CBS wins Janet Jackson wardrobe malfunction ruling

Wed Nov 2, 2011 7:21pm EDT
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By Jonathan Stempel

(Reuters) - An appeals court threw out on Wednesday a federal agency's decision to fine CBS Corp television stations $550,000 for airing singer Janet Jackson's "wardrobe malfunction" during the 2004 Super Bowl broadcast.

A divided 3rd U.S. Circuit Court of Appeals in Philadelphia said that in imposing the fine, the Federal Communications Commission "arbitrarily and capriciously" departed from prior policy that exempted "fleeting" indecency from sanctions.

In a statement, the FCC said it is disappointed by the decision, but plans to use "all the authority at its disposal" to ensure that broadcasters serve the public interest when they use the public airwaves.

CBS spokeswoman Shannon Jacobs said the New York-based company is gratified by the decision, and hopes the FCC will "return to the policy of restrained indecency enforcement it followed for decades."

Jackson's right breast was briefly exposed to almost 90 million TV viewers after the singer Justin Timberlake accidentally ripped off part of her bustier during a halftime show performance. CBS was fined $27,500 for each of the 20 stations it owned.

The 3rd Circuit in 2008 voided the fine, but that decision was vacated when the Supreme Court in 2009 upheld the FCC policy as rational, in an opinion involving News Corp's Fox TV stations. It did not decide whether the policy was constitutional, and returned the CBS case to the 3rd Circuit.

Writing for a 2-1 majority, 3rd Circuit Judge Marjorie Rendell said that the FCC had for three decades maintained a "consistent refusal" to treat fleeting nude images as indecent, and that there was no justification to change policy for CBS.

She said FCC regulations governing indecency treat images and words interchangeably, and "it follows that the Commission's exception for fleeting material under that regulatory scheme likewise treated images and words alike."   Continued...