CBS Corp. v. FCC - 663 F.3d 122 (3d Cir. 2011)

Rule:

The scope of review under the arbitrary and capricious standard is narrow, and a court is not to substitute its judgment for that of the agency. Nevertheless, the agency must reach its decision by examining the relevant data, and it must articulate a satisfactory explanation for its action including a rational connection between the facts found and the choice made. A court will generally find agency action arbitrary and capricious where the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise. The reviewing court should not attempt itself to make up for such deficiencies; we may not supply a reasoned basis for the agency's action that the agency itself has not given. 

Facts:

The sanctions stemmed from CBS Corp.’s live broadcast of a Super Bowl Halftime Show, which resulted in the exposure of a bare female *** on camera, an act that lasted nine-sixteenths of one second. CBS transmitted the image over public airwaves, resulting in punitive action by the Federal Communications Commission (FCC). CBS challenged the FCC orders on constitutional, statutory, and public policy grounds.

Issue:

Was FCC’s new policy, under which it sanctioned CBS, arbitrary and capricious as applied to CBS?

Answer:

Yes.

Conclusion:

Inter alia, although the court held that, until its Golden Globes decision, the FCC's policy was to exempt fleeting or isolated material from the scope of actionable indecency. CBS’s broadcast occurred prior to Golden Globes and this was the policy in effect at the time. Like any agency, the FCC could change its policies without judicial second-guessing. But it could not change a well-established course of action without supplying notice of and a reasoned explanation for its policy departure. Because the FCC failed to satisfy this requirement, its new policy, under which it sanctioned CBS, was arbitrary and capricious as applied to CBS. Further, the exception for fleeting material under that regulatory scheme treated images and words alike.