3rd Circuit Judges Appear Skeptical of FCC Super Bowl Fine

Both sides were asked by judges about the absence of a videotape delay, whose use would have taken care of the matter. Judges spent little time on constitutional issues during the hearing, which lasted more than an hour, instead focusing on more technical questions, especially employers’ liability. The law limits employers’ liability for independent contractors. A lawyer at the hearing said judges seemed ready to accept some CBS arguments and remand the case to the FCC.

Chief Judge Anthony Scirica homed in on videotape delay technology, asking Corn-Revere why CBS didn’t use such gear in the halftime show that saw Justin Timberlake pull open part of Jackson’s costume. The lawyer said the network used only an audio delay. Until the episode, no network felt a need for a video delay, since the FCC had never issued such a fine. “This event was unanticipated in the history of broadcast TV,” Corn-Revere said. “There never had been a case of a performer going off” script that way. He said it took a week to develop the gear, which Miller said was used shortly afterward, during a Grammy show.

Networks’ speed in adopting delay technology indicated CBS could have used it during the Super Bowl show, Miller said. “Video delay was available and could have been used,” he said. “It did not require the invention of new technology.” When Scirica asked for evidence that delay tools had existed, Miller could say only that video delay was used a week later.

Scirica and Judge Julio Fuentes asked Corn-Revere to handicap the possibility of a similar episode now that video delay is in broad use. The delay helps, but “it is not an easy thing to do,” CBS’s attorney said. During live shows, especially news, broadcasters face difficulty trying to cut content, Corn-Revere said, in response to a question by Fuentes. “Any time there is a live presentation, the broadcaster is at risk,” Corn-Revere said. CBS would make different arguments if Jackson’s performance had been pre- recorded, Corn-Revere told Rendell, noting that the FCC has dealt with nudity on taped but not live shows. “It’s purely 20-20 hindsight” for the FCC “to apply those standards now,” he said.

Scirica and colleagues noted that cases cited by the FCC as precedent for fining CBS didn’t deal with the same issues as this one. “The cases we saw all involved the operation of the station, rather than content,” said Scirica. Miller said the FCC used the “theory of vicarious responsibility,” under which a licensee is responsible for contractors’ conduct. Fuentes asked whether the “chilling effect” on free speech from fines like the one imposed on CBS “requires some standard of culpability like prior knowledge of what occurred.” Miller said CBS executives knew Jackson might improvise.

Rendell criticized FCC arguments that Jackson’s work for CBS resembled that of an employee, as he asked Miller how the FCC justified saying the network controlled her actions. “You say they have control, and then you fault them for not exerting control,” she said. “Isn’t this ill-advised as a policy, because now you're going to have broadcasters not exert control… lest they be held to be vicariously liable. You're going to promote the nonregulation of performers of this kind.” Rendell likened Jackson to a painter, saying it’s not a customer’s fault when a contractor paints a house the wrong color. Rendell asked Miller to list previous FCC cases giving such “sweeping status” to performers, but he couldn’t.

Fuentes and Rendell asked Corn-Revere whether the network did enough to keep Jackson from exposing herself. “Could it be said that you failed to take reasonable precautions to find out what would take place?” Fuentes asked. CBS carefully reviewed the show’s script and held rehearsals, Corn-Revere said. Rendell said the network should have been alerted by a letter from then-NFL Commissioner Paul Tagliabue to CBS CEO Les Moonves warning the network not to let the halftime show get racy. “You need to anticipate that these performers” are “trying to do things that make a splash and make a name for themselves,” said Rendell. Tagliabue was referring to a celebrity meltdown along the lines of one by Britney Spears at a 2003 NFL event, not to Jackson, Corn-Revere said. Tagliabue wrote that he “wouldn’t know Janet Jackson if she walked into the room,” the attorney said.

Corn-Revere took heat from Rendell for arguing that the FCC inadequately assessed the community standards that the agency claimed Jackson offended. In deciding what’s reasonable, she and other judges often put themselves in the shoes of others, such as police officers, she said. “People have to make decisions based upon general common-sense understanding of society,” she said. “Why are the commissioners not allowed to do that?” Corn-Revere said the FCC “has not demonstrated any expertise in this area.”

To Fuentes’ question about what action CBS seeks, Corn- Revere noted remand as an option but during the hearing he emphasized that the network simply wants the FCC action reversed. “What occurred surprised CBS as much as our audience,” the network said in a news release. “We are hopeful the court will agree.” An FCC spokesman declined to comment. So did Miller, who represented the agency in December oral arguments on a case involving fleeting- expletive policy at the 2nd U.S. Appeals Court in New York. That case resulted in the policy’s being remanded to the FCC. The CBS fine case seems likely to result in another remand, said Andrew Schwartzman, the Media Access Project’s president. “The court certainly seemed very skeptical of the commission,” he said. “They seemed more focused on what they should do if they remanded it.”