Over the past few years, the FCC's been increasing its efforts to regulate "indecent" programming -- both in terms of what it wants to regulate on broadcast television, but also by expanding the scope of its regulation to include cable. The FCC's indecency push (which it tries to justify with complaint stats inflated by form letters from activist groups) has been met with a lot of resistance from broadcasters, but also by courts who aren't happy with the Commission's vague guidelines and inconsistent policies. Yesterday, the FCC got a pretty significant smackdown from the Second Circuit Court of Appeals, which upheld the broadcasters' argument that its policy on "fleeting expletives" was invalid because it was "arbitrary and capricious". Essentially, the court said that the FCC can't simply change its stance without offering valid justification, and reversing 30 years of precedent requires a "reasoned basis" -- apparently "because we can, and 'cause we feel like it" isn't sufficient. While the court limited its ruling to the question of fleeting expletives, it added that it was skeptical the FCC could craft an argument that could pass constitutional muster, while also noting, like previous courts, that plenty of tools exist for parents to protect their children from objectionable programming. It seems likely that the FCC will appeal the case to the Supreme Court, but given the depth of the Circuit Court's opinion, a favorable outcome doesn't seem likely. As Adam Theirer notes, should the the wider constitutional issues come up in the appeal, the FCC could lose all of its powers to regulate indecent programming on public airwaves.
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