My draft opinion holding up FCC v. Fox

My Administrative Law take-home midterm asked that I step into the shoes of a Supreme Court clerk and draft an opinion for FCC v. Fox, the fleeting expletives case. Naturally, because it is for Admin Law, it does not address the First Amendment issues that I think the Court should address. I liked the assignment since it made me think long and hard about the legal issues involved.

I. Draft decision upholding Fox, 489 F.3d 444 (2nd Cir. 2008), with regard to A.P.A. issues.

A. Statutory Interpretation

We find that the FCC impermissibly changed its interpretation of the term ‘indecent’ as used in the governing statute, 18 U.S.C. § 1464, which bars indecent content from broadcast radio and television.

In the order at issue, the FCC changed not only its policy toward indecent content but its interpretation of the term ‘indecent’ provided in the statute, 18 U.S.C. § 1464. As such, the Chevron v. Natural Res. Defense Council, Inc., 467 U.S. 837 (1984) framework governs our review of the Commission’s construction. Congress has delegated to the Commission the authority to â??execute and enforceâ? the Communications Act, 47 U.S.C. § 151, which provides the FCC with power to regulate indecent content on broadcast radio and television. The Commission has the power to deliver administrative sanctions, such as sending cease and desist orders or revoking licenses, 47 U.S.C. § 312, and also to assess criminal forfeiture penalties, 47 U.S.C. §503(b)(1)(D).

Chevron established a familiar two-step procedure for evaluating whether an agency’s interpretation of a statute is lawful. Nat’l Cable and Telecommunications Assoc. v. Brand X Internet Svc., 545 U.S. 967, 986 (2005). As a first step we ask whether the statute’s plain terms â??directly address the precise question at issue.â? Brand X at 986. If the statute is ambiguous on the point, we defer, at step two, to the agency’s interpretation so long as the construction is a â??reasonable policy choice for the agency to make.â? Id.

In the first step of the Chevron analysis, we look at whether the statute directly defines the term ‘indecent’ or if the term, as used, is ambiguous. The statute, 18 U.S.C. § 1464, states in full: “Whoever utters any obscene, indecent, or profane language by means of radio communication shall be fined under this title or imprisoned not more than two years, or both.” It is clear that Congress intended that no indecent language be used in radio communication but we find that indecent is not clearly defined thus leaving this portion of the statute ambiguous.1 The ambiguous nature of the term can be seen in FCC v. Pacifica Foundation, 438 U.S. 726 (1978), in which the plurality opinion and concurrence had two different ideas about what qualified as indecent. Both felt the term meant â??patently offensiveâ? but differed in opinion about what qualified as such. The plurality opinion identified the plain meaning of indecent as â??merely referring to nonconformance with accepted standards of moralityâ? Pacifica at 741 and merely accepted that it was equivalent to patently offensive. The concurrence felt the term was more narrow, finding that the George Carlin monologue could be classified as “indecent” only because “the language employed is vulgar and offensive… [and] was repeated over and over as a sort of verbal shock treatment.” 438 U.S. At 757. (Powell, J., concurring). It is also through the ambiguous nature of the term indecent that the Commission’s rules operate and why it felt it necessary to change its policy as to what qualified.

We next proceed to step two of the Chevron analysis. If the statute is ambiguous on the point, we defer to the agency’s interpretation so long as the construction is a â??reasonable policy choice for the agency to make.â? Chevron’s premise is that it is for agencies, not courts, to fill statutory gaps. Brand X at 972. If Congress has explicitly left a gap for the agency to fill, there is an express delegation of authority to the agency to elucidate a specific provision of the statute by regulation. Brand X at 844. Such legislative regulations are given controlling weight unless they are arbitrary, capricious, or manifestly contrary to the statute. When the legislative delegation to an agency is implicit, a court may not substitute its own construction of a statutory provision for a reasonable interpretation made by the administrator of an agency. Brand X at 844. This is true, even when the agency is changing rules, policies, and how it interprets a statute. Chevron at 863. Such a change, however, must provide a reasoned analysis to depart from prior precedent.

