WASHINGTON -- The FCC was wrong to fine CBS for broadcasting Janet Jackson's infamous exposure during the 2004 Super Bowl halftime show, an appeals court panel ruled Nov. 3 in overturning the fine.
It was the second time the U.S. Third Circuit Court of Appeals has ruled against the FCC but the first time since the Supreme Court, in 2009, sent the case back to the same court.
Although the case is important, it likely is not as significant as an upcoming case before the Supreme Court that will decide whether the FCC ever has the right to fine broadcasters. In that case, which will be heard early next year, the high court will decide the constitutionality of the FCC's indecency policy.
Still, the Third Circuit's decision was a loss for parents and families, conservative groups said. It started in 2008, when the Third Circuit reversed the $550,000 fine against CBS, saying the FCC had deviated from its 30-year practice of fining indecent broadcast programming only when it was so "pervasive as to amount to 'shock treatment' for the audience." It also said the fact that Jackson's exposure lasted about half a second should have been considered. On Nov. 3, it affirmed that ruling.
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"In finding CBS liable for a forfeiture penalty, the FCC arbitrarily and capriciously departed from its prior policy excepting fleeting broadcast material from the scope of actionable indecency," Judge Marjorie Rendell, a nominee of President Clinton, wrote for the majority. She was joined in the opinion by another Clinton nominee, Julio Fuentes.
But Judge Anthony Scirica, who voted with the majority in 2008, disagreed with the majority and this time dissented, saying that in light of the Supreme Court's '09 decision, "the FCC's imposition of a civil forfeiture here is neither arbitrary nor capricious." In that 2009 decision (FCC v. Fox), the Supreme Court upheld an FCC fine against Fox Television for two instances of indecent language on live television, one in 2002 and the other in 2003. Scirica was nominated by President Reagan.
"I believe the Supreme Court's intervening opinion ... undermines the basis of our prior holding," Scirica wrote.
Parents Television Council President Tim Winter criticized the majority decision.
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"How can nudity and a striptease in front of 90 million unsuspecting TV viewers not qualify as indecency?" he asked. "We're not talking about content that aired after 10 p.m. in front of 90 million adults. Each and every year the Super Bowl broadcast draws the highest viewership ratings of the year, including tens of millions of children and families."
Conservative groups have expressed concern that the Supreme Court might overturn the FCC indecency policy next year. Their worries are due to Justice Clarence Thomas' concurring opinion in 2009 in which he questioned the "viability" of two Supreme Court cases cited by the FCC as constitutionally supporting its rules: a 1969 case, Red Lion Broadcasting Co. v. FCC, and a 1978 case, FCC v. Pacifica Foundation.
"Red Lion and Pacifica were unconvincing when they were issued, and the passage of time has only increased doubt regarding their continued validity," Thomas wrote in '09.
Thomas typically votes with the conservative bloc of the court. Without that bloc sticking together, the policy might not stand and, conservative groups say, nudity could flood the airwaves.
In Red Lion, the Supreme Court upheld the so-called Fairness Doctrine, and in FCC v. Pacifica, the high court ruled that the FCC had the authority to regulate indecent language on the airwaves. That latter case involved comedian George Carlin's "seven dirty words" routine.