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Court reverses FCC on ‘wardrobe malfunction’ fines

A U.S. appeals court July 21 threw out the fines levied against CBS-owned TV stations for airing the live performance at the 2004 Super Bowl halftime show during which one of Janet Jackson’s breasts was briefly exposed.

In tossing the FCC fines, which totaled $550,000, the U.S. Court of Appeals for the Third District in Philadelphia found the commission “arbitrarily and capriciously” broke with past policy exempting fleeting violations of prohibitions on broadcast indecency.

While the FCC, like any government agency, can change its policies without judicial interference, it can’t change “a well-established course of action” without first notifying the public of the change and providing a reasoned explanation, the court said.

Following the decision, CBS released a statement calling the decision “a win for the entire broadcasting industry.” It also expressed the hope that the FCC would return to a decades-long policy of restrained indecency enforcement.

The FCC fines stemmed from an incident in 2004 at the end of a halftime performance when entertainer Justin Timberlake tore off a piece of Jackson’s clothing, revealing her breast, which later became known as Jackson’s “wardrobe malfunction.” Following the performance, the FCC and members of Congress received thousands of complaints from the public.

The CBS statement said the reversal of the FCC acknowledges in “rare instances, particularly during live programming” that it may be impossible to prevent transmission of fleeting incidents.