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FCC v. Fox TV Stations, Inc. - 556 U.S. 502, 129 S. Ct. 1800 (2009)


The Administrative Procedure Act, 5 U.S.C.S. § 551 et seq., which sets forth the full extent of judicial authority to review executive agency action for procedural correctness, permits the setting aside of agency action that is "arbitrary" or "capricious," 5 U.S.C.S. § 706(2)(A). Under what has been called this "narrow" standard of review, courts insist that an agency examine the relevant data and articulate a satisfactory explanation for its action. It has been made clear, however, that a court is not to substitute its judgment for that of the agency, and should uphold a decision of less than ideal clarity if the agency's path may reasonably be discerned. 


This case concerned isolated utterances of the F- and S-Words during two live broadcasts aired by Fox Television Stations, Inc. The Federal Communications Commission (FCC) filed an action for indecency under 18 U.S.C.S. § 1464 and the Communications Act of 1934 against Fox. Although the District Court found the incidents actionable, it did not impose sanctions for either broadcast.  On appeal, the Second Circuit set aside the agency action, declining to address the constitutionality of the FCC's action but finding the FCC's reasoning inadequate under the Administrative Procedure Act (“APA”).


Was the United States Court of Appeals for the Second Circuit's reversal proper?




The judgment of the United States Court of Appeals for the Second Circuit was reversed, and the case was remanded. The Court held that there was no distinction between initial agency action and later action revising the prior action such that a heightened standard of review applied to the FCC's new enforcement policy that did not distinguish between literal and nonliteral uses of offensive words and not requiring repetitive use. Knowing it was making a change, the FCC did not assess any penalties. It was reasonable to determine that it made no sense to distinguish between literal and nonliteral uses of offensive words, or to require repetitive use to render only the latter indecent. It was rational to believe that a safe harbor for single words would likely lead to more widespread use of the offensive language. The FCC could rationally decide the old nonrepetitive use policy was at odds with its overall enforcement policy. That technology allowed for bleeping out offending words further supported the stepped-up enforcement policy. Scientifically certain criteria were not required. The decision to consider the patent offensiveness of isolated expletives on a case-by-case basis was not arbitrary or capricious. The FCC's repeated reliance on context showed it had not adopted a presumption of indecency.

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