FCC v. Fox Television Stations, Inc.: Dirty Words and Messy Logic - the Supreme Court's Failure to Fix Broadcast Media Regulation

Edward J. Reilly

In FCC v. Fox Television Stations, Inc., the Supreme Court of the United States considered whether the Federal Communication Commission's (“FCC”) new policy allowing sanctions on fleeting and isolated expletives was arbitrary and capricious pursuant to the Administrative Procedure Act (“APA”). The Court held that the FCC provided a reasoned basis and explanation for its new policy and therefore ruled that the policy was not arbitrary and capricious. In finding that the FCC's new policy was not arbitrary and capricious, the Court failed to require the FCC to sufficiently explain why its longstanding policy was no longer adequate.

In addition, the Court erred in accepting the FCC's unreasonable reliance on outdated and anachronistic precedents such as Red Lion Broadcasting Co. v. FCC and FCC v. Pacifica Foundation, cases that relied on circumstances of broadcast media that no longer apply, to justify the FCC's unique regulations on broadcast media. Furthermore, the Court failed to review and invalidate the FCC's enforcement regime on constitutional grounds despite the fact that its regime is based on unsound and invalid constitutional precedents.