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Weekly UpdatesThe FCC's Industry Guidance policy statement describes several principal factors for measuring patent offensiveness. Considering the context of the work as a whole is critical to the patent offensiveness analysis. (32) The principal factors in the FCC's decisions are:
Despite folding contemporary community standards into these factors for patent offensiveness, the consideration of the former receives some discrete attention from the FCC.
It is difficult to divine what constitutes a satisfactory analysis of contemporary community standards. In recent years, the FCC has stated and reiterated that the "'community standards for the broadcast medium' criterion ... is that of an average broadcast viewer or listener and not the sensibilities of any individual complainant." (34) On the one hand, the FCC recognizes the Supreme Court's guidance that the contemporary community standards prong ensures that "material is judged neither on the basis of a decisionmaker's personal opinion, nor by its effect on a particularly sensitive or insensitive person or group." (35) On the other hand, the FCC's determination of contemporary community standards is left open by statements that "decisionmakers need not use any precise geographic area in evaluating material," and "its evaluation of allegedly indecent material is 'not one based on a local standard, but one based on a broader standard for broadcasting generally.'" (36) Therefore, the FCC's standard moves away from particulars and approaches an abstract rather than a factual determination, which provides tremendous discretion in determining an artificial average community standard.
The FCC's interpretation of the Supreme Court's guidance from Hamling v. United States (37) recognizes the importance of contemporary community standards in evaluating allegedly indecent material, but the determination of that criterion is hedged by statements that the issue will be considered broadly. The FCC couched the issue of evaluating contemporary community standards in a way that does not suggest, much less require, precision in their evaluation. Accordingly, the contemporary community standards criterion guards against subjective, arbitrary findings of indecent material, but does not compel the FCC to engage in clear factual evaluations of indecent material.
By framing the contemporary community standards evaluation with such sweeping language, the FCC opens itself up to arbitrary exercises of its regulatory power. Indeed, broadcast networks have criticized the FCC for determining contemporary community standards based on the Commissioners' subjective opinions. (38) To respond to that criticism, the FCC repeated its most definitive statement of how it determines contemporary community standards. (39) The November 2006 Order on Remand cites a 2004 opinion and order which stated that the community standard for the "average broadcast viewer or listener" is determined by relying on the FCC's "collective experience and knowledge, developed through constant interaction with lawmakers, courts, broadcasters, public interest groups and ordinary citizens." (40) The adequacy of that method of determination certainly depends on which side of the equation the affected party stands--for the FCC, it suggests that a wide range of sources is considered, but for broadcasters, it is a rather opaque statement that provides little guidance, and worse, it could reasonably be perceived to be dressed-up language that boils down to the subjective predilections of those in the FCC.
IV. JUDICIAL REVIEW OF ARBITRARY AND CAPRICIOUS ADMINISTRATIVE AGENCY ACTIONS
Originating in the APA, a reviewing court may set aside an agency action, finding, or conclusion found to be arbitrary and capricious. (41) The judicial gloss on the APA's scope of review for arbitrariness is known as the hard look doctrine. (42) Generally, the reviewing court looks to see if the agency took a hard look at the question to determine if the agency's decision making was adequate or inadequate, i.e., arbitrary and capricious. (43) The Solicitor General seems to agree with the finding of the court of appeals that the standard for judging fleeting expletives policy is arbitrary and capricious. (44) But considering the foundation for the fleeting expletives policy discussed below, this analysis suggests further that the current standard for the FCC's indecency determinations is arbitrary and capricious under the hard look doctrine.
