The Third Circuit Court of Appeals today released a decision overturning the FCC’s fine of CBS Television for its Super Bowl broadcast of the notorious Janet Jackson halftime show and her "clothing malfunction." The decision is available here. Our partner Bob Corn-Revere argued the case. Full details on the decision are contained in our firm’s Advisory Bulletin which was just issued. But essentially, the court found that the FCC had not sufficiently justified its departure from prior precedent that any "fleeting" content would not result in a fine by the FCC, nor had the FCC justified its decision finding that the conduct of CBS was "willful," as the Court questioned whether the independent actions of Janet Jackson and Justin TImberlake could be attributed to CBS. The decision was remanded to the FCC with the instruction that it could not fine CBS but that any further decision could be only declaratory in nature – setting policy for the future.
If the FCC decides to wade back into the indecency area, it will have to deal with two decisions finding its rulings arbitrary and capricious. We wrote about the Second Circuit decision throwing out the "fleeting expletive" fines arsing from slips of the tongue during the Golden Globes, the Billboard Music Awards and other programs (see our last post on that case here). Of course, the FCC has asked the Supreme Court for review of the Golden Globes case, so we’ll all have to stay tuned for more information about what action that Court will take, and what the FCC will do with respect to these decisions.