Re: 3rd Circuit Overturns FCC Fine of CBS for 2004 Halftime Show

[David Farber <dave () farber net>]

________________________________________
From: Jonathan Weinberg [weinberg () msen com]
Sent: Monday, July 21, 2008 12:00 PM
To: David Farber
Cc: ip
Subject: Re: [IP] 3rd Circuit Overturns FCC Fine of CBS for 2004 Halftime Show

Dave,

        The court goes on to slap the FCC down on the agency's finding that
CBS's indecency violation had been "willful."  The asserted bad actors
here were Jackson and Timberlake.  But Jackson and Timberlake weren't
CBS employees, and -- the court explained -- even if Jackson and
Timberlake acted "willfully," the agency couldn't just transfer that
bad intent to CBS.  While the court agreed that in general a
broadcaster could be punished if [1] it actually knew of a risk that a
half-time entertainer would do Bad Stuff; and [2] it *recklessly*
disregarded that risk, so that the entertainer was able to do the Bad
Stuff unimpeded, the FCC hadn't produced evidence to support that
conclusion in this case.

Jon


Jonathan Weinberg
Professor of Law, Wayne State University
weinberg () wayne edu



On Jul 21, 2008, at 11:12 AM, David Farber wrote:

> ________________________________________
> From: Frederick Lane [fslane3 () gmail com]
> Sent: Monday, July 21, 2008 11:10 AM
> To: David Farber
> Subject: 3rd Circuit Overturns FCC Fine of CBS for 2004 Halftime Show
>
> Hi Dave --
>
> For IP if you wish:
>
> The 3rd Circuit Court of Appeals has overturned the $550,000 fine
> levied by the FCC against CBS for the 2004 halftime show, labeling the
> FCC's decision as "arbitrary and unreasonable." I'm reading through
> the decision now, but the gist of the 3rd Circuit's opinion is that
> the FCC's decision to fine CBS was based on agency policy that was
> announced after the 2004 Super Bowl. Since CBS could not reasonably
> have known about the new policy, the imposition of the fine was
> unfair. The opinion of the appeals court seems pretty thorough, so
> I'll be surprised if the FCC's appeals this to the Supreme Court.
>
> Here's a link to the 3rd Circuit opinion:
>
> http://www.ca3.uscourts.gov/opinarch/063575p.pdf
>
> For those who are interested in more background information, I wrote
> about the 2004 Super Bowl incident and the FCC's action in my recent
> book, "The Decency Wars: The Campaign to Cleanse American Culture."
> (Prometheus Books 2006).
>
> Regards,
>
> Fred
>
> --
> Frederick Lane is an attorney, expert witness, lecturer, and author
> who has appeared on "The Daily Show with Jon Stewart," CNN, NBC, ABC,
> CBS, the BBC, and MSNBC. He has just finished his fourth book, "The
> Court and the Cross: The Religious Right's Crusade to Reshape the
> Supreme Court" (Beacon Press May 2008), and is beginning work on
> "People in Glass Houses: The Right to Privacy in the Age of Electronic
> Voyeurism" (Beacon 2009). For additional information, please visit
> http://www.FrederickLane.com or call 802-318-4604.
>
>
>
> -------------------------------------------
> Archives: https://www.listbox.com/member/archive/247/=now
> RSS Feed: https://www.listbox.com/member/archive/rss/247/
> Powered by Listbox: http://www.listbox.com




-------------------------------------------
Archives: https://www.listbox.com/member/archive/247/=now
RSS Feed: https://www.listbox.com/member/archive/rss/247/
Powered by Listbox: http://www.listbox.com