The FCC has filed its brief in the remand of the Janet Jackson case. It of course describes its own path through the byzantine history of indecency regulation to justify the Commission's determination that the half-time show of a Super Bowl that took place more than five years ago was indecent. Whatever we may think of the legal arguments, one fact is becoming apparent: this case is many, many years from final resolution.
The case first worked its way to the Supreme Court on pure administrative law questions. The truly problematic nature of the Commission's decision - its insistence on applying a different and more puritanical standard to this one last little corner of the vast media universe - was left to the side. It remains there.
Now the Commission is asking the appeals court to remand the case to the Commission yet again so that it can determine whether CBS's conduct was "willful" (by which the FCC means "reckless"). If the court accedes to that request when it issues its decision later this year or in early 2010, further pleadings will have to be filed at the FCC, the Commission will presumably move at its customary costive pace, and a subsequent FCC decision limited to the new question of CBS's "scienter" can be expected perhaps by early 2011.
Given that the FCC already has made it clear that it believes CBS's conduct in this matter to have been actionably "willful," its decision in 2011 explaining that conclusion likely will be appealed. Based on the proceedings thus far, it is fair to assume that each further appeal in this process will take more than a year to be briefed, argued, and resolved. That is, we are likely to be well into 2012 by the end of the next stage of appeals.
From that point, it is harder to predict the course that the case will take, but we can be sure that it will be protracted. Like a steamed dinner, this case will not be fully cooked for quite some time. For, whichever side prevails in the inevitable next appeal, there is a fair chance that the case will go again to the Supreme Court, which could well be followed by further proceedings on remand; all still before the question of whether this whole charade is constitutional is squarely addressed.
Can we not all agree that there is something wrong with this process? The media landscape has changed dramatically, even since that fateful day in 2004 when Justin Timberlake pulled the veil from the now senescent Ms. Jackson, and it will likely be unrecognizable by the time any final conclusion in this matter is reached - which could be another ten years hence.
The problem is that the wheels of justice turn slowly while the wheels of technology propel the media markets ahead at a blistering pace. We simply can't go on pretending that broadcasting is what it was in the 1970s, 1980s, or even in the 1990s. The markets have changed, the number of program options has grown, consumers' usage patterns have become more varied and variable, new delivery platforms have evolved, and the technologies available to manage media on a personal level - especially for parents - have become ever more sophisticated. It is time the "expert" agency recognize the media revolution that has occurred and abandon its holy war on broadcasting.
