CBS fights FCC fine for 2004 Super Bowl wardrobe malfunction

CBS returned to a Philadelphia appeals court on Tuesday to fight $550,000 in penalties for a 2004 Super Bowl broadcast that showed performer Janet Jackson’s breast for nearly a half second, The New York Times reported.

The Third Circuit Court of Appeals in Philadelphia had previously ruled that CBS did not have to pay the heavy fine because the Federal Communications Commission had not given broadcasters enough time or notice when it changed its indecency policies. Yet the appellate court was forced to reconsider its ruling in light of a Supreme Court opinion in FCC v. Fox, which stated that the FCC’s rule changes were reasonable.

Robert Corn-Revere, attorney for CBS, argued on Tuesday that the main question the court had to decide was "whether the commission ever articulated or implied a change in policy with respect to brief and unintended images prior to the Super Bowl broadcast at issue." He also asked the appellate court to note the "arbitrary and ever nebulous findings" of the FCC concerning indecency rulings.

Chief Judge Anthony Scirica asked, ”So if the 3rd Circuit got it wrong in our first opinion, how could CBS be expected to get it right?”

CBS has argued that they are not liable, in part, because the image was unintentional and accidental.

Jacob Lews, general counsel for the FCC, responded, "Recklessness can suffice, both in the Constitution and the commission’s statue, to hold CBS liable for their failure to implement a video delay system."