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Publication Date

3-2010

Document Type

Casenote

Abstract

I. INTRODUCTION

Can agencies radically change policy simply because of a change in the White House? The United States Supreme Court's latest decision in FCC v. Fox Television Stations, Inc. suggests that agencies can do exactly that. The Federal Communications Commission (FCC), an independent United States agency, regulates the content of U.S. broadcasting stations. In 2002 and 2003, the FCC and Fox clashed when Fox aired two separate Billboard Music Awards (BMA) shows during which BMA guests uttered isolated expletives. Prior to these incidents, the FCC had never issued an indecency violation to a broadcaster for airing only isolated expletives. Nevertheless, the FCC issued a disciplinary order to Fox, finding such a violation. Fox petitioned for review by the United States Court of Appeals for the Second Circuit, which vacated and remanded the order because the FCC did not provide the fact-based "reasoned explanation" necessary for the policy change to meet the applicable arbitrary and capricious standard of review. After granting a writ of certiorari, the Supreme Court refined the reasoned-explanation requirement, holding that the FCC must only provide a subjective, reasoned explanation for its decision to meet the arbitrary and capricious standard of review. Pursuant to this refined reasoned-explanation test, the Court reversed the Second Circuit's decision. In doing so, the Supreme Court relaxed the requirement for when an agency changes policy, allowing increased executive influence in agency policy choices. Consequently, an agency's overall objective of serving the public interest may be hindered due to increased political influence in agency decision-making.

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