No Finger Flap Fallout Fines for M.I.A. Expected

The bird gesture probably safe under FCC rules

M.I.A.'s flip of the bird and bleeped-out fleeting expletive during Madonna's Super Bowl halftime performance may have caused a real flap, but unlike Janet Jackson's wardrobe malfunction in 2004, which led the Federal Communications Commission to slap a $550,000 fine on CBS, the FCC is unlikely to jump on NBC's affiliates and levy a fine for a fleeting finger gesture.

For starters, the gesture, no matter what anyone may think of it, may not fall within the FCC's narrowly tailored definition of indecent or obscene, described on the FCC's website as "language or material that, in context, depicts or describes, in terms patently offensive as measured by contemporary standards for the broadcast medium, sexual or excretory organs or activities."

"It probably isn't illegal under the FCC rules," said Scott Flick, a broadcast attorney with Pillsbury Winthrop Shaw Pittman. "You'd have a hard time arguing it."

Even the Parents TV Council, which lashed out at the NFL and NBC for breaking its promise to keep it clean, said it wasn't filing anything with the FCC. "The onus is on the NFL and NBC to announce a more effective policy and/or enforce whatever contract stipulation they had with their performers, if any. Most importantly, the responsibility rests on NBC to address why their system admittedly failed," said Dan Isett, director of public policy for the PTC.

If a complaint is filed—and someone, somewhere in America is bound to—the FCC may not take it up, as it tackles other bigger priorities like broadband.

So the fate of a complaint against M.I.A.'s finger is likely to go on the stack with the rest of the 1.5 million backlogged indecency complaints at the FCC while the Supreme Court ponders the fate of the FCC's indecency rules.

Both NBC and NFL issued statements of apology for the inappropriate gesture.