• On November 2, 2011, after its first order was vacated and remanded by the Supreme Court in 2009, the Third Circuit Court of Appeals found again that the FCC acted arbitrarily when it veered from prior precedent in fining CBS $550,000 for broadcasting a fleeting glimpse of Janet Jackson’s bare chest during the halftime show of the 2004 Super Bowl. As the court explained, “if anything, Fox [the Supreme Court’s decision that prompted the remand] confirms our previous ruling in this case and that we should readopt our earlier analysis and holding that the Commission acted arbitrarily in this case.” The court again concluded that the FCC was not entitled to fine CBS here because it did not announce its change in its indecency policy – to make the airing or fleeting expletives and indecent images punishable even if not repeated – until after the Super Bowl event occurred. As the court explained, the Supreme Court’s decision makes clear that “an agency may not apply a policy to penalize conduct that occurred before the policy was announced.” CBS Corp. v. FCC, No. 06-3575 (3d Cir.).