PHILADELPHIA, PA – In an appeal filed last Friday, CBS Corp asked the court to set aside the $550,000 fine imposed by the Federal Communications Commission (FCC) as penalty for the infamous Janet Jackson “wardrobe malfunction” during the broadcast of the 2004 Super Bowl.In the appeal, CBS contends that the FCC fine is “unconstitutional, contrary to the Communications Act and FCC rules and generally arbitrary, capricious and contrary to law.”
As a condition of filing the petition for review, which was filed with 3rd U.S. Circuit Court of Appeals in Philadelphia, CBS has already remitted the amount of the fine. Should the Court rule in favor of CBS, the money will be returned to the company.
In a statement released by CBS, the company noted that it had already apologized for the incident, an occurrence that CBS characterizes as “inappropriate and unexpected,” and has implemented new measures to prevent similar incidents in the future.
Nonetheless, in the statement issued by CBS, the company states “we disagree strongly with the FCC’s conclusions and will continue to pursue all remedies necessary to affirm our legal rights.”
The FCC fired back with a statement of its own, delivered by spokeswoman Tamara Lipper.
“CBS’ continued insistence that the halftime show was not indecent demonstrates that it is out of touch with the American people,” said Lipper. “Millions of parents, as well as Congress, understand what CBS does not: Janet Jackson’s ‘wardrobe malfunction’ was indeed indecent.”
Meanwhile, elsewhere on your TV dial, the Public Broadcasting System (PBS) has expressed concern that the FCC’s renewed focus on preventing broadcast “indecency” could result in fines for PBS, should the network air an upcoming World War II documentary in uncensored form.
The War, a documentary series directed by acclaimed documentary filmmaker Ken Burns, is a 14-hour series dedicated to World War II, which includes interviews with WWII veterans speaking candidly about their experiences in the war.
What has PBS concerned is the colorful language employed by a couple of veterans in relating their experiences, which includes the use of some expletives potentially subject to FCC penalties.
Burns told The New York Times that he was not concerned about the potential fines, noting that there are only two instances of profanity in the entire documentary series, both of which come from off-camera speakers.
The filmmaker did say he was “flabbergasted” that FCC indecency fines have been directed towards documentary broadcasts, particularly following the coverage of the recent G8 summit in St. Petersburg, Russia, when press microphones famously caught President George Bush himself uttering an obscenity, referring to the conflict in the Middle East as “this shit.”
PBS’ concerns are not without foundation, however; in March, PBS station KCSM in California was fined $15,000 for obscene language contained in Martin Scorcese’s documentary, The Blues.
In a memo to PBS stations, PBS’s deputy counsel Paul Greco advised that when the speaker’s mouth is visible, it is not sufficient to bleep out indecent language; one must also obscure the speaker’s mouth in order to be safe from FCC-imposed penalties. Under FCC guidelines, broadcasters can be fined for indecency even if they bleep out profane language if the speaker’s mouth is visible on camera, making the speaker’s words recognizable through lip-reading.
PBS could play it safe in either of two ways; they could air The War outside of the so-called “safe harbor” hours of 6:00 am to 10:00 pm, when indecency restrictions are less stringent, or they could edit or censor the soldiers’ comments.
PBS executives, however, say they will do neither, instead taking the position that the language used isn’t inappropriate, much less “indecent,” given the context.
“The American people need to know this is not about Janet Jackson,” said Paula Kerger, president and chief executive officer of PBS. “This is about film-makers that have powerful stories that now are not being allowed to tell those stories on public television or broadcast television.”
Margaret Drain, the vice president for national programs at Boston’s WGBH, told the Times that The War was the “the perfect test case for the FCC, because who’s going to take on veterans of this country who put their lives at risk for an honest, just cause?”
“It’s not pornographic; it’s not scatological,” added Drain. “It’s an emotional expression of a reality they experienced, and it’s part of the historical record.”
The FCC has thus far refused comment on the question of The War, but an FCC official, speaking on the condition of anonymity did tell the Times that “the commission’s analysis always takes context into account.”