Here, the Commission has an implicit delegation to fill the statutory gap with regard to what is indecent. Through that delegation, the Commission changed how it interprets the term indecent to have a broader meaning than it had used in the past. Previously, the Commission had held that language was indecent if used to depict or describe sexual or excretory activities. In the order at issue, the Commission broadened the meaning of indecent when it determined that all uses of the words â??fuckâ? (the “F-Word”) and â??shitâ? (the “S-Word”) in all contexts depict or describe such activity. Golden Globes Order, 19 F.C.C.R. 4975, 4978. This is the case, with a single, isolated non-literal utterance of the word. For example, Bono’s statement, â??really, really fucking brilliant,â? in reaction to winning a Golden Globe award is considered indecent, although his use of the word did not involve sexual or excretory functions. Golden Globes Order at 4975. As pointed out by the lower court, prior to the Golden Globes decision the FCC had consistently taken the view that isolated, non-literal, fleeting expletives did not run afoul of its indecency regime. Fox Television Stations, Inc. v. FCC, 489 F.3d 444,455 (2nd Cir. 2007).

We find that the Commission provided very limited reasoning as to its new, broader interpretation of the term indecent.2 Rather, it largely relied on its dismissal of previous interpretations of the term indecent as dicta and staff letters. It did provide some reason why it was changing policy with regard to how it would enforce the rule, however it did not discuss its new interpretation of the statute.3 The Commission simply announced that the “core meaning” of certain expletives is always indecent (Golden Globes at 4978), thus expanding the definition of the term indecent, although it had repeatedly held those same terms not indecent in the past.

B. Substantive Decision

Furthermore, we also find that the Commission failed to provide an adequately reasoned analysis for its change in policies and rules with regard to its its interpretation of the statute.

When an agency undertakes “a reversal of policy,” the APAâ??s mandate of reasoned decision making requires it to “adequately explain the reasons” for the change. Brand X at 981. Moreover, “[a]n agencyâ??s failure to come to grips with conflicting precedent constitutes an inexcusable departure from the essential requirement of reasoned decision making.” Ramaprakash v. FAA, 346 F.3d 1121, 1125 (D.C. Cir. 2003) (Roberts, J.).

Here, the Commission failed to provide a rational connection to between the â??first blowâ? theory its policies regarding fleeting expletives or provide adequate reasoning to explain away the conflict between its current policy to consider a fleeting expletive a harmful â??first blowâ? and the prior 30 years when it did not. As pointed out in the court below, there is no identifiable or judicially manageable standard provided by the Commission for the first blow theory underlying its policy change. The Commission held that it had changed the definition of what it considers indecent to include all uses of the F-Word and S-Word to protect viewers (including children) from taking the first blow when an expletive is used. It then provided exemptions for some uses of expletives but not others. For example, it provided exemptions for expletive used during the Early Show and the movie Saving Private Ryan but not for the same expletives used during the Billboard Music Award programs. In which case, the Commission’s justifications relying upon the â??first blowâ? theory were undermined. Viewers to each program still took the â??first blowâ? and were subjected to the offending word(s). In each case, the Commission subjectively determined whether that particular instance was more deserving of an exemption than the others. It is unclear what standards the Commission used for each determination.

The decision by the lower court is affirmed and this matter remanded to the Commission.

1We intentionally do not address any constitutionality in this portion of our opinion. We assume, for sake of argument that this statute and the Commission’s rules with regard to indecent content are are Constitutional.

2 This Court cannot substitute a reasoned basis for the agency action if the agency did not proffer it first. Courts confine evaluations of agency action to reasons articulated by the agency itself. State Farm at 50. See also Chenery (“the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise. The reviewing court should not attempt itself to make up for such deficiencies; we may not supply a reasoned basis for the agency’s action that the agency itself has not given.”).

