Thorasgar: it's not you it's the 3ds. I have a Japanese n3ds (which I'm selling because I mistakenly thought I could use regionthree with sky3ds on a n3ds) which is PERFECT and an Australian N3DS from play-Asia that has the same problem you're having. Pain in the ass and it isn't acceptable. Unfortunately play Asia says I have to take it up with Nintendo of Australia. Great. Anyway it's IDENTICAL to the problem you're describing I can test with both n3ds units in the same place amd time and always have zero problem with the Japan unit.Tried that one as well, still no love. Thanks for the suggestion.
I checked BB again and they have the black on in store, just not the red so I ordered it. If GameStop won't fix me up at 10 will just drive across the street and pick up the black one at BB. (And test it before I leave of course)
Now I need a few hours sleep. Vodka time!
That being said, the Japan one is MARKEDLY dimmer and colors less vibrant. Both on max brightness no auto bright, no power save. Also the difference in brightness between level 4 and 5 on the Japanese model is ASTOUNDING ! 4 is really dim. 5 jumps to pretty bright. Aussie model steps evenly between each level and color is very rich. But super stabl 3d is pretty much broken. Flickers, randomly doesn't see my face. Pops in and out for no reason on the demo screen where u see the cut out of your torso and head.
[edit] I have to take it up with Nintendo Australia, but I am a USA resident... That's why it sucks. Not even sure I have any chance of help from Australian Nintendo [/edit]