What Does a Wardrobe Malfunction Cost?

Long after even the most fervent football fans have forgotten which team won the 2004 Super Bowl (the New England Patriots), Janet Jackson and Justin Timberlake will be remembered for providing one of the most memorable moments in Super Bowl history. During the halftime show, Timberlake, in what the CBS television network carrying the event referred to as a “wardrobe malfunction,” exposed one of Jackson’s breasts to some 90 million television viewers. Although the exposure was so brief that many viewers missed it, members of the Federal Communications Commission (FCC) were not amused. Citing federal law prohibiting indecent broadcasts, the commissioners fined CBS a record $550,000.

As it turns out, the “wardrobe malfunction” was the catalyst that emboldened the FCC to more vigorously enforce decency standards. One month after imposing the Super Bowl penalty, the FCC commissioners fined the 169 Fox TV stations $7,000 each for an airing of a single episode of the short-lived reality show Married by America. The episode in question featured sexually explicit scenes of bachelor and bachelorette parties. Although the nudity was pixilated, the sexual nature of the activities was clear and thus, to the FCC, indecent. Then, in 2006, the FCC commissioners struck again, leveling fines totaling almost $4 million involving nine television programs. The largest of these fines, $3.6 million, was levied against the 111 CBS affiliate stations that broadcast a particular episode of the CBS drama Without a Trace. Depicted in the show were scenes of teenagers apparently engaged in sexual activities. Again, there was no nudity in the show, but the FCC concluded that the portrayal of sexual activities, especially as those activities involved minors, constituted a violation of the decency rules. Public broadcasting did not evade punishment, either, with the FCC imposing a $15,000 fine on PBS because the documentary The Blues: Fathers and Sons contained numerous obscenities.

This spate of aggressive actions by the FCC sent shock waves throughout the broadcast industry. Fears of FCC fines or, worse yet, the suspension of broadcasting licenses caused several television stations in 2004 to shelve plans to air the Oscar-winning movie Saving Private Ryan on Veterans Day, even though the movie had already become the customary holiday presentation. Not knowing whether the language would pass muster with the FCC, several stations, including some of those in bigger markets, simply refused to take a chance.

All of these fines were levied based on the FCC’s interpretation of indecency, defined as any reference to sexual or excretory functions aired between the hours of 6:00 a.m. and 10:00 p.m. A precise definition was, however, elusive and left to the discretion of the FCC.

In the end, the fines levied by the FCC were held by various courts to be unconstitutional. Although the Supreme Court affirmed the FCC’s right to enforce the indecency rule, it criticized the agency for not articulating clear standards. As a result, for several years now, the FCC has shown little interest in purging indecency from the airwaves. Agency leaders have been engaged in a long-drawn-out comprehensive review of their enforcement policy. To date, no new policy initiatives have been approved, leaving over-the-air broadcasters in the lurch. Broadcasters seeking to sell their stations or even renew their licenses must sign what is called a “trolling agreement,” whereby they agree to waive the statute of limitations on any backlogged cases yet to be resolved. In short, the broadcasters are being asked to agree to the possibility of prosecution under rules that have yet to be created.

All of this uncertainty applies only to over-the-airwaves television and radio broadcasters. Although other forms of communications may be subject to prosecution for obscenity, they are not held to such a strict standard of indecency. Cable television programming and satellite radio (e.g., Sirius) are exempted from the standards because, as subscriber-based services not using the public airways, they are not licensed by the FCC. (Indeed, the frequently fined radio personality Howard Stern moved his highly popular show to Sirius Satellite Broadcasting to avoid FCC regulations.)

Ironically, the uncertainty as to what the FCC will do and how it will impact over-the-airwaves broadcasters comes at the very time that they are losing substantial numbers of their audiences to competitors not licensed and therefore not regulated by the FCC.

Source: David Oxenford, “Ten Years After Janet Jackson’s Super Bowl Clothing Malfunction, FCC Indecency Rules Remain in Limbo,” Broadcast Law Blog, February 3, 2014, www.broadcastlawblog.com/2014/02/articles/ten-years-after-janet-jacksons-super-bowl-clothin-malfunction-fcc-indecency-rules-remain-in-limbo/.