What Janet Jackson Reveals About Broadcasting

The 2004 Janet Jackson-Super Bowl reveal seems like ancient history. But as the Third Circuit Court of Appeals heard new oral arguments in the case on Feb. 23, the future of broadcast television was very much at stake.

Whether or not this court, and ultimately the Supreme Court, decides to uphold the Federal Communications Commission's authority to regulate fleeting indecency will impact not only broadcasters' bottom lines, but their ability to compete in a multi-platform media world. First, there's the matter of the fine. When CBS stations were cited for broadcasting Jackson's "wardrobe malfunction," the fine was $550,000. Thanks to legislation to increase the penalty tenfold, the same fine would cost CBS more than $5 million today. But the ongoing regulatory uncertainty has been costly in and of itself.

The FCC has a backlog of well over a million indecency complaints, as well as TV station licenses up for renewal, that are awaiting some regulatory clarity. And networks have already taken expensive precautionary measures. But if the court upholds the FCC's ability to levy hefty fines for fleeting images and language, broadcasters may not be the only ones looking over their shoulders. As the saying goes, once you see the camel's nose enter the tent, the camel can't be far behind. So the commission, emboldened by the courts, may seek to extend its regulatory powers over content into other media, including cable, satellite and the Internet—something broadcasters would applaud.

The prospect of the FCC regulating content in other media has come up as the commission considers its regulatory responsibility to children. FCC Chairman Julius Genachowski continues to promote parental choice, but the FCC is trying to figure out how it may need to regulate kids content differently in the digital age.