Legendary Lawyer Jerome J. Shestack Achieves a Posthumous Victory in the Case Brought Against CBS by the FCC for the 2004 Super Bowl Halftime ShowOn November 2, 2011 by Schnader in Appellate
On November 2, 2011, in a case that was one of the last to be handled by long-time Schnader attorney and legendary lion of the bar, Jerome J. Shestack, the Third Circuit reaffirmed and readopted its 2008 decision that rejected a finding of indecency and the accompanying $550,000 fine levied against CBS by the Federal Communications Commission (FCC) for the 2004 Super Bowl halftime show featuring Janet Jackson and Justin Timberlake. Mr. Shestack was a member of the team representing CBS.
In a 2-1 decision written by Judge Marjorie O. Rendell and joined by Judge Julio M. Fuentes, the court found that the “F.C.C. failed to acknowledge that its order in this case reflected a policy change and improperly imposed a penalty on CBS for violating a previously unannounced policy.” The policy in question dealt with “fleeting material.” The FCC stiffened its guidelines for “fleeting expletives” after a March 2004 decision involving a broadcast of the Golden Globes award program, and held CBS to that standard when issuing its order with regard to the 2004 Super Bowl halftime broadcast. In 2008, the Third Circuit held the FCC arbitrarily and capriciously departed from a prior policy of excepting fleeting broadcast material from the scope of actionable indecency, and that the agency could not impose strict liability on CBS, because the Commission did not announce that it was stiffening its guidelines for “fleeting material” until March 2004, after the February 2004 Super Bowl broadcast. The 2008 decision was appealed to the Supreme Court, which vacated the Third Circuit’s decision and ordered it to consider the CBS case in light of the Supreme Court’s 2009 decision in FCC v. Fox Television Stations. The Fox case involved incidents of expletives being uttered during the 2002 and 2003 Billboard Music Awards broadcasts.
However, in the Third Circuit’s Nov. 2 decision, Judge Rendell wrote that, “While we can understand the Supreme Court’s desire that we re-examine our holdings in light of its opinion in Fox – since both involve the FCC’s policy regarding “fleeting material” – in…this opinion we conclude that, if anything, Fox confirms our previous ruling in this case and that we should readopt our earlier analysis and holding that the Commission acted arbitrarily in this case.” Judge Rendell emphasized “an agency may not apply a policy to penalize conduct that occurred before the policy was announced. The Commission’s argument also rewrites history, marginalizing the Supreme Court’s recognition in Fox that Golden Globes reflected a clear change in FCC’s fleeting-material policy, and ignoring the agency’s consistent practice – over three decades before its order in this case – of exempting all fleeting material, whether words or images, from enforcement under its indecency policy.”
This victory serves as an extraordinary and well-deserved capstone to the distinguished and illustrious career of Jerome J. Shestack. A legendary attorney and former President of the American Bar Association, Mr. Shestack was a nationally renowned trial lawyer who was cited by The National Law Journal as one of the “100 Most Influential Lawyers” in the United States. He handled complex litigation for some of the country’s largest corporations, including ABC, NBC, CBS, Westinghouse, GAF, Hertz, RCA, Advanta, and Comcast, and argued more than 150 cases in appellate courts across the nation. There could be no better tribute than to have his skill, acumen and talent, which he brought to bear on behalf of his clients throughout the entirety of his life, lead to such a significant and successful decision such as this.