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CBS Asks Court To Take Up Constitutionality Of Indecency Enforcement

10/02/2009 1:23 PM Eastern

CBS wants the Third Circuit Court of Appeals to tackle the FCC's indecency regime head on, and, likening the commission to an obsessed seas captain, asked it, in effect, not to give Ahab another harpoon.
In a reply brief to that court Friday, the company said the FCC had raised new issues in its own brief in which the FCC strongly defended the $550,000 indecency fine it leveled against CBS over the Janet Jackson Super Bowl reveal incident and asked the Third Circuit 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.

"The issues the FCC now raises all have been thoroughly briefed, argued, and decided by this Court, following an exhaustive investigation and three rounds of pleadings at the agency," CBS said in its brief. "The Commission's supplemental brief fails even to address the purpose of this remand from the Supreme Court, but the agency's Ahab-like obsession with this case does pose an important question: Just how many years can the FCC prolong a broadcast indecency probe of an unscripted and unintended event that lasted nine-sixteenths of one second?"

CBS told the court that to allow the FCC to drag the case out any further with its proposed investigation would further chill speech. "The First Amendment costs to CBS and all broadcasters inherent in dragging out this proceeding -- as the FCC here requests -- far exceed just the legal fees and time consumed by the prolonged prosecution of the case," said the company. "Regulatory agencies put pressure on regulated firms in numerous ways, 'some more subtle than others' and subjecting programming decisions to repeated government second-guessing is one of the least subtle of all."

The Supreme Court has asked the Third Circuit to rethink its decision that the FCC's fine of CBS stations for the fleeting nudity in the Janet Jackson Super Bowl reveal was arbitrary and capricious. That came after the High Court ruled that the FCC had justified citing Fox stations for fleeting profanity. The Second Circiut Court of Appeals had also found the defense of that policy "arbitrary and capricious."

And while CBS said the Third Circuit could reaffirm its finding of "arbitrary and capricious" without going to the question of the constitutionality of the FCC's indecency inforcement, the company said it was time for such an updated analysis.

"This Court should embrace the Supreme Court's invitation to assess the constitutionality of the indecency rules given current realities and find that most applications can no longer survive First Amendment scrutiny," the brief said.

September