The Supreme Court on Friday refused to review a lower court decision that threw out the Federal Communications Commission's $550,000 fine for CBS over Janet Jackson’s “wardrobe malfunction” during the network’s live coverage of the 2004 Super Bowl.
The high court’s rejection of the Obama administration’s appeal means the agency now may have to come up with a refund for the network — which already paid the record fine.
The court Friday also declined to review a lower court decision that threw out an FCC ruling that would have allowed companies to own both newspapers and broadcast stations in the same market. The FCC refused to comment on either issue.
A federal appeals court has thrown out the fine twice.
Supreme Court Chief Justice John Roberts agreed with the other justices to deny the review, but said in a separate statement that he was not completely sold on the logic behing the lower court's ruling.
"Any future 'wardrobe malfunctions' will not be protected," Roberts said.
The FCC declined to comment, but CBS hailed the court's decision not to review the lower court's ruling.
"We are gratified to finally put this episode behind us," CBS said in a statement. "It’s been more than eight years since we expressed deep regret for the Super Bowl halftime show. As observers of this issue are aware, at that time we took immediate steps to implement delays on all live entertainment programs so that we could safeguard against similar incidents of unintended and spontaneous snippets of live broadcasts. Since then, all we ever sought was an affirmation of the long established policy of balanced, consistent and deliberate indecency enforcement the FCC had followed for decades before the incident.”
The FCC walloped CBS with the fine after the pop star’s breast was briefly exposed during a live half-time show with actor-singer Justin Timberlake.
The Court of Appeals for the Third Circuit in Philadelphia first threw out the fine in 2008, contending that the FCC had not forewarned broadcasters that brief flashes of nudity could be construed as violations of the agency’s prohibitions against indecency.
The same court threw the fine again in 2011, after the Supreme Court ruled in a separate case that the FCC had the leeway to hold broadcasters accountable for unscripted off-color language.
In its 2011 ruling, the appeals court held that while the FCC had the authority to crack down on even brief glimpses of broadcast nudity, the agency acted arbitrarily in the CBS case because it hadn’t announced that brief flashes of off-color language or nudity could be subject to sanctions until after the broadcast.
Previously, FCC policy had exempted “fleeting” indecencies from enforcement sanctions.
In a separate case, the Supreme Court on June 21 ruled that FCC indecency sanctions against Fox and ABC were improper, also on grounds that the networks had not received fair notice that fleeting indecencies could be subject to sanctions. The high court did not rule on whether the FCC’s indecency regulations violate the First Amendment.
The FCC v. Fox Television Stations case arose after Cher and Nicole Richie uttered the F-word during the Fox TV network’s broadcasts of the 2002 and 2003 Billboard Music Awards shows.
The Supreme Court agreed to combine its review of the Fox TV cases with a separate FCC indecency case stemming from the appearance of actress Charlotte Ross’s bare buttocks on a 2003 episode of ABC’s “NYPD Blue.”
The FCC fined dozens of ABC TV network affiliates a total of more than $1 million for airing the episode.