Federal Communications Commission v. Fox Television Stations, Inc. ( 2009 )

(Slip Opinion) OCTOBER TERM, 2008 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
FEDERAL COMMUNICATIONS COMMISSION ET AL. v.
FOX TELEVISION STATIONS, INC., ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE SECOND CIRCUIT
No. 07–582. Argued November 4, 2008—Decided April 28, 2009
Federal law bans the broadcasting of “any . . . indecent . . . language,”
18 U. S. C. §1464, which includes references to sexual or excretory ac
tivity or organs, see FCC v. Pacifica Foundation, 438 U. S. 726. Hav
ing first defined the prohibited speech in 1975, the Federal Commu
nications Commission (FCC) took a cautious, but gradually
expanding, approach to enforcing the statutory prohibition. In 2004,
the FCC’s Golden Globes Order declared for the first time that an ex
pletive (nonliteral) use of the F-Word or the S-Word could be actiona
bly indecent, even when the word is used only once.
This case concerns isolated utterances of the F- and S-Words dur
ing two live broadcasts aired by Fox Television Stations, Inc. In its
order upholding the indecency findings, the FCC, inter alia, stated
that the Golden Globes Order eliminated any doubt that fleeting ex
pletives could be actionable; declared that under the new policy, a
lack of repetition weighs against a finding of indecency, but is not a
safe harbor; and held that both broadcasts met the new test because
one involved a literal description of excrement and both invoked the
F-Word. The order did not impose sanctions for either broadcast.
The Second Circuit set aside the agency action, declining to address
the constitutionality of the FCC’s action but finding the FCC’s rea
soning inadequate under the Administrative Procedure Act (APA).
Held: The judgment is reversed, and the case is remanded.
489 F. 3d 444, reversed and remanded.
JUSTICE SCALIA delivered the opinion of the Court, except as to Part
III–E, concluding:
1. The FCC’s orders are neither “arbitrary” nor “capricious” within
2 FCC v. FOX TELEVISION STATIONS, INC.
Syllabus
the meaning of the APA, 5 U. S. C. §706(2)(A). Pp. 9–19.
(a) Under the APA standard, an agency must “examine the rele
vant data and articulate a satisfactory explanation for its action.”
Motor Vehicle Mfrs. Assn. of United States, Inc. v. State Farm Mut.
Automobile Ins. Co., 463 U. S. 29, 43. In overturning the FCC’s
judgment, the Second Circuit relied in part on its precedent inter
preting the APA and State Farm to require a more substantial expla
nation for agency action that changes prior policy. There is, however,
no basis in the Act or this Court’s opinions for a requirement that all
agency change be subjected to more searching review. Although an
agency must ordinarily display awareness that it is changing posi
tion, see United States v. Nixon, 418 U. S. 683, 696, and may some
times need to account for prior factfinding or certain reliance inter
ests created by a prior policy, it need not demonstrate to a court’s
satisfaction that the reasons for the new policy are better than the
reasons for the old one. It suffices that the new policy is permissible
under the statute, that there are good reasons for it, and that the
agency believes it to be better, which the conscious change adequately
indicates. Pp. 9–12.
(b) Under these standards, the FCC’s new policy and its order
finding the broadcasts at issue actionably indecent were neither arbi
trary nor capricious. First, the FCC forthrightly acknowledged that
its recent actions have broken new ground, taking account of incon
sistent prior FCC and staff actions, and explicitly disavowing them as
no longer good law. The agency’s reasons for expanding its enforce
ment activity, moreover, were entirely rational. Even when used as
an expletive, the F-Word’s power to insult and offend derives from its
sexual meaning. And the decision to look at the patent offensiveness
of even isolated uses of sexual and excretory words fits with Pacifica’s
context-based approach. Because the FCC’s prior safe-harbor-for
single-words approach would likely lead to more widespread use, and
in light of technological advances reducing the costs of bleeping of
fending words, it was rational for the agency to step away from its old
regime. The FCC’s decision not to impose sanctions precludes any
argument that it is arbitrarily punishing parties without notice of
their actions’ potential consequences. Pp. 13–15.
