The three-judge panel ruled that the FCC acted "arbitrarily and capriciously" in departing from a decades-old policy that said brief nudity did not violate rules designed to keep children from seeing indecent material broadcast between 6 a.m. and 10 p.m. The judges said the FCC had rejected similar fleeting nudity complaints before, including after the TV broadcast of "Schindler's List" in 2000.
The panel also agreed with CBS that it was not liable because Jackson and Justin Timberlake, who pulled off part of her costume to reveal her breast at the end of their performance, were independent contractors, not network employees.
"The airing of scripted indecency or indecent material in prerecorded programming would likely show recklessness, or may even constitute evidence of actual knowledge or intent," the judges wrote. "But when unscripted indecent material occurs during a live or spontaneous broadcast, as it did here, the FCC should show that the broadcaster was, at minimum, reckless in causing the indecent material to be transmitted over public airwaves."
The FCC argued that CBS was reckless in allowing the incident to occur. But the judges sided with CBS, which said the incident was unscripted and that the network had tried to prevent it by having "numerous script reviews and revisions," "several wardrobe checks" and a five-second audio delay. CBS said video delay technology was not available at the time, but was engineered afterward.
The Jackson incident, which Timberlake described as a "wardrobe malfunction," outraged many viewers, who flooded the FCC with more than 540,000 complaints. Then-FCC Chairman Michael K. Powell called it a "classless, crass and deplorable stunt," and the agency unanimously levied the maximum $27,500 fine against 20 network-owned stations for airing it. The uproar led Congress to increase indecency fines to $325,000 per station for an incident.
Many of the complaints came from Parents Television Council members. Tim Winter, the watchdog group's president, said Monday's court decision was "utterly absurd" and disputed that fleeting words and images are not offensive.
"Ask a parent how many fleeting profanities are OK during the course of a day with their child. The answer is zero. The same thing with nudity," he said. "How much fleeting nudity is OK during the Super Bowl? The answer is zero."
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jim.puzzanghera@latimes.com
