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July 21, 2008

Third Circuit Sends Janet Jackson Nipple Case Back to the FCC

The Third Circuit Court of Appeals has struck down the FCC's $550,000 fine against CBS for displaying Janet Jackson's nipple for nine-sixteenths of a second during the Superbowl broadcast of February 1, 2004.  The commercials didn't cost that much.

From the opinion:

At the time the Halftime Show was broadcasted by CBS, the FCC’s policy on fleeting material was still in effect. The FCC contends its restrained policy applied only to fleeting utterances – specifically, fleeting expletives – and did not extend to fleeting images. But a review of the Commission’s enforcement history reveals that its policy on fleeting material was never so limited. The FCC’s present distinction between words and images for purposes of determining indecency represents a departure from its prior policy.

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. Because the FCC failed to satisfy this requirement, we find its new policy arbitrary and capricious under the Administrative Procedure Act as applied to CBS.

The Court follows this with a pointed history of Commission enforcement actions that did not impose forfeiture on a respondent in similar circumstances.  The full 102 page opinion is here. [MG]

July 21, 2008 | Permalink

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