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.

sk (mail):
"Now an agency can't just enact requirements and rescind requirements just like that; they have to issue written statements, which they publish in the Federal Register. And courts then analyze those statements to see whether they make sense, are consistent with the statute, respond to the comments, etc."

Are you sure about this? Agencies propose regulation, publish them in the federal register, and the courts review those proposed changes as a matter of course? I would have thought, rather, that agencies propose, publish in the federal register, then enact. Only if they are challenged in court (i.e. 'sued'), do courts analyze the proposed legislation.

6.2.2009 2:36pm
EnriqueArmijo (mail):
Very helpful, Prof. Volokh. When returning to Fox in Part VI, might you consider briefly discussing, to the degree you think it's relevant, the difference between an agency's adoption of policy via adjudication vs. via rulemaking, and the implications of the Fox holding on the latter, as well as the former?

In his Fox dissent, Justice Breyer said that the FCC's failure to address the issue of small broadcasters' difficulty in complying with the new indecency policy would have been arbitrary and capricious had the agency adopted said policy via notice-and-comment rulemaking. Justice Scalia blew this off, stating in a note something to the effect of "we've never conflated notice-and-comment rulemaking requirements with arbitrary-and-capricious review of an agency's adjudications." But it seems to me that Fox's interpretation of State Farm (which, as you note, was a rulemaking case) could easily be read to apply to an agency policy change adopted via notice-and-comment rulemaking. (This interpretation of Fox, incidentally, is the one that has given many of us admin/FCC lawyers the most cause for concern.)
6.2.2009 2:58pm
AughtSix (mail):
Perhaps this is a bit of a tangent but here goes...

...shall be fined under this title or imprisoned not more than two years, or both

Does that mean if an individual is fined for swearing on the radio (or on TV?) he becomes a prohibited person for the purposes of gun ownership? (Since he could have been imprisoned for greater than a year)
6.2.2009 3:14pm
Sasha Volokh (mail) (www):
sk: Yes, of course I mean only if someone sues. But if the agency doesn't provide that sort of reasoned explanation, you can bet someone will sue!
6.2.2009 3:53pm

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