End in Sight for Wardrobe Malfunction Saga

Image by Getty Images via Daylife

The U.S. Circuit Court of Appeals for the Third Circuit last week heard arguments in the two-and-a-half-year-old titanic struggle between the FCC and CBS, Corp. over the broadcast of  Janet Jackson's bare breast for nine-sixteenths of a second during the halftime show of Super Bowl XXXVIII in 2004.

In May 2009, the U.S. Supreme Court granted the FCC's petition for writ of certiorari and vacated the judgment in favor of CBS, remanding the case to the Third Circuit for further review based on the High Court's ruling  in FCC v. Fox Television Stations (Case No. 07-582; 556 U.S. __ (2009)).

CBS initially was fined $550,000 by the FCC for broadcasting the "indecent" exposure of Jackson's breast during her performance of "Rock Your Body" with Justin Timberlake in violation of 18 U.S.C. sec.1464 and 47 C.F.R. sec. 73.39999. CBS prevailed in its appeal to the Third Circuit, which vacated the FCC orders, finding that the agency "acted arbitrarily and capriciously" in violation of the Administrative Procedure Act  5 U.S.C. sec. 706. The appeals court was unpersuaded by the FCC's claim that CBS was vicariously liable for the performers' conduct (CBS v. FCC, Case No. 06-3575). CBS had a five-second audio delay in place to repel profanity but no corresponding safeguard against naughty video images.

In the sequel before the Third Circuit last week, the FCC argued that CBS was vicariously liable for not having preventative measures in place to shield against a foreseeable flashing by Jackson. For its part, CBS countered that it had no prior knowledge that Jackson would take her boob tube appearance literally, and had implemented measures that any reasonable broadcaster could have taken to guard against such an unpredictable occurrence.

Five years after the 90 million viewers who watched the Halftime Show caught a split-second glimpse of Janet Jackson's breast, the FCC has stayed firm and its interest in the matter has held up, which is more than can be said for Janet Jackson's breasts.