Skip Navigation

Federal Communications Commission

English Display Options

Blog Posts by Richard Welch

ON DECK: Pending and Upcoming Appellate Litigation Involving the FCC

October 27, 2010 - 04:18 PM

[[wysiwyg_imageupload:286:height=104,width=70]]

During spring training, on the cusp of the major league baseball season, the Office of General Counsel discussed several significant cases involving the FCC that were pending before the appellate courts. See "On Deck" blog entry dated February 19, 2010. Now that the baseball season draws to a close, we thought this might be a good time to provide an update on these cases and other upcoming appellate litigation involving the agency.

The FCC in the Supreme Court

Read more »

Demystifying Primary Jurisdiction Referrals

July 29, 2010 - 10:00 AM

[[wysiwyg_imageupload:286:height=100,width=70]]

Most people who work in the area of communications law and policy have heard the term “primary jurisdiction referral.”  But myths and misconceptions abound, and they are shared by litigants, lawyers, and even judges.  This post is intended to clear up some of the confusion.

In the communications law context, a primary jurisdiction referral typically occurs when private litigants raise an issue in court (most often a federal district court) that involves a contested interpretation of the Communications Act, the FCC’s rules, or an FCC order – in other words, a dispute over an issue that the Commission has the congressionally delegated authority to resolve.  In most instances, the dispute also lies within the court’s subject matter jurisdiction.  Nevertheless, the court, recognizing that the FCC also has jurisdiction over the matter and may be better suited to answer the particular issue in the first instance, may elect to invoke the doctrine of primary jurisdiction and stay its hand to permit the FCC to decide the issue.

Here is where the confusion begins.  The term “primary jurisdiction referral” is a misnomer – the court refers nothing to the FCC.  Rather, the court will stay – that is, suspend action on – the judicial proceeding (or dismiss the case without prejudice) and direct the litigants to initiate an administrative proceeding before the FCC seeking resolution of the particular issue.  Thus, the parties to the litigation – not the court – must take affirmative steps to effectuate a primary jurisdiction “referral” to the FCC.

Read more »

ON DECK: Pending and Upcoming Litigation Involving the FCC

February 19, 2010 - 12:55 PM

[[wysiwyg_imageupload:286:height=104,width=70]]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.

Read more »
close
FCC

You are leaving the FCC website

You are about to leave the FCC website and visit a third-party, non-governmental website that the FCC does not maintain or control. The FCC does not endorse any product or service, and is not responsible for, nor can it guarantee the validity or timeliness of the content on the page you are about to visit. Additionally, the privacy policies of this third-party page may differ from those of the FCC.