The FCC's continuing effort to levy a fine against CBS for its 2004 Super Bowl broadcast of what has become the world's most famous "wardrobe malfunction" has failed once again. This week, a federal appeals court affirmed an earlier 2008 lower court ruling that the commission was unjustified in fining Janet Jackson and CBS $550,000 for showing a little skin during a half-time show.
Officially, the court found that the FCC did not properly inform the broadcaster about changes in indecency enforcement and had "arbitrarily" departed from its prior policy. A three-judge panel in Philadelphia found in favor of the network in 2008, but revisited its decision after the Supreme Court requested a review.
The FCC said it was disappointed with the new decision but that the ruling would not reduce its power to regulate indecent content when justified in the future.
In a prepared statement, the FCC said it would "… continue to use all of the authority at its disposal to ensure that the nation's broadcasters fulfill the public interest responsibilities that accompany their use of the public airwaves."
The commission's constitutional right to fine broadcasters that air profanity and nudity will once again become an issue during upcoming hearings before the Supreme Court, which includes a case involving award shows in 2002 and 2003 on Fox in which Bono, Cher and Nicole Richie used profane language.
A second case on the docket has to do with actress Charlotte Ross briefly exposing her buttocks in a 2003 episode of "NYPD Blue." The FCC fined 52 ABC affiliates a total of $1.4 million for that incident.