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FCC Takes 'Wardrobe Malfunction' Case To Supreme Court

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By WALT BELCHER | The Tampa Tribune

Published: November 21, 2008

TAMPA - It has been nearly five years since the most famous "wardrobe malfunction" in television history, and the flap isn't over.

On Wednesday, the Bush administration asked the Supreme Court to uphold the Federal Communications Commission's $550,000 fine against CBS for airing singer Janet Jackson's brief breast exposure during the 2004 Super Bowl halftime show.

In July, the U.S. Court of Appeals for the 3rd Circuit in Philadelphia threw out the fine, ruling it was illegal because the FCC had changed policy about fleeting indecent images without properly notifying television networks.

For years prior to the Jackson incident, the FCC had not held broadcasters accountable for fleeting nudity, especially went it was not an intentional exposure by the broadcaster.

But there was so much attention on the Jackson incident that the FCC, under pressure from Congress and vocal watchdog groups, launched a crackdown on broadcast content.

The appeals court agreed with CBS' contention that it should not be held "vicariously liable" for actions it did not take on its own.

In July, FCC Chairman Kevin Martin said he was "surprised and disappointed for families and parents."

"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," he said. "Hundreds of thousands of people complained about the show, and a unanimous commission found that it was inappropriate for broadcast television."

CBS officials said in a written statement that "we hope the Supreme Court will recognize there are rare instances, particularly during live programming, when it may not be possible to block unfortunate fleeting material, despite best efforts. Doing so would help to restore the policy of restrained indecency enforcement the FCC followed for decades."

The Supreme Court also is considering another FCC indecency appeal involving profanity. Fox Television appealed rulings that involved words used by celebrities Cher and Nicole Richie during live music awards shows. Fox was fined by the FCC and an appellate court in New York overturned it.

Reporter Walt Belcher can be reached at (813) 259-7654.

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