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Court ruling: Janet Jackson's boob 1, FCC 0, but the game's not over

The Nipple That Will Not Die twitched again Monday when a federal appellate court threw out the FCC's Janetnipple fine against CBS-owned television stations for Janet Jackson's Super Bowl boobery. A three-judge panel of the 3rd U.S. Circuit Court of Appeals said the FCC "acted arbitrarily and capriciously'' in fining the network $550,000 -- $27,500 for each of its 20 stations that aired Jackson's halftime show.

But the decision -- even if the FCC decides not to appeal it further -- probably means little for anybody beyond CBS stockholders. The court didn't rule that nipples are okay on television or that the FCC was engaging in censorship. Rather, it said the agency hadn't given broadcasters fair notice that it was cracking down on televised nudity. "The Commission's determination that CBS's broadcast of a nine-sixteenths of one second glimpse of a bare female breast was actionably indecent evidenced the agency's departure from its prior policy," the court ruled. "Its orders constituted the announcement of a policy change -- that fleeting images would no longer be excluded from the scope of actionable indecency."

But the court left no doubt that the FCC is free to continue with the more conservative approach it's taken in the past three years in enforcing rules against so-called indecent programming. "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, if it stands, will probably mean that the FCC will have to rescind fines in a few cases from 2003 and 2004, notably including $91,000 against 13 affiliates that aired an episode of Married In America featuring strippers covered in whipped cream. (That one's in court, too.) But the gee-officer-I-didn't-know-it-was-against-the-law defense isn't going to work for later cases, and Hollywood will continue to flaunt what it contemptuously regards as flyover-America morality at its peril. That $27,500 fine for each CBS station that aired Jackson's flashdance? That represented the maximum fine under the law at the time. Since then, Congress has upped the limit to $325,000, which means another Nipplegate would cost CBS $6.1 million.

The vote on increasing the fines, by the way, was 379 to 35. Whether network executives want to admit or not, there's a broad bipartisan consensus that broadcast TV needs to be reined in. Even a Barack Obama victory in November isn't likely to change that.


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