3 The dissent argues that the Commission did not change its interpretation of the statute and merely changed its enforcement policies based on how it had always defined the term indecent. The issue in this case is whether the FCC has adequately explained its decision to broaden the definition of “indecent” when it abandoned a standard limited to “verbal shock treatment” based on sexual or excretory function in favor of a presumption of indecency that must be rebutted with specific mitigating circumstances.

*Update:* The real Supreme Court disagrees with me. Justice Scalia, joined by 4 other justices, said that the FCC adequately followed the Administrative Procedures Act (A.P.A.) and declined to rule on the First Amendment issues. The matter was remanded to the appellate court, which can then reconsider the First Amendment issues.

AP, Please Improve Your Reporting

With the demise of newspapers all around us, you’d think the AP could put out better articles. Case in point is an article circulated by the AP today with a headline that screams more Americans have no religion that in years past.

First off, the headline is misleading at best. A 0.8 percent increase really isn’t the main gist of the article nor is it the most relevant factoid in the article.

More Americans say they have no religion (AP via Y! News).

“Fifteen percent of respondents said they had no religion, an increase from 14.2 percent in 2001 and 8.2 percent in 1990, according to the American Religious Identification Survey.”

Second, the article is poorly structured and misses key details that I expect an article like this to include. For example, what does it mean to not have a religion? Does it mean that person is an athiest and does not believe in a higher power? Does it mean a person is agnostic and chooses to not have a religion but believes in a higher power?

The article lacks a summary at the beginning to say in a nutshell what it is about or to provide a roadmap, is disjointed and provides related details in separate areas of the article, and lacks clear thought. I admit that I’m guilty of these violations at various times but I’m not a professional journalist paid to dispense the news.

Building on my first example, above, why is it that the 15 percent statement is separate from and not tied to the statement more than 8 paragraphs down about 12 percent of Americans believing in a higher power but not a personal God? It seems those stats go together but are not tied together or contrasted. So, is the 12 percent group a subset of the other? Are they separate groups? If a subset, what does that say about the remaining 3 percent? Other questions left unanswered include whether the study includes the same respondents from the earlier versions of the study, what answers respondents gave to why they changed religions, and what was done to accommodate people who did not speak English or Spanish in the sample population (is there underrepresentation in Buddhism, Hinduism, and Islams as a result?).

Please, don’t make me find and read the study to better understand for myself.

Mitch Albom: Don’t judge Palin’s book by its cover

Mitch Albom has the most intelligent comments about Sarah Palin that I’ve seen from anyone, including mainstream media (MSM), the blogosphere, or the various emails I’ve received. His latest column is worth reading.

My take on Palin is that interest in her will wane, as interest always does in America, and by next month, we’ll feel silly about the frenzied fuss that was made in her early days.

This bodes badly for Republicans who think they’ve captured lightning in a bottle, and for Democrats who think they’ve found the Holy Grail of attack.

But Palin — like all of the them — deserves to be evaluated on her actions, and analyzed from research, constant listening and comparing records with words.

If we don’t want to work that hard, we deserve whatever boxed-up product we get.

Don’t judge Palin’s book by its cover | | Detroit Free Press.

NBC has a good start at ruining the Olympic Games

NBC has decided that it is still 1950 and it is still in control. Back then there was very little competition for eyeballs and radio was the only real alternative to quickly get news.

So, as a result, NBC forced most US viewers to sit through more than 12 hours of news reports, photos, and video clips from the opening ceremony before they could actually watch it. While the rest of the world (and US locales, like Detroit, that also get Canadian CBC stations) watched it live, as it happened, most of the US was subject to a poorly executed ruse to make us think nothing had happened. No matter how much demand there was in the marketplace, NBC resisted and ignored the resentment it engendered with such a move.

But this is 2008, during the beginnings of the Internet Age. There are already several ways around blackouts and more will come. The New York Times wrote an article about some primitive attempts to get around NBC’s attempts at blacking out the US market but ignored a couple of other key technologies that will play a greater role in the future.

