The FCC has reasserted its power to regulate fleeting nudity and says it wants to further investigate "whether CBS' indecency violation [in the Janet Jackson/Justin Timberlake Super Bowl reveal] was willful."
"The evidence in this case strongly suggests that CBS had access to video delay technology at the time of the 2004 Super Bowl," the commission said Tuesday in a brief to the Third Circuit Appeals Court in the Janet Jackson Super Bowl reveal case. The FCC asked the court to remand the decision back to the FCC so it could investigate further its assertion that the violation was "willful."
The Third Circuit, in reversing the FCC's fine against the broadcast, said the evidence that delay technology was available at the time was "scant." The FCC disagrees and wants the chance to determine "whether CBS was reckless not to use video delay technology for this broadcast."
The commission also reasserted that the reveal was off limits for broadcast TV between the hours of 6 a.m. and 10 p.m. "[The FCC] reasonably determined in this case that the graphic and shocking, albeit brief, exposure of Janet Jackson’s bare right breast to a nationwide audience composed of millions of children and adults was indecent," the FCC said.
Back in June, the court asked for new briefs in the case after the Supreme Court's May 4 decision to vacate the Third Circuit's ruling that the Jackson fine was arbitrary and capricious.
The FCC relied heavily on the Fox decision in its brief, saying that "as the Fox Courts interpretation of the pertinent regulatory history now makes clear, the repetition requirement that exempted fleeting expletives from enforcement has no logical application to images."
Andrew Schwartzman of the Media Access Project, which is filing a brief in support of Fox's challenge to the FCC's fleeting profanity policy, says he is disappointed in the FCC decision, but not surprised. "The FCC's brief overlooks the fact that in this case the the Court has already rejected the FCC's claim that prior agency precedent supports its position about fleeting images," he said. "Nothing in the Supreme Court's decision helps the FCC on this."
Dan Isett of the Parents Television Council, whose member complaints helped generate the FCC indecency finding, said he thought the FCC brief was "important," but that whether or not CBS's action was wilfull "is not really the issue in terms of whether or not the FCC has the authority to enforce the law."
The Supremes vacated and remanded the Jackson decision that the FCC's defense of its fleeting nudity enforcement policy was arbitrary and capricious. That was prompted by its decision in FCC vs. Fox that the commission's fleeting profanity enforcement defense was not arbitrary and capricious.
In both cases, the lower courts can now consider the constitutional issues involved in the cases, which they did not in the first go-around. If so, that could ultimately land both those cases in the Supreme Court; Fox for the second time.
Both cases were decided narrowly on the grounds that the FCC had been arbitrary and capricious in reversing previous policy, in the Fox case its pursuit of fleeting profanity, in the Jackson case, fleeting nudity.
In July 2008, the Third Circuit threw out the $550,000 fine against CBS stations for their airing of the Janet Jackson Super Bowl reveal in 2004. That was the incident that helped prompt the Federal Communications Commission's crackdown on broadcast content, under pressure from Congress.
The Third Circuit in its July 2008 decision concluded that the FCC was arbitrary and capricious because it was changing a decades-old policy of not holding fleeting nudity indecent. The court conceded that the FCC has the authority to regulate indecent content, but it pointed to nearly three decades of "restraint" during which the agency "consistently explained that isolated and fleeting material did not fall within the scope of actionable indecency."
There is also another case involving ABC and NYPD Blue that is currently being considered by the same Second Circuit court that now has to reconsider its profanity decision.
The Third Circuit is collecting briefs, but has not decided whether to schedule new arguments in the case. If it does not, a decision could come sometime this fall. If it wants to hear new oral aruments, the decision would almost certainly not come until next year.
A CBS spokesperson had no comment, but the network gets to file its response to the court and the FCC by the end of this month.
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Contributing editor John Eggerton has been an editor and/or writer on media regulation, legislation and policy for over four decades, including covering the FCC, FTC, Congress, the major media trade associations, and the federal courts. In addition to Multichannel News and Broadcasting + Cable, his work has appeared in Radio World, TV Technology, TV Fax, This Week in Consumer Electronics, Variety and the Encyclopedia Britannica.