The uproar continues unabated this month over Janet Jackson’s breast.

As predicted here last month, the US House of Representatives opened hearings and were so “shocked and appalled,” that they raised the fine for network indecency from $27,000 to $500,000 per incident, with a license-revoking hearing required after three offenses.

Some members of Congress voiced support to extend the current restrictions on regular network shows against sexually explicit (including “nude”) material to all cable and satellite channels. A parade of network CEOs (CBS, NBC, Viacom, Cox) announced they had voluntarily imposed a 5 to 10 second delay in all live programming (radio as well as TV) so that “it couldn’t happen again.” Exactly WHO will have their finger on that “delay button” was not disclosed (Ashcroft? Falwell?)

Since my last column, long-running television shows that occasionally have brief partial nudity in their story lines, like NYPD Blue and ER, have now had those scenes cut before airing.

On Feb 25, Clear Channel radio cancelled shock jock Howard Stern’s show on all its stations. After 10 years of continued high ratings.

Clear Channel radio also fired another shock jock, “Bubba the Love Sponge,” whose ratings were ranked first in his Florida morning time slot. John Hogan, president of Clear Channel told members of the House Energy and Commerce telecommunications subcommittee he was “ashamed” of the “Bubba” show. But not too ashamed to have put it on the air six years ago!

As we were going to press we heard that a local NPR commentator at KCRW was summarily fired for saying "Fuck"on one of her shows. The station engineer fogot to bleep it out, as was the original intent. The station manager is quoted as saying, “Everyone is running scared.”

Are Nudists and Naturist Resorts next?

During the past month several state legislatures (Kansas, Wisconsin, Texas) have had bills introduced to declare as a “sexually violent crime” anyone convicted for nudity or indecent exposure. Similar legislation was beaten back in Washington State. Delicate negotiations have been upset for a proposed nudist beach at Assateague, Maryland.

In Virginia the legislature voted 98-1 to close any nudist resort that allows children to attend summer camp there without their parents (what parent goes to summer camp????)

Locally, the city of El Cajon, CA, is considering a strong anti-nudity city ordinance drafted by the former director of the National Family Legal Foundation, a fiercely anti-nudity organization based in Scottsdale, AZ.

This may get worse for us before it gets better. Thanks again, Janet!

CBS got the bill Wednesday for Janet Jackson's eye-catching flash dance during the Super Bowl halftime show: a record $550,000.

The Federal Communications Commission voted unanimously to fine each of the 20 CBS-owned television stations $27,500, which is the maximum penalty for indecency. The singer's right breast was briefly exposed to millions of television viewers during the show.

The fine is the largest against a television broadcaster.

"As countless families gathered around the television to watch one of our nation's most celebrated events, they were rudely greeted with a halftime show stunt more fitting of a burlesque show," said Michael Powell, the commission chairman.

The FCC decided not to fine CBS's more than 200 affiliate stations, which also aired the halftime show but are not owned by the network's parent company, Viacom Inc.

The agency cited the "unexpected nature of the halftime show and the apparent lack of involvement in the selection, planning, and approval of the telecast" by the affiliates.

The two Democrats on the five-member FCC panel said the fine should have been higher. It amounted to a "slap on the wrist" for such a huge company, said one commissioner, Jonathan Adelstein. He said the agency could have sent a stronger message by also reprimanding CBS' affiliates.

A statement issued by CBS said it is reviewing its options to respond to the ruling. The company has 30 days to ask for reconsideration and provide an explanation as to why the network should not be held liable. [Note: In November, 2004 CBS said itr would appeal its fine, saying it had no advanced warning of the stunt and therefore should not be held liable.]

"While we regret that the incident occurred and have apologized to our viewers, we continue to believe that nothing in the Super Bowl broadcast violated indecency laws," the network said. "Furthermore, our investigation proved that no one in our company had any advance knowledge about the incident."

Federal law bars radio and non-cable television stations from airing, between 6 a.m. and 10 p.m., references to sexual and excretory functions. Those are the hours when children are more apt to be watching television. Once a complaint is made to the FCC, the agency determines whether the broadcast was indecent.

The FCC has stepped up enforcement of the statute in recent years as complaints mounted about a coarsening of public airwaves. Critics, including radio host Howard Stern, claim the FCC is seeking to stifle free speech.

Jackson was at the end of a racy duet with singer Justin Timberlake when he ripped off a piece of Jackson's black leather top, exposing her right breast.

Timberlake blamed a "wardrobe malfunction." CBS was quick to apologize to viewers. The incident generated a record number of FCC complaints -- more than 500,000!

Earlier this year, both the House and Senate passed legislation that would dramatically raise indecency fines. The House voted to raise the fine to $500,000, while the Senate voted to increase it to $275,000 per indecent incident, with a cap of $3 million per day. Differences between the measures are being reconciled, with final passage assured and a signature from President Bush a slam-dunk before election day.

