FCC, CBS Continue To Battle Over Janet Jackson Reveal

Third Circuit Court of Appeals reviewing its earlier decision on FCC's fine of CBS

By John Eggerton -- Broadcasting & Cable, 12/27/2010 9:22:46 AM

The FCC, backed by the Justice Department, says that broadcasters give up full First Amendment status when they get a government license, and so should be subject to government regulation of swearing and nudity when kids could be watching.

That was the gist of the FCC's supplemental brief to the Third Circuit Court of Appeals, which is reviewing its earlier decision that the FCC's $550,000 fine of CBS for Janet Jackson's partially exposed breast on the 2004 Super Bowl halftime show broadcast was arbitrary and capricious. 

The Third Circuit had sought input on whether, if CBS was found to have knowledge of the "reveal," the FCC should be applying the criminal or civil recklessness standard. The FCC argues it should be the latter, which would mean CBS could be culpable even if it was not aware of what Jackson and Justin Timberlake were going to do, so long as it should have been aware. The criminal recklessness standard applies only if CBS had been aware of the risk and chose to disregard it.

CBS argued that the First Amendment implications of content regulations on speech requires a heightened scrutiny comparable to the criminal liability standard, but the FCC said no. "Although broadcasters engage in speech, they are not like other speakers. A broadcast licensee is ‘granted the free and exclusive use of a limited and valuable part of the public domain,' in exchange for which it agrees to be ‘burdened by enforceable public obligations,' including the obligation not to broadcast indecent material," the commission said, quoting language from previous court decisions.

As a fallback, the FCC said that if the court did not agree with its interpretation, it should remand the decision back to the commission. It has already asked the court to do so, saying it wanted to do more investigating to establish that CBS's violation was willful.

"CBS neither knew of nor approved the broadcast involving the material at issue. Consequently, the Court should vacate the forfeiture," CBS said in its filing last week. But it argued that the FCC's fine must be thrown out whether or not the standard is criminal or civil recklessness.

CBS wants the court to vacate the fine, but if it does not, it says the court should consider the Constitutional questions. "The Court should thus address the First Amendment issues raised by the forfeiture, particularly in light of the FCC's zeal to prolong its investigation on remand," said CBS.

The Supreme Court is expected to eventually have to weigh in on the FCC's indecency enforcement regime, given its decision to overturn a lower court's ruling, in the Fox case, that the FCC's fleeting profanity enforcement was arbitrary and capricious. The court then remanded the Third Circuit's similar finding against the FCC's indecency fine of CBS for fleeting nudity.

It is that court's review that occasioned the request for more info on the standard of recklessness.