PHILADELPHIA (CBS) –– The Federal Communications Commission is now considering whether to appeal a federal court ruling yesterday that CBS cannot be fined for Janet Jackson’s notorious “wardrobe malfunction” during the 2004 Super Bowl.

The ruling is the second by the US Third Circuit Court of Appeals in the case revolving around that halftime show in which pop singer Janet Jackson’s right breast was exposed for nine-sixteenths of a second.

The Third Circuit revisited the matter on orders from the US Supreme Court, but, writing for the court, Judge Midge Rendell said the panel was even more convinced that the FCC could not impose fines because it changed its policy on penalties for fleeting nudity in broadcasts a month after the Super Bowl incident.

An FCC spokesman says a decision on whether to appeal will take some time, but he released a statement saying the FCC is disappointed by the ruling but will continue to use all of its authority to insure broadcasters fulfill their public-interest responsibilities.

Family advocacy groups blasted the ruling.  CBS Corporation (which owns CBS3-TV, CBS Philly, and KYW Newsradio) said it is gratified by the decision.

Reported by Pat Loeb, KYW Newsradio 1060

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