Intellectual Property Law

We won’t defer when you’re wrong

By Susan Crawford

When should a court defer to an agency’s interpretation of its governing statute and/or its own regulatory actions?

I got interested in this question because deference by a flummoxed Supreme Court gave us Brand X, with its ahistorical “this looks really tricky so we’ll let the FCC categorize highspeed internet access” approach.

In this week’s Third Circuit opinion about the Janet Jackson Super Bowl incident, the court doesn’t defer much. At least three times, it corrects the FCC’s reinterpretation of past regulation.

1.

FCC: We gave notice of and a reasoned explanation for our new policy on “fleeting expletives” before the Superbowl in 2004 and the policy wasn’t much of a change anyway.

Court: “[W]e find the Commission’s unsubstantiated contentions in this regard contradict the lengthy history of the Commission’s restrained enforcement policy. While ‘an agency’s interpretation of its own precedent is entitled to deference,’ deference is inappropriate where the agency’s proffered interpretation is capricious.”

2.

FCC: Anyway, our old “no problem with fleeting imaterial” standard only covered words, not images.

Court: No. You admitted that there was a fleeting material policy. Now you’re “seek[ing] to revise the scope of the policy by contending the policy never included fleeting images. But extensive precedent over thirty years of indecency enforcement demonstrates otherwise. Our reluctant conclusion that the FCC has advanced strained arguments to avoid the implications of its own fleeting indecency policy was echoed by our sister circuit in Fox.…”

3.

FCC: A broadcaster is on the hook for indecent material, even if it didn’t know the material was going to be broadcast. We’ve always said so - we have a regulation that says so.

Court: No. “[T]he Commission’s proffered interpretation of [its rule], which appears to contradict the plain language of the regulation as well as the history of its adoption, would appear to be erroneous and inconsistent with the regulation.”

And more: “The FCC’s interpretation of its own regulation is, of course, entitled to considerable deference. But our deference to an agency’s interpretation of its own regulation is tempered by our duty to independently insure that the agency’s interpretation comports with the language it has adopted. Accordingly, we need not accept the agency interpretation if it is plainly erroneous or inconsistent with the regulation.” [many internal quotes and cites omitted in this last bit].

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It’s nice to see some limits to deference. Judicial deference and a sleepy Congress have gotten us to where we are right now in communications-policy land.

Full post as published by Susan Crawford Blog on July 24, 2008 (boomark / email).