FCC v. Fox Television Stations, Part V: A digression on what it takes to change a policy.

I haven't had time to post lately, but now let me return to my series of posts discussing the background of the Supreme Court's "fleeting expletives" case from last month, FCC v. Fox Television Stations. Click here to see the whole string of posts, including this one, on a single page, in chronological order. (As usual, click here to watch George Carlin's monologue if you haven't done so already!)

In past posts, we've seen the evolution of the FCC's policy on regulating expletives. Recall that the FCC's statute, the Communications Act of 1934, has two sections that are somewhat in tension. First, we have the no-censorship provision, now codified at 47 U.S.C. § 326, which says:

Nothing in this chapter shall be understood or construed to give the Commission the power of censorship over the radio communications or signals transmitted by any radio station, and no regulation or condition shall be promulgated or fixed by the Commission which shall interfere with the right of free speech by means of radio communication.

Then, we have the no-indecency provision, now codified at 18 U.S.C. § 1464:

Whoever utters any obscene, indecent, or profane language by means of radio communication shall be fined under this title or imprisoned not more than two years, or both.

Originally, the FCC announced a policy where, say, the George Carlin monologue was considered "indecent" and therefore sanctionable; this policy was upheld in FCC v. Pacifica Foundation in 1978 — that story is told in this post. But over the years, they took the policy that "fleeting expletives" — if an expletive occurred in an isolated context, or by accident — were either not indecent or, if indecent, didn't merit any enforcement action.

The FCC reversed its policy over the last 5 years, first announcing its change in a case involving Bono and then applying its new policy to dozens of complaints it had in its backlog. All this was challenged — and that challenge resulted in the recent FCC v. Fox Television Stations case, which upheld the FCC's change of course (though leaving the First Amendment arguments for another day).

We'll discuss that case in a later post. But first, a bit of background. What does it take for an agency to legitimately change course? The classic case on this is Motor Vehicle Manufacturers Ass'n v. State Farm Mutual Automobile Insurance (1983), called State Farm for short. That's what the rest of this post is about.