Third Circuit Reconsiders, Reaffirms, Holding In CBS v. FCC (Wardrobe Malfunction Case)

The Third Circuit has reaffirmed its decision that the FCC’s fine of CBS in the “wardrobe malfunction” case was improper. After considering the Supreme Court’s decision in F.C.C. v. Fox (2009), the Court wrote,

While we can understand the Supreme Court’s desire that we re-examine our holdings in light of its opinion in Fox–since both involve the FCC’s policy regarding fleeting material–in Part A of this opinion we conclude that, if anything, Fox 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.