Just how far the FCC can crack down on nudity on TV came a tiny step closer to resolution last week in court. After 21/2 years of dominating the debate about what is indecent programming, the Janet Jackson/Justin Timberlake Super Bowl shocker got its day in the U.S. 3rd Circuit Court of Appeals in Philadelphia, home of the hearing of CBS's appeal of its $550,000 indecency fine. The arguments weren't new. Both sides had spelled them out in written briefs to the court last fall. The FCC says the broadcast was indecent, that CBS should have known that the striptease was possible, and that
it was both vicariously liable for the actions of the performers, who did know, and liable because management should have known something shocking could happen and didn't take sufficient steps to prevent it.
CBS did not defend the broadcast, which it says was as unacceptable to CBS as to the viewers who complained. But it also argued that it did everything any reasonable broadcaster would do to guard against an unforeseeable and unprecedented event. It also said the FCC was fishing for a justification for its decision, in this case vicarious liability, after turning up no evidence CBS had any prior knowledge of the event.
When can the court be expected to rule on whether the FCC was in or out of bounds with the Super Bowl call? Guidelines say three to four months, but it's not unusual for cases to languish in this court for six months, according to participants.
Making those arguments up close and personal were CBS lawyer Robert Corn-Revere and, in the other corner, Eric Miller, formerly with the FCC and now an assistant to the Solicitor General. Miller, when he was still with the FCC back in December, argued the FCC's defense of its profanity findings against Fox.
That one didn't go so well, with the court finding the FCC hadn't sufficiently justified the sanctioning of fleeting profanities after decades of leaving them alone. That was the first of the three key challenges to Kevin Martin and company's stepped-up indecency enforcement, and a big victory for broadcasters.
One courtroom observer on the network side was looking for another victory along the lines of the 2nd Circuit smackdown of the profanity decision. While it is tough to read appeals court judges, an industry source said he did not think the judges “had bought” the argument that CBS should have been able to anticipate the striptease, saying he felt upbeat about the network's chances.
Andy Schwartzman, president of the Media Access Project, which represented Hollywood (the Center for Creative Voices) in its amicus filing in support of CBS, shared that assessment. While he, too, cautioned that it was tough to handicap oral arguments, he said it “certainly looked like a bad day for the FCC. The court was extremely skeptical about the commission's position on whether CBS should be held accountable for what Jackson and Timberlake did on their own, and they seemed unreceptive to the commission's claims that it was relying on established precedent.”
Schwartzman said he thought the decision would be focused on a narrow ruling, as was the Fox case, rather than a sweeping decision on constitutionality questions.
But Corn-Revere did broaden the argument in a five-minute rebuttal, pointing out that some 20% of CBS affiliates had declined to run a 9/11 documentary a year ago for fear of running afoul of the FCC's content crackdown on language, saying the FCC has had a “profound censorial effect” on broadcasters.
CBS then had to turn to the preparation of its response to the commission on the proposed $3.6 million fine on Without a Trace.
The Parents Television Council had challenged KUTV's license after CBS's December 2004 airing of the Trace episode, which contained a teen orgy scene.
It was a repeat of a show the PTC had complained about earlier, one of many that were wiped away when CBS' then-parent Viacom settled all but the Janet Jackson Super Bowl complaint in a consent decree. The episode aired only weeks after the consent decree had been signed, angering the PTC all the more.
As part of the consent decree, CBS agreed to take certain, specific remedial actions if the FCC issued a proposed indecency fine. The FCC did so, in response to the PTC's complaint, and now wants to know if CBS has made good on its agreement. CBS has said it didn't violate the terms of the November 2004 consent decree.