Court calls FCC “arbitrary and capricious”

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,” 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.

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10 Responses to Court calls FCC “arbitrary and capricious”

  1. Brett Glass says:

    Come to think of it, the “independent contractor” point also applies to Comcast. Comcast used an appliance manufactured by Sandvine. Is Comcast liable if the FCC does not like the way the appliances were programmed by Sandvine?

  2. Presumably, Comcast knew what Sandvine was going to do.

  3. Brett Glass says:

    CBS knew that Timberlake and Jackson were going to perform a suggestive dance. They just didn’t know the details.

  4. Brett Glass says:

    …Oh, and they certainly didn’t know that there would be an “astroturf uproar” about a half-second glimpse of a breast (covered by the equivalent of a pastie).

  5. Sorry, but I don’t think your analogy works. Sandvine works to spec, the nipple malfunction team didn’t.

  6. Brett Glass says:

    Sandvine might have the capability to work to spec for a very large order, but as I understand it this was their stock product.

  7. I mean it works as advertised, not in some mysterious way.

  8. Brett Glass says:

    In that case, we’re in violent agreement. 😉

    By the way, you are absolutely right that Free Press “flooded the FCC with junk comments.” The spam makes it extremely difficult to find the entries in the record which are not carbon copies created by Free Press’ “astroturf” page.

    What’s more, I caught the names of a couple of local folks in the record and asked them why they’d signed on. They all said things like, “We can’t let Comcast shut down the Internet!” and “Comcast is censoring the Internet!” Of course, Comcast is doing neither, and when I explained what was really happening — and that the regulation Free Press is advocating would put me and other rural ISPs out of business — they were sorry they’d signed on.

  9. Brett Glass says:

    P.S. — Did the “wardrobe malfunction team” specify that they would NOT rip off their clothes? Yes, I know that for many viewers this was a bug, but for most of us — who have seen human bodies before and are not shocked by them — it was just mildly amusing to see them act out the lyrics.

  10. It made the babies hungry, most likely. But it’s reasonably clear that CBS didn’t know the old lady was going to flash the audience, they’re not idiots.

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