Third Circuit again tosses fine over Super Bowl nip-slip

By Jessica M. Karmasek | Nov 2, 2011

PHILADELPHIA (Legal Newsline) - A federal appeals court on Wednesday upheld its decision to throw out a fine against CBS Corp. for the "nine-sixteenths of one second" exposure of Janet Jackson's breast during the 2004 Super Bowl halftime show.

The Federal Communications Commission had issued a forfeiture order against the television network in March 2006, imposing a penalty of $550,000 for the incident.

CBS then filed a petition for review in the U.S. Court of Appeals for the Third Circuit. It argued that the government's ruling that the "fleeting nude image" was actionable indecency constituted a change in policy. The network also contended that its application in this case was both "arbitrary" and "capricious" under the Administrative Procedure Act.

More specifically, CBS argued that before the infamous "wardrobe malfunction" occurred, FCC policy provided that the isolated use of expletives in broadcasts did not constitute actionable indecency.

The FCC defended its actions on the basis that its earlier fleeting-material policy applied only to fleeting utterances and did not extend to fleeting images.

The Third Circuit rejected the government's argument.

"During a span of nearly three decades, the Commission frequently declined to find broadcast programming indecent, its restraint punctuated only by a few occasions where programming contained indecent material so pervasive as to amount to 'shock treatment' for the audience. Throughout this period, the Commission consistently explained that isolated or fleeting material did not fall within the scope of actionable indecency," the appeals court wrote in its previous ruling.

"At the time the Halftime Show was broadcasted by CBS, the FCC's policy on fleeting material was still in effect. The FCC contends its restrained policy applied only to fleeting utterances -- specifically, fleeting expletives -- and did not extend to fleeting images."

It continued, "But a review of the Commission's enforcement history reveals that its policy on fleeting material was never so limited. The FCC's present distinction between words and images for purposes of determining indecency represents a departure from its prior policy."

The appeals court was asked to reevaluate its 2008 ruling in light of a U.S. Supreme Court decision in Fox Television Stations Inc. v. FCC.

The nation's high court, in 2009, upheld FCC regulations banning "fleeting expletives" on television broadcasts, finding they were not arbitrary and capricious under the Administrative Procedure Act.

The appeals court said, if anything, the Supreme Court's decision "fortified" its original opinion.

The Supreme Court, it said, specifically noted that the FCC's decision not to impose any forfeiture or other sanction in the Fox case signaled its recognition that assessing penalties based on violations of previously unannounced policies would amount to "arbitrarily punishing parties without notice of the potential consequences of their actions."

"The same logic implies that the FCC erred in imposing a fine on CBS in this case, as the chronology of events that are the subject of these cases demonstrates," the appeals court wrote.

A spokesman for the FCC told Bloomberg the agency was displeased with Wednesday's ruling.

"While we are disappointed by the court of appeal's decision, we note that the court overturned the FCC's 2006 forfeiture order on narrow procedural grounds," Neil Grace said in a statement.

From Legal Newsline: Reach Jessica Karmasek by email at jessica@legalnewsline.com.

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