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Third Circuit Repeats: FCC's Super Bowl Halftime Fine of CBS Was Out of Bounds

The Third Circuit Court of Appeals has reaffirmed its 2008 decision that the FCC's fine of CBS in the Janet Jackson Super Bowl reveal indecency decision was arbitrary and was a policy change for which CBS stations were improperly penalized--the fine was $550,000.

"[B]ecause the Commission did not announce any change in its fleeting-material policy until March 2004 [after the February Super Bowl broadcast], and because the offensive conduct in this case (like the offending conduct in Golden Globes and Fox) preceded that date, the FCC‘s assessment of a forfeiture and imposition of a penalty against CBS constitutes arbitrary, and therefore unlawful, punishment," the court wrote.

"We are gratified that once again the court has ruled in our favor," CBS said in a statment. "We are hopeful that this will help lead the FCC to return to the policy of restrained indecency enforcement it followed for decades."

But the court did not rule on the constitutionality of the FCC indecency policy. It also did not remand the decision back to the FCC for more fact finding, as the commission had asked it to do.

The Third Circuit had already ruled the FCC decision on fleeting nudity was arbitrary and capricious on procedural grounds, but got the case back on remand from the Supreme Court after the Supremes ruled, in the Fox case, that the Second Circuit had been wrong and the FCC's fleeting profanity policy enforcement was not arbitrary and capricious, then subsequently vacated the Third Circuit decision, too, and asked it to reconsider.

While the Second Circuit made its second ruling on Constitutional grounds, saying the policy violated the First Amendment, the Third Circuit Wednesday did not. The three-judge panel reaffirmed its earlier narrow procedural ruling that the FCC's decision in the case of CBS and the Super Bowl was indeed arbitrary and capricious in violation of the Administrative Procedures Act.

"While we can understand the Supreme Court‘s desire that we re-examine our holdings in light of its opinion in Fox - since both involve the FCC's policy regarding -fleeting material‖ - we conclude that, if anything, Fox confirms our previous ruling in this case and that we should readopt our earlier analysis and holding that the Commission acted arbitrarily in this case," said the court. "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. Therefore, we will grant CBS‘s petition for review and will vacate the Commission's order in its entirety."

"Like the "wardrobe malfunction" itself, there is less here than meets the eye," said Andrew Schwartzman of Media Access Project (MAP). "The majority held that the FCC improperly attempted to change its 'indecency' policies in applying them to CBS. The decision is a reminder that the FCC can't change its enforcement policies in the face of public pressure, and that it needs to take special care when First Amendment rights are at issue." MAP represented the Center for Creative Voices In Media -- TV writers, producers and directors -- in filing a brief in support of CBS.

The Supreme Court has already agreed to hear the FCC's challenge to the Fox decision, as well as the Second Circuit's ruling that the FCC should not have fined ABC for Charlotte Ross' naked backside on an early '90's episode of NYPD Blue.

If the administration wanted to challenge this latest Third Circuit ruling, it would have to file a separate appeal to the Supremes, who have already agreed to hear the Fox/ABC appeal.

The decision Wednesday was 2-1, with Judges Julio Feuntes and Marjorie Rendell -- Rendell wrote the opinion -- affirming and Judge Anthony Joseph Scirica dissenting.

Scirica said he would have remanded the decision back to the FCC for a decision based under a proper standard of review. "I respectfully dissent and would hold the FCC‘s imposition of a civil forfeiture here is neither arbitrary nor capricious," he wrote. "Furthermore, I would hold precedent requires we remand to the FCC for it to apply the proper standard for ordering a civil forfeiture for the broadcast of indecent material."