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FCC wrong in CBS 'malfunction' fine

In a 1993 Rolling Stones cover story titled "Sexual Healing," singer Janet Jackson tells a reporter: "Look, sex has been an important part of me for several years. But it just hasn't blossomed publicly until now.

In a 1993

Rolling Stones

cover story titled "Sexual Healing," singer Janet Jackson tells a reporter: "Look, sex has been an important part of me for several years. But it just hasn't blossomed publicly until now.

"For me, sex has become a celebration," the singer said.

Jackson also apparently agreed that she was in full control.

"Every aspect of my recording or performance is vital," she said. "Nothing happens without my approval."

The accompanying cover photo was of a topless Jackson in jeans with a man's hands partly covering her breasts.

Zip forward to Super Bowl 2004 in Houston. We all remember the flap over her "wardrobe malfunction" - when her round, right breast with a silver sunburst "shield" covering her nipple was bared for half a second on television. An estimated 90 million viewers, including children, saw the live halftime show.

That breast-baring occurred when Justin Timberlake sang the line, "Gonna have you naked by the end of this song," and reached for his busty colleague's bustier.

Four years later, it all comes down to this: In the first-ever court ruling on the case, a federal appeals court in Philadelphia yesterday tossed out a $550,000 indecency fine imposed by the Federal Communications Commission against CBS Corp., which had broadcast the Super Bowl and the halftime show that Feb. 1.

Chief Judge Anthony J. Scirica of the Third Circuit U.S. Court of Appeals wrote in the panel's decision that the FCC, in finding CBS liable, had "arbitrarily and capriciously departed from its prior policy . . ."

The three-judge panel also ruled that Jackson and Timberlake were "independent contractors . . . rather than employees [of CBS] as the FCC found." It said: "The First Amendment precludes the FCC from sanctioning CBS for the indecent expressive conduct of its independent contractors without offering proof of scienter," or a degree of knowledge that would make CBS liable.

Scirica sent the case back to the FCC for further clarification on its indecency provisions, but noted that any further action "would be declaratory in nature, as the agency may not retroactively penalize CBS."

Judge Marjorie O. Rendell, wife of Gov. Rendell, and Judge Julio M. Fuentes concurred with the decision to vacate the fine.

Rendell, however, dissented with the majority when she wrote that she didn't see a need to remand the case back to the FCC since it was already held that the fine had been imposed improperly.

CBS yesterday said in a statement: "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.

"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."

Meanwhile, FCC Chairman Kevin J. Martin said in a statement: "I am surprised by today's decision and disappointed for families and parents. . . .

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

The FCC had argued that Jackson's nudity, albeit fleeting, was graphic and explicit, and that CBS should have been forewarned. Jackson has said that the decision to add a costume reveal - exposing her right breast, which had only a "shield" covering her nipple - came after the final rehearsal.

At the time, broadcasters did not use a video delay for live events, a policy remedied within a week of the game.

The FCC fined CBS $550,000, which represented the total of proposed fines against 20 individual CBS stations.

The case came to Philadelphia in 2006, when CBS, incorporated in Delaware, petitioned the appeals court to review the case after the FCC denied a motion for reconsideration. As part of the appeals process, CBS paid the fine.

FCC spokeswoman Edie Herman said yesterday that the agency was reviewing the court's order and had not yet decided if it would appeal. She could not immediately confirm whether the FCC will soon return CBS's money.

As for Jackson and Timberlake, the FCC didn't have jurisdiction to directly fine them. "Under the law, we only have jurisdiction over broadcast licensees," Herman said. *

The Associated Press contributed to this article.