The Indecency Follies

The judiciary took another sledgehammer to the FCC's ramped-up indecency enforcement last week, leaving its ability to penalize fleeting nudity and profanity very much in doubt, at least until either the commission gets back to the Third Circuit Court of Appeals or the Supreme Court weighs in on a related decision.

According to the Third Circuit, CBS' 2004 Super Bowl broadcast of less than a second's worth of Janet Jackson's partially exposed breast was not worthy of a $550,000 FCC fine for indecency. In the long-awaited decision in CBS's appeal of the FCC's fine, the court said the FCC's ruling was “arbitrary and capricious.”

The Jackson decision followed a ruling by the Second Circuit Court of Appeals last year that the FCC's indecency finding against swearing on a Fox Billboard Music Awards show was also “arbitrary and capricious,” a legal phrase used when an agency doesn't adequately explain its rules in a timely way. The cases were so similar that last week, the Third Circuit referred to the Fox case in making its decision.

The Super Bowl finding had put “wardrobe malfunction” into the general vernacular and led, at least indirectly, to Congress boosting indecency fines tenfold, from $32,500 to $325,000. It also prompted networks to institute delays for some live programming, and caused some programmers to self-censor for fear of running afoul of the FCC.

The Third Circuit concluded that the FCC did not make it clear that it was changing a decades-old policy of not holding fleeting nudity indecent. The FCC had argued that it had not changed its policy, but the court said its argument was too implausible for the court to give its traditional deference to the expertise of regulatory agencies.

It also concluded that the commission could not hold broadcasters to strict liability, which means that they could not be held “vicariously liable” for actions they did not foresee or for actions by independent contractors. The court concluded Janet Jackson and Justin Timberlake, her stage-mate for the Super Bowl halftime show, were independent contractors, not CBS employees.

The court unanimously vacated the decision and remanded it back to the FCC.

CBS said in victory that it hoped the decision would lead to “a return to the policy of restrained indecency enforcement.” It is likely to get its wish, for now at least. The immediate result of the latest blow to the FCC under Chairman Kevin Martin is that the commission will be unlikely to take action against fleeting nudity or swearing on live broadcasts. That will at least be true while it waits for the Supreme Court to weigh in on the FCC's appeal of the Second Circuit Court decision about the Fox case.

Martin said he was disappointed by the latest setback and added that the decision “only highlights the importance of the Supreme Court's consideration of our indecency rules this fall.”

Surrogates for both the Obama and McCain camps said last week that they hoped the decision would spur a wider debate about giving parents more control of content on various media platforms. But the decision may instead spur yet another court appeal. The FCC is said to be likely to seek Supreme Court review of the case. A spokeswoman for the commission said last week that commission lawyers were still vetting the decision. The commission has 90 days to appeal to the Supreme Court. It could also appeal the decision to the full Third Circuit Court—a three-judge panel decided the case.

John Crigler, a partner with Garvey Schubert Barer and a veteran of indecency legal wars, says he expected the Supreme Court would get the case. Crigler says the high court may consolidate both cases into one. If so, the decision could be pushed from this fall to next year—five years after the naughty Super Bowl incident. Another possible result is that unless the FCC appeals, Crigler says, it will have to cut CBS a check to refund the $550,000 fine.

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John Eggerton

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.