CBS and the FCC took aim at each other's arguments in
filings to the Third Circuit Court of Appeals in advance of new oral argument
this month in the Janet Jackson/Justin Timberlake Super Bowl reveal case.
In its filing, CBS had a few choice, if un-profane, words
for the FCC, saying it was attempting to "rewrite history" with a
"revisionist spin" on its fleeting indecency policy in arguments CBS
said included "false claims" and "incomplete and
The FCC, though somewhat more circumspect in its word
choice, called CBS' arguments "untenable" and accused it of
"leaps of illogic."
Nothing in the Supreme Court's decision upholding the FCC's
defense of its fleeting profanity policy changes the Third Circuit's decision
in the Super Bowl case that the commission had abandoned a three-decades-old
policy on fleeting words and images.
That was CBS's advice to the Third Circuit, which is
preparing to re-hear the Jackson
case Feb. 23. CBS was fined $550,000 for the 2004 Super Bowl halftime show
incident. The Third Circuit last month asked both CBS and the FCC to weigh
in on what affect the Supreme Court decision in Fox vs. FCC (swearing by
Cher and Nicole Richie on the Billboard Awards) should have on its rethinking
of the Jackson
Specifically, the Third Circuit asked whether "the Supreme
Court's account of the history of the FCC's indecency policy in FCC v. Fox
Television Stations Inc. undermines its earlier conclusion that the pre-Golden
Globes safe harbor for fleeting material was not limited to non-literal
The FCC's response to the court was to stick to its guns
that there had never been an exemption for fleeting images, rather than
profanity, and that the Supremes had correctly concluded that its earlier
exemption of fleeting profanity was only for "non-literal (or
'expletive') uses of evocative language" and not, as the Third Circuit concluded,
all fleeting material including images. "That showing remains un-rebutted,"
It called CBS' arguments untenable. And even if they
weren't, it says that CBS's interpretation "could not override the
Commission's reasonable contrary view, particularly when the Supreme Court has
endorsed the agency's view."
Both the Third and Second Circuits had concluded that the
FCC's fleeting profanity and nudity crackdown was an arbitrary and capricious
change in policy that violated procedural safeguards. But a
5-4 majority of the Supreme Court, hearing the challenge to the Fox
profanity decision disagreed, saying the commission had sufficiently justified
its new policy, at least on procedural grounds. The court also ruled that a
government agency like the FCC does not have any higher threshold for
defending/explaining a change in a policy than it does for setting a policy in
the first place, nor does it have a higher bar for changes that implicate
The Supremes sent both that and the Jackson decisions back to the lower courts to
look at them again. The Second Circuit reheard
the Fox case last month, with most observers concluding the FCC had gotten
roughed up by the three-judge panel.
The FCC pointed to its indecency finding against Young
Broadcasting for a fleeting view of a penis as evidence CBS should have been on
notice about fleeting nudity.
The FCC fined KRON-TV San Francisco $27,500, then the
maximum penalty, for a morning-news segment on the Puppetry of the Penis troupe
when one of the puppets was inadvertently
CBS says that if Young was meant to be a policy change, the
FCC essentially hid that fact. "If the 1987 Pacifica order had placed
broadcasters 'on notice' that the fleeting expletives exception 'had no
application to depictions' as the FCC now suggests," said CBS, "one
would expect to find some reference to it. But the Young Broadcasting opinion
does not cite the 1987 Pacifica order at all, much less rely on it as
articulating a fundamental policy change."
The network said that even if the court were able to find
that the FCC had made a policy change before the 2004 Super Bowl, it should
reaffirm its decision to overturn the fine because the commission had not put
out a policy statement of "sufficient clarity."
CBS also renewed its request to the court to address the First
Amendment issues raised by the fine, "particularly in light of the
FCC's zeal to prolong the investigation on this case on remand."
FCC asked the court to allow it to investigate further to prove its
assertion that CBS had the means to block the reveal and chose not to do so.