Wardrobe Malfunctioned Without Warning


Today the U.S. Court of Appeals for the 3rd Circuit overturned the $550,000 fine that the Federal Communications Commissions imposed on CBS for Janet Jackson's failure to keep her breasts in her bustier during the 2004 Superbowl halftime show. It ruled that the FCC's abrupt abandonment of a longstanding policy forgiving brief, unplanned bits of "indecency" was "arbitrary and capricious," violating the Administrative Procedure Act. Because of the change in policy, the court said, CBS did not have fair warning that it could be fined for an incident like this one. Last year the U.S. Court of Appeals for the 2nd Circuit reached a similar conclusion (PDF) regarding the FCC's suddenly strict treatment of fleeting profanities uttered by celebrities during live award shows. In March the Supreme Court agreed to review the latter decision, so it may soon decide the extent to which the FCC can make shit policy up as it goes along.

Here (PDF) is the 3rd Circuit decision. Here is my column about the 2nd Circuit case.

NEXT: Making Up Evidence an "Honest Mistake"

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  1. Fuck the FCC
    There, I said it.

  2. Sorry Warren. Any story about Janet Jackson’s little brown buttons makes any thought of “fuck” impossible.

  3. Now we just need somebody to tell the FCC to stop sucking Clear Channel’s dick and approve the Sirius/XM merger.

  4. This goes back to the question: What authority do these regulatory agencies have to make rules, regardless of the whether or not they are “arbitrary and capricious”.

  5. please, please, do not post a picture of said nipple. I just ate, and I would like to eat again this month without upchucking

  6. Robbie –
    absolutely. The complete and total incompetency of these agencies is seen by others as evidence that the system needs fixing, but the inevitable conclusion is just always “if only the right people were in charge,” not “why does anyone have this authority anyway?”

  7. Robbie,

    I believe the answer is Congress, being to busy to set regulations on their own, has delegated different types of authority to government bureaucracies. It works great for Congress for two reasons: they are insulated from the claims that the rules are unfair, and they don’t get bitchslapped by SCOTUS every time a bureaucratic rule is found unconstitutional.

  8. why do nipples make you upchuck? i like nipples.

  9. Sadly this ruling, like the Heller case, will not result in more exposed breasts on TV.

  10. This goes back to the question: What authority do these regulatory agencies have to make rules, regardless of the whether or not they are “arbitrary and capricious”.

    The Radio Act of 1912 was the first assertation/assupmtion of federal authority over the electromagnetic spectrum. You can make the case that radio is interstate commerce fairly easily.

    Read all about the power grab here.

  11. the anomalous two:

    not all nipples, just some nipples, like Janet Jackson’s. and whatever infection was going on that time that Tara Reid had that nip slip on camera.

  12. Important precedent, could be valuable in food & drug law (for instance) vs. FDA, DEA.

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