Tape Delay by NBC Faces End Run by Online Fans –
NBCâ??s decision to delay broadcasting the opening ceremonies by 12 hours sent people across the country to their computers to poke holes in NBCâ??s technological wall â?? by finding newsfeeds on foreign broadcastersâ?? Web sites and by watching clips of the ceremonies on YouTube and other sites.

The NY Times article missed out on two very important technologies that worked effectively: proxies and torrents.

Proxies are computers set up to relay internet traffic through. By routing your Internet traffic through a proxy, the web site you’re visiting thinks you are the proxy. I was able to use a proxy based in the UK to watch some BBC coverage of the Olympics intended solely for a UK audience.

Torrent is a peer-to-peer (p2p) file sharing protocol. It is even more decentralized than other, previous p2p networks such as Napster. And, unlike Napster, the torrent technology is likely to not violate copyright laws. It has legitimate purposes and its use for copyright infringement is incidental to the technology.

A quick search with Y! Search found a few different torrents of the opening ceremony, including :

If the television industry does not change soon it will be hurting as much as the big music labels. Like the music labels, the television industry is no longer in control of the distribution. The Internet and other new technologies have disrupted that part of its business model. To survive, it must deliver on what people demand. Otherwise it will lose even more people to other media and distribution methods.

In four years, Olympic events will need to be broadcast in nearly real time. Otherwise, viewers will look elsewhere to satisfy their demands. Those who were foiled at watching on YouTube and other online video sites will prepare ahead of time and arrange for torrents from those viewing the events live. Technology will improve between now and then. I predict that an open source p2p streaming service will debut before then, intended to serve as an alternative broadcast outlet, but it will used to also share events with a friend in a blacked out area.

BTW: Beyond making viewers wait for old-news, NBC blew its actual coverage of the opening ceremonies in many ways, including its intense focus on getting close-ups of performers during a show meant for viewing from a distance, its badly executed cuts for commercials, its ridiculous and irrelevant color commentary throughout the show, and its lazy choice to paraphrase a speech at the end by the head of the Chinese Olympic committee instead of providing a translation (they had enough time and money to find an hire a real translator).

Digital Converter Box is here

I used the analog to digital converter box coupon card this past weekend. So now we can still get TV after the super bowl when the transition to digital television is complete. It is an RCA brand converter box.

I don’t generally shop in Wal*Mart (ruthless and toothless); however the converter box cost $10 after the coupon ($50 retail price). That beat the $65 charged by Radio Shack for a no brand item.

The nice thing I found out about this box is that it includes a V-Chip intended to let parents filter out inappropriate content from their youngsters. It is likely that most people who rely on the government coupons to purchase a converter box will not have televisions built since 2000 when the V-Chip was mandated. The program is still a boondoggle, just not as big as I had previously made it out to be.

In case you still are not aware of the television transition, these are the dates you need to be aware of:

  • January 2, 2008 – Digital to analog converter coupon program becomes available. * Coupons are now available.
  • February 17, 2009 – Last day for analog broadcasts.
  • February 18, 2009 – Analog broadcasts will be turned off. Televisions will need a digital tuner, digital-to-analog converter box, or cable/satellite subscription.

Digital Television Converter Coupons Are Here

I wrote about the need to sign up to receive coupons for the analog to digital television converter coupons back in January (See: Digital Television Transition: Start Preparing Now). Our two coupons arrived this week.

The envelope:

Analog to Digital Converter Coupon

A coupon:

Analog to Digital Converter Coupon

They came with a list of qualified converter boxes and a list of local retailers (all big box stores) that sell them.

Analog to Digital Converter Coupon

This whole television transition is one big bloated boondoggle. These stores and the converter box makers scored with this one. For one, the coupons are good only with stand-alone devices that will convert the signals and not for multi-purpose devices like VCRs, televisions, etc. that build in a converter. Two, television broadcasters don’t need to pay a penny for their broadcast licenses. Three, the converters are expected to cost $75 or more. Four, the converter boxes don’t even include a V-chip (this was a missed opportunity to get a V-chip in every home). There is more to complain about, but I’ll spare myself the time and effort. 😉

Digital Television Transition: 365 days to go

A year from tomorrow, February 18, 2009, the traditional, analog broadcast television signals across the U.S.A. will be turned off. (See: Digital Television Transition).

