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How Bono helped CBS beat the rap for Janet's 'boob'

AN APPEALS court has now ruled that CBS should not be fined $550,000 for Janet Jackson's infamous "wardrobe malfunction" the steamy 2004 Super Bowl halftime show.

And the ruling highlighted U2 star Bono's use of profanity on the Golden Globe Awards show the previous year.

During the Superbowl show, Justin Timberlake ripped off Jackson's bustier, exposing her breast. It was explained away as a "wardrobe malfunction", a term that has since become part of the lexicon.

The Court of Appeals held its ground even after the US Supreme Court ordered a review after its ruling in a related Fox television case. In that case, the high court said the Federal Communications Commission could threaten fines over the use of even a single curse word uttered on live TV.

But Circuit Judge Marjorie Rendell said the Fox case only "fortifies our opinion" that the FCC was wrong to fine CBS over the halftime show.


The three-judge panel reviewed three decades of FCC rulings and concluded the agency was changing its policy, without warning, by fining CBS for fleeting nudity.

"An agency may not apply a policy to penalise conduct that occurred before the policy was announced," she wrote.

CBS argues that the FCC had previously applied the same decency standards to words and images -- and excused fleeting instances of both.

Judge Rendell said that long-standing policy appeared to change without notice in March 2004 -- a month after the act at the Super Bowl.

And she pointed to Bono's use of profanity on the Golden Globe Awards show the previous year. An FCC enforcement bureau had called it a fleeting, non-sexual utterance and declined to issue a fine.

The full commission reversed the ruling in March 2004 but declined to issue a fine because it would have been allowed under the prior standard. Judge Rendell sees the same issue at play in the Janet Jackson case.