(c) None of the Second Circuit’s grounds for finding the FCC’s ac
tion arbitrary and capricious is valid. First, the FCC did not need
empirical evidence proving that fleeting expletives constitute harmful
“first blows” to children; it suffices to know that children mimic be
havior they observe. Second, the court of appeals’ finding that fidel
ity to the FCC’s “first blow” theory would require a categorical ban on
all broadcasts of expletives is not responsive to the actual policy un
der review since the FCC has always evaluated the patent offensive
Cite as: 556 U. S. ____ (2009) 3
Syllabus
ness of words and statements in relation to the context in which they
were broadcast. The FCC’s decision to retain some discretion in less
egregious cases does not invalidate its regulation of the broadcasts
under review. Third, the FCC’s prediction that a per se exemption for
fleeting expletives would lead to their increased use merits deference
and makes entire sense. Pp. 15–18.
(d) Fox’s additional arguments are not tenable grounds for affir
mance. Fox misconstrues the agency’s orders when it argues that
that the new policy is a presumption of indecency for certain words.
It reads more into Pacifica than is there by arguing that the FCC
failed adequately to explain how this regulation is consistent with
that case. And Fox’s argument that the FCC’s repeated appeal to
“context” is a smokescreen for a standardless regime of unbridled dis
cretion ignores the fact that the opinion in Pacifica endorsed a con
text-based approach. Pp. 18–19.
2. Absent a lower court opinion on the matter, this Court declines
to address the FCC orders’ constitutionality. P. 26.
SCALIA, J., announced the judgment of the Court and delivered the
opinion of the Court with respect to Parts I, II, III–A through III–D,
and IV, in which ROBERTS, C. J., and KENNEDY, THOMAS, and ALITO, JJ.,
joined, and an opinion with respect to Part III–E, in which ROBERTS,
C. J., and THOMAS and ALITO, JJ., joined. THOMAS, J., filed a concurring
opinion. KENNEDY, J., filed an opinion concurring in part and concur
ring in the judgment. STEVENS, J., and GINSBURG, J., filed dissenting
opinions. BREYER, J., filed a dissenting opinion, in which STEVENS,
SOUTER, and GINSBURG, JJ., joined.
Cite as: 556 U. S. ____ (2009) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash­
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 07–582
_________________
FEDERAL COMMUNICATIONS COMMISSION, ET AL.,
PETITIONERS v. FOX TELEVISION STATIONS,
INC., ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SECOND CIRCUIT
[April 28, 2009]
JUSTICE SCALIA delivered the opinion of the Court,
except as to Part III–E.
Federal law prohibits the broadcasting of “any . . . inde­
cent . . . language,” 18 U. S. C. §1464, which includes
expletives referring to sexual or excretory activity or
organs, see FCC v. Pacifica Foundation, 438 U. S. 726(1978). This case concerns the adequacy of the Federal
Communications Commission’s explanation of its decision
that this sometimes forbids the broadcasting of indecent
expletives even when the offensive words are not repeated.
I. Statutory and Regulatory Background
The Communications Act of 1934, 48 Stat. 1064, 47
U. S. C. §151 et seq. (2000 ed. and Supp. V), established a
system of limited-term broadcast licenses subject to vari­
ous “conditions” designed “to maintain the control of the
United States over all the channels of radio transmission,”
§301 (2000 ed.). Twenty-seven years ago we said that “[a]
licensed broadcaster is granted the free and exclusive use
of a limited and valuable part of the public domain; when
he accepts that franchise it is burdened by enforceable
2 FCC v. FOX TELEVISION STATIONS, INC.
Opinion of the Court
public obligations.” CBS, Inc. v. FCC, 453 U. S. 367, 395
(1981) (internal quotation marks omitted).
One of the burdens that licensees shoulder is the inde­
cency ban—the statutory proscription against “utter[ing]
any obscene, indecent, or profane language by means of
radio communication,” 18 U. S. C. §1464—which Congress
has instructed the Commission to enforce between the
hours of 6 a.m. and 10 p.m. Public Telecommunications
Act of 1992, §16(a), 106 Stat. 954, note following 47
U. S. C. §303.1 Congress has given the Commission vari­
ous means of enforcing the indecency ban, including civil
fines, see §503(b)(1), and license revocations or the denial
of license renewals, see §§309(k), 312(a)(6).
