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Regulatory: Making up the rules while the game is being played—FCC v. Fox

Supreme Court rules that FCC’s vague indecency policies are unconstitutional

At the beginning of the 2012 National Football League (NFL) season the officials were on strike, and the NFL decided to use a group of replacement referees, who applied the rules of the game inconsistently or not at all. This culminated in the infamous Green Bay Packers and Seattle Seahawks game that was decided by a questionable call by the replacement refs. One would hope government regulation would be immune to similar problems, but apparently it is not. That is the only conclusion to be drawn in the case of Federal Communications Commission (FCC) v. Fox Televisions Stations that was decided June 21, 2012.

Regulatory agencies implement policies and objectives set by Congress in basic legislation. They develop and implement rules and regulations to govern the areas assigned to them by Congress, according to the provisions of the federal Administrative Procedures Act (APA). The rule-making procedure generally involves the agency issuing a general notice of proposed rulemaking, giving interested parties a chance to comment, publication of a final rule, giving the public the right to petition to amend the proposed rule, then ultimately issuing a final rule. This provides an opportunity for regulated parties to participate in the rulemaking process while giving them notice of rules that are issuing.

Contributing Author

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Craig Metcalf

Craig Metcalf is a Shareholder with Kirton McConkie. His practice emphasizes intellectual property and appeals as well as mediation and arbitration. He can be reached...

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