Court Tosses Out Fine For 'Wardrobe Malfunction'; Slams FCC

In an interesting move today that reeks of common sense, a federal appeals court tossed out the indecency fine the FCC slapped on CBS for the now-infamous 'wardrobe malfunction'.

The FCC fined CBS $550,000 when, during the Super Bowl XXXVIII halftime show which was televised on the network, Janet Jackson's exposed breast was televised for less than a second. Actually, the court determined it to be 9/16 of a second.

The three-judge panel of the 3rd U.S. Circuit Court of Appeals ruled that the Federal Communications Commission "acted arbitrarily and capriciously" in issuing the fine for the fleeting image of nudity.

The court found that the FCC deviated from its nearly 30-year practice of fining indecent broadcast programming only when it was so "pervasive as to amount to 'shock treatment' for the audience."

"Like any agency, the FCC may change its policies without judicial second-guessing," the court said. "But it cannot change a well-established course of action without supplying notice of and a reasoned explanation for its policy departure."

In the world of television, this is quite a win. After this incident (and a couple others), networks were scared to death to have anything accidental happen during a live telecast that pretty much everything now has a delay. The delays, I imagine, won't go away but the feeling of an unintentional indecency witch-hunt may have.

Sure, we live in a DVR/TiVo society where we can make 9/16 of a second last forever, that isn't CBS' intent or fault.

And the FCC would've gotten away with it to ... if not for those meddling kids and that danged dog!