In November 2011, some seven years after Janet Jackson and Justin Timberlake’s now infamous “wardrobe malfunction” at halftime of Super Bowl XXXVIII, the 3rd Circuit Court of Appeals issued a new decision in CBS’ ongoing battle against the FCC. The legal battle has centered on whether the FCC gave enough notice to the television networks in defining indecency and what policies will apply if a television network does broadcast something indecent. The FCC originally fined CBS $550,000 for the fleeting expletive and set a precedent for all future fines, which explains CBS vigorously litigating this matter for so many years.
The 3rd Circuit Court of Appeals ruled in CBS favor, finding that the FCC acted arbitrarily in fining CBS due to the lack of notice of policies the FCC intended to implement. Back in 2003-2004, the FCC’s policy memorandum to television networks discussed heightened enforcement of fleeting materials to “words” but not “images.” This technicality, where the FCC did not give exact notice of what they intended to police, proved to be the winning argument for CBS, as Janet Jackson’s moment was clearly an “image.”
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