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Wardrobe Malfunction Fine

November 3, 2011 by staff 

Wardrobe Malfunction Fine, The third U.S. Court of Appeals has again a fine against CBS Corp. and 550,000 for “wardrobe malfunction” of Janet Jackson during the 2004 television show Super Bowl halftime.

The divided panel revised its earlier decision that the U.S. Supreme Court was returned to the light of the Supreme Court ruling in the case of FCC indecency v. Fox Television Studios. While the 3rd Circuit was unanimous in its initial decision, the author of the first opinion – Judge Anthony Scirica – dissents now.

In writing of the new majority, Judge Marjorie O. Rendell said nothing about Fox changed the initialanlysis of the Panel to fine the Federal Communications Commission on CBS was done without sufficient notice that the FCC was changing its policy to allow the imposition of sanctions fleeting expletives or indecent exposure images.

“As the court observed and Fox said the decision not to impose a fine if that understanding of the FCC noted that the imposition of sanctions for conduct that occurred before the change in FCC policy was announced would raise due process” said Rendell.

In Fox, Cher and Nicole Richie threw expletives during Billboard Music Awards in 2002 and 2003. That was before March 2004 FCC decision to the Golden Globes in which he said would then start fining fleeting expletives stations, but refused to do so in the case of the Golden Globes, because the company was not aware of the policy change at the time of the awards aired.

In Fox, the Supreme Court upheld the decision of the FCC to change its policy, it adequately explained its rationale. Rendell said the difference between Fox and CBS v. FCC is that the FCC recognized that Fox had broken new ground for sanctions by choosing not fine Fox for the incident. The FCC decided to fine CBS even though the Super Bowl 2004 also left before the Golden Globes, he said.

Rendell said the original decision to launch 3rd Circuit of the fine must therefore be upheld unless the FCC policy could show pre-Golden Globes for not punishing fleeting material does not include fleeting images. Rendell said the FCC and Scirica in his separate opinion supporting a small section at the bottom of Fox supports the argument that fleeting images that were never given a safe harbor from sanctions.

The FCC argued images fall into the category of literal “descriptions or depictions” of sexual organs or functions. The commission said the decision by Fox shows former FCC fleeting material policy, sanctions are not applied only to the literal representations or expletive and not to fleeting images, Rendell said.

She said the language cited by the FCC Fox and Scirica was simply background discussion of the historical approach of the FCC and “not unreasonable or exploitation.”

“In fact, the Fox court had no occasion to review the implementation of pre-Golden Globes FCC policy material fleeting images, since the case involved the use of fleeting expletives spoken,” said Rendell.

The FCC had the opportunity of a 2004 decision in Young Broadcasting of San Francisco Inc., issued a few days before the Super Bowl, saying that their age-fleeting material policy does not apply to images and that case involved the fleeting image of a body part, he said. Instead, the FCC argued Young Broadcasting was an exception to the policy of not punishing ephemera.

“The argument of the commission also rewrites history, leaving aside the Supreme Court recognized that Fox’s Golden Globe reflects a clear change-material shooting FCC policy, and ignoring the constant practice of the agency – more than three decades before his end, in this case – the exemption of all fleeting material, whether words or images, for enforcement in accordance with its policy of indecency, “Rendell said.

One view (somewhat) new
After the majority examined the impact of Fox’s previous decision, then looked back to the underlying merits of the argument. The Supreme Court vacated the initial view of the 3rd Circuit in the case before returning back to the panel. Rendell said that although the court usually only restore its former opinion after the determination of Fox had no impact, could not do that here for two reasons. First, the court initially was unanimous, but now has a dissenting Scirica. Secondly, Rendell said, the new majority does not believe that discussion of the previous opinion of the Scienter required for a violation and needed the court declines to adopt that part of his former opinion.

The remaining 40 pages of most 69 pages are simply a restatement of the initial opinion, less certain sections of the new majority was irrelevant.

In his 53-page dissent, Scirica said he believes Fox “undermines the basis of our engagement before the Administrative Procedure Act.” Because, he said, he would hold the imposition of sanctions FCC was neither arbitrary nor capricious.

Fox Scirica said the decision requires that the 3rd Circuit to review its previous involvement in CBS that the FCC violated the APA by arbitrarily and capriciously change its policy.

“Based on the Supreme Court’s account of the history of the enforcement policy of the FCC, we can not comply with our previous determination that prior to the policy of the FCC has granted an exemption in itself all the fleeting indecent material but Fox forced to the conclusion that the exemption limited to brief a particular type of words, “Scirica said.

He said, however, that the FCC can not impose sanctions unless CBS acted with Scienter required. Due to FCC sanctions was based on the wrong statute, “and understood the proper mens rea standard,” Scirica said he was leaving the sanctions and remand for another procedure.

Robert Corn-Revere of Davis Wright Tremaine in Washington represented CBS, along with Nancy Winkelman of Schnader Harrison Segal & Lewis in Philadelphia. Corn-Revere deferred comment to CBS.

“We are pleased that once again, the court has ruled in our favor,” CBS said in a statement. “We hope this will help lead the FCC to return to the policy of restricted indecency enforcement it followed for decades.”

Associate general counsel of the FCC, Jacob M. Lewis argued the case on behalf of the commission. “We are pleased that the court questioned the legal responsibility of the FCC to regulate indecent broadcasting,” the FCC said in a statement. “While we are disappointed by the appeals court’s decision,” noting that the court reversed in 2006, the FCC order on the Strait of procedure. Meanwhile, the FCC will continue to use all the power at its disposal to ensure that broadcasters meet the country’s public interest responsibilities that accompany the use of public airwaves. “

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