A federal appeals court has affirmed its ruling that the Federal Communications Commission wrongly fined Janet Jackson and CBS for a "wardrobe malfunction."
The court found that the commission did not properly inform the broadcaster about changes in indecency enforcement, and had "arbitrarily" departed from its prior policy.
The commission levied a $550,000 fine against the performer and the network after a piece of Jackson's costume came loose during the 2004 Super Bowl half-time show, briefly exposing her breast.
The three-judge panel in Philadelphia found in favor of the network in 2008, but revisited its decision after the Supreme Court requested a review.
In a statement, CBS said: “We are gratified that once again the court has ruled in our favor. We are hopeful that this will help lead the FCC to return to the policy of restrained indecency enforcement it followed for decades.”
The FCC expressed disappointment over the decision, but said that the ruling was on narrow procedural grounds and did not diminish the commission's authority to regulate indecent content.
"In the meantime, the FCC will continue to use all of the authority at its disposal to ensure that the nation’s broadcasters fulfill the public interest responsibilities that accompany their use of the public airwaves," an FCC spokesman said in a statement.
However, the Media Access Project, a Washington D.C.-based public policy law firm, disputed that the decision upheld the FCC's broader interpretation of its mandate.
"Like the 'wardrobe malfunction' itself, there is less here than meets the eye," Andrew Jay Schwartzman, policy director of Media Access Project, told TheWrap. "The majority held that the FCC improperly attempted to change its 'indecency' policies in applying them to CBS. The decision is a reminder that the FCC can't change its enforcement policies in the face of public pressure, and that it needs to take special care when First Amendment rights are at issue."
The commission's constitutional right to fine broadcasters who air profanity and nudity will become an issue during the Supreme Court's 2011-2012 slate of hearings, which includes a case involving 2002 and 2003 award shows on Fox in which Bono, Cher and Nicole Richie used profane language.
A second case on the docket has to do with actress Charlotte Ross briefly exposing her buttocks in a 2003 episode of “NYPD Blue.” The FCC fined 52 ABC affiliates a total of $1.4 million.
Historically, the FCC had given a pass to occasional "fleeting expletives," and though the commission never formally fined Fox for the blue language in the awards shows, it announced in 2004 that it would enforce the decency laws with more zeal.