December 19, 2012 Articles

Supreme Court: Agencies Must Give Notice Before Enforcing Regulations

Two recent decisions have affirmed regulated industries' right to fair notice of federal agencies' interpretations of the laws they implement.

By J. Elizabeth Poole – December 19, 2012

Fair notice encapsulates “the principle that agencies must provide regulated parties ‘fair warning of forbidden conduct or requirements.’” Christopher v. SmithKline Beecham Corp., 132 S. Ct. 2156, 2167 (2012) (internal quotation marks and citations omitted); see also FCC v. Fox Television Stations, Inc., 132 S. Ct. 2307 (2012). In FCC v. Fox, the Supreme Court rejected the Federal Communications Commission’s (FCC) attempt to enforce its indecency policy against broadcasters where the agency adopted a new policy after the alleged violations had occurred. The FCC claimed that both the Fox and ABC television networks had violated the agency’s decades-old indecency standard because the networks aired two incidents of “fleeting expletives” and one brief female nudity scene. However, as far back as the Supreme Court’s 1978 ruling in FCC v. Pacifica Foundation, the FCC had said its indecency policy did not cover so-called fleeting expletives or other material that did not “dwell on or repeat at length the offending description or depiction.” Fox, 132 S.Ct. at 2309 (internal quotation omitted).

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