Being There

So today the FCC got the smack down on a large fine they imposed on CBS after the infamous “wardrobe malfunction” of the 2004 Superbowl. (I’m reviewing administrative law right now, so that’s my excuse for taking a few minutes to make this post).

Basically, a federal court decided that the FCC, a federal agency authorized to regulate the airways and keep our children safe etc. etc., acted in an “arbitrary and capricious” manner when it told CBS to fork over $550,000 for the indecent image (a woman’s breast, OH THE HORROR) appearing on airwaves between 6 AM and 10 PM. I’m guessing most readers know basically nothing about administrative law. Trust me, you’re better off this way. But for your benefit, here’s the big deal with this case. The “arbitrary and capricious” standard is very hard to violate. This standard of review pretty much lets courts approve lots of agency actions that are downright dumb or ill-informed, as long as they aren’t arbitrary.

The big problem the court had with the FCC’s action was that it was totally inconsistent with what the agency had been doing for decades, with regard to “fleeting instances” of nudity or profanity. Up to the Janet/Justin incident, these fleeting instances weren’t fined or disciplined, because they were so small that they didn’t really do anyone any harm. After “nipplegate,” the FCC (urged onward by the Bush administration, I have no doubt) cracked down on all those scary things like accidentally blurting out “shit!” or revealing parts of the human body that are “indecent.” And at least with regard to the particular discipline of CBS, this federal court says no way Jose. An agency has to be consistent in its regulations, or else regulated parties will have no idea what is and what isn’t a violation of the rules.

This case is going to the Supreme Court, so we’ll see what the eventual ruling on this issue actually turns out to be. For now, CBS gets to have a party and the FCC gets a taste of what may be a major smackdown to come in future years regarding the ever increasing strictness of its rules and policies.