The current FCC is using its numbered days to petition the Supreme Court to uphold its authority over fleeting material in broadcast programming. If Chairman Kevin Martin & Co. fail to get a sympathetic ear from the highest court, the fat lady could be singing one foul tune as failed regulators exit stage right, and that might be a good thing.

Reasoning similar to that which protects Internet companies could protect CBS and others from what guests and third parties say or do on live television—or television in general. Under the Communications Decency Act, Internet computer services providers—blogging platforms, social networks, or any service where third parties contribute content—are exempt from liability for content contributed by third parties.

In short, that generally means Facebook isn’t responsible for content appearing there.

This same kind of logic could apply to broadcast networks who’ve hired third-party contractors for live entertainment. In this case, the one involving the infamous Janet Jackson Super Bowl Nipplegate, where a split-second flash of unacceptable flesh was inadvertently broadcast to millions who likely missed it, CBS could remain off the punitive hook.

In addition to questioning how the FCC’s ruling wasn’t “arbitrary and capricious” government agency behavior, the Third Circuit Court (the last stop before the US Supreme) struck down the FCC’s ruling against CBS because though the FCC had a fleeting expletives policy in place (one many found grossly overreaching), there was no policy in place regarding fleeting images. Even more, a ruling from 2000 regarding the broadcast of the movie Schindler’s List stated that "nudity itself is not per se indecent." 

The lower court’s decision effectively limits the FCC’s authority over broadcast content. Already the FCC’s authority to regulate broadcast content was on shaky constitutional ground—after all, it is a government agency abridging speech on the grounds that the airwaves are public and broadcasts are free, one-way communications. Only since the late 70’s has the agency had this authority—thanks to George Carlin’s infamous seven words you can’t say on TV–granted to them by an earlier generation’s Supreme Court. Until then, television was self-regulated by advertisers and a more prudish society/audience.

Declaring something “indecent” has always been a difficult case to prove, but the FCC was granted significant license to decide that which violated cultural norms. This subjective guideline has since led to the regulatory agency discussing words like “hamsterbating,” and whether or not they find such content to have shocked and titillated them.

Being both shocked and titillated, you see, is required, and three out of five commissioners must agree. So, it is feasible that while two commissioners were most certainly shocked and titillated by something, the other three were split, one shocked but not titillated, two titillated but not shocked, and so on.

You can see where such fine lines can be troublesome.

At this point it seems quite obvious the need to define exactly and clearly mark what authority the FCC has. Comcast has challenged that without legislation, the agency can do nothing in the way of sanctions to prevent the company from throttling peer-to-peer traffic. And they may be right. Now, if the Supreme Court agrees with the Third Circuit Court, the FCC’s authority to regulate content is also in question.

This loss of authority—and credibility—can rest squarely on the shoulders of Chairman Kevin Martin, who has crusaded against trivialities such as fleeting expletives and images on live broadcasts, pushed for regulation of paid content—such as that on cable channels—while conveniently dancing around his agency’s authority to enforce principles against Internet providers, audibly announcing the net neutrality stipulations in AT&T’s merger with Bell South had no teeth whatsoever before using said lack of teeth on Comcast, apparently just for being a cable company.

This same chairman, who sought to expand the FCC’s authority over content from broadcast—a free one-way medium—to cable—paid, one-way medium, also recently proposed a content-filtered national wireless broadband network—a free, two-way medium—presumably governed by the FCC’s evolving, expanding and contracting idea of decency. The proposal was remarkably similar to a proposal from M2Z Martin pushed against until such a network could be politically advantageous, such as now, as he mulls an elected political career.

Just so that last part is clear: the content-filtered national wireless broadband network paves the way for the FCC to have authority over Internet content, an authority it has thus far not exhibited competence or constitutional or legal standing to exercise, exerting that authority when the agency can agree 3-2 at least on the extent to which they are shocked and titillated.

Is it just me, or is that a bad idea?