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The infamous “wardrobe malfunction” at the 2004 Super Bowl in which singer Janet Jackson’s breast was briefly exposed to millions of television viewers should not have resulted in any fines against CBS Corp. because the network had taken numerous precautions to prevent such an incident, the network’s lawyer told a federal appeals court yesterday. “CBS neither planned nor approved this split-second incident,” attorney Robert Corn-Revere of Davis Wright & Tremaine in Washington, D.C., argued before the 3rd U.S. Circuit Court of Appeals. Corn-Revere urged the three-judge panel to overturn a $550,000 fine imposed by the Federal Communications Commission, arguing that the agency unfairly held the network responsible for the conduct of Jackson and singer Justin Timberlake. But Justice Department attorney Eric Miller insisted that Jackson and Timberlake were legally CBS employees that day and that the network failed to exercise proper control over them despite ample warning signs that they were planning to do something “shocking.” “CBS broadcast the spectacle of a man singing ‘Gonna have you naked by the end of this song,’ while simultaneously grabbing a woman, ripping apart her clothing and exposing her breast to the largest television audience of any broadcast that year,” Miller said. Although the incident was very brief, Miller said, the FCC imposed fines due to its graphic nature and the fact that it was done purely for shock value in a program that children were watching and which carried no warnings of possible adult content. But early on in his argument, all three judges were grilling Miller. “How do you justify sanctioning CBS in circumstances where it had no prior knowledge that the event was going to take place and that was deliberately concealed from it?” Judge Julio M. Fuentes asked. Miller insisted that the performers themselves had knowledge and, as CBS employees, were “part of CBS.” “That doesn’t seem to make sense at all,” Fuentes said. “I mean, it sounds like a conclusion that was made out of convenience. I mean, they really weren’t employees of CBS, were they?” Miller insisted that, under common law principles of agency, the performers were under CBS’ control and therefore were acting as its employees. The “critical factor,” Miller said, is the right of the employer to control. CBS had that right, Miller said, since it designed the sets for the performance, required the performers to attend rehearsals, and exercised approval rights over their costumes and script. “You can’t have it both ways,” Judge Marjorie O. Rendell said. “You say they had control and then you fault them for not exerting control over these individuals.” But Miller insisted that the test under the law is “the right to control.” A negligent employer, like CBS, he said, “doesn’t exercise that right properly.” Chief Judge Anthony J. Scirica questioned whether the FCC was correct in imposing “respondeat superior” liability on CBS for the actions of Jackson and Timberlake. “With your theory of respondeat superior, you end up with virtually strict liability regime,” Scirica said. Miller disagreed, saying the FCC was not imposing strict liability, but rather “vicarious liability.” Corporations, he said, are always subject to vicarious liability because they act only through the people they employ. Corn-Revere argued that the FCC’s decision to impose fines on CBS – the maximum fine of $27,500 levied against each of the network’s 20 “owned and operated” stations – was wrong for four reasons. First, he said, since CBS had no advance knowledge of the incident, which lasted just 9/16ths of a second, it was wrong for the FCC to impose respondeat superior liability for the performers’ conduct where the evidence also showed that CBS had made a “good faith effort” to comply with broadcast standards. Second, he said, the FCC’s ruling abandoned the agency’s nearly three-decade-running policy of not imposing fines for “fleeting” instances of indecency. Third, he said, the ruling violated CBS’ due process rights because it applied its newly created “zero-tolerance” policy retroactively for an incident that had occurred before the agency adopted the new rule. Finally, Corn-Revere said, the ruling was “arbitrary and capricious” because it was premised on “national community standards” that the FCC simply invented on its own instead of conducting research or hearings that would justify the existence of such standards. Fuentes asked: “Could it be said that you failed to take reasonable precautions to find out what was going to take place?” Corn-Revere insisted that CBS had taken precautions, first by selecting performers that it thought would adhere to broadcast standards – and rejecting some that it feared would not. In his brief, Corn-Revere noted that Jackson and Timberlake were chosen in part because they both had national television experience. But Rendell said the record also included a memo from NFL Commissioner Paul Tagliabue to CBS President Leslie Moonves that seemed to warn of problems with Jackson. Corn-Revere disagreed, saying the memo was expressing only “general concerns” that related not to Jackson but to “an earlier incident where the NFL had been embarrassed by a performance by Britney Spears.” The courtroom erupted with laughter when Corn-Revere added: “of course, who hasn’t been.” But Rendell pressed her point, saying the memo “was saying that you need to anticipate that these performers who are trying to make a splash and a name for themselves, that they do things that get them some notoriety.” Corn-Revere insisted that CBS did exactly that, and that the evidence showed that the network “took a prudent course” by rejecting performers it didn’t trust. Scirica asked if such incidents are less likely to occur now that the networks have implemented a “video-delay” mechanism for use in live broadcasts. “This event was unprecedented,” Corn-Revere said. “The video delay had to be invented after the Super Bowl; it simply did not exist before.” The FCC’s position, Corn-Revere said, was that CBS should have used video delay, but that reasoning was based on “purely 20/20 hindsight.” But Miller told the judges that “video delay was available and could have been used. It was used one week later for the Grammy Awards, so it didn’t require the invention of some new technology.” Miller also said CBS was wrong in claiming that the FCC has always excused “fleeting” instances of indecency. “The only ‘fleeting’ exception that ever existed was with respect to fleeting expletives,” Miller said, and CBS can’t point to any case in which the FCC has excused fleeting nudity. Miller insisted that there is a difference between indecent language and indecent images. He asked the judges to imagine walking on a city street and hearing a curse word, and to compare that experience to seeing a “flasher” expose himself on the street. Equating images and words, as CBS argues, “flies in the face of common sense,” Miller said, because the rule that the network is arguing for “would be one under which broadcasters were free to broadcast any image, at any time of day, no matter how graphic or explicit or offensive so long as they did so briefly.”

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