The FCC didn’t properly notify CBS it was broadening its interpretation of indecency rules before levying a fine of $550,000 for airing a split-sec. shot of Janet Jackson’s breast during the 2004 Super Bowl, the network’s court filing said: “The Commission’s stated policy was, as it had been for the previous three decades, to excuse the broadcast of isolated and fleeting material that might otherwise be deemed indecent… The Commission’s decision to apply that new policy in this case was done without notice.” CBS said the agency’s actions were inconsistent because the FCC chose not to fine Fox and NBC for other brief instances of indecent content that also occurred before March 2004. The FCC said in March 2004 musician Bono’s “fucking brilliant” utterance on the Golden Globe Awards was indecent. “Because the Super Bowl also preceded Golden Globes Awards and likewise involved a ‘fleeting’ and ‘unintentional’ transmission, due process requires the Commission to employ the operative standard at the time of broadcast,” CBS said late Mon. (CD Nov 21 p9) in a brief to 3rd U.S. Appeals Court, Philadelphia, in CBS v. FCC. Janet Jackson’s breast-baring was indecent, despite what CBS claims, the FCC responded: “We continue to believe they are wrong.” CBS, Fox and NBC are among the broadcasters expected to file briefs by Wed. in the Fox v. FCC indecency case before 2nd U.S. Appeals Court, N.Y., said a lawyer in the case. The filings must be mailed to the N.Y. court by day’s end, said Media Access Project Pres. Andrew Schwartzman, representing Center for Creative Voices. CBS will file comments in the case as an intervener because the FCC rescinded a finding that the use of the word “bullshitter” by a guest on its Early Show was indecent, said a spokeswoman. ABC won’t participate in oral arguments, Seth Waxman said on behalf of the network in a filing with the N.Y. court. The court should suspend ABC’s appeal of an initial Commission decision labeling parts of NYPD Blue indecent, he said. He said ABC’s appeal should be “held in abeyance” until the FCC completes its about-face, declaring the show not indecent.

Clear Channel’s $26.7 billion sale might not be subject to a vote by Commissioners if no ownership waivers are involved, said FCC and industry officials. The company likely hasn’t gotten waivers from Commission ownership rules because it hasn’t made any large acquisitions in recent years, said broadcast lawyers. The Media Bureau has authority to approve radio and TV station license transfers without full Commission vote when multiple station ownership limits aren’t exceeded, said agency officials. Commissioners typically vote on deals involving waivers, they said. A Clear Channel official wouldn’t say if the company has waivers, but industry lawyers said there don’t seem to be any. Even if Clear Channel has no waivers, the FCC may take time to review the sale. Minority groups said they may seek asset divestitures in markets where Clear Channel exceeds FCC ownership limits.

Broadcasters are trying to ensure video news release (VNR) material is identified to viewers when used, according to TV station officials. Stations are reminding employees they can’t use such footage without disclaimers alerting the audience to the source, among other steps. Meanwhile, FCC Comrs. Adelstein and Copps said the FCC should investigate 36 more stations a private report said used VNRs without full disclosure. Videos were aired after the FCC began probing more than 70 other stations accused of using them with no disclosure (CD April 7 p5), said activist group Center for Media & Democracy (CMD), which wrote the report.

Broadcast network affiliates don’t want EchoStar to get an extension of its deadline to stop carrying their stations’ distant signals. The affiliates are preparing to file Mon. to ask the U.S. Dist. Court, Miami, to keep the DBS provider from getting an extension of several months of the Dec. 1 deadline (CD Nov 8 p11), said their lawyer, Wade Hargrove: “EchoStar has had more than enough time to prepare its customers for this transition.” In requiring the shutdown, U.S. Dist. Judge William Dimitrouleas rejected a $100 million settlement between Dish and ABC, CBS, Fox and NBC affiliates.

