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.