Since March, all four television networks began using broadcast delays on live programs. CBS, for example, aired the Grammy awards ceremony a week after the Super Bowl with a five-minute delay. More recently, ABC used a 10-second delay for a pregame show to kick off the NFL season.

For her part, Jackson has apologized to all, taking total blame for the "malfunction." But what malfunctioned more were the networks and the Congress, who caved to a small group of loud, self-appointed public moralists who want to make sure that freedom of speech always has a 10-second delay.

APPEALS COURT TOSSES OUT CBS FINE

A panel for the 3rd U.S. Circuit Court of Appeals has thrown out the fine the FCC levied against CBS for Janet Jackson's infamous "wardrobe malfunction" during the 2004 Super Bowl halftime show. CBS was fined $550,000 for a fleeting glimpse of Jackson's nipple during her performance with Justin Timberlake. The court ruled that the FCC deviated from its standard practice in issuing the fine for the brief nudity, which it noted lasted just over half a second.

CBS said in a statement that it hoped the decision by the Philadelphia-based court "will lead the FCC to return to the policy of restrained indecency enforcement it followed for decades." "This is an important win for the entire broadcasting industry because it recognizes that there are rare instances, particularly during live programming, when it may not be possible to block unfortunate fleeting material, despite best efforts," CBS said in its statement.

The decision drew a sharp rebuke from the Parents Television Council, an indecency watchdog group. It said the ruling "borders on judicial stupidity" and urged lawmakers in Congress to pass a bill to strengthen anti-indecency enforcement. "If a striptease during the Super Bowl in front of 90 million people, including millions of children, doesn't fit the parameters of broadcast indecency, then what does?" the group asked.

01/04/2011, NEW YORK – The Federal Communications Commission cannot fine broadcasters for showing a woman's nude buttocks on a 2003 episode of "NYPD Blue," a federal court ruled Tuesday, citing its earlier decision to strike down FCC rules regarding fleeting expletives uttered on live broadcasts as unconstitutionally vague.

The 2nd U.S. Court of Appeals in Manhattan decided Tuesday to nullify a $27,500 penalty that the FCC imposed on ABC and 45 of its affiliate stations after the image was broadcast on the police drama for less than seven seconds in February 2003. The combined fine was greater than $1.2 million.

The appeals court said its finding was consistent with its decision last year that TV stations can no longer be fined for fleeting, unscripted profanities uttered during live broadcasts. The FCC had created its fleeting-expletive policy after a January 2003 NBC broadcast of the Golden Globe Awards in which U2 lead singer Bono uttered the phrase "f------ brilliant." The FCC said that word in any context "inherently has a sexual connotation" and can lead to enforcement.

Fox Television Stations, owned by Rupert Murdoch's News Corp., and other networks challenged the policy in 2006 after the FCC cited the use of profanity during awards programs that were aired in 2002 and 2003. The FCC has appealed that ruling. In its Tuesday ruling, a three-judge 2nd Circuit panel wrote that there was "no significant distinction" between its decision in the expletives case and its findings in the "NYPD Blue" case. "According to the FCC, 'nudity itself is not per se indecent,'" the judges wrote. "The FCC, therefore, decides in which contexts nudity is permissible and in which contexts it is not pursuant to an indecency policy that a panel of this court has determined is unconstitutionally vague."

In a statement, FCC lawyer Austin Schlick said the ruling confirms that the 2nd Circuit's decision in the earlier case was "excessively broad in rejecting the FCC's ability to use context to evaluate indecency cases." The FCC said it has not yet decided whether to appeal.

"Children and families are the real victims today. This ruling will only serve to embolden the networks to air even more graphic material," said Tim Winter, president of The Parents Television Council, a group that supports strong broadcast-indecency rules and which filed papers with the court before it ruled. "In this instance, ABC intentionally chose to air a scripted visual depiction of a fully naked woman before 10 p.m. There was absolutely nothing fleeting or accidental about it," Winter said in a statement. "The inclusion of the lengthy and ogling scene was intended to pander and titillate. This was a clear breach of the decency law. And now, nearly eight years after the episode aired, ABC is told it doesn't have to abide by the law."

David Kushner, a Raleigh, N.C., lawyer who represented ABC affiliates in the case, said the decision was a "nice New Year's present" for the stations but not the end of the litigation.

"This case is far from over. I would be surprised if the FCC does not seek rehearing," he said. He predicted the decision would not lead to more nudity on network television, just as the decision in the fleeting expletives case has not created an avalanche of controversies over profanities on network television. "No broadcasters are anxious to go out there and step their foot close to the line," Kushner said.

And the fight continues...