The Third Circuit delivered the big smackdown to the FCC over the wardrobe malfunction incident:
The court said the FCC is free to change its policy without “judicial second-guessing,” but only with sufficient notice. “Because the FCC failed to satisfy this requirement,” the court added, “we find its new policy arbitrary and capricious under the Administrative Procedure Act as applied to CBS.”
It also found that CBS could not be held strcitly liable for the actions of independent contractors — another argument the FCC made for its finding. “The FCC cannot impose liability on CBS for the acts of Janet Jackson and Justin Timberlake, independent contractors hired for the limited purposes of the halftime show,” the court said.
This ruling has implications for the proposed sanctions against Comcast: both involve post-hoc rules and both involve sticking it to someone other than the bad actor. The court doesn’t approve of the FCC making rules after an incident has occurred, which is exactly what the FCC proposes to do in the cast of Comcast’s management of P2P. Notice and rule-making have to precede sanctions, not follow them.
And the bad actor notion also applies. The Court found that Jackson and Timberlake were the bad actors, not CBS. In the P2P case, the users who congested the network are the bad actors, not the operator who sought to rein them in.
Chairman Martin, note this well.
Also of interest: the Court noted that most of the complaints against CBS were junk:
The Opinion notes CBS’s research indicating that over 85 percent of those complaints came from forms produced by activist groups. Many of the protests were filed in duplicate, “with some individual complaints appearing in the record up to 37 times,â€ CBS asserted.
The same can be said of the junk comments manufactured by Free Press against Comcast, of course. Free Press employed the electronic equivalent of seat-warmers to flood the FCC with junk comments, to the tune of 30,000 duplicate complaints.