The FCC has cornered the market on regulatory uncertainty, a point made with exclamation marks last week.
First was the Third Circuit Court of Appeals ruling that the commission had no business fining CBS for the Janet Jackson Super Bowl halftime “wardrobe malfunction,” a fraction of a second that was extruded into a multiple-year regulatory and political embarrassment.
After all the fallout, the FCC indecency fines were boosted tenfold, and broadcasters began self-censoring entertainment programming and adding time-delays on live shows. Now, it turns out the FCC didn't know what it was talking about.
That decision was actually strike two for the FCC. Last year, the Second Circuit Court of Appeals ruled that the commission had no business finding Fox indecent for airing impromptu bad language on a couple of live awards shows. While the initial rulings riled broadcasters, what was particularly vexing is the FCC never gave warning it was changing its rules.
Beyond all that, the findings against Fox and CBS are nonsensical. Mistakes happen; to harshly punish a broadcaster for brief vulgar occurrences in live telecasts is deliberately harsh and vindictive.
Still, broadcasters are no closer to knowing what will draw millions of dollars in fines than they were when the crackdown began, because now the FCC has to rethink its rationale.
There are other notable FCC embarrassments. The FCC's seemingly endless media ownership review took so long the commission had to “regulate by waiver” as broadcasters had to guess at what ownership combinations would pass muster when and if they ever got solid FCC ownership rules.
When the commission finally acted, the end result pleased no one, drew dozens of lawsuits and may even be invalidated by Congress.
And then there is the XM/Sirius merger, which was still having trouble being voted on late last week after being locked in an endless loop of filings and counterfilings for more than 400 days. The companies had to put off deadlines and structure financial moves so that they could be undone if the FCC ultimately nixed the deal.
But wait, there's more. Talk to leased-access programmers, and they will tell you the commission continues to defer or delay responding to questions about unanswered complaints.
FCC Chairman Kevin Martin has said that the way to address the issue of network neutrality/network management is not by passing laws or drawing up hard-and-fast rules, but by building case law via enforcement actions prompted by complaints. But such a policy would require the FCC to demonstrate a more efficient complaint resolution process than it has exhibited to date.
One solution proposed by legislators frustrated with the commission is a top-to-bottom review of the agency with an eye toward structural changes that would make the commission more responsive and transparent. Sounds like a good idea to us.