July 21, 2008

By Reuters

A U.S. appeals court on Monday overturned a decision to fine CBS Corp. television stations $550,000 for airing a brief breast flash by pop singer Janet Jackson during the 2004 Super Bowl broadcast.

The U.S. Court of Appeals for the Third Circuit said the U.S. Federal Communications Commission "arbitrarily and capriciously departed from its prior policy" that exempted fleeting broadcast material from actionable indecency violations.

Jackson's right breast was exposed to almost 90 million TV viewers for a fraction of a second during the live 2004 Super Bowl football halftime show in what fellow pop singer Justin Timberlake later called a "wardrobe malfunction."

Timberlake ripped off part of Jackson's bustier exposing Jackson's breast during the show. Despite the brevity, lawmakers and regulators were outraged and vowed a crackdown on broadcast indecency.

U.S. television and radio broadcasters are barred from airing obscene material and are limited from broadcasting indecent materials between the hours of 6 a.m. and 10 p.m., when children are likely to be watching. The restrictions do not apply to cable or satellite services.

CBS apologized and paid the fine, $27,500 for each of the 20 stations it
owns, but said it was not clued in ahead of time about the stunt and appealed the decision to the court, based in Philadelphia.

The appeals court said CBS could not be held responsible for the incident.

"Moreover, 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..," wrote Chief Judge Anthony Scirica for the three-judge panel that heard the case.

There was no immediate comment on the ruling by the FCC.

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