Eight years after the 2004 Super Bowl’s infamous halftime “wardrobe malfunction,” the legal battle between the FCC and CBS has finally concluded. In response to the musical halftime performance, which included 9/16ths of a second of nudity broadcast to 90 million viewers, the FCC fined CBS $550,000—the largest fine ever levied against a broadcaster. On June 29, 2012, the Supreme Court declined to hear an appeal from the Third Circuit’s decision reversing the fine, thereby making the Third Circuit’s ruling the final word.
In CBS Corp. v. FCC, 663 F.3d 122, 151 (3d Cir. 2011), the Third Circuit held that the FCC’s fine was arbitrary and capricious, relying on the FCC’s previous treatment of “fleeting words”:
[T]he balance of the evidence weighs heavily against the FCC’s contention that its restrained enforcement policy for fleeting material extended only to fleeting words and not to fleeting images. As detailed, the Commission’s entire regulatory scheme treated broadcasted images and words interchangeably for purposes of determining indecency. Therefore, it follows that the Commission’s exception for fleeting material under that regulatory scheme likewise treated images and words alike.
Although the Supreme Court denied certiorari, Chief Justice Roberts issued a concurrence indicating that future FCC fines may not be treated in the same way because the FCC has clarified its rules on fleeting images and words since the 2004 Super Bowl:
[T]he FCC no longer adheres to the fleeting expletive policy. It is now clear that the brevity of an indecent broadcast—be it word or image—cannot immunize it from FCC censure. See, e.g., In re Young Broadcasting of San Francisco, Inc., 19 FCC Rcd. 1751 (2004) (censuring a broadcast despite the “fleeting” nature of the nudity involved). Any future “wardrobe malfunctions” will not be protected on the ground relied on by the court below.
Federal Commc’ns Comm’n v. CBS Corp., 567 U.S. __ (2012) (Roberts, C. J., concurring).