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FCC v. Fox Television Stations, Inc.

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Supreme Court of the United States
FCC v. Fox Television Stations, Inc.
Reference: 556 U.S. 502
Term: 2009
Important Dates
Argued: November 4, 2008
Decided: April 28, 2009
Outcome
United States Court of Appeals for the 2nd Circuit opinion reversed and remanded
Majority
Antonin Scalia • Chief Justice John Roberts • Anthony Kennedy • Clarence Thomas • Samuel Alito
Dissenting
John Paul Stevens • Ruth Bader Ginsburg • Stephen Breyer • David Souter

Federal Communications Commission et al. v. Fox Television Stations, Inc., et al. is a United States Supreme Court case applying the arbitrary-or-capricious test to a policy change made by the FCC regarding how to enforce rules against indecency. The Court upheld the FCC order clarifying that the agency could consider single uses of expletives during broadcasts to be violations of indecency restrictions.[1][2]

HIGHLIGHTS
  • The case: The United States Court of Appeals for the 2nd Circuit ruled that the FCC acted in an arbitrary and capricious manner when it changed its policy regarding fleeting usage of expletives during broadcasts. The Second Circuit held that the FCC gave inadequate reasons for the policy change.
  • The issue: Whether the FCC imposition of liability for fleeting expletives on Fox Televisions Stations, Inc. was arbitrary and capricious under the Administrative Procedure Act.
  • The outcome: The Supreme Court reversed the lower court's ruling. The opinion held that the FCC policy change was not arbitrary and capricious.


    • Why it matters: The ruling laid out a narrow scope for the arbitrary-or-capricious test. The decision also suggested that the U.S. Supreme Court would not require agencies to meet a higher standard to change existing policies than what the law requires agencies to meet to make an original policy.[1]

    Background

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    Arbitrary-or-capricious test

    The arbitrary-or-capricious test is a legal standard of review used by judges to assess the actions of administrative agencies. It was originally defined in a provision of the 1946 Administrative Procedure Act (APA), which instructs courts reviewing agency actions to invalidate any that they find to be "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." The test is most frequently employed to assess the factual basis of an agency's rulemaking, especially informal rulemakings.[3][4][5][6]

    The case

    During two live broadcasts aired by Fox Television Stations, Inc., in 2002 and 2003 performers used expletives. After the broadcasts, the Federal Communications Commission (FCC) received numerous complaints from parents who said their children were exposed to the language. The FCC found that the broadcasts were actionably indecent, holding the company responsible for airing the offending broadcasts without taking steps to censor the indecent content, but the FCC did not impose sanctions.[1]

    To justify its reasoning, the FCC cited the 2004 Golden Globes Order order that clarified its approach to enforcing rules against indecent broadcasts. The agency held that the broadcasts violated indecency rules in place before the Golden Globes Order but that the 2004 clarification removed questions about whether singular or fleeting usage of expletives broke those rules. Fox and other television companies joined together to challenge the FCC decision before the United States Court of Appeals for the 2nd Circuit.[1]

    The Second Circuit reversed the FCC's orders and called the agency's reasoning inadequate under the Administrative Procedure Act. The case then came before the U.S. Supreme Court.[1]

    Oral argument

    Oral arguments were held on November 4, 2008. The case was decided on April 28, 2009.[1]

    Decision

    The U.S. Supreme Court reversed the lower court's ruling with a 5-4 vote. The majority opinion was written by Justice Antonin Scalia.[1]

    Opinions

    Opinion of the court

    Writing for the majority, Justice Antonin Scalia outlined the narrow scope of judicial review under the arbitrary-or-capricious test by pointing to the earlier cases Vermont Yankee and State Farm. The Court held that when agencies change prior policy, there is no heightened standard of review required by law:[1]

    “ We find no basis in the Administrative Procedure Act or in our opinions for a requirement that all agency change be subjected to more searching review. The Act mentions no such heightened standard. And our opinion in State Farm neither held nor implied that every agency action representing a policy change must be justified by reasons more substantial than those required to adopt a policy in the first instance. That case, which involved the rescission of a prior regulation, said only that such action requires 'a reasoned analysis for the change beyond that which may be required when an agency does not act in the first instance.' (emphasis added) Treating failures to act and rescissions of prior action differently for purposes of the standard of review makes good sense, and has basis in the text of the statute, which likewise treats the two separately. It instructs a reviewing court to 'compel agency action unlawfully withheld or unreasonably delayed,' and to 'hold unlawful and set aside agency action, findings, and conclusions found to be [among other things] … arbitrary [or] capricious.' The statute makes no distinction, however, between initial agency action and subsequent agency action undoing or revising that action.