The Commission rescinded 2 of 4 indecency orders that were part of Fox vs. FCC and found expletives on the remaining shows were still profane. The agency upheld a previous finding (CD March 17 p1) that the 2002 and 2003 Fox Billboard Music Awards contained indecent material because they contained “fuck” or derivations. That finding sets the stage for a response to the 2nd U.S. Appeals Court, N.Y., from Fox that attacks the precedent set in 2004 by a separate indecency order on The Golden Globe Awards, said lawyers in the case. Comr. Adelstein slammed the Commission for not clarifying that precedent in his partial dissent of the order, released late Mon.

The FCC hadn’t made public 4 reworked indecency orders due yesterday (Mon.) by our deadline. The 60-day voluntary remand deadline was imposed by the 2nd U.S. Appeals Court, N.Y., in Fox vs. FCC. Commission officials likely were working up to the last minute on the orders, said attorneys in the case. The remand’s outcome could go either of 2 ways, according to broadcast attorneys: (1) The indecency orders will be upheld or (2) the commission will find the 4 instances not indecent.

Advocates for the hearing-impaired are making the 8th floor rounds seeking reversal of waivers on closed captioning requirements, said Paul Gagnier, a lawyer representing some of them. The FCC is being pushed by 7 groups challenging the legal basis for several hundred captioning waivers granted programmers. The FCC is weighing the groups’ Oct. 12 petitions to rethink the waivers and to grant an emergency stay on their implementation, Gagnier said: “We are certainly hopeful that the FCC will reverse what we see as an erroneous decision by the bureau, and if they do not, we will certainly determine our options accordingly.” Telecom for the Deaf & Hard of Hearing, National Assn. of the Deaf and others want the Commission to overturn waivers issued in Sept. by the Consumer & Governmental Affairs Bureau (CGB). The groups said they may sue the FCC if it lets the waivers stand (CD Sept 27 p4). A CGB official couldn’t say whether the Bureau had acted on the petition. In their application for review, the petitioners demanded that CGB review each individual programmer petition to escape closed captioning rules, not grant them en masse. “The Bureau failed to comply with the Commission’s rules because it did not put petitions for exemption on public notice and did not justify each waiver of the public notice rule,” the petitioners said. CGB’s actions created a standard that “threatens to allow a huge and totally unwarranted number of exemptions,” said the document. Many of the challenged exemptions went to programmers producing religious shows. The National Religious Bcstrs. (NRB) said CGB followed procedure because it didn’t classify a new type of programming exempt from captioning rules. “The policy… recognizes exemptions for non-profit broadcasters who would otherwise incur an ‘undue burden’ in complying with closed-captioning requirements,” said NRB’s opposition to the application for review: “Many religious non-profit organizations have not sought exemption, but have fully complied with the captioning requirement.”

Broadcasters that go private would reduce their financial transparency, a phenomenon media activists said may subject such deals to scrutiny by parties fearing consolidation. More publicly traded companies are seeking to exit the business or be taken private as stock prices suffer from increased rivalry by Internet and other media (CD Oct 30 p3). Private firms need not disclose quarterly profit and other financial results under SEC rules.

EchoStar is talking with lawmakers about a possible bill to avert a distant-signal cutoff that would leave some rural subscribers with no way to get TV other than from DirecTV, said lobbyists and a House aide. Odds of success aren’t high because there’s little time for a vote in the lame-duck congressional session slated to start Nov. 13, and lawmakers would have to circumvent usual procedure to get a timely vote, said broadcast lobbyists. EchoStar got a boost from Rep. Boucher (D-Va.), who promised to stay on top of the issue.

TV stations can take a page from competitors’ playbooks by offering interactive services and transmitting higher quality signals using an approach taken by wireless companies, said Assn. for Maximum Service TV Pres. David Donovan. Facing stiff competition from cable and the web, broadcasters want the FCC to ensure viewers don’t encounter interference from devices using so-called white space they'll vacate after the DTV transition (CD Oct 19 p1), Donovan told us. The industry is entering a “renaissance” in which viewership trends may reverse course and climb, he said.