Appeals Court Sides With CBS To Throw Out Fine On 'Nipplegate'

'Wardrobe Malfunction' Not Indecent

A U.S. appeals court has just upheld its earlier decision to throw out a $550,000 indecency fine against CBS CORP. (CBS) for the split-second exposure of singer JANET JACKSON’s breast during the 2004 SUPER BOWL halftime show, BLOOMBERG reports. The original fine sent shock waves throughout the entertainment industry, which prompted radio to fire or tone down its most controversial air personalities.

The PHILADELPHIA-based 3rd U.S. COURT OF APPEALS, which took up the case again after the SUPREME COURT remanded it in 2009, upheld its original decision that the agency didn't provide broadcasters fair warning about a change in indecency enforcement rules. The FCC fined CBS after JACKSON’s breast was exposed on-air for 9/16 of a second during the halftime performance. Her singing partner, JUSTIN TIMBERLAKE, called the incident a "wardrobe malfunction."

You can read the entire ruling here.

Reactions, Pro And Con

"While we are disappointed by the court of appeal’s decision, we note that the court overturned the FCC’s 2006 forfeiture order on narrow procedural grounds," FCC spokesperson NEIL GRACE said in an e-mailed statement. THE WALL STREET JOURNAL reports he added, "In the meantime, the FCC will 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 NAB response to the decision was short and sweet: "The NAB supports the appeals court decision," EVP/Media Relations DENNIS WHARTON said in a statement.
 
"The court did the right thing," noted WOMBLE CARLYLE SANDRIDGE & RICE, LLP counsel GREGG P. SKALL, who also authors ALL ACCESS' FCC Uncensored column. "Now 'Nipplegate' is teed up for consideration along with the FOX 'spontaneous utterance' case. How the SUPREME COURT handles that matter will be instructive.  As a general matter, the court is standing up for a sound legal principle that there should be notice to those affected before the rules are changed."

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