On February 1, 2004, CBS presented a live broadcast of the National Football League’s Super Bowl XXXVIII, which included a halftime show produced by MTV Networks. Nearly 90 million viewers watched the Halftime Show, which began at 8:30 p.m. Eastern Standard Time and lasted about 15 minutes. The Halftime Show featured a performance with Janet Jackson and Justin Timberlake as a “surprise guest” for the final minutes of the show. Timberlake and Jackson performed his popular song “Rock Your Body” as the show’s finale. Their performance, which involved sexually suggestive choreography, portrayed Timberlake seeking to dance with Jackson, and Jackson alternating between accepting and rejecting his advances. The performance ended with Timberlake singing, “gonna have you naked by the end of this song,” and simultaneously tearing away part of Jackson’s bustier. CBS had implemented a five-second audio delay to guard against the possibility of indecent language being transmitted on air, but it did not employ similar precautionary technology for video images. As a result, Jackson’s bare right breast was exposed on camera for nine-sixteenths of one second. On September 22, 2004, the Commission issued a Notice of Apparent Liability, finding that CBS had apparently violated federal law and FCC rules restricting the broadcast of indecent material. After its review, the Commission determined that CBS was liable for a forfeiture penalty of $550,000 because its actions were willful.
CBS filed with the FCC for a reconsideration, which was denied. CBS then appealed the case to the federal Court of Appeals on the grounds that the finding of willfulness as well as the penalty were arbitrary and capricious and violated First Amendment rights. Based on the Fox Televisions Stations case, what do you think the decision should be and why. [CBS Corporation, Inc. v FCC, 535 F3d 167 (CA 3 2006)]