Third Circuit Wants Janet Jackson Briefs

Supreme Court had remanded case back to Third Circuit last month
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Posted at 11:42 a.m. ET

The Third Circuit Court of Appeals Thursday asked for new briefs in the Janet Jackson case.

In an order released Thursday, the court set a briefing schedule for both sides of the high-profile dispute over the FCC's $550,000 indecency fine of CBS-owned stations over the infamous 2004 Super Bowl reveal.

The call for input comes a month after the Supreme Court's May 4 decision to vacate the Third Circuit's ruling  that the fine was arbitrary and capricious, (the Court remanded the case back to that circuit for reconsideration in light of the Supreme Court's earlier decision in FCC vs. Fox ).

In that decision, the High Court held that the FCC had not been arbitrary and capricious in deciding to pursue fleeting profanity, reversing the Second Circuit's decision that the FCC had not sufficiently explained its change from an earlier policy in which those profanities were not treated as indecent.

The Third Circuit had thrown out the FCC fine, concluding that its defense of pursuing fleeting nudity had been similarly arbitrary and capricious.

With the Supreme Court's Fox decision for guidance, the court has been asked to rethink that.

The court set deadlines of 60 days from the release of the order for appellant briefs, 40 days after those briefs are filed for responses by the other side, and replies to those responses 14 days after that.

The court was not required to call for briefs, and could instead have reconsidered without any additional input. Andrew Schwartzman of Media Access Project, which represented writers, producers and directors in a friend of the court brief opposing the FCC fine, says the issue now is whether the court also schedules a new round of arguments.

Without that argument, a new Janet Jackson decision is unlikely from the court before fall at the earliest, he says. If there is new argument, it could easily not come until next year.

"I'm confident the court will find that the Fox case doesn't change the result here," says Schwartzman, who filed the amicus brief on behalf of the Center for Creative Voices in Media.  "This case turns largely on the FCC's mishandling of the unique circumstances surrounding the Janet Jackson incident. And, unlike the Fox case, the FCC insisted here that it was not changing its legal standard when in fact it clearly adopted an entirely new analysis."

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