On Wednesday, a federal appeals court upheld its previous decision that the Federal Communications Commission acted improperly when it fined CBS for the brief exposure of Janet Jackson’s breast during the 2004 Super Bowl halftime show.

During the performance, which involved Justin Timberlake and Janet Jackson, Timberlake ripped Jackson’s bustier to reveal her breast with a sunburst “shield” covering her nipple. At the center of the case is the fleeting nature of the exposure.

A three-judge panel in the Third Circuit Court of Appeals in Philadelphia, which sided with the network in a 2008 decision, has once again agreed with CBS that the regulators were attempting to apply different standards after having previously excused fleeting instances of both words and images in the past and ruled that the FCC’s fine was assessed improperly.

The appeals court panel had to revisit the case after the Supreme Court sent it back last year, citing a ruling in a case involving Fox television, in which it said the FCC could threaten fines over the use of a single curse word on live TV.

In Wednesday’s majority opinion, Judge Marjorie Rendell wrote that the FCC “arbitrarily and capriciously departed from its prior policy excepting fleeting broadcast material” when it assessed the fine. She also wrote that the Fox opinion did not undermine the earlier decision of the court and, in fact, confirmed the panel’s ruling.

At the time of the incident, the FCC fined CBS $550,000 and claimed that the network should have known the performers would sensationalize the act for shock value.

[Associated Press via The Huffington Post]

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