CBS Indecency Fine Remanded by 3rd Circuit
A federal appeals court remanded to the FCC a $550,000 fine against CBS for airing a split-second live shot of Janet Jackson’s breast at halftime of the 2004 Super Bowl. Writing for himself and Judge Julio Fuentes, Chief Judge Anthony Scirica of the 3rd U.S. Appeals Court in Philadelphia said the fine over a fleetingly indecent image marked a policy change made by the FCC without adequate notice. Fuentes said Jackson and Justin Timberlake, who ripped off the singer’s bustier, were independent contractors, not CBS employees, as the agency found. Judge Marjorie Rendell agreed with her colleagues’ conclusion in CBS v. FCC, dissenting in part because she felt they should have vacated the case entirely and not remanded it. Monday’s decision was foreshadowed in questions by the jurists in oral arguments (CD Sept 12 p2).
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The majority decision resembled a 2007 remand by the 2nd U.S. Appeals Court in New York in finding that the FCC changed a decades-long policy of not fining broadcasters for airing brief indecent content. The 3rd Circuit rejected FCC claims that a notice of apparent liability to Young Broadcasting four days before the Super Bowl showed broadcasters could be fined for fleeting indecency.
“Young Broadcasting appears instead to be best understood as the Commission’s initial effort to abandon its restrained enforcement policy on fleeting material,” wrote Scirica. “So it instead apparently seeks to revise the scope of the policy by contending the policy never included [not fining for] fleeting images. But extensive precedent over thirty years of indecency enforcement demonstrates otherwise.”
The decision cited a 2nd Circuit ruling in Fox v. FCC, saying “our reluctant conclusion that the FCC has advanced strained policy arguments to avoid the implications of its own indecency policy were echoed by our sister court… The balance of the evidence weighs heavily against the FCC’s contention that its restrained enforcement policy for fleeting material extended only to fleeting words.” The FCC policy of issuing fines for fleeting images “is arbitrary and capricious” under the Administrative Procedure Act and a 1983 Supreme Court case involving State Farm, wrote Scirica.
The FCC “incorrectly” found CBS liable for the antics of Jackson and Timberlake, wrote Scirica. “The First Amendment precludes the FCC from sanctioning CBS for the indecent expressive conduct of its independent contractors” without proving scienter -- i.e., advance knowledge -- he wrote.
The ruling “should enable broadcasters to breathe easier when doing live telecasts,” said Media Access Project President Andrew Schwartzman, a participant in the case. “This restores the longstanding policy that gave latitude to broadcasters for unexpected and fleeting display of possibly indecent images.” The ruling shows “the FCC was much too hasty in glossing over” key questions in the case, said indecency attorney John Crigler. “The court reminds the commission that it’s not just dealing with ordinary matters of enforcement” in indecency issues, said Crigler.
The airing of video of Jackson’s breast wasn’t “conscious or deliberate,” Rendell wrote in a dissent. Since Fuentes and Scirica found the fine improper, the court shouldn’t have remanded the case, wrote Rendell. “There are no further proceedings necessary,” she said. “Should the FCC wish to explain its change in policy, it can do so in the next case or issue a declaratory ruling.”
FCC Chairman Kevin Martin was “disappointed” by the decision, he said in a written statement. “I continue to believe that this incident was inappropriate, and this only highlights the importance of the Supreme Court’s consideration of our indecency rules this Fall” in the government challenge of the 2nd Circuit Fox ruling. Martin noted that hundreds of thousands of people complained about the show, which the FCC found indecent by a 5-0 vote.
CBS hopes the ruling will send the FCC back “to the policy of restrained indecency enforcement it followed for decades,” the company said. An NAB spokesman said the decision gives “badly-needed clarity on efforts to regulate broadcast content.” The Parents TV Council, an indecency foe, panned the ruling. “A three-judge panel has hijacked the will of the American people,” said President Tim Winter. “While we are not surprised that the legal venue hand-picked by CBS would rule in favor of the network, the court’s opinion goes beyond judicial activism; it borders on judicial stupidity.”