Janet Jackson (L) reacts after fellow singer Justin Timberlake ripped off one of her chest plates, revealing one breast, at the end of their half time performance at Super Bowl XXXVIII in Houston, February 1, 2004. The US Federal Communications Commission upheld on Wednesday its decision to fine 20 CBS Corp. television stations a total of $550,000 for airing pop singer Janet Jackson's breast flash in 2004. [Reuters]

The US Federal Communications Commission on Wednesday unanimously rejected CBS' request to rescind its proposal to fine the network US$550,000 for Janet Jackson's "wardrobe malfunction" during the 2004 Super Bowl halftime show.

In its order turning back CBS' appeal, the FCC said it had correctly applied the nation's indecency standards to the broadcast in which Jackson's breast was accidentally bared when singer Justin Timberlake pulled off part of her bustier during the program.

"We reject CBS' contention that the commission misapplied the test for broadcast indecency in the (original order)," the FCC wrote. "In doing so, we note that CBS does not contest the commission's determination that the material at issue here falls within the subject matter scope of our indecency definition because it 'describe(d) or depict(ed) sexual or excretory organs or activities.' Rather, CBS takes issue with our conclusion that the Super Bowl halftime show was patently offensive as measured by contemporary community standards for the broadcast medium."

On September 22, 2004, the FCC proposed the then-maximum fining of all 20 of CBS' owned-and-operated stations the then-maximum US$27,500 for the incident broadcasts.

As defined by the FCC, material is indecent if it "in context, depicts or describes sexual or excretory activities or organs in a patently offensive manner as measured by contemporary community standards for the broadcast medium."

While obscene speech is not protected by the First Amendment, indecent speech is. The federal courts and the FCC have ruled that such speech can be safely aired from 10 p.m.-6 a.m.

While the indecency regulations have been upheld by a number of appellate courts, the original precedent was set by the US Supreme Court in 1978 in the Pacifica Foundation v. FCC case that centered around a broadcast of George Carlin's "Filthy Words" comedy routine.

In its appeal, the network said the proposed fine -- technically a notice of apparent liability -- defied logic because the commission lacked any evidence that the network, or its parent at the time Viacom Inc., knew about the action in advance.

Rejecting CBS' attempt to get the commission to reconsider its decision, the commission sets up what could become another battle over the nation's indecency laws.

CBS and the other networks already have appealed March 15 decisions that netted proposed fines that totaled $3.6 million for "the broadcast of fleeting, isolated and -- in some cases -- unintentional words."

Executives at the network said it was too early to say whether or not they would take the Super Bowl case to court. The network said it still disagreed with the FCC.

"CBS has apologized to the American people many times for the inappropriate and unexpected halftime incident during the 2004 Super Bowl, and we have taken steps to make certain it will never happen again," the network said. "But we continue to disagree with the FCC's finding that the broadcast was legally indecent. We will continue to pursue all remedies necessary to affirm our legal rights, and so today's decision by the FCC is just another step in that process."

While the commission vote was 5-0, one commissioner said the panel has failed to give broadcasters the guidance they need to make decisions about what would violate the indecency laws.

"While I agree with the ultimate outcome of today's Order on Reconsideration, I concur in part because the commission again has not provided much-needed clarity and guidance to our decision-making process in indecency enforcement," said Jonathan Adelstein, a Democratic appointee.

While Adelstein wants the commission to exercise more clarity, he also thought the commission should fine only the CBS-owned stations and not all the independently-owned affiliates that carried the program.

"I continue to believe the commission has decided erroneously to fine only CBS owned-and-operated stations, not all stations that broadcast the indecent material," he wrote. "Notwithstanding the fact that this commission has always purported to apply a national indecency standard on the broadcast medium, the commission has failed to penalize the vast majority of stations that actually broadcast the offending halftime performance."

The FCC action comes as Congress is on the verge of approving legislation that would raise the current maximum fine for broadcasting indecent content from $32,500 per incident to $325,000 per incident. A bill doing that has cleared the Senate and the House is expected to approve it and send it to President Bush for his signature.