A federal appeals court on Monday ruled that the Federal Communications Commission should not have imposed fines on CBS for the infamous "wardrobe malfunction" at the 2004 Super Bowl in which singer Janet Jackson's breast was exposed for a split second because the agency had unfairly imposed a new, stricter standard without first informing broadcasters.
"Like any agency, the FCC may change its policies without judicial second-guessing. But it cannot change a well-established course of action without supplying notice of and a reasoned explanation for its policy departure," Chief 3rd Circuit Judge Anthony J. Scirica wrote in CBS Corp. v. FCC.
The three-judge panel of the 3rd U.S. Circuit Court of Appeals was unanimous in finding that the FCC had a long-standing policy of excusing "fleeting" instances of indecency, especially in live broadcasts, and had therefore acted "arbitrarily and capriciously" when it imposed a fine of $550,000 on CBS.
"In finding CBS liable ... the FCC arbitrarily and capriciously departed from its prior policy excepting fleeting broadcast material from the scope of actionable indecency," Scirica wrote in an opinion joined by Judges Marjorie O. Rendell and Julio M. Fuentes.
The court also rejected the FCC's argument that the more relaxed policy applied only to spoken indecency, and not to indecent images.
"The FCC's present distinction between words and images for purposes of determining indecency represents a departure from its prior policy," Scirica wrote.
Scirica also found that the FCC "cannot impose liability on CBS for the acts of Janet Jackson and Justin Timberlake, independent contractors hired for the limited purposes of the halftime show" without proof that the network was aware that the incident was planned.
The ruling marks another setback for the stricter indecency policy the FCC has enforced under Chairman Kevin J. Martin. Last year, the 2nd Circuit struck down FCC rules on so-called "fleeting expletives" stemming from live broadcasts of the Billboard Music Awards in which celebrities uttered the "F-word." The Bush administration appealed and the U.S. Supreme Court is scheduled to hear that case in the fall. Media Access Project, who filed an amicus brief on behalf of a group of TV writers, directors and producers, said the ruling "is an important advance for preserving creative freedom on the air."
The Super Bowl ruling is a victory for CBS' appellate team, led by attorney Robert Corn Revere of Davis Wright & Tremaine in Washington, D.C., and Jerome J. Shestack of Wolf Block in Philadelphia.
In a statement, CBS said: "We are gratified by the court's decision, which we hope will lead the FCC to return to the policy of restrained indecency enforcement."
The network said the ruling "is an important win for the entire broadcasting industry because it recognizes that there are rare instances, particularly during live programming, when it may not be possible to block unfortunate fleeting material."
FCC Chairman Kevin J. Martin said he was "surprised by today's decision and disappointed for families and parents."
"I continue to believe that this incident was inappropriate, and this only highlights the importance of the Supreme Court's consideration of our indecency rules this fall," he said.
Jackson's breast was exposed for 9/16ths of a second when Timberlake tore open her bustier during a choreographed performance of his song "Rock Your Body" in the halftime show's finale. The incident sparked more than 500,000 complaints to the FCC and the largest fine for a television broadcast at the time.
Attorney Andrew Jay Schwartzman of the
"The court agreed with us: the FCC's inconsistent and unexplained departure from prior decisions leaves artists and journalists confused as to what is, and is not, permissible," Schwartzman said in a statement Monday.
In the opening paragraph of the court's 102-page opinion, Scirica hinted that any blame for the incident was shared by Jackson and Timberlake, saying in his description of the event that "two performers deviated from the show's script resulting in the exposure of a bare female breast on camera, a deceitful and manipulative act that lasted 9/16ths of one second."
Most of Scirica's opinion was devoted to analyzing the FCC's evolving policies on indecency and determining whether the agency had properly warned broadcasters of its intent to begin imposing stricter standards.
Justice Department attorney Eric Miller argued that the agency's restrained policy applied only to fleeting utterances –– specifically, fleeting expletives –– and did not extend to fleeting images.
But Scirica found that "a review of the commission's enforcement history reveals that its policy on fleeting material was never so limited."
Scirica found that the FCC's policy change came when the commissioners overturned a decision by the agency's enforcement bureau that rejected complaints over a 2003 Golden Globes broadcast in which musician Bono said "this is really, really fucking brilliant" while accepting an award.
The enforcement bureau, Scirica said, had "specifically reaffirmed that 'fleeting and isolated remarks' ... do not warrant commission action."
But the full commission reversed the enforcement bureau's decision, Scirica said, and "overruled all of its prior cases holding such instances not actionable."
The FCC said in its ruling that it recognized that some of its prior decisions "have indicated that isolated or fleeting broadcasts of the 'F-Word' ... are not indecent or would not be acted upon." Reversing that position, the agency said that "consistent with our decision today we conclude that any such interpretation is no longer good law."
Broadcasters challenged the Golden Globes ruling, Scirica noted, and the FCC in 2006 issued an "omnibus order" that declared four broadcasts "indecent and profane," including two consecutive airings of the Billboard Music Awards in which Cher and Nicole Richie used unscripted expletives; an episode of "NYPD Blue" in which characters used scripted expletives; and a CBS broadcast of "The Early Show," in which a guest used an unscripted expletive during a live interview.
But the ruling imposed no fines, Scirica noted, because the FCC made clear that it had no intention of imposing fines on broadcasters for incidents that took place prior to the new policy.
The Super Bowl case occurred before the omnibus order, Scirica said, but the FCC took the position that its new policy reflected changes only on spoken indecency, and that CBS should have been aware that it was potentially liable for the broadcast of indecent images, even if fleeting.
Scirica disagreed, saying "even if, as the FCC contends, Golden Globes only addressed expletives, it nevertheless represented the first time the commission distinguished between formats of broadcast material or singled out any one category of material for special treatment under its fleeting material policy."
In doing so, Scirica said, the commissioners "altered the scope of the FCC's fleeting material policy by excising only one category of fleeting material –– fleeting expletives –– from the policy."
As a result, Scirica concluded that the FCC's ruling in the Janet Jackson case marked another change in policy.
"By targeting another category of fleeting material –– fleeting images –– in its orders against CBS in this case, the FCC apparently sought to further narrow or eliminate the fleeting material policy as it existed following Golden Globes," Scirica wrote.
Therefore, Scirica said, the FCC's decision that a split-second "glimpse of a bare female breast" was actionably indecent amounted to the "announcement of a policy change –– that fleeting images would no longer be excluded from the scope of actionable indecency."
The FCC's lawyer insisted that it "never had a policy of excluding fleeting images from the scope of actionable indecency."
Scirica disagreed, saying "the balance of the evidence weighs heavily against the FCC's contention."
Instead, Scirica said, an extensive review of all the FCC indecency rulings showed that "the commission's exception for fleeting material ... treated images and words alike. Three decades of FCC action support this conclusion."
Under the law, Scirica said, the FCC must always "supply a reasoned explanation for its departure from prior policy."
But since the FCC was refusing to acknowledge that its policy had changed, Scirica said, it had failed to comply with that requirement, and the new policy therefore must be declared "arbitrary and capricious" and "invalid as applied to CBS."
The Associated Press contributed to this report.