Third Circuit Affirms Prior Decision to Strike Down FCC Fine for CBS Broadcast of Janet Jackson’s Breast During Super Bowl Halftime Show
By Abby Lauer – Edited by Albert Wang
CBS Corp. v. FCC, No. 06-3575 (3d Cir. Nov. 2, 2011)
The Third Circuit Court of Appeals affirmed its earlier decision throwing out a $550,000 fine that the Federal Communications Commission imposed on broadcasting corporation CBS for airing a split-second image of Janet Jackson’s exposed breast during the 2004 Super Bowl Halftime Show.
Reaching the same conclusion as it had in a 2008 ruling, the Third Circuit held that CBS’s broadcast was legal under the FCC’s policy at the time, which permitted networks to air instances of “fleeting” indecency without being sanctioned. The Court of Appeals ruled that it was arbitrary and capricious for the FCC to change its policy retroactively and impose a steep fine on CBS without notifying the network of the policy change. In reaffirming its 2008 ruling, the Third Circuit declined to change its position in light of the Supreme Court’s recent decision in FCC v. Fox Television Stations, Inc., 129 S. Ct. 1800 (2009), which upheld the FCC’s decision to abandon its safe harbor for broadcasted expletives that are not repeated. The Third Circuit stated that “Fox confirms our previous ruling in this case and that we should readopt our earlier analysis and holding that the [FCC] acted arbitrarily . . . .” Slip op. at 5.