A. Development of the Judicial Gloss on Arbitrary and Capricious Review
Absent the judicial gloss, the language of the APA does not provide much guidance for a court reviewing an alleged abuse of administrative discretion. The APA states that "[t]he reviewing court shall ... hold unlawful and set aside agency action, findings, and conclusions found to be ... arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law...." (45) In 1983, the Supreme Court implicitly adopted the hard look approach to arbitrary and capricious review in State Farm. (46) Prior to State Farm, arbitrary and capricious review was relatively narrow, and courts essentially reviewed agency actions under a reasonableness standard. (47) During the 1970s, the Court began to move toward the hard look doctrine, notably in Citizens to Preserve Overton Park v. Folpe, (48) where the Court stated that the administrative agency "must consider whether the decision was based on a consideration of relevant factors and whether there had been a clear error of judgment." (49)
B. The State Farm Hard Look Standard
In State Farm, the Court held that the Secretary of Transportation's rescission of Modified Standard 208 was arbitrary and capricious under the APA. (50) By the end of the 1970s, Standard 208 required the phasing in of passive restraint systems in automobiles. (51) In 1977, the Secretary of Transportation issued Modified Standard 208, which required passive restraints--namely automatic seatbelts or airbags--in large cars beginning in 1982 and all cars by 1984. (52) Four years later, however, difficulties in the automobile industry led the Secretary to reconsider, and the passive restraint requirement was rescinded. (53) The agency's reasons for the rescission included no longer being able to find that the requirement would produce significant safety benefits, and the costs of implementing would not clearly justify the safety benefits--because most manufacturers opted for automatic seatbelts which could be easily detached. (54) The Court agreed with the Department of Transportation that "a reviewing court may not set aside an agency rule that is rational, based on consideration of the relevant factors," but nonetheless found that the agency failed to do so in its decision to rescind Modified Standard 208. (55)
Justice White wrote for the five Justice majority on the arbitrary and capricious finding, stating, "the agency has failed to offer the rational connection between facts and judgment required to pass muster under the arbitrary-and-capricious standard." (56) The Court noted "[t]he scope of review under the 'arbitrary and capricious' standard is narrow and a court is not to substitute its judgment for that of the agency." (57) However, the opinion qualified the scope of review, stating that, "[n]evertheless, the agency must examine the relevant data and articulate a satisfactory explanation for its action including a 'rational connection between the facts found and the choice made.'" (58)
The narrow arbitrary and capricious review requires looking at a variety of factors to determine the adequacy of an agency's action. The factors mentioned in State Farm include whether: (1) the agency articulated a rational connection between the facts found and the choice made, (2) the agency has relied on factors which Congress has not intended it to consider, (3) there is a clear error of judgment, (4) the agency entirely failed to consider an important aspect of the problem, (5) the agency offered an explanation for its decision that runs counter to the evidence before the agency, or (6) the agency's conclusion is so implausible that it could not be ascribed to a difference in view or the product of agency expertise. (59) In light of these factors, the Court further qualified this standard, stating that it will "uphold a decision of less than ideal clarity if the agency's path may reasonably be discerned." (60)
Further complicating matters, however, the Supreme Court, in Baltimore Gas and Electric Co. v. Natural Resources Defense Council, (61) suggested the agency must take a hard look at the relevant facts and data when making its initial decision. (62) In State Farm, the Court took a hard look at the relevant facts in the decision made by the agency. Baltimore Gas thus provides a hard look that is more deferential to the agency decision making by limiting review to whether relevant facts and data were at play in the agency's decision, and if so, the court defers to the agency's decision.
Overall, then, the language framing the arbitrary and capricious standard allows the reviewing court to lean towards a reasonable, more deferential standard or a more rigorous standard highlighting the hard look factors enumerated in State Farm. Of course, the manner in which the arbitrary and capricious review is employed depends not only on the composition of the Court, but also on the facts of the particular case. As Justice O'Connor noted in Baltimore Gas, "[w]hen examining ... [a] scientific determination, as opposed to simple findings of fact, a reviewing court must generally be at its most deferential." (63) It is not clear whether the Court would characterize the nature of certain speech as more of a scientific determination or as a simple finding of fact. For these reasons, it is difficult to anticipate how the Court would apply the arbitrary and capricious standard; however, it also reinforces the need for the Court's guidance in the FCC's determination of the fleeting expletives standard and the contemporary community standards.
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