Sending a Message to the Other Branches: Why the Second and Third Circuit Courts Properly Used the APA When Deciding on Fleeting Expletives and How the Obama Administration Can Undo the Damage
Albert W. Vanderlaan
Gunderson Dettmer, LLP
December 22, 2009
Vermont Law Review, Vol. 34, p. 447, Winter 2009
The Second and Third Circuits properly concluded that the FCC had strayed into uncharted waters when it changed its policy regarding fleeting expletives. Both courts sent a clear message that the Commission's rulemaking violated the standards that agencies must comply with when changing longstanding policy. Specifically, the FCC failed to give a reasoned analysis that did not reek of congressional and executive mandate without giving thought to the implications of such a change. There is much evidence that the Commission, especially during the tenure of Commissioner Powell, was pushed to implement a standard of decency that directly conflicted with constitutional mandates regarding freedom of speech.
The courts' use of 706(2)(A) was particularly compelling because it showed the Commission that acting in an arbitrary and capricious manner would not be tolerated for independent agency action that is too influenced by outside forces. Both courts used the longstanding State Farm case, embodying the hard look doctrine that courts must take when looking at informal agency policymaking actions. This directly revealed that the FCC's proffered rationale for the change in policy was not connected in any meaningful manner to the drastic measure of changing a longstanding principle that was seeded in the Pacifica case three decades earlier. In doing so, both courts correctly reserved any decision on First Amendment grounds for the Supreme Court, where a decision in this area would be much more meaningful and would not leave the constitutional question in limbo while the case proceeded through the courts.
The Bush Administration placed the courts in an unacceptable position by forcing the FCC into an untenable constitutional conundrum. Luckily, the Second and Third Circuits decided the fleeting expletives cases without pushing the First Amendment issue. The newly minted Obama Administration should now nudge the FCC to return to its pre-Bush Era policy regarding fleeting expletives.
Number of Pages in PDF File: 46
Keywords: fleeting expletives, constitutional conundrum, FCC, Bush Agenda, First Amendment, Administrative Procedure ActAccepted Paper Series
Date posted: February 22, 2009 ; Last revised: February 26, 2010
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