Nonetheless, after the three incidents on Fox and ABC, the FCC abruptly changed its policy and brought an enforcement action against NBC for the singer Bono’s use of an expletive during the broadcast of the 2003 Golden Globe awards show. The agency then attempted to apply this new policy to Fox and ABC. The Court found that because the agency “failed to give Fox or ABC fair notice prior to the broadcasts in question that fleeting expletives and momentary nudity could be found actionably indecent[,]” the FCC’s new policy, as applied to these three instances, was void for vagueness. Id. at 2320. The court found that due process demands “that regulated parties should know what is required of them so they may act accordingly [and] precision and guidance are necessary so that those enforcing the law do not act in an arbitrary or discriminatory way.” Id. at 2317.
Just days before its decision in FCC v. Fox, the Court issued its opinion in Christopher v. SmithKline, holding that a Department of Labor (DOL) policy, announced for the first time in an amicus brief after the Supreme Court agreed to hear Christopher’s case, did not provide sufficient notice. Christopher and Buchanan were “detailers”—employees of a drug company whose jobs were to persuade doctors to write prescriptions for specific drugs in appropriate cases. They sued their employer under the Fair Labor Standards Act (FLSA) for failing to pay overtime. Under the DOL’s regulations, employers do not have to pay overtime for “outside salesmen.” The agency had not previously taken enforcement action against drug manufacturers who routinely treated detailers as outside salesmen. The Court emphasized that “where, as here, an agency’s announcement of its interpretation is preceded by a very lengthy period of conspicuous inaction, the potential for unfair surprise is acute.” Christopher, 132 S. Ct. at 2168.
Moreover, the DOL previously had taken the position that a “consummated transaction” was a sale for the purposes of the “outside salesmen” exception. However, the DOL changed its interpretation in an amicus brief to require an actual transfer of title for a “sale.” Therefore, the Court refused to defer to the agency’s new interpretation of its own regulations:
It is one thing to expect regulated parties to conform their conduct to an agency’s interpretations once the agency announces them; it is quite another to require regulated parties to divine the agency’s interpretations in advance or else be held liable when the agency announces its interpretations for the first time in an enforcement proceeding and demands deference.
The holdings in Fox and Christopher provide an important reminder to regulated industry: While federal agencies may indeed change their policies, they cannot enforce those changed policies without providing adequate notice. This is especially relevant in a time where short-staffed and underfunded federal regulatory agencies often opt for guidance documents and other policy statements rather than revise rules. Companies are well-advised to be sure they could have known or in other words were given fair notice of a new policy before acceding to an agency’s enforcement efforts.
Keywords: environmental litigation, fair notice, FCC, Christopher v. SmithKline, FCC v. Fox
J. Elizabeth Poole is an associate with Wiley Rein LLP in Washington, D.C.