United States Third Circuit

FCC orders imposing monetary penalties on CBS for broadcasting indecent material during the Super Bowl halftime show in 2004 are vacated where: 1) the FCC's application of a new policy concerning penalties for fleeting broadcasts of indecent material, which went into effect one month after the broadcast, would raise due-process concerns; 2) the FCC acted arbitrarily and capriciously when, without notice, it changed its policy on the types of "fleeting or isolated" broadcast material that could result in the imposition of monetary sanctions to distinguish between fleeting words and fleeting images; 3) respondeat superior liability did not apply because the halftime show performers, Janet Jackson and Justin Timberlake, were independent contractors and not employees of CBS; 4) CBS's unique and non-delegable duty as a broadcast licensee to avoid the broadcast of indecent material does not expose it to liability where the government did not meet its constitutional obligation to prove that CBS acted with scienter; and 5) the government's determination that CBS "willfully" failed to take precautions against broadcast indecency did not meet constitutional requirements where CBS acted merely negligently, not recklessly.

Appellate Information

• Decided 07/21/2008
• Published 07/21/2008

Judges

• Before:  SCIRICA, Chief Judge, RENDELL and FUENTES, Circuit Judges.

Court

• United States Third Circuit

Counsel

• For Appellant:
  
• Robert Corn-Revere, Esquire (Argued), Davis Wright Tremaine LLP, Washington, D.C., Jerome J. Shestack, Wolf Block Schorr and Solis-Cohen LLP, Philadelphia, PA, Attorneys for Petitioners., John B. Morris, Jr., Esquire, Center for Democracy & Technology, Washington, D.C., Attorney for Amici Curiae-Petitioners, Center for Democracy & Technology and Adam Thierer, Senior Fellow, The Progress & Freedom Foundation., Nancy Winkelman, Esquire, Schnader Harrison Segal & Lewis, Philadelphia, PA, Attorney for Amici Curiae-Petitioners, Former FCCOfficials Henry Geller and Glen O. Robinson., Andrew J. Schwartzman, Esquire, Media Access Project, Washington, D.C., Attorney for Amicus Curiae-Petitioner, Center for Creative Voices in Media, Inc., Carter G. Phillips, Esquire, Sidley Austin LLP, Washington, D.C., Attorney for Amicus Curiae-Petitioner, Fox Television Stations, Inc.


• For Appellees:
  
• Eric D. Miller, Esquire (Argued), United States Department of Justice, Civil Division, Joseph R. Palmore, Esquire, Federal Communications Commission, Office of General Counsel, Thomas M. Bondy, United States Department of Justice, Appellate Section, Washington, D.C., Attorneys for Respondents., Christopher T. Craig, Esquire, Sparks & Craig LLP, McLean, VA, Attorney for Amicus Curiae-Respondent, Parents Television Council, Inc., Thomas B. North, Pro Se Amicus Curiae-Respondent., David P. Affinito, Esquire, Dell'Italia Affinito & Santola, Orange, NJ, Attorney for Amicus Curiae-Respondent, Morality In Media, Inc.