FCC Proposed Statutory Maximum Fine of $550,000 Against VIACOM-owned CBS Affiliates for Apparent Violation of Indecency Rules During Broadcast of Super Bowl Halftime Show

Press release

By: Federal Communications Commission

Date: September 22, 2004

Source: "FCC Proposed Statutory Maximum Fine of $550,000 Against VIACOM-owned CBS Affiliated for Apparent Violation of Indecency Rules During Broadcast of Super Bowl Halftime Show." FCC News (September 22, 2004).

About the Author: The Federal Communications Commission, established in 1934 with the Communications Act, is a federal agency of the United States charged with regulating interstate and national communications.

INTRODUCTION

The Federal Communications Commission is responsible for regulating and managing communications across wire, radio, television, and the Internet in the United States. The FCC was created in 1934 and merged rules from the Federal Radio Commission, the Interstate Commerce Commission, and the Postmaster General.

Controlling and monitoring the content of information broadcast on radio and television stations and programs falls under the auspices of the FCC. The FCC restricts or prohibits the discussion or use of certain words deemed to be indecent and restricts nudity on network television. Cable programming and satellite radio, both subscription services, have far less restrictive FCC oversight and can broadcast nudity and profanity that does not cross the line into obscene material.

In addition, the FCC, in 2004, reaffirmed a 1995 rule concerning obscene and indecent material. The rule states that: "(a) No licensee of a radio or television broadcast station shall broadcast any material which is obscene. (b) No licensee of a radio or television broadcast station shall broadcast on any day between 6 a.m. and 10 p.m. any material which is indecent."

The definition of "indecent" material, according to the FCC, is material which "describe[s] or depict[s] sexual or excretory organs or activities. Once the Commission determines that the material aired falls within that definition, we must then evaluate whether the broadcast is patently offensive as measured by con-temporary community standards for the broadcast medium." The use of community standards refers to the 1973 United States Supreme Court case Miller v. California, in which the Supreme Court determined that the definition of obscene or indecent material is community-driven—what is acceptable for one community might not be acceptable for another.

In 1993, the first season of the television show NYPD Blue ushered in a new level of nudity on network television, showing a main character naked from behind. Words such as "bitch" were spoken on the show as well; because the show was in the 10 p.m. time slot, however, it was not affected by FCC rules about programming shown between 6 a.m. and 10 p.m.. Many conservative groups such as Reverend Donald Wildmon's American Family Association complained and protested that the nudity and use of profanity on NYPD Blue and other shows in 10 p.m. time slots crossed the line into indecency. The FCC permitted the shows to air as planned.

At the February 1, 2004 Super Bowl, during a halftime performance, singers Justin Timberlake and Janet Jackson were in mid-performance when Timberlake, as part of a choreographed move, tore Jackson's costume. He unintentionally exposed the female singer's breast and nipple on live, national television.

PRIMARY SOURCE

Washington, D.C.: The Federal Communications Commission today issued a Notice of Apparent Liability for Forfeiture of $550,000 against various subsidiaries of Viacom Inc. for apparently willfully broadcasting indecent material during the February 1, 2004 Super Bowl XXXVIII halftime show. The show contained a musical performance that concluded with Justin Timberlake pulling off part of Janet Jackson's clothing, exposing her breast.

The Commission found that this partial nudity was, in the context of the broadcast, in apparent violation of the broadcast indecency standard. It proposed the statutory maximum amount against each of the Viacom-owned CBS licensees of the 20 television stations that aired the show due to the involvement of Viacom/CBS in the planning and approval of the telecast and the history of indecency violations committed by Viacom's Infinity Broadcasting Corporation subsidiaries. Although the Commission found that other, non-Viacom owned CBS affiliates also aired the material, it did not propose forfeitures against them because of the unexpected nature of the halftime show and the apparent lack of involvement in the selection, planning, and approval of the telecast by these non-Viacom owned affiliates.

Adopted by the Commission: August 31, 2004, Notice of Apparent Liability for Forfeiture (FCC 04-209). Chairman Powell, Commissioners Abernathy, Copps, Martin and Adelstein. Chairman Powell issuing separate statement; Commissioners Copps and Martin approving in part, concurring in part and issuing separate statements; and Commissioner Adelstein approving in part, dissenting in part and issuing separate statement.

SIGNIFICANCE

In the aftermath of the breast exposure, Janet Jackson and Justin Timberlake issued statements referring to the incident as a "wardrobe malfunction." The two performers claimed that the breast exposure was accidental and not part of any planned skit. Part of the lyrics to the song included Justin Timberlake singing "I'll have you naked by the end of this song." Janet Jackson later issued a statement saying that when Timberlake ripped her costume a red lace bra was supposed to remain in place; instead, her breast, nipple, and a metal nipple ring were displayed.

With an audience of more than 140 million worldwide, the incident gained immediate notoriety and was the subject of newscasts for the next few weeks. The National Football League, holding halftime show organizer MTV responsible, announced that MTV would no longer be involved with halftime shows. Groups such as the Parent Television Council filed complaints with the FCC; the PTC has a long history of filing indecency complaints regarding television content, and PTC reports account for 99.8% of all FCC indecency claims in 2003. In 2004, FCC officials estimated that complaints concerning the Super Bowl incident, numbering more than 500,000, accounted for more than half of all indecency complaints.

During the same Super Bowl, shortly after the Jackson-Timberlake incident, a male streaker ran onto the football field, wearing an advertisement for an online company as well as a g-string. Cameras did not broadcast the incident, however, and the streaker was quickly brought under control.

Many comments from the public centered around the fact that children were watching the halftime show, and that the incident occurred between the hours of 6 a.m. and 10 p.m. Critics of this viewpoint note that the Super Bowl has run commercials for erectile dysfunction medications and broadcast sexually suggestive advertisements in the past that were just short of the legal definition of indecent.

In the months following the incident, Howard Stern, a well-known radio talk show host, had his show taken off the air with Clear Channel Communications. Known for vulgar humor and indecent language bordering on obscenity, Stern moved to satellite operator Sirius, a subscription service that is held to a different standard than traditional radio. Stern alleges that Clear Channel dropped his show out of fear of receiving FCC violations and fines.

FCC fines at the time of the incident were $27,500. Congress passed bills that increased the perviolation fine to $375,000 in 2005.

FURTHER RESOURCES

Books

Obscenity and Pornography Decisions of the United States Supreme Court, edited by Maureen Harrison and Steve Gilbert. Carlsbad, Calif.: Excellent Books, 2000.

Wheeler, Lee Ann. Against Obscenity: Reform and the Politics of Womanhood in America, 1873–1935. Baltimore, Md.: The Johns Hopkins University Press, 2004.

Periodicals

Posner, Michael. "Both Chambers Act on Obscenity Curbs." National Journal (March 2004).

Web sites

Federal Communications Commission. "Regulation of Obscenity, Indecency, and Profanity." 〈http://www.fcc.gov/eb/oip〉 (accessed April 1, 2006).