Third Circuit short-circuits malfunction fine


CBS is off the hook for the $550K fine levied by the FCC for the infamous Janet Jackson/Justin Timberlake Super Bowl Nipplegate scandal. The Third Circuit ruled that the FCC’s action ignored longstanding precedent regarding fleeting programming infractions, and was therefore arbitrary and capricious.

The three judge panel said the FCC was free to change its policies in accordance with its mandate, but that it could not “…change a well-established course of action without supplying notice of and a reasoned explanation for its policy departure."

The Court also said that visual and aural violations have traditionally been treated identically by the FCC, including when the incidents were fleeting, as was the case in the Janet Jackson incident, which consumed less than one second of airtime.

The Supreme Court is considering the FCC’s ability to issue fines for fleeting incidents or indecency, with a ruling expected later this fall.

CBS hailed the decision, saying, "This is an important win for the entire broadcasting industry because it recognizes that there are rare instances, particularly during live programming, when it may not be possible to block unfortunate fleeting material, despite best efforts," the network said.

Jonathan Rintels of the Center for Creative Voices in Media also hailed the decision as a blow against the chilling effect of overly aggressive FCC enforcement, and the excess power it gives small but highly organized and motivated programming watchdogs. “We’re pleased two Courts of Appeal have now agreed,” He wrote. “We hope and expect that the U.S. Supreme Court will also agree when it hears the government’s appeal of its loss in Fox v. FCC this fall.”

One of the watchdogs was less than pleased, however. Tim Winter of the Parents Television Council said, “Once again, a three-judge panel has hijacked the will of the American people – not to mention the intent of the Congress acting on behalf of the public interest – when it comes to indecent content on the public airwaves.  While we are surprised that the legal venue hand-picked by CBS would in favor of the network, the court’s opinion goes beyond judicial activism; it borders on judicial stupidity.”

RBR/TVBR observation: Rintels made one of the points we were going to make, so we’ll content ourselves to quote him here: “Polls consistently show that the vast majority of Americans prefer to decide for themselves what to watch on TV. The First Amendment gives them that right.”

We’ll add this: We have young children, one of whom saw the Janet Jackson incident live – even as we missed it despite being right there, by blinking or something, and yes, that’s how fleeting it was. Our daughter survived the incident with no ill effects, neither physical nor psychological.

The leadership of PTC must be incredibly weak, that it would shred the Constitution so it can protect itself from a 9/16-second assault on its delicate sensibilities. We believe that the pioneering spirit that made America great has not yet been reduced to a pathetic focus on the prevention of harsh language. PTC loves to pretend it speaks for the American people. It doesn’t.