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Court to Re-Examine FCC Fine For Janet Jackson’s Super Bowl Breast

They are words that will live in infamy: “wardrobe malfunction.” And just when you thought the fervor over Janet Jackson’s boob was over, a federal appeals court will re-examine the FCC fine it threw out against CBS over Janet Jackson’s breast-exposing performance with Justin Timberlake during the 2004 Super Bowl halftime show six years ago.

The 3rd U.S. Circuit Court of Appeals in Philadelphia will consider whether the FCC’s fine for the broadcaster over the breast-baring performance is permissible. The FCC had fined 20 CBS stations a total of $550,000 because of the Super Bowl halftime show, claiming that the airing of a glimpse of Jackson’s breast in the highest-rated TV show of the year amounted to indecency.

Lawyers for CBS today asked the appellate justices in Philadelphia to stand by their July 2008 decision that the FCC’s indecency policy was “arbitrary and capricious.”

The U.S. Supreme Court last year directed the lower court to consider reinstating the fine, following a ruling in another case that said the FCC could threaten fines even for fleeting profanity.

The lower court threw out the fine in 2008, saying the FCC acted arbitrarily and capriciously in issuing the fine for the half-second of nudity.

In a statement Thursday, CBS said it was hopeful the court will “again recognize that the 2004 Super Bowl incident, while inappropriate and regrettable, was not and could not have been anticipated by CBS.”

“This remains an important issue for the entire broadcasting industry because it recognizes that there are rare instances, particularly during live programming, when despite broadcasters’ best efforts it may not be possible to block unfortunate fleeting material,” CBS said. “Such a decision by the court would help to restore the policy of restrained indecency enforcement the FCC followed for decades.”

A spokesman for C-SPAN said the network will air the arguments in the evening of Feb. 24 on C-SPAN Radio and on its Web site (times to be determined), as well as Feb. 28 at 7 p.m. on C-SPAN in its America and the Courts programming block.

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