3rd Circuit Tosses Hefty Fine|for ‘Wardrobe Malfunction’

     PHILADELPHIA (CN) – The Federal Communications Commission wrongfully fined CBS $550,000 for Janet Jackson’s infamous “wardrobe malfunction” during the 2004 Super Bowl halftime show, the 3rd Circuit ruled.



     CBS told the federal appeals court that the fine was arbitrary and amounted to an unannounced policy shift whereby the agency suddenly abandoned its prior position that “fleeting” expletives did not constitute actionable indecency.
     The FCC argued that its policy of restraint applied only to fleeting utterances, not images like the exposure of Jackson’s bare breast, which lasted nine-sixteenths of a second after pop-music icon Justin Timberlake inadvertently tore away a piece of her bustier while performing his song “Rock Your Body.”
     A majority of the 3rd Circuit did not buy that argument Wednesday, echoing their 2008 Nipplegate finding that, in three decades of enforcement history, the FCC didn’t appear to treat fleeting, explicit images any more harshly than fleeting utterances.
     The hefty fine for Jackson’s exposure was therefore unfair because it was based on an unpromulgated policy shift by the FCC, the appellate panel ruled.
     The case was remanded to the 3rd Circuit in May 2009 by the Supreme Court in light of the court’s decision concerning fleeting indecency in FCC v. Fox Television Stations Inc.
     In that case, the high court upheld the FCC’s decision to fine broadcasters that air isolated, unrepeated, explicit utterances, such as during the 2002 and 2003 Billboard Music Awards, when Cher and reality television star Nicole Richie separately used the F-word.
     In its latest opinion, the 3rd Circuit found that Fox bolsters its 2008 decision that the CBS fine was illegitimate.
     “We must decide the extent to which Fox affects our previous ruling in this case,” Judge Marjorie Rendell wrote for the majority. “We conclude that, if anything, the Supreme Court’s decision fortifies our original opinion.”
     Though the FCC adopted the policy that fleeting utterances were indecent, it declined to issue fines at the time since Fox could not be expected to anticipate the new rule.
     “As the Fox court observed and affirmed, the decision not to impose a fine in that case signaled the FCC’s understanding that imposing sanctions for conduct that occurred before the FCC’s policy change was announced would raise due process concerns,” Rendell wrote.
     “The same principle applies here,” the 69-page majority opinion states.
     “Fox confirms our earlier observation that because the cmmission did not announce any change in its fleeting-material policy until March 2004, and because the offensive conduct in this case … preceded that date, the FCC’s assessment of a forfeiture and imposition of a penalty against CBS constitutes arbitrary, and therefore unlawful, punishment.”
     Judge Anthony Scirica disagreed that Fox bolsters the circuit’s 2008 Nipplegate ruling. Rather, it undermines it, and the fine against CBS should now be considered neither arbitrary nor capricious, his 53-page dissent states.
     The FCC’s historical record of enforcement as recounted in Fox indicates that the agency’s relatively lax approach to fleeting indecency “was limited to a particular type of words,” and that prior FCC actions put broadcasters on notice that fleeting visual indecency wouldn’t necessarily be afforded such restrained treatment, Scirica wrote.
     He pointed to the agency’s 2004 decision to pursue a $27,500 fine against Young Broadcasting of San Francisco, which aired a morning news segment in October 2002 that featured performers from the production “Puppetry of the Penis.”
     That act involved men wearing nothing but capes and manipulating their penises to simulate various objects.
     “Although the performance was directed away from the camera, the penis of one performer was fully exposed on camera for less than one second as the men turned away to act out their performance. Based on these facts, the commission found the station apparently liable for a forfeiture penalty for broadcasting indecent material,” Scirica wrote.
     That decision “made clear that fleeting images of nudity could be found indecent if presented in a sufficiently explicit and pandering fashion.”

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