LOS ANGELES — CBS scored another legal victory in its
long-running fight with the Federal Communications Commission over
Janet Jackson’s “wardrobe malfunction” during a Super Bowl halftime
show.
A three-judge panel of the 3rd U.S. Circuit
Court of Appeals in Philadelphia upheld its earlier ruling that the
FCC’s indecency fine of $500,000 against the network was invalid.
At
issue is the procedural process the regulatory agency used to fine CBS
for the 2004 halftime show in which Justin Timberlake tore off a piece
of Jackson’s clothing, exposing her breast for a few seconds to an
audience of about 90 million. Jackson later attributed the incident to a
“wardrobe malfunction,” a phrase that became part of the lexicon. The
court ruled that the FCC’s fine represented an undisclosed change in the
enforcement of its indecency policy with regard to “fleeting images”
and hence could not be enforced.
“We again set
forth our reasoning and conclusion that the FCC 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,”
the court said.
The FCC said in a statement that
while it was disappointed by the decision, it was pleased that the court
“did not question the FCC’s statutory responsibility to regulate
indecent broadcasting” and added that the agency would “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 respond to a request for comment on the decision.
It
is unclear whether the FCC will appeal the ruling to either the full
3rd Circuit or to the Supreme Court, both of which are options. A
spokesman for the FCC referred calls to the Department of Justice and a
spokesman there said the matter was under review.
While
the 3rd Circuit’s ruling hinges on FCC procedure, in July the 2nd
Circuit Court of Appeals in New York, in a case involving Fox
Television, struck down the FCC’s policies regarding indecent
programming, calling them “unconstitutionally vague and chilling.” The
Supreme Court has agreed to hear the FCC’s appeal of that decision and a
ruling is expected next year.
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©2011 the Los Angeles Times
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