Originally posted on the Broadcast Law Blog.
The U.S. Supreme Court today denied certiorari (i.e. declined review) in two important FCC-related cases pending before it. First, following the Court's recent decision in the Fox indecency case, which we described here, the Court not surprisingly refused to review the Third Circuit's decision vacating the $550,000 FCC fine for the Janet Jackson "wardrobe malfunction" in the 2004 Super Bowl shown on CBS.
In the Fox case, the Supreme Court found that the FCC had not provided advance notice that it would prosecute cases of "fleeting" indecency. That decision essentially predetermined that the Supreme Court would deny review of the Super Bowl incident. While denying cert., however, Chief Justice Roberts issued an unusual separate opinion, noting that fleeting indecent images may have a more lasting impression than indecent words. Nevertheless, he noted that going forward, broadcasters are on notice that fleeting indecent words and images are both now subject to FCC sanctions.
In the second FCC-related Supreme Court action today, the Court also refused to hear the appeals of the Third Circuit's 2011 Prometheus opinion, affirming most of the FCC's 2008 multiple ownership Order. The Third Circuit's decision and underlying FCC rules at issue are described here.
In denying cert., the Supreme Court refused to reconsider the Third Circuit's decision to leave the newspaper/broadcast cross-ownership rule in place. This particular aspect of the Prometheus case had been appealed by multiple media companies, including the Tribune Company and Media General. Many have noted that the rule may well outlast the existence of the daily newspaper, but absent an FCC decision upheld on appeal, the cross-ownership prohibition remains in place, except where otherwise grandfathered.
It certainly has been an interesting week for Supreme Court actions in both media-related decisions and otherwise. (You may have heard that there was some health care related decision this week as well.) From an FCC perspective, it will be interesting to see what the Commission does now with respect to both indecency and multiple ownership in view of the recent Supreme Court decisions....not to mention an upcoming election in November.