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Court Seeks FCC Standard for Further Indecency Inquiry

The Third Circuit Court of Appeals wants to know what standard of proof the FCC would use to conclude that CBS was reckless in broadcasting most of Janet Jackson's breast during the Super Bowl halftime show. CBS has said it did not know the reveal was coming. That is according to a copy of the document supplied to B&C/Multichannel News.

In a request for supplemental briefing in its review of the FCC's fine of CBS over the Super Bowl halftime reveal, the court wants to know whether CBS knew or should have known that Justin Timberlake was going to bare most of Janet Jackson's breast. It also asks, assuming the network was reckless in broadcasting the reveal anyway (given that presumed knowledge is the standard for an FCC penalty for indecency), "is the standard for recklessness the one commonly used in the civil context or the one commonly used in the criminal context?" It is a narrow point of law, but could signal where the court is heading.

The Supreme Court in May 2009 vacated the Third Circuit's ruling that the FCC fine was arbitrary and capricious and remanded the case back to that circuit for reconsideration in light of the Supreme Court's earlier decision in FCC vs. Fox that the FCC's fleeting profanity enforcement regime was not arbitrary and capricious.

The FCC asked the court in its re-briefing and argument earlier this year to give the commission more time to prove that CBS did willfully, rather than accidentally, broadcast the breast-baring, so the court is asking what standard the FCC would use if the court decides to give the FCC a shot at coming up with that proof.

During that oral re-argument, there was some discussion of CBS' intent (the legal term is scienter).

"[The court] implies that they are going to rule that the FCC has to figure out if CBS knew, or should have known, that Janet Jackson was going to show her breasts," said Andrew Schwartzman, of the Media Access Project, which represented writers, producers and directors in a friend of the court brief opposing the FCC fine.

The court wants the briefs by Dec. 22.