PANEL FINDS FCC POLICY ARBITRARY

NYLJ 6/5/07

1. PANEL FINDS FCC POLICY ARBITRARY


1. When it comes to the Court of Appeals, 2nd Circuit, it may not be as satisfying to have to get a majority, but that renders into a verdict with a greater stability. Over the years the FCC had mutated from a simple commission on the regulation of broadcast frequencies into a behemoth that strides the nation as Big Brother and Nanny. When they watch every domestic station, they are also watching the way we live. When they make regulations on what we say, they are also telling us what we can and cannot say. And when they want to penalize the transmission of “fleeting expletives”, they are saying, “don’t be spontaneous—it will cost you.” Celebrities and politicians may sling the common slang, one wherein the occasion of choice language—sometimes as crass or unexpectedly joyful—may offend tender ears and those of tender years, but that doesn’t mean they can do so with impunity. The five-second delay had better be there is you don’t want to pay a hefty fine. As has been said before: free speech isn’t free.

So there is the notorious “wardrobe malfunction”, the earthiest references of the Prez and Darth Veeper caught on open mikes , and the idols of screen and tube making candid remarks on award shows and each incident further incenses the gatekeepers of civil liberties. Yet, when it comes time to assign the blame for their off-color asides, none of them will be the corporation who fell asleep at the switch.

That is when you are given the power to call the gatekeepers to task—or find that the Lord High Elocutioners have acted “arbitrarily and capriciously” in doling out the dollar duns. Except that, sometimes, you can say the plaintiff “failed to articulate a reasoned basis for its change in policy.” The dissent might find a “sensible, although not necessarily compelling reason for the change,” but that’s what makes horse races, doesn’t it? I say “objective,” you say “subjective,” let’s call the whole thing off.

And maybe the greatest freedom of expression—that right to call something off, or dismissal of complaint.

Look at it from the FCC’s point of view and they can assert the action stems from the same interest in protecting children as it did when the regulation and prohibition was instituted 30 years ago. On the other hand, “under their current indecency regime, any and all uses of an expletive is presumably indecent and profane, with broadcaster’s under an unidentified burden of proof to show the expletives were integral to the work.” If that work is nothing more than a live transmission, it would require the prognosticative abilities of Nostradamus to protect the parents and concerned citizens from that on-the-air pollution.

More damage might be done by this selective enforcement by choosing those incidents over others. When they violate the Administrative Procedures Act, that doesn’t send a mixed signal? Like: “We are responding to an extreme reaction and public outcry…” which constitutes a mail-in campaign whipped up by ultra-conservative ministers after repeated segments loop thru the 24hrs news cycle? Then there is the additional point of: “Yes, we know the rules but this is a special case that requires we violate them.”

Or say, if the public good might be considered an ongoing, work-in-progress sort of project and the “rules” as more of a term-of-art, guidelines rather than regulations, then you could say that their prosecution was “integral to the work.”

Now where have I heard that before?