FCC Not Expected to Challenge CBS Court Choice for Indecency Appeal
The FCC is unlikely to try to block CBS’s appeal of an indecency fine stemming from Janet Jackson’s breast-baring incident by arguing that the case shouldn’t be heard because it’s in the wrong court, said sources familiar with the lawsuit. CBS Fri. said it’s paying the $550,000 fine for the Super Bowl display only so it can challenge FCC rejection of its petition for reconsideration in the 3rd U.S. Appeals Court, Philadelphia.
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“We disagree strongly with the FCC’s conclusions and will continue to pursue all remedies necessary to affirm our legal rights,” the broadcaster said. The FCC responded that it will “vigorously defend the forfeiture order issued against CBS.” Commission officials declined comment beyond the agency’s statement.
The CBS challenge rests on a 2003 U.S. Appeals Court, D.C., ruling in AT&T v FCC that lets parties facing forfeiture sue the Commission if they first pay the fine, said broadcast lawyers. The network could get the money back if it wins the case. When a company exhausts its appeals to the agency on a fine but wants to fight it, the FCC can ask DoJ to sue in U.S. Court, D.C., for payment. CBS is protecting its legal interests by paying the penalty while challenging the basis of the indecency order, said broadcast lawyers.
There’s a small risk in filing the case outside D.C., the only court to approve the procedure, said Univ. of Colo. School of Law Prof. Phil Weiser. The risk is that the Commission could challenge the location of the suit because it’s outside D.C., he said: “As a theoretical matter, the Third Circuit has not adopted the position of the D.C. Circuit, so this argument that you actually have to wait until you are sued is still available… There is a temptation among lawyers to make any possible argument.”
CBS choose to file the case in Philadelphia because its legal domicile is in Del., said a broadcast executive familiar with the lawsuit. The firm may also be seeking a friendly court with a track record of ruling against the FCC in several high profile cases, said Weiser: “They must believe that the precedent is somehow more favorable in the 3rd Circuit.” He cited the 1996 case of ACLU v Reno, where the court ruled against the FCC. “That would suggest there is some general precedent that the 3rd Circuit is aggressive as far as the First Amendment is concerned,” said Weiser.
The court will set a briefing schedule within a month, predicted an executive. A 2nd U.S. Appeals Court, N.Y., hearing on another indecency challenge, Fox v FCC, was postponed from Aug. 8 to Aug. 29. Oral arguments are likely to be heard at that time on the FCC’s motion for voluntary remand of another 4 indecency orders, said a court staffer.