A Great Day For Broadcasting And Logic

‘Wardrobe malfunction’ fine dismissed for CBS

The three-judge panel of the 3rd U.S. Circuit Court of Appeals ruled that the Federal Communications Commission “acted arbitrarily and capriciously” in issuing the fine for the fleeting image of nudity.

The court found that the FCC deviated from its nearly 30-year practice of fining indecent broadcast programming only when it was so “pervasive as to amount to ‘shock treatment’ for the audience.”

“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 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.

“The Commission’s determination that CBS’s 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 found.

“Its orders constituted the announcement of a policy change — that fleeting images would no longer be excluded from the scope of actionable indecency.”

It’s sadly all too rare these days to see such a fair and well reasoned decision as this one. Congratulations to the court for applying common sense, and congratulations to everybody involved in fighting the good fight against the FCC in this case and others. Hopefully this ruling will mark the end of the creative chill that has plagued the broadcasting industry in the United States since 2004. It will be nice to hear material that pushes a reasonable envelope again.

And a note to all members and supporters of the Parents Television Council: Nobody aside from yourselves cares what you think about anything. You weren’t relevant 10 years ago when you were attacking WWE, and you’re even less so now. Please, just go away and let the rest of us enjoy our freedom of choice.

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