The FCC reversed itself on two indecency findings it made last March that were appealed to the Court of Appeals, then remanded briefly to the FCC again. The Commission previously found that in an interview on CBS's The Early Show, a Survivor contestant referring to another competitor as a "bullshitter" was indecent. Now, because that interview was "arguably" news, the Commission reversed itself and found the reference was not indecent. "This makes it all the harder to claim we've got a set of clear consistent rules, which is what the FCC's claim has been all along," said Stuart M. Benjamin, a Duke University law professor and an expert on telecommunications law. We agree -- the FCC's reasoning is utterly arbitrary.
The Commission also dismissed on procedural grounds several complaints about various variants of "shit" on NYPD Blue, which aired at 9 p.m. Central Time in Kansas City, an hour when indecency rules are in force. Much of the press missed the critical backstory of this, glossing over it as a "dismissal on procedural grounds." But not Amy Schatz of the Wall Street Journal. The Commission apparently had not previously realized -- uh-huh -- that not one single Blue viewer in Kansas City had complained about the show. Rather, all of the complaints against the show's purported indecency were sent from Alexandria VA, on -- surprise, surprise -- the letterhead of the Parents Television Council, the complaint-mill responsible for the overwhelming majority of indecency complaints. Without a complaint from a viewer within the viewing area of the accused station, the Commission had no basis to prosecute the case and dropped it. The importance here is that the Commission finally looked behind the facade of these so-called "complaints" and found they were not from real viewers, as we had pointed out to them in our Comments, here. Whether this will undercut the entire "click-fraud" complaint-mill operation of the PTC and American Family Association -- we can only hope.
Yesterday's Commission decisions appear to be a too little, too-late shoring up of its leaky legalities in preparation for the Appeals Court's upcoming review of the unrestrained and inconsistent way that the FCC has applied its indecency rules. Commissioner Jonathan S. Adelstein agrees, alleging in his Statement that the reversals were not made on merit but to improve the agency's chances of winning the broadcasters' lawsuit by jettisoning its weakest parts. "Litigation strategy should not be the dominant factor guiding policy when 1st Amendment protections are at stake." In our view, the Commission only dug itself a deeper hole, making its decisions seem even more arbitrary. Link: FCC backtracks on 2 charges of indecency - Los Angeles Times. The WSJ story is here. The FCC decision is here.