Who could forget the “wardrobe malfunction” of 2004, wherein Janet Jackson’s breast (with jewelry covering the nipple) pierced our eyes for 9/16ths of a second. (I was at the game and didn’t even notice).
As the case appealing the FCC fines winds through the court system, CBS finds itself before the Third Circuit Court of Appeals, and the network seems to be on the good side of the panel according to Shannon P. Duffy’s article on law.com.
The infamous “wardrobe malfunction” at the 2004 Super Bowl in which singer Janet Jackson’s breast was briefly exposed to millions of television viewers should not have resulted in any fines against CBS Corp. because the network had taken numerous precautions to prevent such an incident, the network’s lawyer told a federal appeals court Tuesday.
“CBS neither planned nor approved this split-second incident,” attorney Robert Corn-Revere of Davis Wright & Tremaine in Washington, D.C., argued before the 3rd U.S. Circuit Court of Appeals.
Corn-Revere urged the three-judge panel to overturn a $550,000 fine imposed by the Federal Communications Commission, arguing that the agency unfairly held the network responsible for the conduct of Jackson and singer Justin Timberlake.(source)
Justice Department Attorney Eric Miller (hilariously) argued that Janet Jackson and Justin Timberlake were “employees” of the network, and thus CBS was responsible for their actions.
Miller insisted that the performers themselves had knowledge and, as CBS employees, were “part of CBS.”
“That doesn’t seem to make sense at all,” [Judge] Fuentes said. “I mean, it sounds like a conclusion that was made out of convenience. I mean, they really weren’t employees of CBS, were they?”(source)
[CBS Attorney Bob] Corn-Revere argued that the FCC’s decision to impose fines on CBS — the maximum fine of $27,500 levied against each of the network’s 20 “owned and operated” stations — was wrong for four reasons.
First, he said, since CBS had no advance knowledge of the incident, which lasted just 9/16ths of a second, it was wrong for the FCC to impose respondeat superior liability for the performers’ conduct where the evidence also showed that CBS had made a “good faith effort” to comply with broadcast standards.
Second, he said, the FCC’s ruling abandoned the agency’s nearly three-decade-running policy of not imposing fines for “fleeting” instances of indecency.
Third, he said, the ruling violated CBS’ due process rights because it applied its newly created “zero-tolerance” policy retroactively for an incident that had occurred before the agency adopted the new rule.
Finally, Corn-Revere said, the ruling was “arbitrary and capricious” because it was premised on “national community standards” that the FCC simply invented on its own instead of conducting research or hearings that would justify the existence of such standards.(source)