The Commission first invoked the statutory ban on
indecent broadcasts in 1975, declaring a daytime broad­
cast of George Carlin’s “Filthy Words” monologue
actionably indecent. Pacifica Foundation, 56 F. C. C. 2d
94. At that time, the Commission announced the defini­
tion of indecent speech that it uses to this day, prohibiting
“language that describes, in terms patently offensive as
measured by contemporary community standards for the
broadcast medium, sexual or excretory activities or or­
gans, at times of the day when there is a reasonable risk
that children may be in the audience.” Id., at 98.
In FCC v. Pacifica Foundation, supra, we upheld the
Commission’s order against statutory and constitutional
challenge. We rejected the broadcasters’ argument that
——————
1 The statutory prohibition applicable to commercial radio and televi­
sion stations extends by its terms from 6 a.m. to 12 midnight. The
Court of Appeals for the District of Columbia Circuit held, however,
that because “Congress and the Commission [had] backed away from
the consequences of their own reasoning,” by allowing some public
broadcasters to air indecent speech after 10 p.m., the court was forced
“to hold that the section is unconstitutional insofar as it bars the
broadcasting of indecent speech between the hours of 10:00 p.m. and
midnight.” Action for Children’s Television v. FCC, 58 F. 3d 654, 669
(1995) (en banc), cert. denied, 516 U. S. 1043 (1996).
Cite as: 556 U. S. ____ (2009) 3
Opinion of the Court
the statutory proscription applied only to speech appealing
to the prurient interest, noting that “the normal definition
of ‘indecent’ merely refers to nonconformance with ac­
cepted standards of morality.” Id., at 740. And we held
that the First Amendment allowed Carlin’s monologue to
be banned in light of the “uniquely pervasive presence” of
the medium and the fact that broadcast programming is
“uniquely accessible to children.” Id., at 748–749.
In the ensuing years, the Commission took a cautious,
but gradually expanding, approach to enforcing the statu­
tory prohibition against indecent broadcasts. Shortly after
Pacifica, 438 U. S. 726, the Commission expressed its
“inten[tion] strictly to observe the narrowness of the
Pacifica holding,” which “relied in part on the repetitive
occurrence of the ‘indecent’ words” contained in Carlin’s
monologue. In re Application of WGBH Educ. Foundation,
69 F. C. C. 2d 1250, 1254, ¶10 (1978). When the full Com­
mission next considered its indecency standard, however,
it repudiated the view that its enforcement power was
limited to “deliberate, repetitive use of the seven words
actually contained in the George Carlin monologue.” In re
Pacifica Foundation, Inc., 2 FCC Rcd. 2698, 2699, ¶12
(1987). The Commission determined that such a “highly
restricted enforcement standard . . . was unduly narrow as
a matter of law and inconsistent with [the Commission’s]
enforcement responsibilities under Section 1464.” In re
Infinity Broadcasting Corp. of Pa., 3 FCC Rcd. 930, ¶5
(1987). The Court of Appeals for the District of Columbia
Circuit upheld this expanded enforcement standard
against constitutional and Administrative Procedure Act
challenge. See Action for Children’s Television v. FCC,
852 F. 2d 1332 (1988) (R. Ginsburg, J.), superseded in part
by Action for Children’s Television v. FCC, 58 F. 3d 654(1995) (en banc).
Although the Commission had expanded its enforcement
beyond the “repetitive use of specific words or phrases,” it
4 FCC v. FOX TELEVISION STATIONS, INC.
Opinion of the Court
preserved a distinction between literal and nonliteral (or
“expletive”) uses of evocative language. In re Pacifica
Foundation, Inc., 2 FCC Rcd., at 2699, ¶13. The Commis­
sion explained that each literal “description or depiction of
sexual or excretory functions must be examined in context
to determine whether it is patently offensive,” but that
“deliberate and repetitive use . . . is a requisite to a finding
of indecency” when a complaint focuses solely on the use of
nonliteral expletives. Ibid.Over a decade later, the Commission emphasized that
the “full context” in which particular materials appear is
“critically important,” but that a few “principal” factors
guide the inquiry, such as the “explicitness or graphic
nature” of the material, the extent to which the material
“dwells on or repeats” the offensive material, and the
extent to which the material was presented to “pander,” to
“titillate,” or to “shock.” In re Industry Guidance On the
Commission’s Case Law Interpreting 18 U. S. C. §1464and Enforcement Policies Regarding Broadcast Indecency,
16 FCC Rcd. 7999, 8002, ¶9, 8003, ¶10 (2001) (emphasis
deleted). “No single factor,” the Commission said, “gener­
ally provides the basis for an indecency finding,” but
“where sexual or excretory references have been made
once or have been passing or fleeting in nature, this char­
acteristic has tended to weigh against a finding of inde­
cency.” Id., at 8003, ¶10, 8008, ¶17.
