FCC to Probe Nipplegate, Again
Says CBS should have used tape delay to prevent incident
By Kevin Spak,  Newser Staff
Posted Sep 16, 2009 11:58 AM CDT
Janet Jackson, left, covers her breast after her outfit came undone during the half time performance with Justin Timberlake at Super Bowl XXXVIII in Houston.   (AP Photo/David Phillip, File)
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(Newser) – Five years after the nation saw a split-second of Janet Jackson’s right boob, the FCC is trying to reopen the case, Broadcasting & Cable reports. The FCC is asking the Third Circuit Appeals Court to remand the case back to the agency. The evidence “strongly suggests that CBS had access to video delay technology,” the commission says, and the decision not to use it was “willful.”

The Third Circuit has already thrown out the FCC’s fine against CBS once, calling it “arbitrary and capricious,” and deciding that the evidence CBS had delay technology was “scant.” But the Supreme Court asked the court to look at the decision again, after reaffirming that stations could be fined for one-time incidents. CBS says video delay was in its infancy at the time, but the FCC insists it was “reckless” not to use it.