'Wardrobe malfunction' penalty voided as Supreme Court case looms

A federal appellate court has once again thrown out the FCC’s $550,000 in fines against CBS for the infamous Janet Jackson “wardrobe malfunction” incident at the 2004 Super Bowl halftime show.

The Third Circuit Court of Appeals in Philadelphia, in a 2-1 decision, said that the commission “acted arbitrarily” in sanctioning the CBS’ stations, siding with the broadcast networks’ position that the FCC was imposing new standards on so-called fleeting images that once were exempt from government indecency policies.

The appellate court had issued a similar decision in 2008, but the case was sent back for review after the Supreme Court in 2009 sided with the FCC’s rulings against Fox stations for a separate incidents of fleeting expletives uttered during the Billboard Music Awards. The high court, however, issued a narrow ruling in the Fox case, and is poised to hear oral arguments this term on the weightier First Amendment issues and the scope of the FCC’s authority to regulate indecent programming.

While the Third Circuit recognized the FCC’s ability to enforce a policy cracking down on fleeting images, they still found that the commission “failed to acknowledge that its order in this case reflected a policy change and improperly imposed a penalty on CBS for violating a previously unannounced policy.”

A spokesman for the FCC said that although they were “disappointed” in the decision, they expressed satisfaction that it was on narrow procedural grounds. “We are pleased that the court did not question the FCC’s statutory responsibility to regulate indecent broadcasting,” he said. “In the meantime, the FCC will continue to use all of the authority at its disposal to ensure that the nation’s broadcasters fulfill the public interest responsibilities that accompany their use of the public airwaves.”

CBS did not immediately return a request for comment.

Andrew Jay Schwartzman, senior VP and policy director of the Media Access Project, said in a statement that “like the ‘wardrobe malfunction’ itself, there is less here than meets the eye.

“The majority held that the FCC improperly attempted to change its ‘indecency’ policies in applying them to CBS. The decision is a reminder that the FCC can’t change its enforcement policies in the face of public pressure, and that it needs to take special care when First Amendment rights are at issue.”

Schwartzman represented the center for Creative Voices in the Media, which filed an amicus brief in the case in support of CBS.

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