On April 28, 2009, in a 5-4 decision, the U.S. Supreme Court issued its much-anticipated ruling in FCC v. Fox and upheld the Commission's "fleeting indecency" policy under the Administrative Procedures Act (APA). In the case, Fox and other networks had objected to the agency's abrupt decision to change its policy and issue sanctions for isolated utterances of indecent words, namely the "F-word" and the "S-word."
Writing for the court, Justice Scalia rejected each of the Second Circuit's criticisms of the Federal Communications Commission's (FCC's) policy change and found that the agency satisfied its procedural burdens under the APA when it changed the way it regulates the broadcast of indecent material. Citing the lack of a constitutional holding below, the court declined to rule whether the Commission's policy is consonant with the First Amendment.
Justices Breyer, Stevens, Souter and Ginsburg filed dissenting opinions.
A copy is available here.
A more detailed analysis of the court's ruling in FCC v. Fox and its potential impact on broadcasters will be forthcoming in the May newsletter.