Third Circuit Vacates 'Wardrobe Malfunction' Fine

In a long-awaited and hardly surprising ruling, a panel of the U.S. Court of Appeals for the Third Circuit threw out the Federal Communication Commission's $550,000 fine against CBS for the now-infamous Janet Jackson-Justin Timberlake breast-bearing (all 9/16 of a second) 2004 Super Bowl halftime show. In language echoing a Second Circuit ruling in FCC v. Fox over one year ago, this panel, concluded that the FCC's actions in imposing a fine for a fleeting incident was arbitrary and capricious. For the text of the ruling click here. [Before I go on, I want to give full disclosure: my wife works in the legal department of CBS, but was not involved in this litigation.]

It never ceases to amaze me how the Commission could make the arguments it made with a straight face. After 30 years of interpreting "indecency" as encompassing consistent patterns of conduct or language, the FCC argued that by February 1, 2004 (the date of the Halftime Show), a broadcaster in CBS’s position should have known that even isolated or fleeting indecent material in programming could be actionable." How could it? The official change in FCC's policy came a few weeks later on March 3rd.

Chief Judge Scirica, writing for the panel, slapped the FCC down for relying on a single sentence in a 2001 policy statement to justify the single, isolated event as indecent "standard", which noted that "[E]ven relatively fleeting references may be found indecent where other factors contribute to a finding of patent offensiveness.” Noting that it took the sentence out of context, Judge Scirica found that the term "relatively fleeting" is not the same as one isolated incident to trigger indecency fines. Then, as if the court was lecturing a wayward student, it stated: "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 addressed a secondary argument, that the indecency policies may differ between words and actions -- something never claimed by the commission. "In the nearly three decades between the Supreme Court’s ruling in [FCC v] Pacifica and CBS’s broadcast of the Halftime Show the FCC had never varied its approach to indecency regulation based on the format of broadcasted content. Instead, the FCC consistently applied identical standards and engaged in
identical analyses when reviewing complaints of potential indecency whether the complaints were based on words or images," Judge Scirica stated. The court also pointed out to the enabling statute, 18 U.S.C. 1464, does not make any differentiation between words and actions.

To add more to the mix, the court stated that the arbitrariness of the standard were not enough to reject the fine, it noted that CBS should not be responsible for performers operating at a live event beyond its control. The FCC claimed vicarious liability under the doctrine of respondeat superior, but the court, properly questioned how could an employment law concept be applied to independent contractors under no control or supervision of CBS. After an exhaustive review of the question of whether federal law applies to this question, the court concluded that "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. . . " Therefore, the performers were considered independent contractors.

With the FCC v. Fox case scheduled for argument in the Supreme Court, I wonder if the FCC will seek a petition for certiorari in this case. If its does, there is a possibility for the court may consolidate both this case and the Fox case for determination next year.

One hopes that this indecency crusade may be rendered moot either by a Supreme Court ruling or a new FCC in the next administration.

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