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APA requirements
By ChinaFilm.com Published: 2008-03-18

A federal appeals court agreed, ruling in 2007 that the new policy was invalid and would remain so until the FCC better explained and justified it. Via the Justice Dept.'s solicitor general, who represents the government, the FCC asked the Supreme Court to review the ruling, claiming that agency lawyers had indeed explained and justified the new policy sufficiently.

Many experts doubted the high court would take the case, since the appeals court ruling was based on procedural grounds -- specifically, that the FCC had failed to enact its new policy per the dictates of the Administrative Procedure Act.

Though constitutional issues were implicit in the case -- the appeals court said that even if the FCC could fulfill its APA requirements, it doubted the fleeting expletives policy would pass constitutional muster -- the Supreme Court usually does not accept cases unless constitutional questions are explicitly at the forefront.

"This does come as a surprise," said Andrew Jay Schwartzman, prexy-CEO of activist group Media Access Project, in a statement. "We were not alone in expecting that the court would reject the government's request to hear the fleeting expletive challenge."

Several industry insiders and experts surmised that U.S. Solicitor General Paul Clement's involvement was a determining factor in the court's decision to accept the case.

When the solicitor general asks for review, "it significantly raises the odds that the court will take the case," one legal expert observed. "This merely indicates that the court agrees it is significant enough of an issue to decide and does not suggest leaning either way on the outcome."
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