Commission challenges lower court decision

The Federal Communications Commission has asked the Supreme Court to review a lower court’s ruling that the agency improperly fined CBS for the Janet Jackson boob flash during the 2004 Super Bowl halftime show.

U.S. Solicitor Gen. Gregory G. Garre, on behalf of the FCC, requested high court review Friday, arguing that the lower court “erred” in July in its decision that the FCC had “arbitrarily and capriciously” imposed a fine for “fleeting nudity.”

But Garre also suggested that the Supreme Court not act on his request until it decides a nearly identical challenge recently brought by Fox regarding fleeting expletives. The justices heard oral arguments in the Fox case earlier this month (Daily Variety, Nov. 5).

“We hope the Supreme Court will recognize there are rare instances, particularly during live programming, when it may not be possible to block unfortunate fleeting material, despite best efforts,” CBS said in a statement. “Doing so would help to restore the policy of restrained indecency enforcement the FCC followed for decades.”

CBS had challenged the $550,000 fine on the grounds that the incident had been brief and a surprise to the net, thus making it “fleeting.” Previously, the FCC had not issued indecency findings for fleeting images. CBS argued that the agency had not properly justified and explained its change of policy.

The 3rd Circuit Court of Appeals in Philadelphia agreed and vacated the fine.

The Eye’s argument closely followed the one utilized by Fox in its 2006 challenge of the FCC’s change in policy on fleeting expletives. The 2nd Circuit Court of appeals ruled in Fox’s favor in June 2007.

Subsequently, the FCC was able to get the Supreme Court to review the 2nd Circuit decision. In oral arguments held this month, several justices seemed inclined to believe the FCC’s contention that the 2nd Circuit had been in error. A ruling is not expected until some time next year.

In his petition to the Supreme Court to take the CBS case, Garre said justices could hold the request “pending this court’s decision in Fox.” A ruling on the Fox case — in particular, a ruling that the FCC had indeed properly justified its new policy on fleeting expletives — would have a direct impact on the CBS case, Garre said.

“If the court holds that the FCC in Fox properly decided to conform its approach to isolated expletives with its approach to all other broadcast material claimed to be indecent, it will cast serious doubt on, if not necessarily reject, the view of the (3rd Circuit, which ruled against the FCC),” Garre wrote.

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