident as the FCC.
PTC wasn't too happy with the decision. Echoing the concerns of Copps and others, PTC President Brent Bozell said: "Janet Jackson’s Super Bowl stunt was raunchy and tasteless and while we applaud the FCC’s finding of a violation of the federal law, frankly the Commission didn’t go far enough. The FCC has found CBS-owned affiliates guilty. But that is not enough. All licensees who aired the indecent Super Bowl content should be held accountable for their actions."
CBS parent Viacom vowed to appeal the decision back in July. Viacom Co-President Les Moonves called the looming Jackson fine "patently ridiculous," and said: We're going to take it up to the courts if it happens."
On Wednesday, that ringing challenge had become "We are reviewing all of our options," but it is still expected to fight the fine.
CBS contends that the the brief flash of Jackson’s breast does not actually violate indecency laws. Also, company execs insist that it’s unfair to fine them since even if Jackson and Timberlake planned the exposure as a stunt, CBS didn’t know about it in advance. --John Higgins contributed to this report.