CBS Appeals Nipplegate, Again

Is this Mission Impossible: III, or will the third time prove to be the charm?

CBS has once again asked a federal appeals court to look the other way with regard to the $550,000 fine it incurred from the Federal Communications Commission for that inauspicious split-second airing of Janet Jackson's bare breast during Super Bowl XXXVIII in 2004.

Before notifying the 3rd U.S. Circuit Court of Appeals in Philadelphia of its intent to appeal, however, the network also made good on its debt Friday and paid the fine.

The Parents Television Council, one of the loudest civilian voices heard throughout this whole sordid affair, had been running a clock that was counting down to next week's deadline for CBS to pay up. It was the PTC that helped amass enough complaints to the FCC to warrant the fine in the first place.

But, if CBS wins its latest battle, the FCC will have to refund the money.

"Payment of that forfeiture does not mean CBS in any way is admitting to a violation of the FCC's indecency rules," the network said in its court filing.

Just in case CBS doesn't win, though, it dodged a bullet, considering the maximum fine per indecency violation is now $325,000, up from the $27,500 it was when CBS was punished for Justin Timberlake's poor bustier judgment. (The $550,000 encompasses all of the fines handed down to CBS and 20 network-owned affiliate stations that aired the game. Each entity was fined the max.) President Bush signed the fee hike into law on June 15.

"CBS apologized to the American people for the inappropriate and unexpected halftime incident and immediately implemented safeguards that have governed similar broadcasts ever since," the network said in a statement. "However, we disagree strongly with the FCC's conclusions and will continue to pursue all remedies necessary to affirm our legal rights."

Those fightin' words sound an awful lot like the ones issued when CBS lost its first appeal in February as well as its second go-round in May. The FCC first decided to fine the network in September 2004.

"The fact that Viacom promoted the halftime show before it aired as one that would be shocking gives credence to their culpability," then-FCC Chairman Michael Powell wrote in his ruling. "Unquestionably, Viacom consciously took the risk and, thus, now bears the responsibility."

And that's why we have seven-second delays now, because anyone can take her top off during a live show at any given time. While shouting out the F-word.

CBS' legal camp stated Friday that the $550,000 fine was "unconstitutional, contrary to the Communications Act and FCC rules and generally arbitrary, capricious and contrary to law," reiterating the argument that was heard when all four major broadcast networks banded together in April to appeal the millions of dollars in fines the FCC handed down the month before for impromptu swear words, too-sexy sequences and any other content the government agency deemed indecent.

"The commission will vigorously defend the forfeiture order issued against CBS," FCC spokeswoman Tamara Lipper said. "CBS' continued insistence that the halftime show was not indecent demonstrates that it is out of touch with the American people. Millions of parents, as well as Congress, understand what CBS does not: Janet Jackson's 'wardrobe malfunction' was indeed indecent."

Yes, the nation's most-watched network is out of touch with what the American people want.

Earlier this month the FCC requested that broadcasters turn over a bunch of tapes from live sporting events, including NFL games and NASCAR races, so that the agency could check to see whether catcalls or outbursts from the crowd, coaches or players contained swear words.

Under new rules instigated post Nipplegate in 2004, most any spur-of-the-moment expletive is considered profane and indecent. An FCC finding in March that an episode of CBS' The Early Show, featuring a Survivor cast-off who uttered the S-word, had violated indecency standards did not incur a fine, however, because the slip-up occurred before the revamped rules were in place.

"It looks like they want to end live broadcast TV," a network executive who wished to remain anonymous told the Hollywood Reporter a few weeks ago. "We already know that they aren't afraid to go after news."