ON DECK: Pending and Upcoming Litigation Involving the FCC

As we progress through the first quarter of calendar year 2010, we in the Office of General Counsel thought it might be of interest to summarize briefly the pending appellate litigation matters of significance in which the FCC is a party.
First, on January 13th in New York City, the Second Circuit held oral argument in Fox Television Stations, Inc. v. FCC.   The case presents a First Amendment attack on the FCC’s decisions finding violations of the broadcast indecency statute and regulations for Fox’s broadcast of expletives by celebrities Cher and Nicole Richie on separate live television awards shows.  That case is on remand from the Supreme Court, which overturned the Second Circuit’s earlier judgment that the FCC had not adequately explained a change in its indecency enforcement policy.  It likely will be several months before the court issues its opinion – but, whatever the outcome, the case is a potential candidate to head back to the Supreme Court before final resolution.
Similarly, on February 23rd (just a few weeks after this year’s Super Bowl), the Third Circuit will hear oral argument in Philadelphia in CBS Corp. v. FCC, another broadcast indecency case.  At issue is CBS’s broadcast of the 2004 Super Bowl halftime show in which Janet Jackson, performing with Justin Timberlake, suffered what some have described as a “wardrobe malfunction.”  CBS is challenging the $550,000 forfeiture that the FCC assessed against certain CBS-owned affiliates for broadcasting Jackson’s fleeting nudity.  The Third Circuit previously found that the FCC had changed its policy without adequately explaining why, but this case also is on remand from the Supreme Court in light of the Supreme Court’s decision in Fox Television Stations, described above.
And we continue to await a decision in the case of ABC, Inc. v. FCC, a challenge to the FCC’s enforcement action for broadcast of nudity during an episode of the television show NYPD Blue.  That case was argued before the Second Circuit almost exactly one year ago in February 2009.
First Amendment challenges seem to abound in the New Year and are not confined to the broadcast indecency context.  A carriage dispute between a broadcast television station and certain cable systems may give the Supreme Court an opportunity to address a constitutional challenge to the “must carry” statute in Cablevision Systems Corp. v. FCC.  Most recently, the FCC ruled that a broadcast station north of New York City should be included in that city’s television market area, thereby making the station eligible for mandatory carriage on Cablevision’s cable television systems on Long Island.  On review, the Second Circuit rebuffed Cablevision’s challenges and affirmed the FCC’s order in its entirety.  Cablevision has now asked the Supreme Court to review the Second Circuit’s judgment, chiefly on the ground that the must carry statute violates the First Amendment.  As the schedule currently stands, the Solicitor General will file the government’s response on February 26th.  The Supreme Court should announce whether it will accept the case on its docket later in the spring.
Heading down the Eastern Seaboard, the federal appeals court in Washington, D.C. – in yet another case captioned Cablevision Systems Corp. v. FCC – is considering a challenge to the Commission’s decision to extend the effective date of its program access rules.  Those rules ban exclusive contracts between cable operators and cable-affiliated programming suppliers.  Oral argument was held in September 2009; we may see an opinion from the court in the near future.
On January 8, 2010, the D.C. Circuit heard oral argument in Comcast Corp. v. FCC before a packed house.  In that case, Comcast challenges an FCC order declaring that Comcast could not lawfully block its Internet access subscribers’ use of peer-to-peer applications such as BitTorrent.  It likely will be several months before we see a decision in that high-profile case.
We also await a decision from the Third Circuit in Council Tree Communications, Inc. v. FCC.  Council Tree challenges the FCC’s revised designated entity rules, which apply to persons seeking to bid at auction for spectrum licenses.  The case was argued on December 1st of last year.
And finally, for those of you who have recently struggled with the winter weather here on the East Coast, let me try to ease your pain by reference to baseball – after all, this space is entitled “On Deck.”  Spring training is nigh!  It’s time for pitchers and catchers to report!  And Opening Day – when the spirit is lifted and life begins anew – is less than six weeks away!