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High court to 3rd Circuit: Reconsider wardrobe-malfunction case

By The Associated Press

WASHINGTON — The Supreme Court today ordered a federal appeals court to re-examine its ruling in favor of CBS Corp. in a legal fight over entertainer Janet Jackson's wardrobe malfunction.

The high court today directed the 3rd U.S. Circuit Court of Appeals in Philadelphia to consider reinstating the $550,000 fine that the Federal Communications Commission imposed on CBS over Jackson's breast-baring performance at the 2004 Super Bowl.

The order in FCC v. CBS follows the high court ruling last week in FCC v. Fox Television Stations, which narrowly upheld the FCC's policy threatening fines against even one-time uses of curse words on live television.

In a statement, CBS said the Supreme Court's decision was not a surprise given last week's ruling and expressed confidence the 3rd Circuit would again find the incident was not and could not have been anticipated by the network.

Last year, the 3rd Circuit threw out the fine against CBS, saying the FCC strayed from its long-held approach of applying identical standards to words and images when reviewing complaints of indecency.

The appellate court said the incident lasted nine-sixteenths of one second and should have been regarded as "fleeting." The FCC previously deviated from its nearly 30-year practice of fining indecent broadcast programming only when it was so "pervasive as to amount to 'shock treatment' for the audience," the 3rd Circuit said.

The FCC appealed to the Supreme Court. The case had been put off while the justices dealt with a challenge led by Fox Television against the FCC's policy on fleeting expletives.

FCC appeals Janet Jackson case to Supreme Court
Agency says 3rd Circuit incorrectly applied rule regarding fleeting expletives when it threw out $550,000 fine against CBS for singer's breast-baring performance at 2004 Super Bowl. 11.24.08


FCC's 'fleeting expletives' policy in place for now

By Tony Mauro 2nd Circuit to conduct free-speech review. 04.29.09

Janet Jackson ‘flap’: Everybody lost

By Gene Policinski Letting viewers decide what to see and hear is a lot more efficient than four years of litigation. 07.27.08

The FCC's Regulation of Indecency

2008-09 Supreme Court case tracker

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