Monday, July 21, 2008

Third Circuit strikes down FCC fine against CBS for Super Bowl "wardrobe malfunction"


The Third Circuit Court of Appeals in Philadelphia has tossed out the Federal Communications Commission’s $550,000 fine against CBS for “indecency” during the 2004 Super Bowl. During the half time show, Justin Timberlake accidentally invoked a “wardrobe malfunction” in Janet Jackson while “dancing” much as in a disco.

The three judge panel ruled that the FCC had acted “arbitrarily and capriciously” during the incident. The AP story is by Joann Loviglio and appears here.

Other stories indicate that the Court ruled that Timberlake and Jackson were "independent contractors" and that the network was not responsible for what they said or did, leaving opening the possibility that they could be so individually. Elizabeth Jensen covers this in her New York Times Business Day story July 22, here. That comment reverses a trend in recent concerns about downstream liabilities of communications facilitators.

Although not directly related to COPA, the ruling would tend to suggest that the Circuit is likely sympathetic to the current ruling striking down COPA, although different judges within the panel may hear it.

The words in the song that Justin was singing make contradict the idea that it was innocuous. The incident created a sensation, being reported on AOL before the Super Bowl was over.

Timberlake at one time had a clean-cut “All American” image in the early days of his ‘Nsync career, despite the hilarity of some of the numbers (one video takes place in a toy store and it appears that the band is making fun of “don’t ask don’t tell” by pretending to be the toy soldiers). I attended an ‘Nsync concert in Minneapolis at the Metrodome in June 2001.

Since then, Timberlake’s “image” has changed somewhat, shall we say. See how he looks in “Alpha Dog” and “Southland Tales.”

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