Originally published April 28, 2009
Keywords: Federal Communications Commission, FCC, Fox Television, penalties, obscene, indecent, profane language, Enforcement Bureau, fleeting expletives, change in policy, Administrative Procedure Act
Today the Supreme Court issued a decision, described below, of interest to the business community.
Federal Communications Commission v. Fox Television Stations, Inc., No. 07-582 (previously discussed in the March 17, 2008 Docket Report).
The Federal Communications Commission (FCC) began exercising its statutory authority to impose penalties for the use of "obscene, indecent, or profane language" over the airwaves in response to Pacifica Radio's infamous 1975 daytime broadcast of comedian George Carlin's "Filthy Words" monologue. In the wake of that action, and until the incidents that led to today's decision, the FCC took the position that so-called "fleeting," non-literal use of the "F- and S-Words" were not actionably indecent. In response to a complaint about a broadcast of the 2003 Golden Globes awards, however, at which the musician Bono stated that an award he had received was "really, really, f-----g brilliant," the FCC changed course and reversed its own Enforcement Bureau, determining that the "F-Word" "invariably invokes a coarse sexual image" and, when used in a "shocking and gratuitous manner," was actionable even in isolated, non-literal use. Slip op. at 5. In reaching this decision, the FCC acknowledged that it was changing course, and overruled prior interpretations to the extent that they held fleeting expletives non-actionable. Subsequently, the FCC declared actionably indecent two incidents of similar fleeting expletives that were broadcast by Fox prior to the Golden Globes order. Fox and various intervenors challenged the FCC's decisions, and the Second Circuit reversed, finding the orders arbitrary and capricious under the Administrative Procedure Act.
In an opinion by Justice Scalia, a five-Justice majority held that the FCC's orders were neither arbitrary nor capricious. The Court first rejected the Second Circuit's contention that administrative agencies are subject to "more searching review" of agency actions that represent a change in policy: while the agency must "display awareness that it is changing position," and must base its new position on good reasons, "it need not demonstrate to a court's satisfaction that the reasons for the new policy are better than the reasons for the old one." Slip op. at 11. Applying this standard, the Court concluded that the FCC had provided adequate, rational reasons for its change of course, crediting the agency's findings regarding the harm inflicted by fleeting expletives, and rejecting the Second Circuit's view that such findings must be supported by evidence, at least when—as the Court concluded was the case here—such evidence is "unobtainable." Id. at 15. The majority did not reach the constitutionality of the FCC's ruling under the First Amendment, noting that "[t]he Second Circuit did not definitively rule" on that aspect of the broadcasters' challenge, rendering it unripe for review. Id. at 25-26.
In a dissent by Justice Breyer, a four-Justice minority contended that it is "arbitrary, capricious, [and] an abuse of discretion" for an agency to reverse course without adequate explanation of why the change in policy is warranted, particularly when the agency relies on "factors well known to it the first time around." Breyer Dissent at 1. In the dissent's view, it is not enough for the agency to explain "why the new policy is a good one"; rather, the agency must also explain why the change in policy is appropriate, something that requires "a more complete explanation than would prove satisfactory were change itself not an issue." Id. at 3-4. According to the dissenters, the standard announced by the majority represents a departure from the implications of Motor Vehichle Manufacturers' Association of the United States, Inc. v. State Farm Mutual Automobile Insurance Co., 463 U.S. 29, 41 (1983), which required a more thorough explanation for "revocation" of a prior action than for an agency's failure to act in the first instance. Breyer Dissent at 4.
While joining parts or all of the two principal opinions, Justices Thomas, Kennedy, Stevens, and Ginsburg each wrote a separate opinion as well.
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