With CBS (NYSE: CBS-A) calling it a victory for the broadcasting industry, today the 3rd circuit court of appeals in Philadelphia said the the fine by the Federal Communications Commission (FCC) was "arbitrary and capricious," and overturned the $550,000 ordered to be paid by the FCC.
The court added that the FCC had left its former policy of more mild fines.
"During a span of nearly three decades, the commission frequently declined to find broadcast programming indecent, its restraint punctuated only by a few occasions where programming contained indecent material so pervasive as to amount to 'shock treatment' for the audience," chief judge Anthony Scirica wrote in the decision. "Throughout this period, the commission consistently explained that isolated or fleeting material did not fall within the scope of actionable indecency."
All this goes back to the halftime show of the Super Bowl in 2004, when Justin Timberlake removed part of Janet Jackson's bustier and her breast was exposed for a short period of time. It generated a lot of controversy and negative response and complaints from fans watching the show.
CBS apoligized for the "unscripted" event, and said, "This is an important win for the entire broadcasting industry because it recognizes that there are rare instances, particularly during live programming, when it may not be possible to block unfortunate fleeting material, despite best efforts."
The court was quick to add that this had nothing to do with the FCC changing policy if they wanted, "But it cannot change a well-established court of action with supplying notice of and a reasoned explanation for its policy departure."
The point the court was making is the FCC seemed to act arbitrarily in this specific case, and the could change their policies if they chose, but not without giving notice and letting the networks know they're doing it.
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