(Please note paragraph 16 contains language that may be
offensive to some readers)
(Adds comment from FCC chairman)
By Peter Kaplan
WASHINGTON, July 21 The U.S. government's
campaign against television indecency was dealt a blow on
Monday when a court overturned a $550,000 fine against CBS Corp
(CBS.N) television stations for airing a glimpse of pop singer
Janet Jackson's breast during the 2004 Super Bowl broadcast.
The U.S. Court of Appeals for the Third Circuit said the
Federal Communications Commission had "arbitrarily and
capriciously departed from its prior policy" that exempted
fleeting broadcast material from actionable indecency
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."
Timberlake ripped off part of Jackson's bustier exposing
Jackson's breast during the show. Despite the brevity,
lawmakers and regulators were outraged and vowed a crackdown on
The judges rejected the FCC's argument that the "fleeting"
policy had only applied to words, not images.
"Like any agency, the FCC may change its policies without
judicial second-guessing. But it cannot change a well-
established course of action without supplying notice of and a
reasoned explanation for its policy departure," Chief Judge
Anthony Scirica wrote for the three-judge panel that heard the
CBS said in a statement it hoped the decision by the
Philadelphia-based court "will lead the FCC to return to the
policy of restrained indecency enforcement it followed for
"This is an important win for the entire broadcasting
industry because 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 its statement.
FCC Chairman Kevin Martin said he was "surprised by today's
decision and disappointed for families and parents."
Martin said the commission had received hundreds of
thousands of complaints about the incident and he noted the
FCC's five commissioners voted unanimously to impose the
The decision got a sharp rebuke from the Parents Television
Council, an indecency watchdog group. It said the ruling
"borders on judicial stupidity" and urged lawmakers in Congress
to pass a bill to strengthen anti-indecency enforcement.
"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?" the group
There was no immediate comment from the FCC on Monday's
ruling. Under the administration of President George W. Bush,
the agency has embarked on a crackdown of indecent content on
broadcast TV and radio.
The FCC could seek a review of Monday's decision by the
full appeals court. It also could ask the U.S. Supreme Court to
hear an appeal. In that case, it would have 90 days to file a
petition with the high court.
The Supreme Court is scheduled to decide another case on
FCC indecency enforcement during the upcoming term, which
begins in October.
That case stemmed from an FCC ruling in March 2006 in which
the agency found News Corp's NWSa.N Fox television network
violated decency rules when singer Cher blurted "fuck" during
the 2002 Billboard Music Awards broadcast and actress Nicole
Richie used a variation of that word and "shit" during the 2003
Martin said Monday's ruling "only highlights the importance
of the Supreme Court's consideration of our indecency rules
U.S. television and radio broadcasters are barred from
airing obscene material and are limited from broadcasting
indecent materials between the hours of 6 a.m. and 10 p.m.,
when children are likely to be watching. The restrictions do
not apply to cable or satellite services.
CBS and cable music network MTV, which produced the Super
Bowl halftime show, insisted they did not know in advance about
the wardrobe stunt. CBS apologized and paid the fine, $27,500
for each of the 20 stations it owns and later instituted a
five-second delay on most of its live events.
The appeals court said CBS could not be held responsible
for the incident.
"Moreover, the FCC cannot impose liability on CBS for the
acts of Janet Jackson and Justin Timberlake, independent
contractors hired for the limited purposes of the Halftime Show
...," Scirica wrote.
(Reporting by Peter Kaplan and Karey Wutkowski; Editing by
Toni Reinhold and Andre Grenon)