CBS Corp. v$.$ FCC

$535$ F$\mathrm{.}3$d $167(3$d Cir. $2008)$

On February $1,2004,$ CBS$,$ the television network, presented a live broadcast of the National Football League's Super Bowl XXXVIII, which included a halftime show produced by MTV Networks. Both CBS and MTV were divisions of Viacom Inc at the time. Nearly $90$ million viewers watched the show, which featured recording artists Janet Jackson and Justin Timberlake. Jackson and Timberlake performed his popular song "Rock Your Body" as the show's finale. Their performance involved sexually suggestive choreography with Timberlake seeking to dance with Jackson and she 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.

Jackson's exposed breast caused a sensation and resulted in a large number of viewer complaints to the Federal Communications Commission. In response, the FCC issued a letter of inquiry asking CBS to provide more information about the broadcast. CBS issued a public statement of apology for the incident. CBS stated that Jackson and Timberlake's wardrobe stunt was unscripted and unauthorized, claiming CBS had no advance notice of any plan by the performers to deviate from the script. After its review, the FCC determined CBS was liable for a forfeiture penalty of $$550,000$ on several grounds, including that under the doctrine of respondeat superior, CBS was vicariously liable for the willful actions of its employees, Jackson and Timberlake. CBS asked the Third Circuit Court of Appeals to review the FCC decision.

Scirica, Chief Judge

The respondeat superior doctrine provides that $"[$a$]$n employer is subject to liability for torts committed by employees while acting

within the scope of their employment." Restatement $($Third$)$ of Agency $2\mathrm{.}04(2006).$