The FCC will actually be getting in line behind itself, apparently, in its attempt to overturn a lower court ruling which eliminated a fine for the infamous Janet Jackson Super Bowl incident back in 2004. The Supreme Court was to consider whether or not to hear the FCC’s case against CBS last Friday 2/20/09, but did nothing. According to SCOTUSBLOG, a web publication of law firm Akin Gump Strauss Hauer & Feld LLP, it appears the court is waiting for the disposition of the pending FCC Supreme Court case on its ability to punish fleeting indecency.
RBR/TVBR observation: We think the lower courts got it right in both cases – it’s one thing to hold broadcasters responsible for planned and premeditated indecent programming – even though you can debate where that line is drawn forever. Holding broadcasters responsible for fleeting slip-ups or even planned “slip-ups” executed without prior licensee knowledge could potentially make live broadcast too risky an undertaking. We are more than willing to risk an occasional slip-up – and note that they are rare – in return for the many benefits of live broadcast programming.