FCC's "Fleeting Expletives" Policy Arbitrary and Capricious

The Second Circuit issued a decision yesterday in which it found that the FCC's policy of sanctioning so-called "fleeting expletives" was arbitrary and capricious because the policy represented a significant departure from the FCC's previous positions and the FCC failed to articulate a "reasoned basis" for the change in policy.

The case arose after Fox Television Stations challenged the FCC's notices of liability against it for two broadcasts which the FCC claimed violated its indecency regime.  The two Fox programs at issue were the 2002 and 2003 Billboard Music Awards in which Cher, in an acceptance speech, used the "F-word" and presenter Nicole Richie used both a variation of the "F-word" and a curse word in reference to cow excrement.

In finding that these programs were indecent and profane, the FCC concluded, in relevant part, that it did not matter that the use of the expletives was "fleeting" and "isolated" and held that repeated use of expletives is not necessary for an indecency finding.  It was the FCC's rejection of the "fleeting" and "isolated" nature of the use of the expletives that the Second Circuit took issue with, noting that previously, "the FCC had consistently taken the view that isolated, non-literal, fleeting expletives did not run afoul of its indecency regime."

Although Fox, CBS, NBC and various amici raised a number of challenges to the FCC's decision, because the Second Circuit found the FCC's decision to be arbitrary and capricious, it declined to "reach any other potential problems with the FCC's decision."  Nevertheless, the Second Circuit noted that it was "skeptical that the Commission can provide a reasoned explanation for its 'fleeting expletive' regime that would pass constitutional muster," and went on to provide some "observations" on that topic.

It is a very detailed opinion (53 pages including the dissent) on a topic I have always found particularly interesting and troubling from a First Amendment perspective, especially given the fact that, as the Second Circuit noted, "it is increasingly difficult to describe the broadcast media as uniquely pervasive and uniquely accessible to children."
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