The Supreme Court has held in FCC v. Fox Tel. Stations, Inc. that the Federal Communications Commission did not act arbitrarily or capriciously when it created new regulations governing the broadcasting of "fleeting expletives."
The Court declined to rule on the constitutionality of the regulations, however, since the issue was not raised on appeal. This opens up the possibility that the regulations might come before the court again on a constitutional challenge. The Court remanded the case back to the Second Circuit, which had previously found that the regulation violated the Administrative Procedures Act.
The suit involved two broadcasts where performers uttered unscripted obscenities. In a regulation issued after the utterances, the FCC changed the rules for fleeting expletives, making it more likely that a swear word uttered absentmindedly in passing would constitute "indecent language" and violate the law.
The Supreme Court decided that the FCC enacted the new rule in a procedurally correct manner, despite the 2nd Circuit's opinion stating that the rule change required a more reasoned analysis than the agency delivered.
Specifically, the Court found that the fact that the agency was altering a prior position did not require a more substantial explanation. The Court also held that the agency had rational reasons for the new rule, did not need to produce empirical evidence to support the rule, and did not overreach with the rule's scope.
As mentioned above, however, the Court declined to discuss the rule's constitutionality, which the 2nd Circuit called into doubt in its previous opinion. Expect to see more appeals on this matter in the future.
See Also: Supreme Court Upholds FCC Process in Deciding Fleeting Expletives Were Indecent, But Sends the Case Back to Court of Appeals to Decide Constitutionality (Broadcast Law Blog)