South-Western Legal Studies in Business

Punishing Broadcaster for One “Fleeting Expletive” Was Arbitrary and Capricious

Appeals court vacated an agency finding of liability by a TV network fined for broadcasting the f-word. The agency showed no consistency in its application of its policy against obscene and indecent broadcasts.

Topic Administrative Law
Key Words

Regulatory Policy; Arbitrary and Capricious; Broadcasting; Language; Indecency

C A S E   S U M M A R Y

On a musical awards program, Bono said that the award was “f***ing brilliant.” Fox Television was held liable by the Federal Communications Commission (FCC) for violating its policy against indecency and profanity for “fleeting expletives” on a broadcast. Fox appealed the decision.


Vacated and remanded. The FCC policy to punish “fleeting expletives” was arbitrary and capricious. For decades, while a broadcaster could have been punished under FCC rules against obscene or indecent broadcasts, no broadcaster had been punished as happened in the Fox case. The FCC’s decision was devoid of any evidence to suggest that the incident that occurred warranted government intervention. The FCC did not provide any explanation of when the policy would be enforced and when it would not, and what the basis was for the policy. Agencies may change their policies, but must provided a reasoned analysis for departing from prior precedent.


Fox Television Stations, Inc. v. Federal Communications Comm., 489 F.3d 444 (2nd Cir., 2007)

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