By a 2-1 margin, a three-judge panel of the U.S. Court of Appeals for the Third Circuit affirmed its 2008 decision to overturn $550,000 in fines assessed by the FCC against the CBS broadcast network for singer Janet Jackson’s “wardrobe malfunction” during the 2004 Super Bowl telecast. Handed down last week, the ruling responds to a 2009 pronouncement on broadcast indecency by the U.S. Supreme Court that concerns utterances of “fleeting” expletives during live awards shows on the Fox and NBC television networks in 2002 and 2003. At that time, the Supreme Court determined that the FCC had the right to hold broadcasters accountable for unscripted and isolated incidents of foul language, although Justice Antonin Scalia and several of his colleagues agreed that the FCC’s regime on broadcast indecency could be challenged on constitutional grounds. (In a separate case that is expected to be argued next year, the Supreme Court is considering whether the FCC’s governance of broadcast indecency violates rights to free speech that are protected by the First Amendment.) Notwithstanding the Supreme Court remand, the Third Circuit majority found that the Fox case at the heart of the 2009 Supreme Court decision “fortifies our opinion” that the FCC erred in holding CBS liable for the splitsecond exposure of Janet Jackson’s bare chest on the 2004 Super Bowl telecast. Noting that the cases involving CBS and Fox both involve instances of fleeting indecency that took place before the FCC first held broadcasters liable for such conduct in 2004, the court’s majority observed that the FCC “failed to acknowledge that its order in this case reflected a policy change and improperly imposed a penalty on CBS for violating a previously unannounced policy.” Adding, “an agency may not apply a policy to penalize conduct that occurred before the policy was announced,” the majority thus concluded that the FCC’s decision to fine CBS “constitutes arbitrary and therefore unlawful punishment.” Although a CBS spokesman voiced hope that the Third Circuit decision “will help lead the FCC to return to the policy of restrained indecency enforcement it followed for decades,” an FCC spokesman vowed that the agency “will continue to use all of the authority it has at its disposal to ensure that the nation’s broadcasters fulfill the public interest responsibilities that accompany their use of the public airwaves.”