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Third Circuit Affirms Prior Decision to Strike Down FCC Fine for CBS Broadcast of Janet Jackson’s Breast During Super Bowl Halftime Show
By Abby Lauer – Edited by Albert Wang

CBS Corp. v. FCC, No. 06-3575 (3d Cir. Nov. 2, 2011)
Slip Opinion

The Third Circuit Court of Appeals affirmed its earlier decision throwing out a $550,000 fine that the Federal Communications Commission imposed on broadcasting corporation CBS for airing a split-second image of Janet Jackson’s exposed breast during the 2004 Super Bowl Halftime Show.

Reaching the same conclusion as it had in a 2008 ruling, the Third Circuit held that CBS’s broadcast was legal under the FCC’s policy at the time, which permitted networks to air instances of “fleeting” indecency without being sanctioned. The Court of Appeals ruled that it was arbitrary and capricious for the FCC to change its policy retroactively and impose a steep fine on CBS without notifying the network of the policy change. In reaffirming its 2008 ruling, the Third Circuit declined to change its position in light of the Supreme Court’s recent decision in FCC v. Fox Television Stations, Inc., 129 S. Ct. 1800 (2009), which upheld the FCC’s decision to abandon its safe harbor for broadcasted expletives that are not repeated. The Third Circuit stated that “Fox confirms our previous ruling in this case and that we should readopt our earlier analysis and holding that the [FCC] acted arbitrarily . . . .” Slip op. at 5.

SCOTUSblog provides an overview of the case. Ars Technica also describes the decision and discusses possible implications for future prime time broadcasts.

Prior to the 2004 Super Bowl incident, it was the FCC’s policy that isolated and fleeting expletives did not constitute actionable indecency under federal law. When the FCC fined CBS $550,000 for airing Janet Jackson’s exposed breast, it justified this punishment by arguing that its fleeting-material exception only applied to fleeting utterances and did not extend to fleeting images. In a 2008 ruling, the Third Circuit rejected this contention, holding that “[t]he FCC’s present distinction between words and images for purposes of determining indecency represents a departure from its prior policy.” Slip op. at 9 (citing CBS v. FCC, 535 F.3d 167 at 175 (3d Cir. 2008)). The court held that the FCC had not adequately explained this departure and that the fine imposed on CBS was arbitrary and capricious and therefore invalid.

In 2009, the Supreme Court decided FCC v. Fox, and held that the FCC had provided rational reasons for abandoning its safe harbor for fleeting expletives. Reconsidering its 2008 ruling in CBS v. FCC in light of Fox, the Third Circuit affirmed its earlier rejection of the $550,000 fine. The court distinguished Fox because, in that case, the FCC had decided not to sanction broadcasting companies that had not received notice of the FCC’s decision to change its policy. In the present case, however, the FCC sanctioned CBS without fulfilling its duty to supply “notice of and a reasoned explanation for its policy departure.” Slip op. at 37.

Judge Scirica, who authored the Third Circuit’s previous ruling, dissented. He asserted that the Fox decision “compels the conclusion that the fleeting exemption was limited to a particular type of words” and did not extend to images. Slip op. at 4 (Scirica, J., dissenting). Accordingly, Judge Scirica did not agree that the FCC’s fine represented a change in agency policy, and he would have held that the FCC’s sanction “passes muster” under federal law. Id.

Although the Third Circuit’s decision involves due process rights of broadcasters rather than substantive broadcast indecency rules, some analysts, including Ars Technica, see the ruling as part of a broader trend of judicial skepticism of broadcast indecency regulation. According to SCOTUSblog, further evidence of this trend may be forthcoming, as the Supreme Court has recently agreed to review a suit challenging the constitutionality of the FCC’s ban of fleeting explicit images and words in television broadcasts.

Abby Lauer is a 3L at Harvard Law School.

Posted On Nov - 8 - 2011 Comments Off

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