The next FCC FOIA

The next FCC FOIA

: I just filed the next FCC Freedom of Information Act request. I had suggested that a reporter should do this; when I talked with Howard Stern, he said I should do it.

The question: What evidence does the FCC have that any Viacom executive knew that Janet Jackson would bare her breast and thus should be fined $550,000 for the crime? Jackson said no one knew. Timberlake said no one knew. But in its complaint against CBS et al, the only thing the FCC says was a violation of the law was 19/32 of a second — let’s repeat that: 19/32 of a second — during which Jackson’s titanium-tipped tit was exposed to the air and airwaves. Says the commission:

Based upon the preceding analysis, we find, in context, that the exposure of Ms. Jackson

  • http://websense.blogspot.com Scott Knowles

    Tom Shales of Washington Post also dedicates a couple paragraphs to it

  • http://techlawadvisor.com/ Kevin

    There was an article on MTV.com saying that they were planning a “shocking moment” during the half time show. I wonder if that’s what the FCC relied on.

  • slim

    Jeff,
    You seem to be under the impression that the FCC needs “proof” that a “crime” was committed before fining a television organization.
    Nothing could be further from the truth. The FCC need only “allege” that an offense has taken place. It has done this and (key word) PROPOSED a fine.
    What offense is alleged? That baring for 19/32′s of a second of someone’s breast accidentally, in the context of a sexually suggestive act, was “apparently indecent.”
    That language is very, very precise. They don’t say it WAS indecent … just APPARENTLY indecent.
    IANAL, however, for a crime to be committed, the “prosecutor” must prove intent. It is pretty clear that no prima facia case of intent will or can be made in this case. That leaves, perhaps, willful disregard … which I think would be very, very hard to prove.
    All of this, however, is contingent on whether Viacom takes the FCC to court. I do not believe they will, and I believe that Viacom will fight the proposed fine only to such extent that it is lowered to an amount that will let BOTH parties claim victory.
    Until a broadcaster (or better yet, Howard Stern) decides to fight the FCC all the way to the Surpreme Court, and force the government to define “indecency” in a way that will pass Constitutional muster, nothing will change. And all the whining in the world will fall on my deaf ears.
    Viacom and Howard are part and parcel of the problem … and the problem is that they let the government get away with it.
    Humbly Yours

  • http://www.tonypierce.com/blog/bloggy.htm tony

    kevin,
    i was shocked when kid rock wore the american flag as a poncho.
    i always thought that mtv was talking about that.

  • Bob

    Excellent idea, Jeff. I’m glad you’re doing this. How the FCC’s been able to get away with this one, I don’t know. Though the incident clearly took place within the scope of an act with intentionally sexual overtones, there’s plenty of evidence for the possibility that Jackson didn’t intend to reveal quite that much. Her immediate physical reaction to the exposure even seems to indicate that.
    BTW, with a roomful of people watching the Superbowl that night, I was the only person in the room who even noticed it. And when I mentioned it, everyone agreed that, no it couldn’t possibly have been what I thought. That’s how quick it was.
    Of course, folks like Drudge happily served up massive stills of the moment allowing us to salivate over the nipple in the days and months after the incident, while simultaneously complaining about this new “low” in American culture.

  • Evan

    Even if indecency laws get stuck down by the Supreme Court for being too broad or vague, you will not get what you want. You will get something worse – the small laws.
    The death of a big broad law like indecency will not result in freedom from rules. A majority of the public is never going to accept absolute freedom to broadcast anything, anytime on the public airwaves. What politician is going to stand up and fight against a law showing graphic sex during the middle of SpongeBob?
    The result will be an elimination of self-policing by the broadcasters and the simple (albeit vague) rules like indecency, replaced by millions of small rules covering every single thing that can or can’t be broadcast.
    As a direct comparison, there was a time (only about 20 years ago) when accounting rules were few, and tended to be based on simple and broad concepts. The rules lacked specifics, but were effective because accountants were trained and took seriously a resposibility to the public trust to be conservative and make objective judgements. Then some accountants decided to push and test the rules, and focus on what was legal, instead of what was reasonable and accurate. Thus Enron, Worldcom, Arthur Anderson, offshore tax schemes, etc. etc. The public did not respond by saying “eliminate the broad rules and let the accountants do as they please”. No – the lawmakers pushed for more government oversite and started making more and more rules. Now accounting rules fill volumes, are incredibly detailed and complex, and they are expanded on every year as the legislation tries to keep up with the new schemes. And almost everyone agrees that the quality of financial reporting is getting worse and less understandable because of it.
    So be careful what you wish for Jeff. I don’t think you will like what you get.

  • http://hyku.com Josh Hallett

    Kevin mentioned the ‘shocking moment’ He is correct. Earlier in the day and during the game if you visited MTV’s site, it said something like…’be sure to stay tuned for the halftime show’s shocking conclusion’
    Later in the evening the last line was removed. But of course the Google cache had a copy of it. :-) So the question was, why did MTV remove it?
    Quick call Oliver Stone.

  • http://doublecross.blogspot.com Richard Moriarty

    The FOIA looks to be a very excellent tool for citizen journalists, especially if it is wielded as well as you have thus far, Jeff. However, I took a moment to check it out and immediatly found myself overwhelmed.
    Any chance you’d be willing to describe the kind of cautions you prefer to take when filling out an FOIA form?

  • http://www.baristanet.com The Barista

    Maybe this falls under “things I should have learned in school,” but why are seconds divided in 32nds?

  • Eileen

    Here we go again, Jeff, only a few hours later.
    They are not fining Jackson and Timberlake because it is not within the purview of the FCC to do so. They have no jurisdiction.
    Pulleeaasseee…..look into what the FCC is REQUIRED to enforce, by LAW, and what it is not. Meaning, they don’t Have any enforcement capability with respect to Jackson and crew.
    Second, you say “it’s bad enough that the law is unconstitutional”. WHAT law, exactly, Jeff???
    Here to fact check YOU. Cite it.
    Third, as to your 19/32 argument (please also cite your authority as to the time you allege was involved; i.e., the 19/32 to begin with), what Exactly is OK with you? 21/32? 42/32? Total nudity between 6 a.m. and 9 p.m.? Total boobs for all of infinity before any and all audiences in any and all spectrums but no balls ok?
    You may have no limits, but the law related to obscenity does. That’s not me talking, Jeff. That is too many statutes to cite, and too many court rulings to enlighten you with.

  • Eileen

    P.S. to The Barista,
    Heehaa…….!

  • http://www.buzzmachine.com Jeff Jarvis

    Yes, Eileen, here we go again. The FCC can fine talent today. The new indecency legislation only expands the amount they can fine. As for the FCC being forced to do this, that’s clearly ludicrous; there is a mile of latitude here and they chose what to fine and what not to fine. AS for the flash of flesh; well, they didn’t fine earlier shows that did it, did they? Sorry, Eileen, but I’ll stick with the advice of the First Amendment experts I have consulted on this.

  • http://www.buzzmachine.com Jeff Jarvis

    And Eileen… Rather than engaging in nya-nyas, let’s discuss the issues. Happy Thanksgiving.

  • Eileen

    We are discussing the issues, Jeff. I question some of your statements.
    It is a violation of federal law to broadcast
    obscene, profane or indecent programming. The
    prohibition is set forth at Title 18 United
    States Code, Section 1464 (18 U.S.C.

  • Mark