In 2004, the Commission took one step further by de­
claring for the first time that a nonliteral (expletive) use of
the F- and S-Words could be actionably indecent, even
when the word is used only once. The first order to this
effect dealt with an NBC broadcast of the Golden Globe
Awards, in which the performer Bono commented, “ ‘This
is really, really, f***ing brilliant.’ ” In re Complaints
Against Various Broadcast Licensees Regarding Their
Airing of the “Golden Globe Awards” Program, 19 FCC
Rcd. 4975, 4976, n. 4 (2004) (Golden Globes Order). Al­
Cite as: 556 U. S. ____ (2009) 5
Opinion of the Court
though the Commission had received numerous com­
plaints directed at the broadcast, its enforcement bureau
had concluded that the material was not indecent because
“Bono did not describe, in context, sexual or excretory
organs or activities and . . . the utterance was fleeting and
isolated.” Id., at 4975–4976, ¶3. The full Commission
reviewed and reversed the staff ruling.
The Commission first declared that Bono’s use of the F-
Word fell within its indecency definition, even though the
word was used as an intensifier rather than a literal
descriptor. “[G]iven the core meaning of the ‘F-Word,’ ” it
said, “any use of that word . . . inherently has a sexual
connotation.” Id., at 4978, ¶8. The Commission deter­
mined, moreover, that the broadcast was “patently offen­
sive” because the F-Word “is one of the most vulgar,
graphic and explicit descriptions of sexual activity in the
English language,” because “[i]ts use invariably invokes a
coarse sexual image,” and because Bono’s use of the word
was entirely “shocking and gratuitous.” Id., at 4979, ¶9.
The Commission observed that categorically exempting
such language from enforcement actions would “likely lead
to more widespread use.” Ibid. Commission action was
necessary to “safeguard the well-being of the nation’s
children from the most objectionable, most offensive lan­
guage.” Ibid. The order noted that technological advances
have made it far easier to delete (“bleep out”) a “single and
gratuitous use of a vulgar expletive,” without adulterating
the content of a broadcast. Id., at 4980, ¶11.
The order acknowledged that “prior Commission and
staff action have indicated that isolated or fleeting broad­
casts of the ‘F-Word’ . . . are not indecent or would not be
acted upon.” It explicitly ruled that “any such interpreta­
tion is no longer good law.” Ibid., ¶12. It “clarif[ied] . . .
that the mere fact that specific words or phrases are not
sustained or repeated does not mandate a finding that
material that is otherwise patently offensive to the broad­
6 FCC v. FOX TELEVISION STATIONS, INC.
Opinion of the Court
cast medium is not indecent.” Ibid. Because, however,
“existing precedent would have permitted this broadcast,”
the Commission determined that “NBC and its affiliates
necessarily did not have the requisite notice to justify a
penalty.” Id., at 4981–4982, ¶15.
II. The Present Case
This case concerns utterances in two live broadcasts
aired by Fox Television Stations, Inc., and its affiliates
prior to the Commission’s Golden Globes Order. The first
occurred during the 2002 Billboard Music Awards, when
the singer Cher exclaimed, “I’ve also had critics for the
last 40 years saying that I was on my way out every year.
Right. So f*** ‘em.” Brief for Petitioners 9. The second
involved a segment of the 2003 Billboard Music Awards,
during the presentation of an award by Nicole Richie and
Paris Hilton, principals in a Fox television series called
“The Simple Life.” Ms. Hilton began their interchange by
reminding Ms. Richie to “watch the bad language,” but
Ms. Richie proceeded to ask the audience, “Why do they
even call it ‘The Simple Life?’ Have you ever tried to get
cow s*** out of a Prada purse? It’s not so f***ing simple.”
Id., at 9–10. Following each of these broadcasts, the Com­
mission received numerous complaints from parents
whose children were exposed to the language.
