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FCC v. Fox Television Stations, Inc.

Supreme Court of the United States · 2009 · Constitutional Law

Constitutional LawAdministrative LawFCC indecency regulationAdministrative Procedure Actarbitrary and capricious reviewagency policy changeFCCbroadcast indecency

Facts

Federal law prohibits broadcasting indecent language, and the FCC historically treated context as critical in deciding whether language was indecent. In 2004, in its Golden Globes Order, the FCC announced that even a single, nonliteral use of the F-Word could be actionably indecent and stated that prior contrary rulings were no longer good law. This case involved Fox broadcasts of the 2002 and 2003 Billboard Music Awards in which Cher and Nicole Richie used the F-Word, and Richie also referred to excrement. On remand, the FCC found both broadcasts actionably indecent, relying on their sexual or excretory content, their gratuitous and shocking nature, and the prime-time context, but declined to impose sanctions.

Issue

Whether the FCC's change in policy to permit regulation of isolated or fleeting expletives, and its indecency findings as to Fox's broadcasts, were arbitrary or capricious under the Administrative Procedure Act because the agency inadequately explained its departure from prior policy. The Court did not decide the First Amendment question.

Rule

The APA does not require heightened judicial review whenever an agency changes policy. An agency must display awareness that it is changing position, show that the new policy is permissible under the statute, provide good reasons for it, and account for circumstances such as contradictory prior factual findings or serious reliance interests when those are present; it need not prove the new policy is better than the old one.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

The Coastal Safety Bureau had long allowed cargo ferries to use hand-written incident logs so long as the logs were retained for 30 days. In a new adjudicatory order involving Harborline Transit in Seattle, the Bureau announced that prior contrary rulings were no longer good law and now required digital logs, explaining that digital storage is cheaper, easier to search, and reduces data loss.

If Harborline argues that the Bureau's action is invalid because any agency reversal automatically triggers a heightened arbitrary-and-capricious standard, how should a court rule?

Explanation. Under the majority opinion, the APA does not impose a heightened standard of review merely because an agency changes policy. The agency must show awareness of the change, that the new policy is permissible under the statute, and that there are good reasons for it. It need not prove to the court that the new policy is better than the old one, and the rule is not limited to notice-and-comment rulemaking. (Derived from FCC v. Fox Television Stations, Inc. (2009).)