The Federal Communications Commission (FCC) lost another major First Amendment-related case today involving its recent efforts to expand the parameters of “indecency” enforcement for broadcast programming. The case involves the now infamous “wardrobe malfunction” that occurred during an unscripted 2004 Super Bowl halftime performance involving singers Justin Timberlake and Janet Jackson. When Ms. Jackson’s breast was exposed on camera for nine-sixteenths of one second, the FCC immediately launched an investigation into the incident and fines were eventually levied on the grounds that the fleeting exposure of Ms. Jackson’s breast was a violation of broadcast decency standards. CBS challenged the FCC’s decision, leading to a legal showdown in the U.S. Court of Appeals for the Third Circuit.
In today’s decision, CBS Corp. v. FCC, the three-judge panel of the 3rd Circuit ruled that the Federal Communications Commission “acted arbitrarily and capriciously” when it imposed a $550,000 fine on CBS for the incident. The court’s 102-page decision, which can be found here, was decided squarely on procedural grounds. That is, it didn’t touch the more substantive speech-related issues or precedents such as the Pacifica or Red Lion decisions that constitute the foundations of all modern FCC broadcast regulation.
The case is important because it now joins the June 2007 decision handed down by the Second Circuit Court of Appeals in the case of Fox Television Stations v. FCC. That was the indecency case involving the FCC’s new policy for “fleeting expletives.” In that 2-1 decision, the Second Circuit ruled that “the FCC’s new policy sanctioning ‘fleeting expletives’ is arbitrary and capricious under the Administrative Procedure Act for failing to articulate a reasoned basis for its change in policy.” As a result, the FCC’s order was vacated and remanded to the agency. [And the FCC is now challenging the decision in the Supreme Court.]
This is very similar to what the 3rd Circuit said today in the CBS case.
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Posted in: First Amendment, Free Speech & Online Child Safety
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More on the FCC’s e-Government Transparency Efforts: ECFS, RSS, Social Media & Setting Priorities
by Berin Szoka on September 11, 2009 · Comments
I vented my frustration earlier today with the FCC’s failure to make comments it receives easily accessible to the public—which means, more than anything, making them full-text searchable. This may seem like Inside Baseball to many, but it’s not. It’s a failure of the democratic process, a waste of taxpayer dollars, and a testimony to the general incompetence of bureaucracies, regardless of who’s running them. It denies the public an easy way to follow what goes on inside Washington, while essentially subsidizing law firms who get to bill clients for having paralegals or junior associates do things that existing web technology makes completely unnecessary—like reading through every comment in a document (at the rate of hundreds of dollars per hour) instead of just looking for keywords in a full-text search.
Later in the day the FCC announced:
I’m thrilled about the RSS feeds, which go a long way in letting all Americans know what the FCC does, supposedly in the “public interest.” Still, I can’t help but note that the FCC waited until after a huge discussion about whether RSS is dead to finally start using RSS in a serious way—fully a decade after the birth of the RSS standard. Better late than never, I suppose.
FCC Connect is also good news: once you have an RSS feed, there’s really no reason not to pipe that feed into as many platforms as possible—which is precisely why RSS isn’t dead, even if most people will never use an RSS reader.
But I’m less thrilled about the crowdsourcing platform. Continue reading →