On March 15, 2006, the Commission released Notices of
Apparent Liability for a number of broadcasts that the
Commission deemed actionably indecent, including the
two described above. In re Complaints Regarding Various
Television Broadcasts Between February 2, 2002 and
March 8, 2005, 21 FCC Rcd. 2664 (2006). Multiple parties
petitioned the Court of Appeals for the Second Circuit for
judicial review of the order, asserting a variety of constitu­
tional and statutory challenges. Since the order had
declined to impose sanctions, the Commission had not
previously given the broadcasters an opportunity to re­
Cite as: 556 U. S. ____ (2009) 7
Opinion of the Court
spond to the indecency charges. It therefore requested
and obtained from the Court of Appeals a voluntary re­
mand so that the parties could air their objections. 489
F. 3d 444, 453 (2007). The Commission’s order on remand
upheld the indecency findings for the broadcasts described
above. See In re Complaints Regarding Various Television
Broadcasts Between February 2, 2002, and March 8, 2005,
21 FCC Rcd. 13299 (2006) (Remand Order).
The order first explained that both broadcasts fell com­
fortably within the subject-matter scope of the Commis­
sion’s indecency test because the 2003 broadcast involved
a literal description of excrement and both broadcasts
invoked the “F-Word,” which inherently has a sexual
connotation. Id., at 13304, ¶16, 13323, ¶58. The order
next determined that the broadcasts were patently offen­
sive under community standards for the medium. Both
broadcasts, it noted, involved entirely gratuitous uses of
“one of the most vulgar, graphic, and explicit words for
sexual activity in the English language.” Id., at 13305,
¶17, 13324, ¶59. It found Ms. Richie’s use of the “F-Word”
and her “explicit description of the handling of excrement”
to be “vulgar and shocking,” as well as to constitute “pan­
dering,” after Ms. Hilton had playfully warned her to
“ ‘watch the bad language.’ ” Id., at 13305, ¶17. And it
found Cher’s statement patently offensive in part because
she metaphorically suggested a sexual act as a means of
expressing hostility to her critics. Id., at 13324, ¶60. The
order relied upon the “critically important” context of the
utterances, id., at 13304, ¶15, noting that they were aired
during prime-time awards shows “designed to draw a
large nationwide audience that could be expected to in­
clude many children interested in seeing their favorite
music stars,” id., at 13305, ¶18, 13324, ¶59. Indeed, ap­
proximately 2.5 million minors witnessed each of the
broadcasts. Id., at 13306, ¶18, 13326, ¶65.
The order asserted that both broadcasts under review
8 FCC v. FOX TELEVISION STATIONS, INC.
Opinion of the Court
would have been actionably indecent under the staff rul­
ings and Commission dicta in effect prior to the Golden
Globes Order—the 2003 broadcast because it involved a
literal description of excrement, rather than a mere exple­
tive, because it used more than one offensive word, and
because it was planned, 21 FCC Rcd., at 13307, ¶22; and
the 2002 broadcast because Cher used the F-Word not as a
mere intensifier, but as a description of the sexual act to
express hostility to her critics, id., at 13324, ¶60. The
order stated, however, that the pre-Golden Globes regime
of immunity for isolated indecent expletives rested only
upon staff rulings and Commission dicta, and that the
Commission itself had never held “that the isolated use of
an expletive . . . was not indecent or could not be inde­
cent,” 21 FCC Rcd., at 13307, ¶21. In any event, the order
made clear, the Golden Globes Order eliminated any doubt
that fleeting expletives could be actionably indecent, 21
FCC Rcd., at 13308, ¶23, 13325, ¶61, and the Commission
disavowed the bureau-level decisions and its own dicta
that had said otherwise, id., at 13306–13307, ¶¶20, 21.
Under the new policy, a lack of repetition “weigh[s]
against a finding of indecency,” id., at 13325, ¶61, but is
not a safe harbor.
