1. Would the outcome of this case have been different if the FCC published its intent to charge its policy in the Federal Register, solicited public comments and opinions on the matter, and then decided to make the abrupt reversal in policy? Why or why not?
2. Although the Court concluded that certain empirical data cannot be “marshaled”, couldn’t the FCC have provided studies, publications, etc., that examine the impact of indecent language on children? Shouldn’t the FCC be required to attempt to obtain empirical data?
The FCC had traditionally followed a restrained enforcement policy for the use of profanity in broadcasts when the indecent material was fleeting and isolated in nature, and applied its standards in 2003 when it ruled an acceptance speech including the phrase “this is really, really, f---ing brilliant” did not violate their policy. Subsequently, the FCC abruptly changed its course and instituted a zero-tolerance rule for any use of certain words that were inherently indecent no matter what the context or brevity. The FCC imposed fines on Fox for two incidents in 2003 and 2003 when during broadcasts of music award ceremonies one musician used a similar expletive in his acceptance speech and a presenter used two expletives. The lower courts invalidated the new standard on the basis that the agency had been arbitrary and capricious in their actions by adopting a new standard for the enforcement of profanity regulations involving the use of fleeting expletives.