Monday, July 21, 2008

CBS's 2004 obscenity fine for Janet Jackson nipple-shot reversed, and other yucks

Philadelphia, Pennsylvania--In the city that began the persecution of the late Lenny Bruce, we have a victory. Also headquartered in the city is the telecommunications giant Comcast,™ a "teleconglomerate" who's had difficulties with the current FCC chair from the GOP dominion of North Carolina.

The 3rd Circuit Court of Appeals has ruled that the FCC deviated from a longstanding policy of 30+ years regarding obscenity without giving any cause or explanation.

Therefore, the fine is moot:

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

The 3rd Circuit judges - Chief Judge Anthony J. Scirica, Judge Marjorie O. Rendell and Judge Julio M. Fuentes - also ruled that the FCC deviated from its long-held approach of applying identical standards to words and images when reviewing complaints of indecency.("Federal appeals court tosses out fine against CBS for Jackson 'wardrobe malfunction,' " AP, 07.21.2008)

This shores-up the First amendment protections for freedom of expression. In other words, it's possible that the original ruling by the FCC will have inadvertently expanded artistic and expressive freedoms on the airwaves. It probably won't be a lot, but that's not the point.

The point is that those who want to rollback these and other rights aren't getting their way. But the corporations almost always do, ideology-be-damned, and Martin has serviced them well. Servicing concentrated capital and "free markets" is all that matters, not the religious right. They never really did, except when it was convenient in dividing-up the fickle and apathetic electorate.

We know it's not going to end here--it never does--but for those who value one of the most exceptional aspects of American democracy, it's a victory.

Remember back to early-2004: it was a time when the Bush administration and the GOP still retained some reasonably high approval ratings, though they were in-decline thanks to the beginnings of the Plame scandal, the subsequent ongoing investigation (which still is "ongoing"), and troubling signs in Iraq as we all witnessed the rise of the insurgency.

Katrina and the revelations of the existence of numerous other White House scandals hadn't even happened yet.

At that time, the congressional GOP and the White House were still running almost completely amok, and the FCC appointee wasn't going to miss out on all the fun. Orders are orders, but things don't always go according to plans.

A federal appeals court has tossed out the Federal Communications Commission’s $550,000 indecency fine against CBS for the infamous Janet Jackson “wardrobe malfunction” at the 2004 Super Bowl halftime show.

The decision - the second recent blow to FCC chairman Kevin J. Martin’s crackdown on broadcast indecency - said the agency acted “arbitrarily and capriciously” in levying the fine. ("Court tosses FCC Super Bowl fine-Says org acted 'arbitrarily and capriciously,' " Variety, 07.21.2008)

No, it didn't work out like they thought it would, even after dragging the process out for an excruciating four years. One has to ponder if CBS will qualify for a reimbursement of court costs from the federal government. Heckuva job, Marty, you clean up those airwaves. Just remember that the public still technically owns them and that we're watching you hand-out all kinds of perks to telecommunications companies and conglomerates.

That's "special interests" in the jargon of the politicians who appoint people like Martin. Yet, he's also been a mixed-bag for his handlers.

Martin has done some interesting things for a partisan hack, and made some attempts at deregulation of the cable industry in some peculiar directions, though namely to curb access to violent and sexual programming. Martin's approach is interesting, and could have some unforeseen consequences:

Martin says the nation's cable problems could be solved by requiring Comcast and other providers to sell cable channels individually, or a la carte. This form of sales could reduce cable bills by allowing customers to buy just the channels they truly like and watch.

Customers who found some cable entertainment distasteful would not have to subsidize the offensive channels that come in 200-channel packages.

Cable companies say the pay-per-channel model actually would cost more and would hurt small entertainment programmers. ("FCC chief Martin: The nation's indecency czar," The Philadelphia Enquirer, 07.03.2008)

But rather than servicing moral and cultural conservatives of the religious right, Martin has obtained a result in the CBS case that goes in another, more liberal direction. What's also strange is that if cable channels were prorated/a la carte for consumers, many of them would opt-out on such right-wing outlets as Fox News, which was actually forced on most cable systems in previous packaging formats.

If Martin has proven anything, it's that crusading FCC chairs face serious limitations not only from the public, but from the political environment and the telecommunications industry. An evangelical agenda is likely to get lost in the details and rival agendas. Business trumps religion, in other words, and promises for a conservative social agenda aren't likely to materialize.

Or is there a difference between business and religious orthodoxy? Martin has argued for "more competition," but that's not traditionally what regulators do in the reflexively protectionist Washington. Confused? The FCC chairman has felt and acted the same. Be careful what you wish for, you might just get it, and the modern world is a labyrinth.

One thing's certain: Martin's time is running out at the FCC under the essentially lame duck Bush administration--well, "lame duck" if you leave-out funding for the wars in Iraq and Afghanistan and immunity for the warrantless surveillance program.

"Unbundling" cable channels into an a la carte system isn't likely to happen under his stewardship as the youngest FCC chair with just over five months left to the one of the most unpopular presidencies in American history. The most unpopular Congress has even less time left, and November is coming sooner rather than later.

It should be remembered that Martin was a mere 35-years-old at his swearing as FCC commissioner on July 3, 2001.

He was reappointed in 2006 by the current president, and his term is set to expire in June of 2011, though it's expected that he'll be replaced with a Democratic appointee by Barack Obama if he's victorious in his bid for the White House. It's likely that he would be retained by a McCain administration. GOP candidate John McCain has come out in support of the a la carte/unbundling agenda.

That's not the real issue, however--Martin has been running agendas through the FCC's decision-making process, namely in deregulating ownership of various forms of media by telecommunications corporations, and easing their ability to work with municipal governments.

The investigation comes on the heels of a previous inquiry by the committee regarding what Dingell called "a breakdown of proper procedure at the FCC." The inquiry was sent in regards to the FCC's Dec. 18th vote on relaxing restrictions on media consolidation in individual markets.

Consumer advocates, media watchdogs, and even several of Martin's fellow commissioners criticized him for rushing the vote, limiting public discussion and comment, and scheduling meetings with little notice or warning.

The speed with which Martin pushed to pass the vote led members of the Senate to introduce legislation specifically to block the new rules until more examination of their effects could be made. ("House Committee To Probe FCC," Consumer Affairs, 01.08.2008)

Yes, even the "bought" Senate had misgivings over Martin's bureaucratic behaviors. It should be noted that Martin worked under special partisan prosecutor Kenneth Starr, who investigated allegations into the affair between former President Bill Clinton and White House staffer Monica Lewinsky. This directly benefited the Bush campaign in the 2000 elections.

Chairman Martin was also a former staffer at Wiley, Rein, and Fielding, the law and lobbying firm currently representing Senator David Vitter in his bid to pay for legal costs in the DC Madam scandal from campaign funds. It's good having friends like this considering that Martin is being investigated by the U.S. House Energy and Commerce Committee on several serious issues. And this is just the tip of the proverbial iceberg.

FCC chairman Kevin J. Martin's loss in court this week is just one-of-many problems he's facing, and his days of agenda-making are coming to an end. Whomever takes the chair, it's all about business and the rights of so-called "corporate citizens." This was never about a woman's nipples. Strange, that.

"Federal appeals court tosses out fine against CBS for Jackson 'wardrobe malfunction,' " AP, 07.21.2008:

"Court tosses FCC Super Bowl fine-Says org acted 'arbitrarily and capriciously,' " Variety, 07.21.2008:

"FCC chief Martin: The nation's indecency czar," The Philadelphia Enquirer, 07.03.2008:

"House Committee To Probe FCC," Consumer Affairs, 01.08.2008:

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