CBS and the FCC took aim at each other's arguments in filings to the Third Circuit Court of Appeals in advance of new oral argument this month in the Janet Jackson/Justin Timberlake Super Bowl reveal case.
In its filing, CBS had a few choice, if un-profane, words for the FCC, saying it was attempting to "rewrite history" with a "revisionist spin" on its fleeting indecency policy in arguments CBS said included "false claims" and "incomplete and misleading" discussion.
The FCC, though somewhat more circumspect in its word choice, called CBS's arguments "untenable" and accused it of "leaps of illogic."
Nothing in the Supreme Court's decision upholding the FCC's defense of its fleeting profanity policy changes the Third Circuit's decision in the Super Bowl case that the commission had abandoned a three-decades-old policy on fleeting words and images.
That was CBS's advice to the Third Circuit, which is preparing to re-hear the Jackson case Feb. 23. CBS was fined $550,000 for the 2004 Super Bowl halftime show incident. The Third Circuit last month asked both CBS and the FCC to weigh in on what affect the Supreme Court decision in Fox vs. FCC (swearing by Cher and Nicole Richie on the Billboard Awards) should have on its rethinking of the Jackson decision.
Specifically, the Third Circuit asked whether "the Supreme Court's account of the history of the FCC's indecency policy in FCC v. Fox Television Stations Inc. undermines its earlier conclusion that the pre-Golden Globes safe harbor for fleeting material was not limited to non-literal expletives."
The FCC's response to the court was to stick to its guns that there had never been an exemption for fleeting images, rather than profanity, and that the Supremes had correctly concluded that its earlier exemption of fleeting profanity was only for "non-literal (or 'expletive') uses of evocative language" and not, as the Third Circuit concluded, all fleeting material including images. "That showing remains un-rebutted," it said.
It called CBS's arguments untenable. And even if they weren't, it says that CBS's interpretation "could not override the Commission's reasonable contrary view, particularly when the Supreme Court has endorsed the agency's view."
Both the Third and Second Circuits had concluded that the FCC's fleeting profanity and nudity crackdown was an arbitrary and capricious change in policy that violated procedural safeguards. But a 5-4 majority of the Supreme Court, hearing the challenge to the Fox profanity decision disagreed, saying the commission had sufficiently justified its new policy, at least on procedural grounds. The court also ruled that a government agency like the FCC does not have any higher threshold for defending/explaining a change in a policy than it does for setting a policy in the first place, nor does it have a higher bar for changes that implicate constitutional issues.
The Supremes sent both that and the Jackson decisions back to the lower courts to look at them again. The Second Circuit reheard the Fox case last month, with most observers concluding the FCC had gotten roughed up by the three-judge panel.
The FCC pointed to its indecency finding against Young Broadcasting for a fleeting view of a penis as evidence CBS should have been on notice about fleeting nudity.
The FCC fined KRON-TV San Francisco $27,500, then the maximum penalty, for a morning-news segment on the Puppetry of the Penis troupe when one of the puppets was inadvertently exposed.
CBS says that if Young was meant to be a policy change, the FCC essentially hid that fact. "If the 1987 Pacifica order had placed broadcasters 'on notice' that the fleeting expletives exception 'had no application to depictions' as the FCC now suggests," said CBS, "one would expect to find some reference to it. But the Young Broadcasting opinion does not cite the 1987 Pacifica order at all, much less rely on it as articulating a fundamental policy change."
The network said that even if the court were able to find that the FCC had made a policy change before the 2004 Super Bowl, it should reaffirm its decision to overturn the fine because the commission had not put out a policy statement of "sufficient clarity."
CBS also renewed its request to the court to address the First Amendment issues raised by the fine, "particularly in light of the FCC's zeal to prolong the investigation on this case on remand."
The FCC asked the court to allow it to investigate further to prove its assertion that CBS had the means to block the reveal and chose not to do so.