FCC appeal on wardrobe malfunction is another win for CBS


The Third Circuit Court decided it was right the first time when it overturned the FCC’s decision to hit CBS with a $550K fine for the infamous Janet Jackson wardrobe malfunction during the 2004 Super Bowl halftime show.

The Court’s opinion, written by Justice Marjorie Rendell, laid the problem with the FCC’s levy squarely on the “fleeting indecency” doorstep. Rendell noted that the case was remanded to the court in the wake of FCC v. Fox Television Stations, and wrote, “This case, like Fox, involves a tightening of the Federal Communications Commission standards for the broadcast of fleeting indecent material. Fox concerned the FCC’s decision to abandon its safe harbor for expletives that are not repeated; this case considers the FCC’s departure from its earlier policy exempting fleeting images from the scope of actionable indecency.”

Rendell said that if anything, Fox underscored the decision to label the FCC’s action against CBS as arbitrary and capricious.

On the issue of whether or not CBS has taken adequate precautions before the event, the Court noted that there was audio delay applied to the broadcast, but not video delay, and in the end decided that the issue could not be decided.

It was originally hit with the “arbitrary and capricious” tag when the case was originally heard back in 2008.

In a statement, as reported by Bloomberg, the FCC expressed its disappointment in the ruling but noted that its loss was based on narrow procedural grounds.

The incident in question took place at the end of the Super Bowl halftime show. As just about everybody who was sentient at that time knows, Justin Timberlake and Janet Jackson were involved in a wardrobe malfunction that revealed her minimally-attired breasts for less than one second on national television.

RBR-TVBR observation: And once again, justice prevails. This incident resulted in FCC overreach in the fleeting expletive area and the dubious result has been throwing into question the entire indecency regulation system.

On top of that, since the pushback from broadcasters entered the judicial system, the FCC has seemingly been reluctant to take any actions in the indecency area. Some way, some how, the FCC is going to have to find a sensible regulatory regimen that is as free from gray-area regulatory interpretation as possible.

It’s really this simple: They say if you can’t do the time, don’t do the crime. But if the FCC cannot define the crime, it cannot levy the fine.