FCC Upholds Nipplegate Fine on CBS

Someday, maybe before the decade ends, CBS and the Federal Communications Commission might finally resolve their dispute over Janet Jackson's breast.

Wednesday was not that day. The FCC, not surprisingly, upheld its fine against CBS for the network's broadcast of Jackson's bared breast during the Super Bowl halftime show in February 2004. The commission fined the network $550,000 -- $27,500 for each of the 20 CBS-owned affiliates that aired the incident -- following a massive flood of complaints from viewers.

CBS disputed the fine, arguing that it didn't willfully violate decency standards and disputing whether the incident was indecent in the first place. It also said the FCC's standards were unconstitutionally vague.

To support its argument, the network cited another FCC ruling in which the commission didn't fine CBS for an episode of "The Amazing Race 6" in which the words "F*** Cops!" was spray-painted on a train in the background as the contestants raced through Budapest. Why was the brief display of Jackson's chest considered indecent, CBS asked, and the word "F***" -- which, the FCC has said, is always indecent when uttered on television, regardless of context -- not?

The commission rejected that line of reasoning, saying it let "The Amazing Race" slide because "the graffiti was in the background, did not constitute the focus of the scene and would not likely have been noticed by the average viewer."

If it chooses to, CBS can take the FCC to court and challenge the fine there. The network hasn't decided yet whether it will appeal again.

"CBS has apologized to the American people many times for the inappropriate and unexpected halftime incident during the 2004 Super Bowl, and we have taken steps to make certain it will never happen again," the network says in a statement. "But we continue to disagree with the FCC's finding that the broadcast was legally indecent."

The Super Bowl incident touched off a wave of other indecency complaints (CBS and its affiliates were recently fined $3.6 million for an episode of "Without a Trace") and a move by Congress to dramatically increase the FCC's fining power. That legislation has come up several times, but the House and Senate have yet to reconcile separate versions of the bill. The two chambers are reportedly close to an agreement and could hammer out a final version of the bill this month.