One small step for indecency, one giant decision for CBS!

Remember the 2004 Superbowl halftime show that featured Justin Timberlake and Justin Timberlake’s “wardrobe malfunction?”  Broadcasters will never forget.  The mere 9/16th’s of a second of Janet’s partial nipple resulted in a $550,000 fine against CBS-TV and the strongest crackdown on broadcast indecency by the FCC in years.

Well, never mind.

Today, a federal appeals court threw out the fine against CBS and basically said the FCC were nit-picking prudes.

Unfortunately, since the incident, many fine broadcasters have been fired over their own “fleeting moment of stupidity.”  Others, like Howard Stern, left terrestrial radio for good for the safe harbor (although much much much smaller audiences) of satellite radio.

Although the decision is good for CBS, and potentially a good precedent for broadcasters who must defend themselves before the arbitrarily almighty protectors of decency at the FCC, those firings left some good people on the beach asking radio “If it was all for nothing, when can I come back?”  Let’s hope it’s soon … for good, entertaining talent.

I can’t help but wonder quietly how TV will respond to push the boundaries next because they always seem to get the attention while radio gets the punishments.

Download the court decision here.

PHILADELPHIA (AP) – The three-judge panel of the 3rd U.S. Circuit Court of Appeals ruled that the Federal Communications Commission “acted arbitrarily and capriciously” in issuing the fine for the fleeting image of nudity.

The 90 million people watching the Super Bowl, many of them children, heard Justin Timberlake sing, “Gonna have you naked by the end of this song,” as he reached for Jackson’s bustier.

The court found that the FCC deviated from its nearly 30-year practice of fining indecent broadcast programming only when it was so “pervasive as to amount to ‘shock treatment’ for the audience.”

“Like any agency, the FCC may change its policies without judicial second-guessing,” the court said. “But it cannot change a well-established course of action without supplying notice of and a reasoned explanation for its policy departure.”

The 3rd Circuit judges—Chief Judge Anthony J. Scirica, Judge Marjorie O. Rendell and Judge Julio M. Fuentes—also ruled that the FCC deviated from its long-held approach of applying identical standards to words and images when reviewing complaints of indecency.

“The Commission’s determination that CBS’s broadcast of a nine-sixteenths of one second glimpse of a bare female breast was actionably indecent evidenced the agency’s departure from its prior policy,” the court found. “Its orders constituted the announcement of a policy change—that fleeting images would no longer be excluded from the scope of actionable indecency.”

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