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Supreme Court rejects FCC fine over 2004 ‘wardrobe malfunction’

By Joe Flint, Los Angeles Times –

LOS ANGELES — After eight years and millions of dollars in legal fees, CBS emerged victorious in its fight with the Federal Communications Commission over pop star Janet Jackson’s infamous “wardrobe malfunction” during the 2004 Super Bowl.

On Friday, the Supreme Court refused to hear the FCC’s request to reinstate a $550,000 indecency fine against CBS for the halftime performance featuring Jackson and singer Justin Timberlake, who at the end of the song “Rock Your Body” tore a piece of Jackson’s top, briefly exposing her breast to an audience of about 90 million.

But if there are any future wardrobe malfunctions, the broadcaster could be on the hook.

Although the Supreme Court upheld a lower court ruling that the FCC’s indecency fine against the network was invalid, CBS got off on a technicality. Specifically, the 3rd U.S. Circuit Court of Appeals in Philadelphia said the FCC’s fine represented an undisclosed change in the enforcement of its policy with regard to “fleeting images” and hence could not be enforced.

The FCC has since updated its rules, and now such incidents of “fleeting nudity” or “fleeting expletives” can be subject to fines from the regulatory agency.

In his denial of the FCC’s request to overturn the lower court ruling, Chief Justice John Roberts said “it is now clear that the brevity of an indecent broadcast — be it word or image — cannot immunize it from FCC censure. … Any future ‘wardrobe malfunctions’ will not be protected on the ground relied on by the court below.”

In a statement, CBS said it was “gratified to finally put this episode behind us” and noted that “at every major turn of this process, the lower courts have sided with us.” The network added that since the 2004 Super Bowl, it has added delays to all live programming to avoid broadcasting similar incidents.

The halftime-show incident, which took place during the game between the New England Patriots and Carolina Panthers, led to a crackdown by the FCC on indecent content. In 2006, Congress passed the Broadcast Decency Enforcement Act, which dramatically increased the penalties the FCC could impose on television stations for violation of its indecency regulations.

The National Football League was embarrassed by the incident and has since kept a tighter grip on Super Bowl halftime performances, tending to feature artists over the age of 50.

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