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The FCC dodges

7 comments on The FCC dodges

The FCC dodges

: I just got a reply, of sorts, to the Freedom of Information request I filed with the FCC asking for all documents “that contend or support the contention that Viacom and any of its subsidiaries — including but not limited to CBS and MTV — or executivesa were in any way aware before the fact that Janet Jackson’s breast would be exposed on the Super Bowl telecast.” The FCC said the exposure was the only illegal act and the company was the only guilty party — Jackson and Timberlake were not fined — and so I wanted to see what evidence they had the Viacom was directly responsible for the incident. My bet is that they have none and that will come out in court.

The FCC produced nothing in its reponse. Its letter says (leaving out the typographical omelet of the legal citations):

It would be inappropriate for us to characterize any evidence before us in the manner that you suggest because the Commission has issued a Notice of Apparent Liability (NAL) concerning the halftime entertainment show of the National Football League’s Super Bowl XXXVIII and the exposure of Janet Jackson’s breast.

The FOIA requires a reasonable description of the records sought. If, upon review of the NAL, you determine there are specific records you would like to obtain, you may file a new FOIA request with a better description of the documents you seek….”

I thought I was quite clear. Perhaps an attorney out there could give me better language to file this again. I want to see any interviews with the parties or documents from the parties related to Viacom and company’s foreknowledge of this event. From this letter, I’m not sure whether they’re saying I did not describe the documents properly or they shouldn’t discuss the case while it is active or both or neither. In any case, they dodged the question. So the only thing to do in dodgeball is to pick it up and throw it again.

The other way to go is for me to call the PR department but I think I’ll stay with this one more round as I also await my other FOIAs.

7 responses to “The FCC dodges”

  1. Ann Avatar
    Ann

    Thank you for keeping abreast of the latest Super Bowl technology.

  2. bob Avatar
    bob

    I think the FCC’s argument is this: Because there is case coming before them were they will be the decisionmaker, it would show improper bias to characterize facts as supporting a legal conclusion. For example, imagine if before the OJ case, Judge Ito went out in public and described all the facts he believed showed OJ’s guilt. Doing such a thing would undermine Judge Ito’s appearance of neutrality.
    Similarly, you have asked what facts show CBS is guilty. In response, the FCC is saying we should wait unitl after a full hearing to decide which facts show CBS is guilty before we decide which fact those are and before we announce these facts publicly.
    How do you get around it? You would have to ask the question in a way that gives you the information you want but doesn’t call for a legal conclusion.
    How specifically do you do that? I don’t know, but maybe someone else who is more creative than I am could figure out a way after reading this.

  3. Evan Avatar
    Evan

    Your FOIA request resulted in what I expected – a further waste of my taxpayer dollars answering your request to fight a indecency culture war that the vast and silent majority don’t care about. As such, you are no different than
    the PTC. Furthermore, in your other posts, you show yourself to be a hypocrite for telling the media and people to ‘cool it’ over silly things like Christmas carols, when you yourself are anything but cool over something equally silly like showing a breast on the public airwaves.
    As for your request, I think you misunderstand the ‘I’ in the FOIA. It stands for information, not interrogation. You have the right to get documents and information, not interrogate the commissioners about their reasoning, which is what you clearly want to do. You don’t simply ask for documents, you ask for documents that swayed the decision. It’s just as silly as demanding that a jury pinpoint what exact evidence they used to decide their verdict.
    As your response states, you are entitled to documents that were filed with the FCC. If you want, you can probably get a tape of the halftime show, a copy of the complaints, a copy of MTV’s statements promising a shocking halftime show before the Super Bowl, and any Viacom documents submitted to the FCC explaining their position. You are not entitled to require the FCC to specify which of those documents they used to make their decision.
    So keep up your silly writing campaign if you must, at the same time you denounce the PTC for their silly writing campaigns. I just wish you would take your own advice and “Cool it”.

