Within the Scope

Blogging on Administrative Law and the Public Sector

Thursday, May 07, 2009

Looking for Law in All the Wrong Places

I was vacationing in Israel when the U.S. Supreme Court handed down its decision in Federal Communications Commission v. Fox Television Stations, Inc. And while details as to the holding and rationale announced by the High Court were a bit sketchy in news accounts at that time – even from the plaintiff Fox Television – since my return to the U.S., I have a chance to spend some time with the opinion.

The Court's opinion is a worthwhile read for administrative lawyers of all stripes – and not merely for those attorneys who advise broadcasters (or use “fleeting expletives”) as part of their day jobs.

Yet, there is a catch. The administrative law question presented to the Court was fairly straight-forward: Namely, had the Federal Communication Commission adequately explained and justified its pronouncement of a stricter, and less-forgiving policy, on the airing of “fleeting expletives” during network television broadcasts? Five justices of the Court concluded that the FCC had done so. In the view of the Court majority, when jettisoning the older, more flexible policy on the use of objectionable language during telecasts, the FCC reasonably concluded that “a safe harbor for single words would ‘likely lead to more widespread use of the offensive language ….’”

For me, the far-more interesting set of readings were the opinions as to which no other Justice subscribed. In Part III-E of Justice Scalia’s majority opinion, from which the other justices in the majority retreated (most likely because of its sharp and brusque treatment of the dissenting Justices), Scalia holds forth on the “increased subservience” of independent agencies to Congressional direction, the level of scrutiny to be rendered by the federal courts as to brand new regulatory approaches, and the differences between notice-and-comment rulemaking and a review of agency adjudicatory decisions. As a former Chairman of the Administrative Conference of the United States, and a former editor of Regulation Magazine, Justice Scalia is simply without a match at the Court on matters of administrative law.

Likewise interesting were the lone concurrences of Justices Thomas and Kennedy. Justice Thomas, noting the changes that have occurred in media, broadcasting and information technology during the past 40 years, expressed doubt over the FCC's assertion of authority to regulate broadcast programming in ways that are different from transmission of the very same content on cable systems, the internet or in print. Concludes Thomas: “I am open to reconsideration of Red Lion and Pacifica in the proper case.”

For his part, Justice Kennedy urges a continued program of very “searching and careful review by the courts” of federal agency actions under the Administrative Procedures Act – seemingly, because of the dangers that are invited by Congressional delegations of decision-making authority to these agencies. Writes Justice Kennedy: “The dynamics of the three branches of Government are well understood as a general matter. But the role and position of the agency, and the exact locus of its powers, present questions that are delicate, subtle, and complex. The Federal Government could not perform its duties in a responsible and effective way without administrative agencies. Yet the amorphous character of the administrative agency in the constitutional system escapes simple explanation.”

So, if an opinion that explores both the fault lines at the High Court on separation of powers issues and some important contemporary debates in administrative law, is of interest to you, the opinion in Fox Television Stations is a very worthwhile read.

Just remember that the really good stuff is in all of the wrong places.

The Court’s complete analysis is accessible here.