FCC Indecency Policies Again Heard By Third Circuit
PHILADELPHIA -- Janet Jackson’s 2004 Super Bowl show “wardrobe malfunction” is still causing judicial grief. During oral argument in CBS v. FCC, a panel of judges on the 3rd U.S. Circuit Court of Appeals seemed frustrated by a Supreme Court ruling in another indecency case that forced them to reassess their earlier decision against the agency’s indecency policy. “The judges made pretty plain … that they think they were right the first time,” said Andrew Schwartzman, Media Access Project CEO and a lawyer for an amicus party to the case. “But they are reluctant to adhere to their prior ruling in light of the Supreme Court’s decision” in Fox v. FCC which focused on indecent “fleeting words” (CD April 29 p2), he said.
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Robert Corn-Revere, attorney for CBS, argued that the 3rd Circuit could uphold its earlier decision that the FCC fines violated the Administrative Procedure Act despite the higher court’s ruling because the language the FCC used to justify it was cited in the background section of the Supreme Court’s opinion. “You make a strong argument that the language might be categorized as background,” said Chief Judge Anthony Scirica. But he still had problems with it, he said: “We're still butting our heads against what the Supreme Court said.”
Without their initial finding of an APA violation to rely on, the judges looked to other arguments to support their earlier ruling. “They appeared to focus on alternate bases for ruling and appeared sympathetic to CBS,” Schwartzman said. “But by no means did they have their minds made up.”
One area where the court may have more leeway is the fine, Corn-Revere argued. Typically, when the FCC changes an enforcement policy it doesn’t start fining violators right away, he said. Scirica seemed to agree. “If the 3rd Circuit got it wrong in its first opinion, how could CBS be expected to get it right?” he asked.
The court should remand the case to the FCC so it can address non-constitutional issues before judges decide the constitutional merits of FCC indecency policy, FCC attorney Jacob Lewis told the judges. “Because there are unresolved non-constitutional questions, I don’t think the court should address the constitutional questions,” he said.
Part of the case hinges on the question of whether the FCC has had separate policies for indecent broadcasts of fleeting words than for fleeting images. Judge Marjorie Rendell questioned why the FCC failed to draw that distinction in previous enforcement actions. In one case against Young Broadcasting, the FCC set a fine against a broadcast for airing a fleeting indecent image. “In your very own opinion where you have images, the FCC does not draw any distinction at all between images and words,” she said.
“We are hopeful the 3rd Circuit will again recognize that the 2004 Super Bowl incident, while inappropriate and regrettable, was not and could not have been anticipated by CBS,” the company said. “This remains an important issue for the entire broadcasting industry because it recognizes that there are rare instances, particularly during live programming, when despite broadcasters’ best efforts it may not be possible to block unfortunate fleeting material. Such a decision by the Court would help to restore the policy of restrained indecency enforcement the FCC followed for decades.”
C-SPAN said it plans to carry a replay of the argument on its website and its networks this week.