  4. Geoff Bryan Avatar
    Geoff Bryan

    Your request is a “rhetorical” one, in that it seeks “all documents that support” a proposition. In litigation, rhetorical requests are served so that the propounder can later make arguments from an empty or feeble response: “We asked them for all documents supporting thus-and-such, and what did they come back with? Nothing.”
    In discovery, however, if you actually want to get something, it is usually better to frame requests in non-rhetorical terms. Thus, you ask for all documents that “refer to” or “mention” or “address the subject matter of” a particular proposition. It is also better to phrase the proposition neutrally.
    Here, the FCC can pretty safely say, “We’re not going to try to characterize these documents as supporting or not supporting a particular proposition. We’re not required to do that under the FOIA.” On the other hand, if you ask for all documents that “mention, refer to, or address the subject matter of the halftime show at Super Bowl 2004,” it is much more difficult for anyone to wiggle out of disclosing things. You might also include a separate category of documents that mention, refer to or address the subject matter of whether or not any person or entity associated with that broadcast had knowledge or reason to know, prior to the broadcast, of the possibility that the halftime show would include exposure of Janet Jackson’s breast.

  5. Jeff (not that Jeff) Avatar
    Jeff (not that Jeff)

    As Geoff notes, FOIA permits you to ask for documents, but doesn’t require the government to perform value judgments on a set of documents to see whether they fit within your request. Your request needs to be more specific, and remove any element of discretion.
    Why not go whole hog? “Any and all documents received from CBS or Viacom, or any present or former CBS or Viacom employee, relating to the halftime entertainment show of the National Football League’s Super Bowl XXXVIII and the exposure of Janet Jackson’s breast.” (always good to use their own words right back at them — they can’t very well say they don’t understand!)

  6. brett Avatar
    brett

    Geoff is right. They won’t make judgments (ironically) about what document supports what theory. Use “referring or relating to”, i.e. “all documents referring or relating to knowledge of Viacom executives about the event in question,” or something better worded.

  7. Karl (not Karl) Avatar
    Karl (not Karl)

    The characterization of the documents requested is part of the problem, but not all of it.
    Agencies generally have a knee-jerk response to requests that seek “all documents…,” regardless of what follows the ellipsis. In fact, I once had to draft FOIA regs regarding precisely that type of request. Jeff’s first FOIA request probably was similarly broad, but it was not problematic for the FCC because there undoubtedly was a file which would contain all of the complaints for a given case — and that file was easy to locate.
    In this sense, Geoff’s analogy to pretrial discovery in litigation is not exactly on point. Lawyers are often encouraged to propound broad requests (admittedly in non-rhetorical terms), as evidenced by the amount of litigation there is over the breadth and burdensomeness of discovery requests.
    In contrast, it may help FOIA requesters to imagine themselves in the shoes of an agency employee receiving the request, or those expected to try to fulfill it. You will quickly realize that your request is more likely to be met if you ask for things in relatively specific and neutral terms.
    For example, in this case, you could ask for (and this is off the top of my head, so you would want to refine this) correspondence in the FCC’s enforcement file for this case among officers or employees of: Viacom, MTV, CBS, Janet Jackson’s management company, etc. Obviously not including the etc. If you can name the entities associated with Ms. Jackson, so much the better. Make clear that what you want is letters these entities sent each other, not their correspondence with the FCC. Word the rtequest in such a way that an agency employee can say to himself or herself, “OK, I’ll get the enforcement file in this case and pull the letters that match this,” without having to ask themselves whether a particular document fits your request, because what you request is so obvious.
    Also, a prior poster seemed to suggest that the FCC may have been denying the request because the case is ongoing. Without seeing the full text of the letter you received, it’s impossible to say for sure, but since the agency has reached its decision, I tend to doubt it, unless the fine is not a final agency decision. Moreover, most agencies denying a request on that basis will cite the section of the FOIA which permits them to withhold investigatory materials.
    I hope that’s helpful to Jeff — and anyone else interested in FOIA requests.
    [As an aside, the question of having to pay for the request may become interesting. The FOIA generally allows fee waivers for the media, raising the question of whether blooggers are the media, which is really a question of why the government gets to define who is and is not the media.]