The order explained that the Commission’s prior “strict
dichotomy between ‘expletives’ and ‘descriptions or depic­
tions of sexual or excretory functions’ is artificial and does
not make sense in light of the fact that an ‘expletive’s’
power to offend derives from its sexual or excretory mean­
ing.” Id., at 13308, ¶23. In the Commission’s view,
“granting an automatic exemption for ‘isolated or fleeting’
expletives unfairly forces viewers (including children)” to
take “ ‘the first blow’ ” and would allow broadcasters “to air
expletives at all hours of a day so long as they did so one
at a time.” Id., at 13309, ¶25. Although the Commission
determined that Fox encouraged the offensive language by
using suggestive scripting in the 2003 broadcast, and
Cite as: 556 U. S. ____ (2009) 9
Opinion of the Court
unreasonably failed to take adequate precautions in both
broadcasts, id., at 13311–13314, ¶¶31–37, the order again
declined to impose any forfeiture or other sanction for
either of the broadcasts, id., at 13321, ¶53, 13326, ¶66.
Fox returned to the Second Circuit for review of the
Remand Order, and various intervenors including CBS,
NBC, and ABC joined the action. The Court of Appeals
reversed the agency’s orders, finding the Commission’s
reasoning inadequate under the Administrative Procedure
Act. 489 F. 3d 444. The majority was “skeptical that the
Commission [could] provide a reasoned explanation for its
‘fleeting expletive’ regime that would pass constitutional
muster,” but it declined to reach the constitutional ques­
tion. Id., at 462. Judge Leval dissented, id., at 467. We
granted certiorari, 552 U. S. ___ (2008).
III. Analysis
A. Governing Principles
The Administrative Procedure Act, 5 U. S. C. §551 et
seq., which sets forth the full extent of judicial authority to
review executive agency action for procedural correctness,
see Vermont Yankee Nuclear Power Corp. v. Natural Re
sources Defense Council, Inc., 435 U. S. 519, 545–549
(1978), permits (insofar as relevant here) the setting aside
of agency action that is “arbitrary” or “capricious,” 5
U. S. C. §706(2)(A). Under what we have called this “nar­
row” standard of review, we insist that an agency “exam­
ine the relevant data and articulate a satisfactory expla­
nation for its action.” Motor Vehicle Mfrs. Assn. of United
States, Inc. v. State Farm Mut. Automobile Ins. Co., 463
U. S. 29, 43 (1983). We have made clear, however, that “a
court is not to substitute its judgment for that of the
agency,” ibid., and should “uphold a decision of less than
ideal clarity if the agency’s path may reasonably be dis­
cerned,” Bowman Transp., Inc. v. Arkansas-Best Freight
System, Inc., 419 U. S. 281, 286 (1974).
10 FCC v. FOX TELEVISION STATIONS, INC.
Opinion of the Court
In overturning the Commission’s judgment, the Court of
Appeals here relied in part on Circuit precedent requiring
a more substantial explanation for agency action that
changes prior policy. The Second Circuit has interpreted
the Administrative Procedure Act and our opinion in State
Farm as requiring agencies to make clear “ ‘why the origi­
nal reasons for adopting the [displaced] rule or policy are
no longer dispositive’ ” as well as “ ‘why the new rule effec­
tuates the statute as well as or better than the old rule.’ ”
489 F. 3d, at 456–457 (quoting New York Council, Assn. of
Civilian Technicians v. FLRA, 757 F. 2d 502, 508 (CA2
1985); emphasis deleted). The Court of Appeals for the
District of Columbia Circuit has similarly indicated that a
court’s standard of review is “heightened somewhat” when
an agency reverses course. NAACP v. FCC, 682 F. 2d 993,
998 (1982).
We find no basis in the Administrative Procedure Act or
in our opinions for a requirement that all agency change
be subjected to more searching review. The Act mentions
no such heightened standard. And our opinion in State
Farm neither held nor implied that every agency action
representing a policy change must be justified by reasons
more substantial than those required to adopt a policy in
the first instance. That case, which involved the rescis­
sion of a prior regulation, said only that such action re­
quires “a reasoned analysis for the change beyond that
which may be required when an agency does not act in the
first instance.” 463 U. S., at 42 (emphasis added).2 Treat­
——————
2 JUSTICE BREYER’s contention that State Farm did anything more,
post, at 4–6 (dissenting opinion), rests upon his failure to observe the
italicized phrase and upon a passage quoted in State Farm from a
plurality opinion in Atchison, T. & S. F. R. Co. v. Wichita Bd. of Trade,
412 U. S. 800 (1973). That passage referred to “a presumption that
[congressional] policies will be carried out best if the settled rule is
adhered to.” Id., at 807–808 (opinion of Marshall, J.). But the Atchison
plurality made this statement in the context of requiring the agency to
Cite as: 556 U. S. ____ (2009) 11
Opinion of the Court
ing failures to act and rescissions of prior action differ­
ently for purposes of the standard of review makes good
sense, and has basis in the text of the statute, which
likewise treats the two separately. It instructs a review­
ing court to “compel agency action unlawfully withheld or
unreasonably delayed,” 5 U. S. C. §706(1), and to “hold
unlawful and set aside agency action, findings, and con­
clusions found to be [among other things] . . . arbitrary [or]
capricious,” §706(2)(A). The statute makes no distinction,
however, between initial agency action and subsequent
agency action undoing or revising that action.
