U.S. COURT OF APPEALS FOR THIRD CIRCUIT RULES CBS IS NOT LIABLE FOR JANET JACKSON SUPER BOWL 2004 WARDROBE MISHAP

As Super Bowl viewers may remember, Janet Jackson lost part of her wardrobe while performing with Justin Timberlake during the 2004 centerpiece half-time show, revealing - for less than a second - Jackson's bare chest.

An estimated 90 million viewers world-wide watched when Jackson's top fell as Timberlake danced closely behind Jackson while singing, "Gonna have you naked by the end of this song."

The FCC deemed the mishap inappropriate and, possibly, willful. In response, the FCC fined CBS, the network host of the 2004 Super Bowl, $550,000 for Jackson's wardrobe failure. The FCC was not alone in questioning whether the Jackson wardrobe mishap was truly accidental.

Regardless, on Monday July 21, the U.S. Court of Appeals for the Third Circuit threw out the FCC fine against CBS. In overturning the CBS fine, the Court of Appeals found that the FCC deviated from its thirty-year practice of fining indecent broadcast programming only when it is so "pervasive as to amount to 'shock treatment' for the audience."

The federal appellate court, while not deciding whether the incident was willful or inadvertent, found that the fleeting nature of the event, and the FCC's deviate approach in dealing with the issue, as opposed to its previous responses to network broadcasting indecencies, did not warrant the fine imposed on CBS.

In its finding, the court emphasized that, while the FCC has discretion in its enforcement powers, "...it cannot change a well-established course of action without supplying notice of and a reasoned explanation for its policy departure."

FCC Chairman Kevin Martin expressed his frustration with the decision, "I continue to believe that this incident was inappropriate, and this only highlights the importance of the Supreme Court's consideration of our indecency rules this fall."

It is unlikely that the FCC will appeal this court's ruling. Instead, it will push to re-establish its enforcements powers for indecent broadcasts, based on an important Supreme Court ruling that is expected later this year.

A similar decision by the Second Circuit Court of Appeals last June is of note. There, the federal appellate court, in reviewing Bono's use of the f-word at the 2003 Golden Globe Awards, concluded that the FCC's 2004 declaration that "fleeting expletives" should be subject to a hefty fine was "arbitrary and capricious."

In short, the federal courts have not accepted the FCC's aggressive enforcement policies of recent years. The US Supreme Court will weigh in next.