FCC, CBS Square Off In Third Circuit...Again

Judges make close inspection of Janet Jackson's wardrobe malfunction
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The judges were harder to read and the issues were the
nuts-and-bolts of intent, due process, adequate notice and definitions of
indecent content as Janet Jackson's partially-nude breast once again became a
center of attention.

That was one court observer's take on the oral re-argument of the CBS Super
Bowl indecency fine Feb. 23 before a three-judge panel of the Third Circuit
Court of Appeals in Philadelphia.
The judges were Chief Judge Anthony Scirica, Judge Majorie Rendell, and Judge
Julio Fuentes (the same panel that heard the argument the first time
around).  Arguing the case were Robert Corn-Revere
for CBS and Associate General Counsel Jacob Lewis for the FCC.

According to the source, who sides with the broadcaster arguments, it was not
the slam dunk for their side that the tough judges' comments last month in the
Fox profanity case suggested. Many of those comments were on constitutional
issues the Third Circuit Judges did not explore as deeply, though the vagueness
of the FCC's standard was up for discussion Tuesday, which gets to the
constitutional question.

"This was a more typical oral argument," said the source. "The
Second Circuit was unique in that everyone walked out of there saying, 'Holy
s--t, slam dunk, no question where the judges were.'"

In this case it is much less clear, said the source. "It was more about
whether intent should be relevant," since part of the Third Circuit's
decision the first time around had to do with whether CBS had intent (the legal
term is "scienter").

There was talk about the definition of expletive and what is a literal
expletive vs. nonliteral, about the fleeting context vs. the contextural
analysis. There was some discussion of what the intent standard for stations
should be, recklessness or willfulness.

The FCC had pointed to its fine of Young Broadcasting for a fleeting glimpse of
a penis (during an appearance of Puppetry of the Penis where the puppets were
not supposed to appear). CBS had argued that the FCC had not suggested in that
decision that it was signaling a change in enforcement policy. "There was
a lot of talk about Young Broadcasting," said the source," and if the
commission was so clear about nudity and the fleeting issue, why didn't it articulate
it in the Young Broadcasting case.

Judge Rendell was thought to be the most sympathetic to broadcaster arguments
that the fleeting nudity crackdown was out of line, while Scirica seemed to be
the most troubled about how the Supreme Court decision impacted this case.

Both the Third and Second Circuits had concluded in earlier decisions that the
FCC's fleeting nudity and profanity 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 High 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 constitutional issues.

The Supreme Court sent both that and the Jackson
decisions back to the lower courts to look at them again. The
Second Circuit re-heard the Fox case last month
(involving swearing on its
broadcasts of the Billboard awards), with most observers concluding the FCC had
gotten roughed up by the three-judge panel.

The FCC's indecency enforcement regime is widely expected to get a rehearing in
the Supreme Court on constitutional grounds stemming from appeals of one or the
other of the Second and Third Circuit decisions following their second looks at
the cases.

The Second Circuit decision is likely to come out first, and the issue was
raised Tuesday whether the Third Circuit should wait for that decision before
coming out with its own.

C-SPAN
plans to stream audio of the oral argument on its home page Tuesday night
for
those who want to judge the judges for themselves. The caveat is that it is
never a safe bet to handicap oral aruments by the judge's questioning, since
some may be playing devil's advocate with some tough testing of arguments they
may agree with.

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