On Monday, July 21, 2008, the Third Circuit in CBS Corp. v. FCC overturned the fines levied against CBS for the so-called “Wardrobe Malfunction” that occurred during the 2004 Super Bowl Halftime Show. The 2004 fine of $550,000 was the largest ever against a television broadcaster at the time. CBS paid the fine in 2006 so that it could appeal the fine in federal court. The court ruled that the FCC can change its policies, including those based on the display of nudity, without judicial intervention. However, the FCC must give broadcasters advance notice of the policy changes.

The court stated that “[l]ike any agency, the FCC may change its policies without judicial second-guessing . . . But it cannot change a well-established course of action without supplying notice of and a reasoned explanation for its policy departure.” The court also ruled that the FCC had deviated from its policy of applying the same standards to words and images when reviewing indecency complaints. Furthermore, “[t]he Commission’s determination that CBS’s broadcast of a nine-sixteenths of one second glimpse of a bare female breast was actionably indecent evidenced the agency’s departure from its prior policy . . . Its orders constituted the announcement of a policy change — that fleeting images would no longer be excluded from the scope of actionable indecency.”

As of the result of the controversy surrounding the 2004 Halftime Show and the FCC fine, networks became more cautious about unexpected incidents at live broadcasts, as well as mature content in general. For example CBS added a tape delay to the Grammy Awards following the 2004 controversy, and tape delays have become standard at live events. There was also pressure placed on adult-oriented shows like the Howard Stern radio show, as well as soap operas, which stopped airing nudity at all on network television.

Andrew J. Schwartzman’s Media Access Project filed a brief supporting CBS. Schwarzman said that the FCC’s fine “caused considerable anxiety among broadcasters carrying live events,” but the Third Circuit’s decision “will make a lot of broadcasters breathe a lot easier.”

It is difficult to say what kind of effect the Third Circuit’s decision will have on broadcasters. The court decision seems to be based on a fairly technical matter, and such a fine could certainly be possible in the future, especially if FCC policy clearly permits such a fine. Though the court seems to allude that such a fine was excessive for only fleeting nudity, it does not state that such fines are always impermissible.

The decision is certainly a victory for television networks, but they are not likely to change their policies immediately. They are probably not going to eliminate the use of tape-delays at live events, out of fear of the next “nipple-gate.” The decision could conceivably be overturned by the Supreme Court, but this does not seem likely. However, the FCC could certainly change its policy to allow for large fines for fleeting nudity–at least until the end of the presidential administration.

– Jason Katz

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