WWW- Super Bowl fans got more than they bargained for when Justin Timberlake ended the sporting event’s 2004 halftime show by briefly exposing Janet Jackson’s breast, which resulted in fines for the network.

However, the 3rd Circuit Court of Appeals yesterday tossed a $550,000 fine imposed by the Federal Communications Commission (FCC), reasoning the incident was not so “pervasive as to amount to ‘shock treatment’ for the audience.”

Acknowledging the FCC “possesses authority to regulate indecent broadcast content,” Judge Anthony J. Scirica found the commission’s decision to fine CBS for broadcasting the controversial scene was “arbitrary and capricious” and not compatible with past practices.

“During a span of nearly three decades, the commission frequently declined to find broadcast programming indecent, its restraint punctuated only by a few occasions where programming contained indecent material so pervasive as to amount to ‘shock treatment’ for the audience,” the court reasoned.

“Throughout this period, the commission consistently explained that isolated or fleeting material did not fall within the scope of actionable indecency.”

After a thorough review of the history surrounding the FCC’s practice of fining “fleeting material,” the court ruled the FCC decision to fine CBS for “the wardrobe malfunction” could not stand, because it deviated from a well-understood policy. The commission “cannot change a well-established course of action without supplying notice of and a reasoned explanation for its policy departure.”

“The commission’s determination that CBS’s broadcast of a 9/16 of one second glimpse of a bare female breast was actionably indecent evidenced the agency’s departure from its prior policy,” Judge Scirica wrote.

“Its orders constituted the announcement of a policy change – that fleeting images would no longer be excluded from the scope of actionable indecency.”

In a statement issued by CBS executives, the broadcast network hoped the 3rd Circuit’s decision would inspire the FCC “to return to the policy of restrained indecency enforcement it followed for decades.”

“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,” the statement read. Those working to curb obscenity in the public marketplace, many of which supported the FCC’s decision, cautioned the celebration might be premature.

“It is definitely going to be appealed,” said Robin Whitehead, senior attorney at the National Obscenity Law Center, a division of Morality in Media. Mrs. Whitehead co-authored an amicus brief for Morality in Media.

Referring to a 2nd Circuit decision that came down earlier in the year on the side of the FCC, Mrs. Whitehead was optimistic the U.S. Supreme Court would hear the case, because a split existed among the circuits.
But even though anti-obscenity advocates had a minor setback with the decision, they argue the ruling was one based on procedure and not substance.

“The court is not saying whether or not they feel you can regulate a fleeting expletives, but ruled that if the FCC was to change their policy they have to give notice,” commented Mrs. Whitehead. “Because they have not given notice broadcasters could not respond adequately to the change in policy … this is where this case begins and ends.”