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The U.S. Supreme Court today denied certiorari (i.e. declined review) in two important FCC-related cases pending before it.  First, following the Court’s recent decision in the Fox indecency case, which we described here, the Court not surprisingly refused to review the Third Circuit’s decision vacating the $550,000 FCC fine for the Janet Jackson "wardrobe malfunction" in the 2004 Super Bowl shown on CBS. 

In the Fox case, the Supreme Court found that the FCC had not provided advance notice that it would prosecute cases of "fleeting" indecency.  That decision essentially predetermined that the Supreme Court would deny review of the Super Bowl incident.  While denying cert., however, Chief Justice Roberts issued an unusual separate opinion, noting that fleeting indecent images may have a more lasting impression than indecent words.  Nevertheless, he noted that going forward, braodcasters are on notice that fleeting indecent words and images are both now subject to FCC sanctions.

Continue Reading Supreme Court Declines Review of Janet Jackson “Wardrobe Malfunction” and Multiple Ownership Rules

As you know by now, last week the U.S. Supreme Court found the FCC’s enforcement of its indecency policy unconstitutional in FCC v. Fox.  As Bob Corn-Revere and Ronnie London described in our Advisory , this case concerned the 2002 and 2003 Billboard Music Awards shows televised by Fox as well as a 2003 episode of NYPD Blue televised by ABC.  While the Supreme Court did NOT address the First Amendment issue of whether the FCC can constitutionally prohibit fleeting expletives and momentary nudity, it did find that the FCC’s enforcement of those policies with regard to these particular shows violated due process, because the networks had no advance notice of them.

As we noted more than a year ago, there are approximately 300 TV station renewal applications from the last renewal cycle still pending due to indecency complaints filed against them.  It is unclear how many of them relate to these particular shows, but to the extent any renewal applications have been held up due to complaints against these shows only, it should only be a matter of time before those renewal applications are granted.Continue Reading What does the Supreme Court Indecency Decision Mean for the Long Pending License Renewal Applications?

The Third Circuit Court of Appeals today issued its decision in the case dealing with the FCC’s fine for the Janet Jackson "clothing malfunction" Super Bowl incident.  The Court once again rejected the FCC decision – essentially upholding a 2008 decision that had found the FCC’s indecency fine to be an arbitrary departure from prior precedent.  The…

The FCC last week issued a decision that should make Buyers think twice in determining how sales of broadcast stations are concluded – especially in the days of $325,000 potential fines for indecency violations.  In the case decided last week, the Commission concluded that the licensee of a broadcast station was liable for fines for violations…

Just as the FCC issued its order to implement the statutory increase in the amount of indecency fines, raising them to $325,000 per violation (see our comment, here), its enforcement of its indecency policy may be dead in its tracks.  A three judge panel of the US Court of Appeals for the Second Circuit, in a 2 to 1 decision released today, rejected the FCC’s actions against a number of television networks for broadcast indecency.  The FCC actions were in the context of "fleeting utterances," i.e. the use of specific words that the FCC determined were indecent whenever they were used.  The Court rejected the FCC decision as being arbitrary and capricious, as the FCC decisions overturned without sufficient rational explanation years of FCC precedent that had had held that the isolated use of these words was not actionable.  The FCC actions were sent back to the FCC for further consideration to see if the Commission could craft a decision that provided a rational explanation for this departure from precedent.

However, this may prove to be impossible.  While the Court’s decision was based on the FCC’s failure to provide a rational basis for its departure from precedent, the Court also said that it was difficult to imagine how the FCC could constitutionally justify its actions.  The Court pointed to the inconsistent decisions of the FCC – fining stations for the use of the "F-word" and the "S-word" in isolated utterances during awards shows, and when used in the context of a program like PBS’  The Blues, but finding that the same words were not actionable when used in Saving Private Ryan or when used by a Survivor contestant interviewed on CBS’ morning show.  In the Survivor case, the Court indicated particular confusion, as the Commission went out of its way to say that there was no blanket exclusion of news programming from the application of its indecency rules, but then it proceeded to find the softest of news – the Survivor cast-away interview – as being of sufficient importance to merit exclusion from any fine.  The Court felt that these decisions were so conflicting that a licensee would not be able to decide whether a use was permissible or not – and that such confusion, leaving so much arbitrary discretion in the hands of government decision-makers as to where to draw lines between the permissible and impermissible, would not withstand constitutional scrutiny.  It would have a chilling effect on free speech – and could be enforced in an arbitrary manner that could favor one point of view over another.Continue Reading Second Circuit Throws Out FCC Indecency Fines

It’s been almost a year since President Bush signed legislation raising the fines for broadcast indecency to $325,000 per occurrence.  Even though the legislation was effective on June 15, 2006, the higher fines have not yet gone into effect as the FCC had never adopted rules to officially implement them – until today.  Today, the…