CBS says that there is no reading of statute by which the broadcaster can be fined for the Janet Jackson/Justin Timberlake Super Bowl halftime show reveal because it did not intend to air "potentially indecent material."
That came in a supplemental brief to the Third Circuit Court of Appeals, which, at the direction of the Supreme Court, is taking another look at the case. The first time around, it ruled that the FCC's fine of CBS-owned stations over the incident was arbitrary and capricious.
The Supreme Court overturned a similar "arbitrary and capricious" finding by the Second Circuit appeals court against the FCC's fleeting profanity decision in the Fox Billboard Awards case, setting the stage for the Third Circuit review.
Following new oral arguments Feb. 23, the Third Circuit took the unusual step of asking for more information from both sides on the issue of mens rea (literaly "guilty mind"), or just what level of intent on CBS' part would justify a fine.
CBS argues that any way you slice it, given that it did not intend to broadcast the potentially indecent material at issue, it can't be held liable. "In this circumstance, where the government seeks to impose substantial penalties on speech under a criminal statute, the FCC must show specific intent to violate the law," said CBS.
But the FCC countered in its supplemental brief that even if CBS did not intend to broadcast that specific reveal, it did intend to broadcast the live halftime show, and failed to take the steps that could prevent the action that did take place.
The FCC renewed its request that the court remand the case back to the FCC so that the commission can futher explain the specific part of the law it relied on in imposing a forfeiture on CBS as well as to resolve the issue of whether video delay technology was available to CBS at the time of the Super Bowl broadcast, thereby rendering CBS’s conduct reckless."
CBS says a remand is not called for.
"This court should reaffirm its initial decision vacating the forfeiture, but should forego remanding the case to the commission," said CBS. "No purpose would be served by a remand where the FCC is foreclosed from imposing liability under any potentially applicable theory of mens rea."