FCC, DOJ Appeal Janet Jackson To Supreme Court

FCC, Justice Dept. ask Supreme Court to overturn appeals court decision throwing out $500,000 fine against CBS.

By John Eggerton -- Broadcasting & Cable, 11/21/2008 11:07:00 AM

Calling a lower court's decision flawed, The FCC has asked the Supreme Court to overturn the Janet Jackson Super Bowl halftime show decision.

The Third Circuit Court of Appeals in July threw out the FCC's $550,000 fine against CBS stations for the broadcast as arbitrary and capricious.

Apparently buoyed by the oral arguments in the Fox profanity appeal in the High Court earlier this month, the FCC, backed by the Department of Justice, filed a petition for a write of certiorari Wednesday, according to Andrew Schwartzman, president of Media Access Project, who received a copy of the petition.

But they also asked the court to hold the petition in abeyance until after it decides the Fox case.

The FCC and Justice argue that the lower court did not give due deference to the FCC's "legitimate and rational basis for what it was doing and the court was improperly intruding into the FCC's turf," says Schwartzman.

"The court of appeals erred in overturning the Commission's determination that CBS's broadcast of the 2004 Super Bowl halftime show violated federal indecency prohibitions.”

In response to the filing, CBS stated, "We hope the Supreme Court will recognize there are rare instances, particularly during live programming, when it may not be possible to block unfortunate fleeting material, despite best efforts. Doing so would help to restore the policy of restrained indecency enforcement the FCC followed for decades."

With the caveat that nobody ever retired from betting which way the court will vote, Schwartzman, whose Media Access Project represents TV and film producers opposed to the indecency crackdown, and John Crigler, a First Amendment attorney whose clients have included Pacifica (which owns the radio station that originally ran George Carlin's infamous "seven dirty words"), both said following the oral arguments in the Fox case, that they thought the case would be decided narrowly, but that the FCC had a good chance of winning.

In both the Fox and Jackson cases, federal appeals courts (the Second Circuit in the Fox case, the Third in Jackson) found for broadcasters, saying the FCC had been arbitrary and capricious in its application of indecency rules,

In throwing out the $550,000 fine against CBS stations for their airing of the Janet Jackson Super Bowl reveal, the incident that prompted the FCC crackdown on broadcast content (under pressure from Congress), the court concluded that the FCC was arbitrary and capricious in changing a decades-old policy of not holding fleeting nudity indecent.

It also concluded that the commission could not hold broadcasters to strict liability, which means that they could not be held "vicariously liable" for actions they did not take on their own. That means that stations could not be liable for an action they could not foresee.

"It's hardly unexpected but it's still disappointing that the government continues to pursue issues like this," said Schwartzman.

As to why it appealed, Schwartzman said that the FCC obviously feels its chances have improved in light of the oral argument in Fox.