Supreme Court orders re-examination of ruling

CBS could once again face fines for the infamous Janet Jackson “wardrobe malfunction” at the 2004 Super Bowl halftime show.

The Supreme Court on Monday ordered that a lower court reconsider its decision that threw out some $550,000 in sanctions the FCC imposed on the network’s O&Os and affiliate stations.

The high court’s order was not unexpected, as it comes in the wake of its ruling last week that upheld the FCC’s sanctions against Fox for so-called “fleeting expletives” uttered during the Billboard Music Awards (Daily Variety, April 28). After that decision, there was some expectation the Supreme Court would throw the pending matter of the breast-baring incident back to the lower court.

The 3rd Circuit Court of Appeals in Philadelphia ruled nearly a year ago that the FCC had not justified its fines because it was a departure from previous practice in which “isolated or fleeting material did not fall within the scope of actionable indecency.” The appellate court also questioned whether the actions of Jackson and Justin Timberlake could be blamed on the network.

Even though the incident was merely a split second, it ignited a firestorm, escalating efforts by the FCC and lawmakers to crackdown on indecent content.

The Supreme Court did not rule on whether the FCC’s policing of fleeting content was constitutional, something that still is to be decided by a lower court. Creative types and network execs have argued the policy has a chilling effect on free speech, as they are more prone to play it safe from fear of facing significant fines.

CBS issued a statement expressing confidence that the 3rd Circuit “will again recognize that the Super Bowl incident, while inappropriate and regrettable, was not and could not have been anticipated by CBS.”

“This remains an important issue for the entire broadcasting industry because it recognizes that there are rare instances, particularly during live programming, when despite best efforts it may not be possible to block unfortunate fleeting material.”

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