The network made a late attempt to blur it out, but the middle finger of Super Bowl halftime performer M.I.A. appeared crystal clear before some 110 million viewers last night and NBC and its affiliates could pay a hefty fine.
"Each station that broadcast the material could be fined up to $325,000," says Samuel Feder, former general counsel to the Federal Communications Commission. The FCC fine for fleeting expletives used to be $27,500 but Congress dramatically increased the amount following Janet Jackson's infamous "wardrobe malfunction" eight years ago.
The offending finger sent the NFL and NBC scrambling to apologize for the act, which apparently was not rehearsed. "The obscene gesture in the performance was completely inappropriate, very disappointing and we apologize to our fans," said NFL spokesman Brian McCarthy in an Associated Press story this morning. He said the league had no reason to expect M.I.A. would make the gesture as she "had not done anything similar during rehearsals." NBC spokesman Christopher McCloskey said. "The NFL hired the talent and produced the halftime show. Our system was late to obscure the inappropriate gesture and we apologize to our viewers."
While $325,000 is the maximum amount NBC and its affiliates could be fined, Feder, a partner at law firm Jenner & Block, said a penalty of that scale is "less likely," due to recent moves by the Supreme Court.
"Given that the constitutionality of the entire indecency regime is currently before the Supreme Court and that, separately, the Court of Appeals for the Third Circuit has called into question whether the FCC can find that a broadcast station had the 'willfulness' required to trigger a fine when airing indecent material during a live event, I would expect the FCC to exercise a great deal of caution," he said. When asked if the change in administration from Bush to Obama in the years since Jackson's nipple slip might make a difference, Feder said "the politics are pretty much the same for both Democrats and Republicans on this issue."
When Justin Timberlake tore off Jackson's breast cover for nine-sixteenths of a second, CBS was fined $550,000 by the FCC. As the AP notes:
The network challenged the fine and last fall, a federal appeals court ruled against the FCC despite an order from the U.S. Supreme Court to review the case. The three-judge panel reviewed three decades of FCC rulings and concluded the agency was changing its policy, without warning, by fining CBS for fleeting nudity.