Fox Television said it won’t pay its part of a $91,000 indecency fine levied recently by the Federal Communications Commission for a 2003 episode of a reality TV show that featured strippers and whipped cream.Fox lifted the wording from a 2007 court ruling, apparently about a different show. Oh, right: that one.
Fox said in a statement that it won’t pay the fine imposed against five of its stations because it believes the FCC’s decision that the show in question was indecent was “arbitrary and capricious, inconsistent with precedent, and patently unconstitutional.” The network said it will appeal the FCC’s decision and proposed fine on behalf of 13 stations….
— Fox TV Refuses to Pay Indecency Fine by FCC, By Amy Schatz, Wall Street Journal, 24 March 2008
Maybe if the FCC would get back to actually dealing impartially with real matters of public policy, it might garner public and Congressional support.
I am not a lawyer but my understanding of “arbitrary” is that when one has to draw a line somewhere and that place where you draw it has no or little relation to the situation it is an arbitrary decision. Example: When is a person human, the decision that a person is human only after the head comes out, thus allowing partial birth abortions, is arbitrary. There are other times previous to this (and some would claim humanity is given only after the child has survived the terrible two’s thus allowing infanticide and capital punishment for tantrums).
A decision, or rather a line of decisions would be capricious when it is not zeroing in on the target. Examples: Estimates of the value of Pi and with each getting more accurate, or zeroing in on an enemy battleship by firing broadside after broadside, getting closer all the time, bracketing it, and finally hitting it. Both would not be capricious in my mind. However making an arbitary decision biased to the side you want is capricious. Especially when both sides do it so that one shell lands way short and the next way long. One decision is way for and the other way contrary.