Intellectual Property Law

Supreme Court agrees to hear Fox v. FCC

By Susan Crawford

Let the pundits begin!  This is big news.  By taking the case, the Court must be indicating that it is willing to examine the substance of the FCC’s indecency rulings.  The networks did their best to persuade the Court that there was nothing to review - that all the Second Circuit had done was say that the FCC hadn’t built a substantial enough record to justify reversing its course as to fleeting expletives.

Judge Leval’s dissent took strong issue with his colleagues’ approach - his point was that the FCC had made its determination based on the broad language of 18 USC 1464 and Pacifica, and that the court should have deferred to these determinations.

So either this is not a run-of-the-mill administrative law case, and the Second Circuit used the wrong standard (so the Supreme Court wants to emphasize the appropriateness of deference to the expert agency), or the Supreme Court really wants to shore up the FCC’s view of its powers and has a yearning to give them more support than Pacifica arguably provides (so the Supreme Court wants to opine about the role of indecency regulation in the age of the Internet).  There was no circuit split, as far as anyone could tell.  In either case, this will be fascinating.

Full post as published by Susan Crawford Blog on March 17, 2008 (boomark / email).