ADF Alliance Alert

Concerned Women for America carries this update that begins:

Today, a Philadelphia court stripped the Federal Communications Commission’s (FCC) ability to regulate inappropriate nudity on television. The U.S. 3rd Circuit Court of Appeals ruled against the FCC in the case of the Janet Jackson “striptease” during the 2004 Super Bowl game. The court claims that this action was not “pervasive as to amount to ‘shock treatment’ for the audience”.

The court has issued a lengthy ruling (nearly 100 pages) in CBS Corporation v. Federal Communications Commission, No. 06-3575 (3rd Cir. July 21, 2008). Chief Judge Scirica delivered the opinion of the court joined by Judges Rendell and Fuentes.  The opinion begins:

In this petition for review, CBS appeals orders of the Federal Communications Commission imposing a monetary forfeiture under 47 U.S.C. § 503(b) for the broadcast of “indecent” material in violation of 18 U.S.C. § 1464 and 47 C.F.R. § 73.3999. The sanctions stem from CBS’s live broadcast of the Super Bowl XXXVIII Halftime Show, in which two performers deviated from the show’s script resulting in the exposure of a bare female breast on camera, a deceitful and manipulative act that lasted nine-sixteenths of one second. CBS transmitted the image over public airwaves, resulting in punitive action by the FCC.

CBS challenges the Commission’s orders on constitutional, statutory, and public policy grounds. Two of the challenges are paramount: (1) whether the Commission acted arbitrarily and capriciously under the Administrative Procedure Act, 5 U.S.C. § 706, in determining that CBS’s broadcast of a fleeting image of nudity was actionably indecent; and (2) whether the Commission, in applying three theories of liability – traditional respondeat superior doctrine, an alternative theory of vicarious liability based on CBS’s duties as a broadcast licensee, and the “willfulness” standard of the forfeiture statute– properly found CBS violated the indecency provisions of 18 U.S.C. § 1464 and 47 C.F.R. § 73.3999. We will vacate the  FCC’s orders and remand for further proceedings consistent with this opinion . . .

Because the Commission carries the burden of showing scienter, it should have presented evidence to demonstrate, at a minimum, that CBS acted recklessly and not merely negligently when it failed to implement a video delay mechanism for the Halftime Show broadcast . . .

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. Moreover, the FCC cannot impose liability on CBS for the acts of Janet Jackson and Justin Timberlake, independent contractors hired for the limited purposes of the Halftime Show, under a proper application of vicarious liability and in light of the First Amendment requirement that the content of speech or expression not be penalized absent a showing of scienter. And the FCC’s interpretation and application of 47 U.S.C. § 503(b)(1) are not sufficiently clear to permit review of the agency’s determination of CBS’s direct liability for a forfeiture penalty based on
broadcast indecency.

Further action by the Commission would be declaratory in nature, as the agency may not retroactively penalize CBS. Even so, our holding will not foreclose all of the Commission’s  adjudicatory options . . .

Judge Rendell wrote a separate opinion in which he concurred and dissented:

I wholeheartedly agree with the majority’s cogent reasoning and conclusion that the FCC’s imposition of a fine against CBS cannot stand, because it acted arbitrarily and capriciously in doing so. However, I disagree with our opining, in dicta, regarding the various possible levels of scienter arguably required under § 503(b)(1)(B) or (D), or 18 U.S.C. § 1464, or the Constitution . . .

I also take issue with the majority’s conclusion that there is a need to remand this case. We have held that the instant fine was improperly imposed. There are no further proceedings necessary . . .

Share This