Wardrobe malfunction

In a victory for broadcast freedom, a federal appeals court this week tossed out the ridiculous $550,000 fine the FCC levied against CBS after Janet Jackson flashed her breast during the 2004 Super Bowl half time show.

A three-judge panel of the 3rd U.S. Circuit Court of Appeals ruled that the fine represented a radical departure from the agency's long-established approach to policing TV content.

"Like any agency, the FCC may change its policies without judicial second-guessing," the court said. "But it cannot change a well-established course of action without supplying notice of and a reasoned explanation for its policy departure."

The ruling is repudiation of FCC Chairman Kevin Martin, who has made it a point to more aggressively go after broadcasters for what he believes is indecent content. That policy has led to other court battles, including a case that the U.S. Supreme Court will hear this fall involving the FCC's attempt to punish a network for "fleeting expletives" aired during an awards show.

While the 3rd Circuit ruling rested on a technicality -- that the FCC hadn't properly explained its new policy about fines for "fleeting images" -- it was also grounded in common sense. How in the world can a network be responsible for an impulse decision by a performer during a live broadcast? Should fines be levied if a streaker suddenly runs across the stage during a live concert? How about if a fan flips off the camera as it pans the crowd at a sporting event? How is any of this the broadcaster's fault?

The only way for broadcasters to protect sensitive viewers from such calamities would be to ban live telecasts entirely -- including news accounts and sports contests.

Does that really make any sense?


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