Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Monday, June 4, 2007

Second Circuit Finds New FCC Standard Arbitrary and Capricious

The Second Circuit has ruled that the FCC's new standard regarding "fleeting expletives" is arbitrary and capricious under the Administrative Procedure Act because the agency has failed "to articulate a reasoned basis for its change in policy." Fox Television, along with intervenors had challenged a November 2006 FCC order issuing notices of apparent liability.

The court examined the agency's prior applications of the Pacifica decision. "First, there is no question that the FCC has changed its policy. As outlined in detail above, prior to the Golden Globes decision the FCC had consistently taken the view that isolated, non-literal, fleeting expletives did not run afoul of its indecency regime.....Agencies are of course free to revise their rules and policies.... Such a change, however, must provide a reasoned analysis for departing from prior precedent.....Accordingly, agency action will be set aside as arbitrary and capricious if the agency fails to provide a reasoned explanation for its decision....Our evaluation of the agency’s reasons for its change in policy is confined to the reasons articulated by the agency itself. occurrence of an expletive is indecent or profane under its rules. For example, although “there is no outright news exemption from our indecency rules,”... the Commission will apparently excuse an expletive when it occurs during a “bona fide news interview,” ...(deferring to CBS’s “plausible characterization” of a segment of The Early Show interviewing a contestant on its reality show Survivor: Vanuatu as news programming and finding expletive uttered during that part of the show not indecent or profane). Certainly viewers (including children) watching the live broadcast of The Early Show were “force[d] take the ‘first blow’” of the expletive uttered by the Survivor: Vanuatu contestant. Yet the Commission emphasized during oral argument that its news exception is a broad one and “the Commission has never found a broadcast to be indecent on the basis of an isolated expletive in the face of some claim that the use of that language was necessary for any journalistic or artistic purpose.” ...[T]he record simply does not support the position that the Commission’s new policy was based on its concern with the public’s mere exposure to this language on the airwaves. The “first blow” theory, therefore, fails to provide the reasoned rationale is disconnected from the actual policy implemented by the Commission....The primary reason for the crackdown on fleeting expletives advanced by the FCC is the so-called “first blow” theory described in the Supreme Court’s Pacifica decision. In Pacifica, the Supreme Court justified the FCC’s regulation of the broadcast media in part on the basis that indecent material on the airwaves enters into the privacy of the home uninvited and without warning....The Court rejected the argument that the audience could simply tune-out: “To say that one may avoid further offense by turning off the radio when he hears indecent language is like saying that the remedy for an assault is to run away after the first blow.”.... We cannot accept this argument as a reasoned basis justifying the Commission’s new rule. First, the Commission provides no reasonable explanation for why it has changed its perception that a fleeting expletive was not a harmful “first blow” for the nearly thirty years between Pacifica and Golden Globes. More problematic, however, is that the “first blow” theory bears no rational connection to the Commission’s actual policy regarding fleeting expletives."

With regard to the constitutionality of the speech at issue, the court noted that "that in reviewing these numerous constitutional challenges, which were fully briefed to this court and discussed at length during oral argument, we are skeptical that the Commission can provide a reasoned explanation for its “fleeting expletive” regime that would pass constitutional muster....speech covered by the FCC’s indecency policy is fully protected by the First Amendment....With that backdrop in mind, we question whether the FCC’s indecency test can survive First Amendment scrutiny. For instance, we are sympathetic to the Networks’ contention that the FCC’s indecency test is undefined, indiscernible, inconsistent, and consequently, unconstitutionally vague. Although the Commission has declared that all variants of “fuck” and “shit” are presumptively indecent and profane, repeated use of those words in “Saving Private Ryan,” for example, was neither indecent nor profane."

Finally, the court concluded, "[w]e are doubtful that by merely proffering a reasoned analysis for its new approach to indecency and profanity, the Commission can adequately respond to the constitutional and statutory challenges raised by the Networks. Nevertheless, because we can decide this case on this narrow ground, we vacate and remand so that the Commission can set forth that analysis. While we fully expect the Networks to raise the same arguments they have raised to this court if the Commission does nothing more on remand than provide additional explanation for its departure from prior precedent, we can go no further in this opinion. Accordingly, we grant the petition for review, vacate the order of the FCC, and remand the case for further proceedings consistent with this opinion. The stay previously granted by this court is vacated as moot."

Read the entire ruling here. The case is Fox v. Federal Communications Commission, Docket Nos. 06-1760-ag (L), 06-2750-ag (CON), 06-5358-ag (CON).

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