Federal Communications Law Journal

Document Type


Publication Date


Publication Citation

61 Federal Communications Law Journal 229 (2008)


On November 4, 2008, the Supreme Court heard arguments in FCC v. Fox Television Stations, which centers on whether or the FCC's policy allowing fleeting expletives to be found actionably indecent is arbitrary and capricious. The Second Circuit found that the fleeting expletives policy is arbitrary and capricious as a matter of administrative law. The Supreme Court decision will provide much needed guidance for what constitutes a reasoned basis in the indecency regime's contextual approach. This Note argues that--despite the FCC's recognition that time and context changes the meaning of language-the FCC's indecency regime is at loggerheads with broadcasters because it fails to base the words targeted for indecency on some factual basis. This Note reviews the doctrine of arbitrary and capricious review, and places the arguments from FCC v. Fox in that light. Notably, the FCC apparently misconceives of arbitrary and capricious review--construing it as a reasonableness review rather than a hard look review. Finally, it suggests that a responsible arbitrary and capricious review should affirm the Second Circuit, and require an indecency policy predicated on facts, which would serve to strengthen the basis for the FCC's indecency determinations and would provide clearer guidance to broadcasters.