FCC Stripped Of Its CBS Fine

The Third Circuit has rightly thrown out the $550,000 fine against CBS for the Janet Jackson “costume malfunction” lasting 9/16^th of a second during the 2004 Super Bowl Halftime show. The Court concluded that the FCC's actions in imposing a fine for a fleeting incident were arbitrary and capricious. In its

          The FCC had relied on a single sentence in a 2001 policy statement to justify the single, isolated event as an “indecent standard.” The FCC had written: "even relatively fleeting references may be found indecent where other factors contribute to a finding of patent offensiveness.” Judge Sirica found that the term "relatively fleeting" is not the same as one isolated incident to trigger indecency fines, adding: "While an agency’s interpretation of its own precedent is entitled to deference,” . . . deference is inappropriate where the agency’s proffered interpretation is capricious. Until its Golden Globes decision in March of 2004, the FCC’s policy was to exempt fleeting or isolated material from the scope of actionable indecency. Because CBS broadcasted the Halftime Show prior to [the introduction of the fleeting expletive standard] this was the policy in effect when the incident with Jackson and Timberlake occurred."

The Court also refused to hold CBS liable for the independent actions of the performers. The FCC had argued that CBS was vicariously liable under the doctrine of respondeat superior,. The Court would have none of it, holding: "CBS’s actual control over the Halftime Show performances did not extend to all aspects of the performers’ work. The performers, not CBS, provided their own choreography and retained substantial latitude to develop the visual performances that would accompany their songs. . . . [and] but the performers retained discretion to make those choices in the first instance. .  "

Alan Milstein