Second Circuit Shows Preference for Indecency

The Federal Communications Commission (FCC) is appealing to the Supreme Court the recent ruling by the U.S. Court of Appeals for the 2nd Circuit in Fox v. FCC.¹ In this ruling, the 2nd Circuit said the FCC's "policy sanctioning 'fleeting expletives' is arbitrary and capricious under the Administrative Procedure Act."² However, a closer look at the court's opinion shows that all the 2nd Circuit did was substitute its belief for that of the FCC, failing to give the agency the deference it deserves under the law.

The Supreme Court has said that great deference is to be given to federal agencies under the Administrative Procedure Act: "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."³ That is precisely what the 2nd Circuit did here.

Though Judge Rosemary S. Pooler, writing for the majority, said the FCC failed "to articulate a reasoned basis for its change in policy,"⁴ the record shows the agency did articulate its reasons. Judge Pierre N. Leval said in his dissent:

[T]he Commission's central explanation for the change was essentially its perception that the "F-word" is not only of extreme and graphic vulgarity, but also conveys an inescapably sexual connotation. The Commission thus concluded that the use of the F-Word - even in a single fleeting instance without repetition - is likely to constitute an offense to the decency standards of § 1464.⁵

Apparently, the 2nd Circuit disagrees with the FCC and does not think the F-word is vulgar or inappropriate for children to be exposed to, and that is fine. But it does not give them the legal authority to say the FCC acted arbitrarily and capriciously. Agencies have broad discretion to establish rules and standards, and courts are required to give deference to the agency.⁶

Much of the argument in the case seemed to be centered on the fact that the FCC was changing its standards from saying that it would fine the repetitive use of indecent words⁷ to saying that even one isolated use of an indecent word could also merit a fine. But that should make no difference; the agency is within its right to revise its policies. The Supreme Court made clear in Chevron that "[a]n initial agency interpretation is not instantly carved in stone."⁸

In deciding if a broadcast is in violation of decency standards, the FCC takes a look at community standards, but apparently those standards are only acceptable when they are moving towards more indecency and more profanity. They are not as nice when they are moving towards us being more decent as a people.

As evidenced by the public outcry against the infamous Janet Jackson "wardrobe malfunction," there has been a major shift in the public's tolerance of the filth we are served through public airwaves. The FCC should be able to respond to the public's concern and establish strict guidelines for those who have the privilege of making money through the use of the public's airwaves.