If you’re like me and rely on over-the-air television signals, you will need to invest in a digital-to-analog converter box, or a nifty new television built to receive digital broadcast signals, or subscribe to cable/satellite television.

The estimated price of the digital to analog converter box is $75. The federal government is providing $40 coupons towards your purchase. Request a coupon: According to the coupon request form, TV converter boxes are not expected to be available in retail stores until late February or early March. You should sign up now before they are gone (limited supply); however you will not receive your coupon until after converter boxes are available in stores. The Coupon will expire 90 days after the date it is issued.

The federal department responsible for the program has a web site that provides more information regarding the coupon program, such as rules and the coupon request form.

Video: What a downsized office does in France

AOL decided to downsize and close its office in France. The recently downsized staff made this video as an au revoir and thank you for AOL’s years long commitment to its staff. 😉 I’ve heard, but not confirmed, that the staff received a year’s severance which is required by French law.

Update: The lyrics of the song are a mix of French and English. You can get the original lyrics, as well as an English translation.

It is amazing they were able to take it in one long sequence. That shows they probably put some work into preparing for the video. They don’t dress or look all that differently from the Silicon Valley crowd.

Digital Television Transition: Start Preparing Now

Read this if you want to guarantee that your television will still work after the 2009 Superbowl. Even more importantly, you will also need to make sure your mothers, grandmothers, or aunties know the following since they will need your help to sort through this mess and are less likely to know what’s going on.

The United States is currently undergoing a transition from regular analog television signals to a digital format (DTV). This is often referred to as the DTV transition. With traditional analog technology, pictures and sounds are converted into waveform electrical signals for transmission through the air. In contrast, digital technology converts these pictures and sounds into a stream of digits consisting of zeros and ones for transmission. In other words, the digital signal is in the same format as video on your computer (MPEG-2).

Analog format is how television has been broadcast since it first started in the 1930’s. All televisions since that time have been built to receive and decode those analog signals.

Digital television format is the future. Digital transmission of television signals provides several advantages compared to analog transmission, such as enabling better quality picture and sound reception as well as using the radio spectrum more efficiently than analog transmission. This increased efficiency makes multicastingâ??where several digital television signals are transmitted in the same amount of spectrum necessary for one analog television signalâ??and HDTV services possible. A primary goal of the DTV transition is for the federal government to reclaim spectrum that broadcasters currently use to provide analog television signals. It is auctioning off that spectrum (likely to mobile phone providers) in January 2008 so there’s no turning back.

Here’s the rub. A television must be built to receive and decode the digital signal. Televisions built before 1998 were ONLY built to receive analog signals. Since then, only some televisions have been built with a digital tuner to receive digital signals. Televisions sold after April 2007 must have a digital tuner, although anecdotal stories abound regarding stores not meeting those obligations. If you bought a television since then, you’ll need to verify it has a digital tuner.

Today, most television stations throughout the country provide a digital broadcast signal in addition to their analog signal. Within hours of the 2009 Super Bowl the analog signals will turn off for good. That means televisions built without a digital television tuner will not be able to receive over the air television.

The Federal Communications Commission (FCC) has a web site that provides more information regarding the DTV transition.

It all depends on how you receive your television signal and your television set itself. There are three primary ways people receive television programming: over the air reception, cable, or satellite.

1) Over the air broadcasts: Don’t laugh because 19% of American households (20.8 million households) still rely on the rabbit ears. I’m part of this 19%.

This group will either need to buy a new television with a digital tuner or buy a digital to analog converter box. Estimated price of the converter box is $75.

The federal government is providing $40 coupons for these people to purchase the digital to analog converter box. Request a coupon: According to the coupon request form, TV converter boxes are not expected to be available in retail stores until late February or early March. You should sign up now; however you will not receive your coupon until after converter boxes are available in stores. The Coupon will expire 90 days after the date it is issued.

