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Court throws out FCC’s indecency fine against CBS again

3rd Circuit grants CBS relief from the wardrobe malfunction heard round the world

Nine-sixteenths of a second has haunted CBS Corp. for nearly eight years. But a recent 3rd Circuit decision may have temporarily put the broadcast company at ease.

The 2004 Super Bowl, which CBS broadcast live, included a now- infamous split-second shocker: During the halftime show featuring musical artists Justin Timberlake and Janet Jackson, Timberlake “accidentally” tore off a piece of Jackson’s costume, briefly exposing her right breast to more than 90 million TV viewers. The so-called “wardrobe malfunction,” which aired for less than one second, prompted the Federal Communications Commission (FCC) to fine CBS and its affiliates a total of $550,000 for depicting a sexual organ, which violates its indecency policy.

Parallel Tracks

CBS and Fox have been “proceeding on parallel tracks,” says Kathleen Kirby, a partner at Wiley Rein. While CBS concerns fleeting nudity and Fox concerns fleeting expletives, both cases ultimately center on whether the FCC revised its indecency policy to crack down on fleeting material without explanation or sufficient warning to broadcasters, and whether the new policy is unconstitutionally ambiguous and arbitrary when it comes to repercussions against broadcasters.

Ashley Post

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