Washington -- A federal appeals court in Philadelphia on Monday rejected the Federal Communications Commission's $550,000 fine against CBS for broadcasting Janet Jackson's split-second breast exposure during the 2004 Super Bowl halftime show.
A panel of U.S. Court of Appeals for the 3rd Circuit ruled that the fine was illegal because the agency had changed policy about fleeting indecent images without proper notice to broadcast licensees.
“Like any agency, the FCC may change its policies without judicial second guessing. But it cannot change a well-established course of action without supplying notice of and a reasoned explanation for its policy departure,” the court ruled in a 99-page opinion.
FCC chairman Kevin Martin was caught off guard by the court’s decision.
“I am surprised by today’s decision and disappointed for families and parents,” Martin said in a statement. “The Super Bowl is one of the most watched shows on television, aired during the hours when children are most likely to be in the audience. Hundreds of thousands of people complained about the show, and a unanimous Commission found that it was inappropriate for broadcast television.”
The FCC took action against CBS when Republican Michael Powell was chairman of the agency. Current FCC chairman Kevin Martin, also Republican who has made a crackdown on broadcasting decency a priority, didn't modify the agency's approach toward Jackson's action during a live broadcast seen by 90 million viewers.
Despite the appellate court’s ruling, Martin contends lawmakers should assess stiffer penalties on broadcasters that air what the Commission considers indecent programming.
“In fact, following this incident, Congress said we should be assessing greater fines—as much as 10 times the amount we actually fined CBS—for incidents like these in the future,” Martin added. “I continue to believe that this incident was inappropriate, and this only highlights the importance of the Supreme Court’s consideration of our indecency rules this fall.”
For now, CBS officials are enjoying a measure of vindication.
“We are gratified by the Court's decision which we hope will lead the FCC to return to the policy of restrained indecency enforcement it followed for decades,” CBS officials said in a statement. “This is an important win for the entire broadcasting industry because it recognizes that there are rare instances, particularly during live programming, when it may not be possible to block unfortunate fleeting material, despite best efforts."
The court said the FCC violated the Administrative Procedure Act because fining CBS without sufficient notice of its new policy was “arbitrary and capricious.”
“Once again, a three-judge panel has hijacked the will of the American people—not to mention the intent of the Congress acting on behalf of the public interest—when it comes to indecent content on the public airwaves,” said Tim Winter, president of the Parents Television Council, which filed an amicus brief in the case. “While we are not surprised that the legal venue hand-picked by CBS would rule in favor of the network, the court’s opinion goes beyond judicial activism; it borders on judicial stupidity.”
“In light of this decision, Congress must immediately vote on S.1780 (Protecting Children From Indecent Programming Act) to reaffirm its support for protecting the public airwaves from indecent content,” he continued. “Without passage of this critical legislation, the Broadcast Decency Enforcement Act passed two years ago will be rendered essentially meaningless.”
Dennis Wharton, a spokesman for the National Association of Broadcasters, also weighed in on the appellate court's decision.
“We're pleased the courts are providing badly-needed clarity on efforts to regulate broadcast content,” Wharton said in a statement. “Nonetheless, given the history and tradition of free broadcasting, we're certain that our programming will remain less explicit than the fare offered on pay cable and satellite.”
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