Says org acted 'arbitrarily and capriciously'

A federal appeals court has slapped the Federal Communications Commission for slapping CBS with a $550,000 fine for the boob-flash seen around the world.

In tossing out the fine, the 3rd Circuit Court of Appeals ruled on Monday that the commission had acted “arbitrarily and capriciously” when penalizing CBS for the infamous Janet Jackson “wardrobe malfunction” during the 2004 Super Bowl halftime show.

The Philadelphia court said the FCC fine was based on an unjustified and unexplained change in agency policy.

Last year, another appeals court ruled similarly against the FCC, tossing out the commission’s then-new policy of fining broadcasters for fleeting, one-time expletives. That case, involving language, has been accepted for review by the Supreme Court.

Monday’s ruling was a second damaging blow to FCC chairman Kevin J. Martin’s attempts to crack down on broadcast indecency. While acknowledging that the FCC has authority over such content, the court nonetheless made clear that the agency had overstepped its authority and failed to explain why.

“Like any agency, the FCC may change its policies without judicial second-guessing,” the court wrote. “But it cannot change a well-established course of action without supplying notice of and a reasoned explanation for its policy departure.”

In its 102-page opinion, the court noted that for almost 30 years, the FCC had exempted so-called fleeting instances of indecency, since Supreme Court precedent required that the offending matter be “pervasive” and “repeated.”

“During a span of nearly three decades, the commission frequently declined to find broadcast programming indecent, its restraint punctuated only by a few occasions where programming contained indecent material so pervasive as to amount to ‘shock treatment’ for the audience,” the court wrote. “Throughout this period, the commission consistently explained that isolated or fleeting material did not fall within the scope of actionable indecency.”

FCC lawyers tried to argue that the exemption applied only to indecent language — not images, as in the Jackson case. Fleeting images, they said, could be held actionable.

The court rejected that line of reasoning: “A review of the commission’s enforcement history reveals that its policy on fleeting material was never limited (to language). The FCC’s present distinction between words and images for purposes of determining indecency represents a departure from its prior policy.

“The commission’s determination that CBS’ broadcast of a nine-sixteenths of one second glimpse of a bare female breast was actionably indecent evidenced the agency’s departure from its prior policy,” the court continued. “Its orders constituted the announcement of a policy change — that fleeting images would no longer be excluded from the scope of actionable indecency.”

The FCC had also argued that CBS should be held liable for what Jackson, deemed an independent contractor, did. At the very least, the net should have anticipated trouble, given the sexual nature and tone of Jackson’s rehearsed duet with Justin Timberlake, the FCC claimed. The court disagreed.

FCC chairman Martin said he was “surprised” by the decision and “disappointed for families and parents. The Super Bowl is one of the most watched shows on television, aired during the hours when children are most likely to be in the audience. Hundreds of thousands of people complained about the show, and a unanimous commission found that it was inappropriate for broadcast television.

“I continue to believe that this incident was inappropriate, and this only highlights the importance of the Supreme Court’s consideration of our indecency rules,” Martin said.

“This is an important win for the entire broadcasting industry because it recognizes that there are rare instances, particularly during live programming, when it may not be possible to block unfortunate fleeting material, despite best efforts,” CBS said in a statement.

“Perhaps it is time to read the handwriting on the wall: The guardians of our First Amendment freedoms in the courts are not going to allow the FCC to play the role of media supernanny,” said Ken Ferree, president of the libertarian Progress & Freedom Foundation. “A free and vibrant, even if occasionally coarse, marketplace of speech is the cornerstone of a free society. We allow government to meddle in that marketplace at our peril.”

“Creative media artists understand the commission’s desire to address complaints, some well-founded, about television programming,” the Center for Creative Voices in Media said in a statement. “But the commission’s ‘cure’ for indecent programming is proving worse than the disease.”

The Parents Television Council, which led an email campaign for its members to complain to the FCC about the “malfunction” and which also filed an amicus brief supporting the FCC, decried Monday’s ruling.

“Once again, a three-judge panel has hijacked the will of the American people — not to mention the intent of the Congress acting on behalf of the public interest — when it comes to indecent content on the public airwaves,” said PTC prexy Tim Winter in a statement. “While we are not surprised that the legal venue hand-picked by CBS would rule in favor of the network, the court’s opinion goes beyond judicial activism; it borders on judicial stupidity.”

The PTC is urging the FCC to appeal the decision to the Supreme Court.

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