FCC to review Janet Jackson incident

Appeals court ruled in favor of CBS over fleeting nudity

WASHINGTON -- The FCC said Tuesday that it will review the incident involving a fleeting glimpse of pop singer Janet Jackson's breast during the 2004 American football championship.

Jackson's right breast was exposed to almost 90 million TV viewers for a fraction of a second during the live 2004 Super Bowl football halftime show in what fellow pop singer Justin Timberlake later called a "wardrobe malfunction."

Lawmakers and regulators were outraged and vowed a crackdown on broadcast indecency.

In May, the U.S. Supreme Court ordered a lower court to reconsider a ruling that struck down a $550,000 fine against CBS Corp. television stations for airing the incident.

The order sent the case back to a federal appeals court in Philadelphia for further review in light of the Supreme Court's ruling that upheld a U.S. government policy that subjects broadcasters to fines for airing a single expletive blurted out on a live television show.

The appeals court ruled in favor of CBS, saying that the FCC acted "arbitrarily and capriciously" in issuing the fine for a fleeting image of nudity.

In a filing on Tuesday with the U.S. Court of Appeals for the Third Circuit, the FCC asked the court to allow the agency to review whether CBS was reckless by failing to use a video delay technology, reasserting that CBS used a video delay for the 2004 Grammy Awards only seven days after the Super Bowl.

"The evidence in this case strongly suggests that CBS had access to video delay technology at the time of the 2004 Super Bowl," the FCC said in the court document.

CBS could not be reached for comment.