Third Circuit: FCC Acted “Capriciously” in Wardrobe Malfunction Case

The Third Circuit has found in favor of CBS in the infamous Super Bowl “wardrobe malfunction” case, marking the second time in a little over a year that a federal appeals court has told the Federal Communications Commission that although it may change its indecency policy, it may not do so without explaining its reasons clearly. In the “wardrobe malfunction” case, the FCC targeted not “fleeting expletives” as in the 2nd Circuit case, but “fleeting images.” The court rejected the FCC’s contentions that Justin Timberlake and Janet Jackson were employees of CBS during the Super Bowl halftime show and that CBS should have been on notice that the performance was likely to include indecency, based on the comments of the duo’s choreographer. Read the opinion here.