FCC Gets Punked Again

When, oh when, will the FCC learn that it too is governed by the First Amendment?

The Third Circuit held that although the FCC possesses the authority to regulate indecent television content, it “had long practiced restraint in exercising this authority.” (Opinion at 13). This restraint had previously limited the FCC to find that broadcast material was indecent only in a few occasions “where programming contained indecent material so pervasive as to amount to ‘shock treatment’ for the audience.” (Opinion at 13).

During this entire period, the FCC consistently had a policy that isolated or fleeting material was not actionable indecency.

At the time of the infamous “wardrobe malfunction,” this policy was still in effect. However, in a blatant move to pander to the “values voters” who ushered in the Bush regime, the FCC decided to change this policy without notice or explanation immediately once the Super Bowl XXXVIII “wardrobe malfunction” hit the airwaves.

The Third Circuit found that while the FCC has the privilege of changing its policies, it must do so reasonably and not in an arbitrary or capricious manner. For engaging in this ambush-style policy change, the Third Circuit found the FCC’s actions “arbitrary and capricious under the Administrative Procedure Act as applied to CBS.” (Opinion at 14).

Additionally, the Third Circuit found that the FCC’s decision to hold CBS liable for Janet Jackson and Justin Timberlake’s halftime show performance was improper. Since Janet Jackson and Justin Timberlake were independent contractors, trying to hold CBS accountable was unlawful.

The First Amendment precludes the FCC from sanctioning CBS for the indecent expressive conduct of its independent contractors without offering proof of scienter as an element of liability. And, it is unclear whether the FCC correctly applied a “willfulness” standard to find CBS liable for failing to prevent the Halftime Show’s indecency. (Opinion at 50)

This decision is not only very satisfying to me as a First Amendment advocate, but it also has the right tone when considered in light of Deborah Taylor Tate’s recent statement that “the law is simple. If a broadcaster makes the decision to show indecent programming, it must air between the hours of 10 p.m. and 6 a.m. This is neither difficult to understand nor burdensome to implement.”

Hopefully Ms. Taylor Tate and her asshat colleague, Kevin Martin, will now also learn that the First Amendment is also neither difficult to understand nor burdensome to follow.

Fox Flips Off the FCC

From the Washington Post:

In an unusually aggressive step, Fox Broadcasting yesterday refused to pay a $91,000 indecency fine levied by the Federal Communications Commission for an episode of a long-canceled reality television show, even as the network fights two other indecency fines in the Supreme Court.

The FCC proposed fining all 169 Fox-owned and affiliate stations a total of $1.2 million in 2004 for airing a 2003 episode of “Married by America,” which featured digitally obscured nudity and whipped-cream-covered strippers.

Fox appealed immediately after the FCC ruling. Last month — four years later — the FCC changed its mind, saying it would fine only the 13 Fox stations located in cities that generated viewer complaints about the program. That reduced the fine to $91,000.

Despite the sharp reduction, Fox said it would not pay the fine on principle, calling it “arbitrary and capricious, inconsistent with precedent, and patently unconstitutional” in a statement released yesterday. (source)

This isn’t as aggressive of a move as the Post seems to think. Fox has not exactly “refused” to pay, but has filed a motion for reconsideration. Given the fact that the FCC is ruled by a majority that is completely bat-shit crazy, I don’t imagine that they have it in their mental or emotional capacity to say “yeah, we were wrong.”

Will the FCC really do something useful?

Reuters reports:

FCC Commissioner Michael Copps said he had asked the chairman of the FCC to open an inquiry into the February 24 incident at WHNT, a CBS affiliate in Huntsville, Alabama, in which civil rights footage from the 1960s was blacked out.

“The FCC now needs to find out if something analogous is going on here,” Copps said at a luncheon with media watchdog groups. “Was this an attempt to suppress information on the public airwaves, or was it really just a technical problem?”

Unfortunately, the chairman of the FCC is none other than Kevin Martin. I doubt that he’ll be able to stop obsessing over dirty words on TV broadcasts long enough to actually do his job.

Supreme Court Defers on Fleeting Expletives Case

The LA Times Reports:

Last year, an appeals court in New York blocked the Federal Communications Commission from enforcing its new rule against “fleeting expletives.” And Bush administration lawyers had urged the Supreme Court to take up the dispute and to give the FCC a green light to enforce the new policy.

The appeal was considered by the high court in its closed conference on Friday, but the justices did not say today whether they had agreed to hear it or deny it.

Lawyers for Fox TV and the other networks had urged the justices to stay out of the case. They said the FCC should be forced to explain why the agency had changed course in 2004 and adopted a near zero-tolerance policy for broadcast expletives.

The FCC case could be decided narrowly by focusing on whether the agency had justified its new policy. Or the justices could focus broadly on whether the 1st Amendment’s free-speech guarantee shields broadcasters from being fined for inadvertently allowing an expletive to be aired during a live performance.

Network executives say they have a firm policy against broadcasting vulgar words during the hours when children and families are watching. On occasion during a live broadcasts, however, guests or performers have uttered the f-word, and a network monitor failed to bleep it out in time.

The incidents cited by the FCC occurred during the broadcasts of entertainment industry awards shows.

If the court eventually votes to take up the case, FCC vs. Fox TV, it will be heard in the fall. If the justices deny the appeal, the FCC will have to try again to persuade a lower court to allow its new rule to be enforced.(source)

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