The Third Circuit Court of Appeals today issued its decision in the case dealing with the FCC’s fine for the Janet Jackson "clothing malfunction" Super Bowl incident.  The Court once again rejected the FCC decision – essentially upholding a 2008 decision that had found the FCC’s indecency fine to be an arbitrary departure from prior precedent.  The Court found that the Commission had a policy of not finding a "fleeting image" actionable, and the Commission did not explain why it was changing its policy, or even acknowledge that it was in fact changing policy. The 2008 decision had been remanded to the Third Circuit by the Supreme Court after the Court’s decision on the Golden Globes case (see our summary here and here), dealing with "fleeting expletives", to determine if the Supreme Court’s decision had any impact on this case.  In today’s decision, the Court also found that a fine cannot be imposed on a party who did not know that the conduct in which it was engaging could lead to a fine.  Bob Corn-Revere and Ronnie London from our firm litigated this case, and have written a much more detailed explanation of the Court’s decision.  That explanation can be found here.  The full Third Circuit decision can be found here.