    To be sure, the requirement that an agency provide reasoned explanation for its action would ordinarily demand that it display awareness that it is changing position. An agency may not, for example, depart from a prior policy sub silentio or simply disregard rules that are still on the books. And of course the agency must show that there are good reasons for the new policy. But 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; it suffices that the new policy is permissible under the statute, that there are good reasons for it, and that the agency believes it to be better, which the conscious change of course adequately indicates. This means that the agency need not always provide a more detailed justification than what would suffice for a new policy created on a blank slate. Sometimes it must—when, for example, its new policy rests upon factual findings that contradict those which underlay its prior policy; or when its prior policy has engendered serious reliance interests that must be taken into account. It would be arbitrary or capricious to ignore such matters. In such cases it is not that further justification is demanded by the mere fact of policy change; but that a reasoned explanation is needed for disregarding facts and circumstances that underlay or were engendered by the prior policy.[7][1][8]

    		”

    In ruling in favor of the FCC, the Court said that the agency's new order was neither arbitrary not capricious because it acknowledged that its recent actions broke with prior actions and because the Golden Globes Order explicitly rejected past action as no longer good law. The Court held that it was rational to expand FCC enforcement activity in light of the slight difference between literal and nonliteral uses of offensive language and the fact that technology has made censoring offending words easier. The Court argued that the FCC's decision to retain some discretion does not render regulation of deliberate and shocking uses of offensive language arbitrary and capricious.[1]

    Justice Scalia did not write part III-E, which addressed the arguments of the dissenting opinions, for the majority. The opinion concludes by reversing the judgment of the Second Circuit and remanding the case for further proceedings.[1]

    Concurring opinions

    Justice Anthony Kennedy wrote an opinion agreeing with Justice Stephen Breyer's dissenting opinion that an agency may not reverse an earlier policy without providing a reasoned explanation for doing so. To meet the requirements of the arbitrary-or-capricious test, agencies might need to demonstrate that new policies rest "upon principles that are rational, neutral, and in accord with the agency’s proper understanding of its authority." Kennedy argues that administrative agencies occupy a unique constitutional position that requires procedural safeguards in order to maintain principles of separation of powers and that the arbitrary-or-capricious test is one of those safeguards.[1]

    Justice Clarence Thomas agreed with the majority opinion, but disagreed with the precedents the FCC cited in support of its constitutional authority to regulate the broadcasts at issue in the case. He argued that technological changes undermined broadcasting exceptions to First Amendment protections.[1]

    Dissenting opinions

    Justice Stephen Breyer wrote a dissenting opinion joined by Justices John Paul Stevens, David Souter, and Ruth Bader Ginsburg. He held that the FCC's change in its policy toward indecent broadcasts was arbitrary, capricious, and an abuse of discretion according to precedent in State Farm and [[Citizens to Preserve Overton Park v. Volpe| Overton Park. Breyer argued that agencies must explain the reasons behind policy changes and consider all of the relevant factors in doing so.[1]

    Justice Ruth Bader Ginsburg wrote a dissenting opinion focusing on constitutional questions left unanswered by the majority. She said that the court should remember "that words unpalatable to some may be 'commonplace' for others, 'the stuff of everyday conversations.'[1]

    Justice John Paul Stevens wrote a dissenting opinion emphasizing his view of the FCC as an agent of Congress. He argued that FCC's change in indecency policy threatens broadcasters with crippling financial penalties after they have operated under different standards for decades. He also disagreed with the majority's understanding of what makes some words indecent. He distinguished between words that are merely impolite and those that are indecent under the law.[1]

    Impact

    The case came back to the U.S. Supreme Court in 2012. The Second Circuit found that the FCC's indecency policy was unconstitutionally vague when it re-considered the case after the Supreme Court decision in 2009. Beyond the Fox broadcasts mentioned in the 2009 case, the FCC fined ABC Television Network for airing a scene of momentary nudity during the show NYPD Blue. The Second Circuit vacated the order against ABC in light of its decision with regard to Fox.[9]

    Justice Anthony Kennedy wrote for the 8-0 majority that the FCC's failure to give Fox and ABC fair notice prior to their broadcasts made the application of the new indecency standards vague. Kennedy argued that the vague application of the policy violated the Due Process Clause but did not mention the policy's First Amendment implications. The opinion vacated the judgments of the Second Circuit and remanded the cases for further proceedings.[9]

    See also

    External links

    Footnotes

    1. ↑ 1.00 1.01 1.02 1.03 1.04 1.05 1.06 1.07 1.08 1.09 1.10 1.11 1.12 1.13 1.14 1.15 JUSTIA, "FCC v. Fox Television Stations, Inc., 556 U.S. 502 (2009)" accessed October 1, 2018
    2. ↑ Oyez, "FCC v. Fox Television Stations, Inc.," accessed October 1, 2018
    3. ↑ The Regulatory Group, "Regulatory Glossary," accessed August 4, 2017
    4. ↑ Electronic Privacy Information Center, "The Administrative Procedure Act (APA)," accessed August 14, 2017
    5. ↑ Environmental Protection Agency, "Summary of the Administrative Procedure Act," accessed August 14, 2017
    6. ↑ Center for Effective Government, "Arbitrary-or-Capricious Test," accessed August 15, 2017
    7. ↑ Internal citations and quotations have been omitted
    8. ↑ Note: This text is quoted verbatim from the original source. Any inconsistencies are attributable to the original source.
    9. ↑ 9.0 9.1 JUSTIA, "Fed. Commc'n Comm'n v. Fox Television Stations, Inc., 567 U.S. 239 (2012)," accessed October 3, 2018
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