CBS 'wardrobe malfunction' case remanded

A federal appeals court must reconsider its ruling vacating a $550,000 FCC fine against CBS over Janet Jackson’s televised 2004 "wardrobe malfunction," the Supreme Court ordered Monday.

In light of the high court’s ruling last week on fleeting expletives in FCC v. Fox, CBS told the press, Monday’s order was expected. The U.S. Court of Appeals in Philadelphia (3rd Cir. ) decided last summer CBS should not have to pay for the incident during the Super Bowl half-time show because, the court said, the Federal Communications Commission had not given broadcasters enough notice when it tightened its indecency rules.

Ruling last week in the Fox case, in which that network was fined for a string of stray expletives it televised live, the Supreme Court found the FCC’s rule-tightening was in fact reasonable. The Fox case was remanded to the U.S. Court of Appeals in New York City (2nd Cir.) Accordingly, CBS and the FCC will return to the Third Circuit, as well.

The New York Times reports CBS said it is "confident that in reviewing the case the Third Circuit will again recognize that the 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," the network went on, "because it recognizes that there are rare instances, particularly during live programming, when despite best efforts it may not be possible to block unfortunate fleeting material.”