CBS v. FCC, 06-3575 (3d Cir., 2011) "The Janet Jackson Nipple Case"

Until 2004, the FCC maintained a "fleeting expletives" policy by which non-literal non-repeated use of expletives did not fall within the agency's indecency prohibition.  In February of 2004, Janet Jackson exposed her bare-breast on national television during the Superbowl Halftime Show.  In spite of its fleeting expletives policy, the FCC found the depiction to be indecent, and fined CBS $550,000.

In March of the same year, the full commission formally reversed its fleeting expletives policy, and found that Bono's use of the phrase "this is really, really fucking brilliant" at the Golden Globe Awards was indecent.  The commission declined to impose a fine on the Golden Globes, however, because it believed that to do so without notice of the change in policy raised due process concerns.

CBS argued that Janet Jackson's bared breast was a fleeting obscenity and that, because the halftime show occurred prior to the Commission's decision to reverse its policy, the fine imposed violated the broadcaster's due process rights.  The FCC countered that Jackson's breast was an image, not a word or phrase, and did not fall under the fleeting obscenity policy at all.

The Third Circuit examined the FCC's historical application of its fleeting obscenity policy, and held that the FCC had, in fact, previously applied the policy to brief images of a penis.  On this basis it concluded that the policy did apply to images.  The Court then went on to hold that like "any agency, the FCC may change its policies without judicial second-guessing. But it cannot change a well-established course of action without supplying notice of and a reasoned explanation for its policy departure. Because the FCC failed to satisfy this requirement, we find its new policy arbitrary and capricious under the Administrative Procedure Act as applied to CBS."