Fox Television and the FCC: A Deep Dive into Indecency Regulations

Fox Television, a major player in the American broadcasting landscape, has often found itself at the center of debates regarding indecency regulations enforced by the Federal Communications Commission (FCC). This article examines a landmark Supreme Court case, FCC v. Fox Television Stations, Inc., which delves into the complexities of these regulations and their application to fleeting expletives on live television.

The case originated from two separate incidents involving the unscripted use of expletives during live broadcasts aired by Fox Television. The FCC, having previously adopted a more lenient approach, issued the Golden Globes Order in 2004, declaring that even single, non-literal uses of the F-Word and S-Word could be considered indecent. This marked a significant shift in the FCC’s enforcement policy, potentially exposing broadcasters to penalties for isolated instances of profanity.

The FCC subsequently found the Fox broadcasts to be in violation of its indecency regulations. While acknowledging the lack of repetition, the FCC argued that the words’ inherent offensiveness, particularly in relation to sexual or excretory functions, justified the ruling. However, no sanctions were imposed on Fox. The Second Circuit Court of Appeals overturned the FCC’s decision, not on constitutional grounds, but based on perceived inadequacies in the FCC’s reasoning under the Administrative Procedure Act (APA). The court argued that the FCC had not sufficiently justified its departure from previous policy.

The Supreme Court, in a 2009 decision, reversed the Second Circuit’s ruling. Justice Scalia, writing for the majority, argued that the FCC’s revised policy was neither “arbitrary” nor “capricious,” meeting the requirements of the APA. The Court held that agencies are not obligated to provide exhaustive justifications for policy changes, as long as the new policy is permissible under the relevant statute, rationally explained, and believed by the agency to be an improvement.

The Court found the FCC’s reasoning for broadening its enforcement efforts to be rational. It emphasized the inherent offensiveness of the words in question, even in isolated use, and cited the potential for increased profanity on television if a “safe harbor” for fleeting expletives were allowed. The Court also dismissed the Second Circuit’s concerns regarding the lack of empirical evidence supporting the FCC’s “first blow” theory, which posits that even brief exposure to indecent material can harm children.

Furthermore, the Court rejected Fox Television’s arguments that the FCC’s new policy amounted to a presumption of indecency for certain words or that it granted the agency excessive discretion. The Court maintained that the FCC’s context-based approach to evaluating indecency, as established in the earlier case of FCC v. Pacifica Foundation, remained valid.

Ultimately, the Supreme Court declined to address the constitutional issues raised by the case, leaving the question of the First Amendment implications of the FCC’s indecency regulations for another day. The case was remanded for further proceedings. This landmark ruling significantly impacted Fox Television and the broader broadcasting industry, reaffirming the FCC’s authority to regulate indecent content while highlighting the ongoing tension between protecting children and preserving free speech. The debate regarding the scope and constitutionality of these regulations continues to this day.