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JUN
29
2 YEARS

Supreme Court Declines to Review Broadcast Indecency, Media Cross-Ownership

Broadcasters win Janet Jackson's "wardrobe malfunction" dispute but won't get a further review from the high court on media-ownership restrictions.

Janet Jackson Justin Timberlake Superbowl 2004 - P 2012
Getty Images

The U.S. Supreme Court has declined to hear two cases involving the FCC, and in doing so, have let stand a lower court's decision to throw out a $550,000 indecency fine against CBS over Janet Jackson's "wardrobe malfunction" during the 2004 Super Bowl broadcast as well as challenges to U.S. media-ownership rules that bar corporations from operating a newspaper and a broadcast outlet in a single market.

The decision not to hear the case involving Janet Jackson's exposed breast at the 2004 Super Bowl, seen briefly by 90 million TV viewers, means that an appellate ruling holding the FCC had acted "arbitrarily and capriciously" in making its fines upon CBS will not get further review. The Supreme Court's brief order denying cert puts an end to the long-running dispute.

The case was previously heard by the Supreme Court, finding that the FCC was "entirely rational" when changing its policy on indecency. But, the high court left open the question whether the fine violated the network's constitutional rights, remanding it back to the 3rd Circuit, which last October, decided that the FCC was unclear about its direction to networks.

“The balance of the evidence weighs heavily against the FCC’s contention that its restrained enforcement policy for fleeting material extended only to fleeting words and not fleeting images," wrote 3rd Circuit judge Marjorie Rendell last year.

The Supreme Court's decision not to follow up on this ruling follows a ruling last week that the FCC had violated the networks' due process rights by being "vague" and not giving enough advance notice on its policies.

As for the challenge to media-ownership rules, broadcaster and newspaper groups wanted the Supreme Court justices to take a look policies that the FCC has in place that govern cross-ownership rules. The media appellants cited the First Amendment and believe that advances in technology and changes in the communications medium necessitated a re-examination of the restrictions. They sought a ruling that declared "scarcity" in the public airwaves as no longer being the justifiable reason to limit cross-ownership.

The FCC has tried to loosen the policies in recent years, although not enough in the eyes of some big media companies, and last year, among several cases on this issue, the 3rd Circuit rejected an FCC decision to relax the ban on common ownership of local broadcast stations and newspaper located in the same market; the D.C. Circuit found that restrictions on how many stations one company can own in a market to be arbitrary and capricious.

The Supreme Court denied cert on several appeals on the media ownership rules without comment.

"We're disappointed the Supreme Court declined to review rules that limit local broadcasters' ability to compete with our national and multinational pay programming competitors," said NAB spokesman Dennis Wharton in a statement.

E-mail: eriq.gardner@thr.com

Twitter: @eriqgardner