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The Federal Communications Commission’s bulldog approach to enforcing broadcast indecency rules may now be on a leash. On July 21, a three-judge panel of the U.S. Court of Appeals for the 3rd Circuit threw out a $550,000 fine against CBS for televising a split-second view of Janet Jackson’s breast during the 2004 Super Bowl Halftime Show. While the victory wasn’t unexpected, the timing was. In February, the Supreme Court granted certiorari in Fox Television Stations v. FCC, another case raising questions over whether and under what circumstances the FCC can penalize broadcasters for airing unscripted indecent speech. With the case slated for oral argument in November, both the FCC’s backers and broadcast attorneys expected the 3rd Circuit judges to hold their tongues. “I thought they’d wait to see if [the Supreme Court] had any thoughts on how to approach their decision,” says Christopher Craig, an attorney who filed an amicus brief in FCC v. CBS on behalf of the Parents Television Council. Along with finding that the FCC had failed to announce or justify its abrupt decision to penalize broadcasters for so-called “fleeting” indecency during live broadcasts — a position shared by the U.S. Court of Appeals for the 2nd Circuit in the Fox case — the 3rd Circuit panel faulted the FCC for pursuing fines against CBS stemming from the actions of non­employee performers. According to the July 21 ruling, CBS had to be actively aware of likely indecency in order to be punished. “That’s a huge relief for networks,” says Sidley Austin appellate practice head Carter Phillips, who submitted an amicus brief to the 3rd Circuit in support of CBS on behalf of Fox Corp. and is preparing another brief for the Supreme Court case. “That’s going to limit a lot of potential exposure for live television.” The FCC declined to comment beyond a statement from Chairman Kevin Martin issued the day of the ruling stating his disappointment. With a ruling from the Supreme Court not expected until next spring, both sides see the 3rd Circuit ruling as hampering one of the most enforcement-prone commissions in decades. “They’ve lost on both of the two major indecency initiatives in recent years — that has an impact on how [the commission] is perceived,” says David Solomon, who headed the FCC’s Enforcement Division before joining Wilkinson Barker Knauer in 2005. COMMUNICATION BREAKDOWN The decency push began in the wake of singer Bono’s outburst at the 2003 Golden Globes, when the FCC issued an order renouncing the commission’s previous leniency toward fleeting expletives. In 2006, the FCC was authorized by Congress to increase its fines for decency violations tenfold, to $325,000 per incident. Martin signaled he was ready to use the new authority: That year, the commission issued an omnibus order finding a litany of shows liable for violating decency standards. Among the broadcasts called out for intolerable indecency were Cher’s 2002 spontaneous application of the F-word to unnamed critics at the Billboard Music Awards on Fox and Nicole Richie’s rhetorical — “Have you ever tried to get cow s— out of a Prada purse?” — at the same event the following year. Fox appealed the commission’s initial findings, winning its case in the 2nd Circuit last June. Meanwhile, the commission pursued a fine against CBS for the Super Bowl Halftime Show, and the broadcaster brought its 3rd Circuit suit against the FCC in August 2006. The 3rd Circuit decision ventured nowhere near questions of whether the halftime show was constitutionally protected speech. Instead, Judge Anthony Scirica’s opinion focused on whether the commission had failed to explain and justify its shift in standards to broadcasters. “[T]he FCC may change its policies without judicial second-guessing,” Scirica wrote, referring to the FCC’s historical reluctance to pursue fines against broadcasters for fleeting images and words. “But it cannot change a well-established course of action without supplying notice of and a reasoned explanation for its policy departure.” After losing in the courts in both cases, backers and opponents of the FCC’s decency push say the commission’s enthusiasm for pursuing indecency matters may not last without an assist from the Supreme Court. “I don’t think it freezes their ability [to pursue further actions against indecency]; I think it freezes their desire,” says Tim Winter, president and general counsel of the Parents Television Council. He says he’d like to see the FCC appeal the 3rd Circuit case to the Supreme Court as well. “If the FCC in the short term doesn’t do something to respond, I fear future commissions will look back and say it’s not worth it.” Some industry attorneys believe that the FCC was already softening its stance before the 3rd Circuit ruling in preparation for the next administration. “Historically, chairmen often try to start with a clean slate,” Solomon says. “At some point it starts getting difficult to say that we’re going to look at something brought in 2004.” SUPREME TIMING Ultimately, however, Solomon and other communications lawyers say the next FCC approach will depend on the Supreme Court’s take on the 2nd Circuit ruling. The Court could issue a narrow ruling affirming or rejecting the position taken by the 2nd and 3rd Circuits that the FCC hadn’t properly warned broadcasters of its stepped-up enforcement. Or it could delve into the underlying question of the FCC’s capacity to designate speech as indecent, an authority not reviewed by the Supreme Court since FCC v. Pacifica Foundation, the 1978 case that established the FCC’s authority to regulate broadcast content. So far the FCC has appeared mixed as to which it would prefer. In its original petition to the Court, the commission’s lead argument for granting cert was that the 2nd Circuit had struck at the heart of Pacifica, only to file a merits brief four months later arguing its case on largely administrative grounds. Sidley’s Phillips says he thinks it’s more likely the Court will tackle a wholesale review of the First Amend­ment issues given that the case will be heard early in the term. The Parents Television Council’s Winter says he’s hoping for it. Other­wise, he says, the 2nd and 3rd Circuit decisions will carry greater weight. “If that’s the final word, that weakens the ability to enforce what we see as reasonable,” he says.

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