Facts of the Case

In 2002 and 2003, Fox Television Stations broadcast the Billboard Music Awards, an annual program honoring top-selling musicians. During the broadcasts, one musician used an explicative in his acceptance speech, and a presenter used two expletives. The Federal Communications Commission (FCC), although it had previously taken the position that such fleeting and isolated expletives did not violate its indecency regime, issued notices of liability to Fox for broadcasting the profane language. The FCC argued that previous decisions referring to "fleeting" expletives were merely staff letters and dicta and did not accurately represent its position on the matter. Fox appealed the FCC sanctions to the U.S. Court of Appeals for the Second Circuit.

The Second Circuit held that the FCC's liability order was "arbitrary and capricious" under the governing Administrative Procedure Act because the FCC had completely reversed its position on fleeting expletives without giving a proper justification. The Second Circuit also failed to find any evidence that the expletives were harmful.

Question

Is the FCC's order imposing liability on Fox Television Stations for fleeting expletives spoken during two nationally broadcast awards ceremonies is "arbitrary and capricious" under the Administrative Procedure Act, based on the FCC's previous acceptance of similar expletives?

Conclusion

None