The federal department responsible for the program has a web site that provides more information regarding the coupon program, such as rules and the coupon request form.

2) Cable: No need to do anything. You’ll still receive your local and cable stations without fail. Just make sure you take care of those who are likely not to subscribe to cable (see above), such as your grandmother, aunties, and the neighborhood granny who looks after your home while you’re at work or school. A rallying cry should be “No grannies left behind.” 😉

Currently, federal law requires cable companies to carry broadcast stations when asked by the local broadcaster. Those must-carry provisions require cable companies to provide the broadcastersâ?? signals to their subscribers in substantially the same format as it was received from the broadcasters. That’s why cable subscribers should be unfazed by the DTV transition.

Note: If you don’t have digital cable, you will only receive your local stations, such as PBS, ABC, and NBC, in analog format.

3) Satellite: Satellite doesn’t have the same must-carry obligations as cable systems so you’re likely to continue receiving the same stations you did before the DTV transition.

Of course, if you bought a television that receives digital signals you can still receive over the air broadcasts. I’ve heard the HD picture quality from over the air broadcasts is actually better than is provided by digital cable. I haven’t tested it yet, but I wouldn’t be surprised since cable companies will want you to subscribe to their HD services.


  • January 2, 2008 – Digital to analog converter coupon program becomes available. * Coupons are now available.
  • February 17, 2009 – Last day for analog broadcasts.
  • February 18, 2009 – Analog broadcasts will be turned off. Televisions will need a digital tuner, digital-to-analog converter box, or cable/satellite subscription.

John Edwards and Obama both call for an Open Media For The 21st Century

I need to say that John Edwards understands America’s communications policy needs. He’s been open for months about his thoughts regarding what he calls Open Media. Now Obama has picked up on Edwards’ message and has introduced his own policy guideline/pledge and tied an open media to innovation and the economy. I like the sound of what both say. I can only hope it isn’t just smoke and mirrors.

John Edwards for President-One America, Many Voices: Open Media For The 21st Century
“The basis of a strong democracy is a diverse and dynamic media. It’s time to take away the corporate media bullhorn and let America’s many voices be heard.” â?? John Edwards

  • Fighting Media Concentration
  • Restoring the Public Interest to the Public Airwaves
  • Building a Universal, Affordable Internet
  • Keeping an Open Internet
  • Tuning in Thousands of Communities with Low Power Radio

Barack Obama ’08 Blog: Obama rolls out innovation agenda
â??I will take a backseat to no one in my commitment to network neutrality. Because once providers start to privilege some applications or web sites over others, then the smaller voices get squeezed out, and we all lose. The Internet is perhaps the most open network in history. We have to keep it that way.â? – Barack Obama

  • Ensure the Full and Free Exchange of Information through an Open Internet and Diverse
    Media Outlets

    • Protect the Openness of the Internet
    • Encourage Diversity in Media Ownership
    • Protect Our Children While Preserving the First Amendment
    • Safeguard our Right to Privacy
  • Create a Transparent and Connected Democracy
    • Open Up Government to its Citizens
    • Bring Government into the 21st Century
  • Deploy a Modern Communications Infrastructure
    • Deploy Next-Generation Broadband
  • Employ Technology and Innovation to Solve Our Nationâ??s Most Pressing Problems
    • Lower Health Care Costs by Investing in Electronic Information Technology Systems
    • Invest in Climate-Friendly Energy Development and Deployment
    • Upgrade Education to Meet the Needs of the 21st Century
    • Create New Jobs
    • Modernize Public Safety Networks
  • Improve Americaâ??s Competitiveness
    • Invest in the Sciences
    • Make the R&D Tax Credit Permanent
    • Reform Immigration
    • Promote American Businesses Abroad
    • Ensure Competitive Markets
    • Protect American Intellectual Property Abroad
    • Protect Intellectual Property at Home
    • Reform the Patent System

I haven’t seen any similar commitments from the Republican candidates.