• Broadcasting & Cable, Tuesday, November 21, 2006 11:45 AM

CBS has launched its arguments in a court challenge to its Janet Jackson "Nipplegate" Super Bowl fine, telling the Third Circuit Court of Appeals in Philadelphia that the Federal Communications Commission should go back to a more restrained indecency policy. CBS says the challenge, as well as one it is filing Wednesday in the case of four profanity decisions, is geared to "seeking a return to the FCC's previous time-honored practice of more measured indecency enforcement."

CBS says restraint toward fleeting and isolated incidents was "abandoned" after the commission "failed to turn up even a shred of evidence" that the net participated in or even knew about the "Jackson/Timberlake stunt" during the Super Bowl.

Not only does the finding and fine--$550,000--violate the First Amendment, says CBS, but it is arbitrary, capricious and violates due process. The network argues that the FCC has dismissed complaints with virtually identical circumstances. For its part, the FCC says that "CBS continues to ignore the voices of millions of Americans, Congress and the commission by arguing that Janet Jackson's halftime performance was not indecent."

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