Doug Mataconis · · 9 comments

Sustaining a ruling that it had reached three years ago, but which the Supreme Court had ordered it to reexamine in the light of later precedent, a Federal Appeals Court has once again ruled that the FCC should not have find CBS Television for the 2004 incident in which Janet Jackson’s breast was momentarily exposed to the viewers of Super Bowl XXXVIII:

WASHINGTON — Janet Jackson’s nipple just can’t seem to stay out of court.

A federal appeals court on Wednesday again threw out a $550,000 fine against CBS by the Federal Communications Commission for Janet Jackson’s famed “wardrobe malfunction” during the 2004 Super Bowl halftime show.

The United States Court of Appeals for the Third Circuit in Philadelphia had issued a similar ruling in July 2008. But that decision was sent back to the appeals court in May 2009 by the Supreme Court after it ruled in a separate case that the F.C.C. had the right to hold broadcasters accountable even for unscripted and isolated foul language.

The appeals court heard a second round of arguments in the Janet Jackson case in February 2010. On Wednesday, it ruled that while the F.C.C. had the ability to police fleeting images — the nipple-baring episode was onscreen for nine-sixteenths of one second — the commission acted arbitrarily because it failed to announce that it had changed its policy until after it decided to punish CBS.

“The F.C.C. 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,” the appeals court said in a 2-to-1 decision written by Judge Marjorie O. Rendell and joined by Judge Julio M. Fuentes. Chief Judge Anthony J. Scirica dissented.

The F.C.C. issued a statement but did not say whether it would appeal the decision.

“We are pleased that the court did not question the F.C.C.’s statutory responsibility to regulate indecent broadcasting,” the commission said. “While we are disappointed by the Court of Appeals’ decision, we note that the court overturned the F.C.C.’s 2006 forfeiture order on narrow procedural grounds. In the meantime, the F.C.C. will continue to use all of the authority at its disposal to ensure that the nation’s broadcasters fulfill the public interest responsibilities that accompany their use of the public airwaves.”