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"Fleeting Expletives" Are The Tip Of The Iceberg: Fallout From Exposing The Arbitrary And Capricious Nature Of Indecency Regulation, Dave E. Hutchinson
"Fleeting Expletives" Are The Tip Of The Iceberg: Fallout From Exposing The Arbitrary And Capricious Nature Of Indecency Regulation, Dave E. Hutchinson
Federal Communications Law Journal
On November 4, 2008, the Supreme Court heard arguments in FCC v. Fox Television Stations, which centers on whether or the FCC's policy allowing fleeting expletives to be found actionably indecent is arbitrary and capricious. The Second Circuit found that the fleeting expletives policy is arbitrary and capricious as a matter of administrative law. The Supreme Court decision will provide much needed guidance for what constitutes a reasoned basis in the indecency regime's contextual approach. This Note argues that--despite the FCC's recognition that time and context changes the meaning of language-the FCC's indecency regime is at loggerheads with broadcasters because …
Reassessing Turner And Litigating The Must-Carry Law Beyond A Facial Challenge, R. Matthew Warner
Reassessing Turner And Litigating The Must-Carry Law Beyond A Facial Challenge, R. Matthew Warner
Federal Communications Law Journal
In recent decades, the must-carry rules have had a troubled constitutional history. After two sets of rules were struck down by the D.C. Circuit for violating the First Amendment rights of both cable programmers and operators, Congress revised the must-carry rules in the 1992 Cable Act. In 1997, the Supreme Court, in a 5-4 decision, determined that the congressional must-carry law was facially constitutional. However, does the Turner II decision preclude further First Amendment challenges to the must-carry law? This Note argues that the answer is no and that the time is drawing near for new challenges.