FCC v. Fox Television Stations, Inc. - Oral Argument - November 04, 2008

FCC v. Fox Television Stations, Inc.

Media for FCC v. Fox Television Stations, Inc.

Audio Transcription for Opinion Announcement - April 28, 2009 in FCC v. Fox Television Stations, Inc.

Audio Transcription for Oral Argument - November 04, 2008 in FCC v. Fox Television Stations, Inc.

John G. Roberts, Jr.:

We will hear argument first this morning in Case 07-582, Federal Communications Commission versus Fox Television Stations.

Mr. Garre.

Solicitor General Garre.

Gregory G. Garre:

Thank you, Mr. Chief Justice, and may it please the Court: This case involves a challenge to the efforts of the Federal Communications Commission to carry out its statutory mandate under 18 U.S.C. 1464, and more even-handedly address indecent material that is broadcast directly into the home during the time of day when children are likely to be in the viewing audience.

After reconsidering its policy in this area, the Commission determined that an enforcement action may be appropriate in the case of indecent language that is isolated as well as repeated.

Because the Commission provided a reasoned explanation for that change in course, the court of appeals erred in invalidating its action under the Administrative Procedures Act.

Antonin Scalia:

Did it -- did it reconsider its policy?

In the first order, I would -- I would have gathered that it had, but its second order said basically, we've never had a policy that single use of these expletives is okay.

Which is it?

Are they changing their policy or not?

Gregory G. Garre:

They did change the policy, Justice Scalia, and the Commission directly acknowledged that in paragraph 12 of the Golden Globe Awards order, which is not reprinted in the petition appendix.

In that paragraph, the Commission said,

"We now depart from cases holding that isolated or fleeting use of the F-Word was not indecent. "

Antonin Scalia:

The latest order, the one that's up here, says that all of the statements to that effect in the past were simply staff statements and that the Commission had never held to that effect before.

Gregory G. Garre:

Well, the court of appeals recognized, and we think correctly so, that the Commission did change its position on that.

The Commission had never brought an enforcement action against a broadcaster for the isolated use of an expletive, and the Commission made clear in the orders it issued in this case, beginning with the Golden Globe Awards order and the particular omnibus and remand orders before this Court, that it was taking a change in regulatory course in determining that it was appropriate to bring an enforcement action where there was an isolated incident of an expletive if the context suggested that it would be indecent in that situation.

Anthony M. Kennedy:

Well, is the agency's position that its policy has changed or that it has not changed?

Gregory G. Garre:

That it has changed, Justice Kennedy, and the court of appeals recognized that at pages 20a to 21a of the decision.

And we think this Court has recognized--

Anthony M. Kennedy:

Well, the court recognized, but it seems to me the FCC -- and this is what Justice Scalia's questions go in part to -- in the remand order at first it said its policy hadn't changed.

Gregory G. Garre:

--Well, I think there were some statements, we would acknowledge that, in different places.

But if you go to the heart of where the FCC grappled with this, paragraph -- paragraph 12 of the Golden Globe Awards order, it specifically disavowed its prior decisions in which it had said that isolated expletives would not warrant an enforcement action under 1464, and it specifically said,

"we are departing from our policy. "

We -- after all, it didn't impose--

Antonin Scalia:

But I think it rewrote that in its last order, and I think it even explained away the Golden Globe statement by saying it was not as categorical as it might appear.

Gregory G. Garre:

--I think if you look at maybe pages 82 to 83 of the petition appendix here, where we discuss that as well, I think it made clear with respect to the indecency finding involving the 2003 Billboard Music Awards and the 2002 Billboard Music Awards, that in applying its contextual analysis in the past it focused on whether or not expletives were repeated or dwelled upon.

In this case, the Commission determined that it was not going to be guided exclusively by that consideration and that it was going to take into account all contextual factors, including the explicit and graphic nature of the language used.

John G. Roberts, Jr.:

Do you think, in terms of our legal review, it makes a difference whether it's a change or whether it's a continuation of a prior policy?

Gregory G. Garre:

Certainly, I would be defending it if the Court thought that it wasn't a change, and it would have been inappropriate for the Second Circuit to invalidate that as arbitrary and capricious.

We have -- we think it was a change.