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The Next Chapter in CBS Corp. v FCC

By Nili Wexler

CBS won another battle with the Federal Communications Commission (FCC) regarding a 2004 indecency claim. A panel of three judges in the Third Circuit Court of Appeals ruled last week that the fine imposed on CBS by the FCC for the infamous Janet Jackson "wardrobe malfunction" at the 2004 Super Bowl was inappropriate. (CBS Corp. v. F.C.C., No. 06-375 (3rd Cir. Nov. 2, 2011))

During the 2004 Super Bowl halftime performance by Justin Timberlake and Janet Jackson, Mr. Timberlake pulled down a part of Ms. Jackson's costume, which revealed a portion of her breast for nine-sixteenths of a second. In response to the incident, the FCC fined each of 20 CBS-owned television stations with the maximum penalty of $27,500, resulting in a cumulative fine of $550,000. (http://www.cbsnews.com/stories/2004/07/01/entertainment/main626925.shtml)
CBS appealed the FCC decision, and in 2008 the Third Circuit ruled in favor of CBS in F.C.C v. CBS Corp. (535 F.3d 167 (3rd Cir. 2008)) Subsequently, the Supreme Court ordered a review of the case after it found in an unrelated matter that the FCC was permitted to exercise its enforcement powers to regulate unscripted indecency. (http://idolator.com/6065022/janet-jackson-cbs-super-bowl-wardrobe-malfunction-appeals-case)

The Third Circuit Court's Decision

The court based its decision on prior FCC rulings that were incompatible with the FCC's decision regarding the Super Bowl incident, and ruled that the action against CBS was an inappropriate deviation from the FCC's own policies. "We again set forth our reasoning and conclusion that the FCC failed to acknowledge that its order in this case reflected a policy change and improperly imposed a penalty on CBS for violating a previously unannounced policy." The court claimed that the FCC had acted "arbitrarily and capriciously" in doing so. (CBS Corp. v. F.C.C., No. 06-375 (3rd Cir. Nov. 2, 2011))

Reactions to the Decision

In reaction to the Third Circuit's decision, a CBS spokesman commented, "We are gratified that once again the court has ruled in our favor. We are hopeful that this will help lead the FCC to return to the policy of restrained indecency enforcement it followed for decades." (http://latimesblogs.latimes.com/entertainmentnewsbuzz/2011/11/cbs-wins-again-over-fcc-in-janet-jackson-case.html)

An FCC spokesman who was disappointed with the ruling commented that the FCC would continue to "use all of the authority at its disposal to ensure that the nation's broadcasters fulfill the public interest responsibilities that accompany their use of the public airwaves." (http://latimesblogs.latimes.com/entertainmentnewsbuzz/2011/11/cbs-wins-again-over-fcc-in-janet-jackson-case.html). The FCC is reviewing whether it will appeal the ruling, and if so whether it will appeal to the Third Circuit or the Supreme Court.

Family advocacy groups were outraged over the decision, calling it a "sucker punch to families everywhere" and asking, "[h]ow can nudity and a striptease in front of ninety million unsuspecting TV viewers not qualify as indecency?" (http://www.cnn.com/2011/11/02/justice/cbs-wardrobe-malfunction/)

Constitutionality Issues in FCC Enforcement

The decision in F.C.C. v. CBS hinged specifically on the FCC's ruling from an administrative law perspective, and did not address whether the FCC's enforcement policy was unconstitutional.

However, in another FCC case involving Fox Television (Fox), the Second Circuit questioned the constitutionality of the FCC's enforcement policies. The instances at issue involved two live broadcasts of Fox's Billboard Music awards. In 2002, musician Cher used profanity while accepting an award, and in 2003 Nicole Richie uttered profanities while presenting an award. The FCC issued notices of liability for indecency to the network, though it levied no fines. (http://lawprofessors.typepad.com/firstamendment/2008/03/cert-granted-fc.html) The appeals court ruled that the FCC's new policy against "fleeting expletives" was "arbitrary and capricious" for "failing to articulate a reasoned basis for its change in policy" and vacated the FCC's order. (Fox Television Stations, Inc. v. F.C.C., 489 F.3d 444 (2nd Cir. 2007))

The FCC appealed the Second Circuit's decision, and in June of this year the Supreme Court agreed to hear the case. It is expected to rule on the issue in 2012. Justice Sotomayor, who formerly served on the Second Circuit, has recused herself from the hearing. (http://www.nytimes.com/2011/06/28/business/media/28fcc.html?_r=1) The Supreme Court will limit its consideration to "whether the Federal Communications Commission's current indecency enforcement regime violates the First or Fifth Amendment to the United States Constitution." (F.C.C. v. Fox Television Stations, Inc., 613 F.3d 317 (2nd Cir. 2007), cert. granted, 79 U.S.L.W. 3629 (U.S. June 27, 2011) (No.10-1293))


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This page contains a single entry from the blog posted on November 10, 2011 9:31 PM.

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