Court tosses out CBS indecency fine

Calls FCC ruling over 'wardrobe malfunction' a policy change

NEW YORK -- A federal appeals court on Monday squelched a lower court's ruling to fine CBS $550,000 for a brief show of Janet Jackson's breast during the February 2004 Super Bowl halftime show.

The U.S. Court of Appeals for the 3rd Circuit in Philadelphia rejected the FCC's contention that CBS willfully violated indecency standards for the MTV Networks-produced show, in which Justin Timberlake ripped open Jackson's shirt and briefly exposed her breast. It aired for less than a second.

CBS and its 20 owned-and-operated stations that each had to pay a $27,500-plus fine aren't necessarily out of the woods yet. The 3rd District Court of Appeals sent the matter back to the FCC, which could either do nothing or ask the court to reconsider. The FCC also could ask the U.S. Supreme Court to hear the case, consolidating the appeal with the earlier Fox case on the Billboard Music Awards. That case will be heard by the Supreme Court sometime after the new judicial year begins in October.

CBS on Monday hailed the decision as good for the broadcasting industry.

"It recognizes that there are rare instances, particularly during live programming, when it may not be possible to block unfortunate fleeting material, despite best efforts," CBS said in a statement.

The court said in its ruling that the FCC had rarely punished networks for indecency, believing that the fleeting material weren't major focuses of their policy. But the FCC told the court that the policy was only for expletives and didn't include images. The appeals court didn't believe the FCC.

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

There was also the matter of whether CBS could be held liable for broadcasting something that it didn't know about in advance. While the FCC had said that didn't matter, the court disagreed. It said that CBS didn't know in advance about the so-called "wardrobe malfunction" and weren't liable for it.

The Parents Television Council, which strongly supported the FCC's fine, decried the appeals court's ruling. PTC president Tim Winter said that the appeals court was wrong.

"If a striptease during the Super Bowl in front of 90 million people -- including millions of children -- doesn't fit the parameters of broadcast indecency, then what does?" Winter asked.
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