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Advantage to CBS in Appeal of FCC Ruling

Sep 16, 2007  •  Post A Comment

When a media company goes to court to challenge a decision of the Federal Communications Commission, the court system gives the media a decided advantage: It gets to choose which court will hear the case.

Appeals of FCC rulings can be taken to any one of the 12 federal appellate courts, but the media most often choose from a short list of courts perceived to be more First Amendment-friendly—the 2nd Circuit in New York, the 3rd Circuit in Philadelphia, the 9th Circuit in San Francisco and the D.C. Circuit in Washington.

Lawyers routinely handicap the courts for how liberal or conservative they are, and the 2nd, 3rd, 9th and D.C. circuits are widely considered to be on the more liberal end of the spectrum.

So it was no surprise to media lawyers that CBS Corp. chose the 3rd Circuit to hear its appeal of the $550,000 fine imposed for singer Janet Jackson’s infamous “wardrobe malfunction” during the halftime show at the 2004 Super Bowl.

The FCC ruled the brief exposure of Jackson’s breast—which lasted 9/16ths of a second—had violated broadcast decency standards.

In choosing the 3rd Circuit to hear the appeal, the network’s lawyers likely were encouraged by the court’s reputation for issuing strong First Amendment rulings, including a series of recent cases in which the court struck down laws designed by Congress to police smut on the Internet.

CBS lawyers didn’t immediately return a call seeking comment.

When the FCC ruled that Fox Television had broadcast indecent speech, in separate incidents in 2002 and 2003 when singer Cher and celebrity Nicole Richie uttered expletives on live television, Fox chose to appeal to the 2nd Circuit.

The decision paid off in June when the New York-based court ruled 2-1 against the FCC, saying the agency’s “new policy sanctioning ‘fleeting expletives’ is arbitrary and capricious.”

Fox wasn’t hit with any fines because the new FCC rule was enacted after the two incidents occurred.

But for the Super Bowl incident, the FCC decided each of CBS’s 20 owned-and-operated stations should pay the maximum fine of $27,500.

In CBS’ appeal, the network is arguing that the FCC’s new policy is arbitrary and capricious, and that the agency was wrong to hold the network responsible for the conduct of Ms. Jackson and singer Justin Timberlake.

The three judges who heard the case—Chief Judge Anthony J. Scirica and Judges Marjorie O. Rendell and Julio M. Fuentes—seemed inclined to agree.

Predicting how a court will rule based on the questions asked by judges during an oral argument is tricky business. But all three judges seemed to be skeptical of the FCC’s contention that CBS should be subject to “vicarious liability” because Ms. Jackson and Mr. Timberlake were effectively CBS employees that day.

Judge Fuentes was the most direct in his questioning of Justice Department lawyer Eric Miller, asking: “How do you justify sanctioning CBS in circumstances where it had no prior knowledge that the event was going to take place and that was deliberately concealed from it?”

Miller responded that the performers themselves had advance knowledge and, as CBS employees, were “part of CBS.”

But Judge Fuentes was unimpressed, saying, “That doesn’t seem to make sense at all. … I mean, they really weren’t employees of CBS, were they?”

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