Legal eagle eye view of the FCC Super Bowl ruling
Attorney Peter Gutmann of Womble Carlyle Sandridge & Rice, PLLC has looked over the FCC's decision to uphold its 550K fine charged to CBS Television and its O&Os over the infamous Super Bowl wardrobe malfunction courtesy of Janet Jackson and Justin Timberlake. After expressing surprise at how quickly the decision was turned around and made public, he found some points worth the attention of broadcasters who are vulnerable to the same type of event taking place on their own airspace. As usual, WCS&R PLLC warns that this is provided for general information is not to be used as legal advice.
Read it here
As had been widely anticipated, the Federal Communications Commission has affirmed its recent decision to fine CBS's owned and operated stations for the "costume reveal" at the 2004 Super Bowl halftime show.
The only surprise of the ruling was its speed, coming only weeks after an appeal, while radio broadcasters continue to await disposition of indecency cases that remain pending for up to several years. Even so, the Commission's rejection of CBS's defenses contains some potentially helpful elaborations of its initial analysis.
* Viewer Focus: Perhaps as a means of avoiding the difficulty of quantifying whether an image was sufficiently fleeting to avoid liability, the Commission characterized the half-second flash of nudity as the natural focus of viewers' attention. The Commission contrasted the Super Bowl incident with a distant shot of a fully nude man being pulled from a flooded river during news coverage and obscene graffiti in the background of a shot of race contestants, both of which escaped censure.
* State of Mind: The Commission rejected CBS's defense that it had not intended to pander, titillate or shock the audience. Rather, the Commission emphasized that it assesses indecency by examining the material itself and the manner in which it is presented rather than speculating as to the subjective state of mind of the broadcaster. In its analysis, the Commission emphasized that the nudity itself was merely the culmination of a lengthy sexually-charged performance, the general nature of which CBS should have become well aware.
* Contemporary Community Standards: CBS had claimed that the vast majority of viewers had not been upset by the Super Bowl incident, which therefore failed the requirement that indecency "be contrary to contemporary community standards for the broadcast medium." The Commission deflected polls cited by CBS and thus left unresolved the question of how contemporary community standards are to be determined. Rather, it opted to rely upon its "collective experience and knowledge," seemingly a far less precise, and purely anecdotal, approach than expert sociological testimony or statistically valid opinion polls. Even so, the Commission's decision was facilitated by CBS's own actions following the Super Bowl incident, as its executives had gone on record stating, among other things, that "everyone at CBS was shocked and appalled...by what transpired" and maintaining that the material "went far beyond what is acceptable standards for our broadcast network."
* Willfulness: CBS contended that it could not be found to have willfully violated Commission rules because it did not intend that the incident occur. The Commission emphasized that a willful action is one that is conscious and deliberate rather than a matter of intent. Here, it found that CBS was well aware of the general nature of the performance and had even promoted it as "shocking." The Commission further chided CBS for not having taken precautions such as making its standards clear to the performers or using a more effective system for monitoring and delayed broadcast. Finally, the Commission found CBS, both as a legal matter of contract with the producers and as a practical matter of controlling production logistics, to have placed itself in a position of responsibility for the program.
* Amount of Forfeiture: The Commission affirmed its legal authority to fine CBS's owned and operated stations but not mere affiliates that carried the broadcast, thus affirming the possibility that similar distinctions might be drawn for future network feeds. The Commission further found CBS's citation of a prior record of compliance to have been outweighed by the gravity of the violation, both because of its explicit nature and its exposure to a huge nationwide family audience.
* The Role of Blocking Technology: Finally, CBS had contended that the advent of the V-chip has supplanted the need for regulation by empowering parents with tools to protect children from material they deem improper. The Commission noted, though, that the V-chip is rarely used, depends upon accurate program ratings and does not even include ratings for sporting events. Perhaps anticipating the scrutiny of an appellate court, the Commission's decision is thick with footnotes of case support for its rationales. CBS already has indicated that it plans to appeal. In the meantime, with a fifth Commissioner finally on board, the Commission may move forward to decide its pending radio indecency cases, and perhaps to shed some further light on practical standards which the industry continues to await.
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