To be sure, the requirement that an agency provide
reasoned explanation for its action would ordinarily de­
mand that it display awareness that it is changing posi­
tion. An agency may not, for example, depart from a prior
policy sub silentio or simply disregard rules that are still
on the books. See United States v. Nixon, 418 U. S. 683,
696 (1974). And of course the agency must show that
there are good reasons for the new policy. But it need not
demonstrate to a court’s satisfaction that the reasons for
the new policy are better than the reasons for the old one;
it suffices that the new policy is permissible under the
statute, that there are good reasons for it, and that the
agency believes it to be better, which the conscious change
of course adequately indicates. This means that the
agency need not always provide a more detailed justifica­
tion than what would suffice for a new policy created on a
blank slate. Sometimes it must—when, for example, its
new policy rests upon factual findings that contradict
those which underlay its prior policy; or when its prior
——————
provide some explanation for a change, “so that the reviewing court
may understand the basis of the agency’s action and so may judge the
consistency of that action with the agency’s mandate,” id., at 808. The
opinion did not assert the authority of a court to demand explanation
sufficient to enable it to weigh (by its own lights) the merits of the
agency’s change. Nor did our opinion in State Farm.
12 FCC v. FOX TELEVISION STATIONS, INC.
Opinion of the Court
policy has engendered serious reliance interests that must
be taken into account. Smiley v. Citibank (South Dakota),
N. A., 517 U. S. 735, 742 (1996). It would be arbitrary or
capricious to ignore such matters. In such cases it is not
that further justification is demanded by the mere fact of
policy change; but that a reasoned explanation is needed
for disregarding facts and circumstances that underlay or
were engendered by the prior policy.
In this appeal from the Second Circuit’s setting aside of
Commission action for failure to comply with a procedural
requirement of the Administrative Procedure Act, the
broadcasters’ arguments have repeatedly referred to the
First Amendment. If they mean to invite us to apply a
more stringent arbitrary-and-capricious review to agency
actions that implicate constitutional liberties, we reject
the invitation. The so-called canon of constitutional
avoidance is an interpretive tool, counseling that ambigu­
ous statutory language be construed to avoid serious
constitutional doubts. See Edward J. DeBartolo Corp. v.
Florida Gulf Coast Building & Constr. Trades Council,
485 U. S. 568, 575 (1988). We know of no precedent for
applying it to limit the scope of authorized executive ac­
tion. In the same section authorizing courts to set aside
“arbitrary [or] capricious” agency action, the Administra­
tive Procedure Act separately provides for setting aside
agency action that is “unlawful,” 5 U. S. C. §706(2)(A),
which of course includes unconstitutional action. We
think that is the only context in which constitutionality
bears upon judicial review of authorized agency action. If
the Commission’s action here was not arbitrary or capri­
cious in the ordinary sense, it satisfies the Administrative
Procedure Act’s “arbitrary [or] capricious” standard; its
lawfulness under the Constitution is a separate question
to be addressed in a constitutional challenge.3
——————
3 JUSTICE BREYER claims that “[t]he Court has often applied [the doc­
Cite as: 556 U. S. ____ (2009) 13
Opinion of the Court
B. Application to This Case
Judged under the above described standards, the Com­
mission’s new enforcement policy and its order finding the
broadcasts actionably indecent were neither arbitrary nor
capricious. First, the Commission forthrightly acknowl­
edged that its recent actions have broken new ground,
taking account of inconsistent “prior Commission and staff
action” and explicitly disavowing them as “no longer good
law.” Golden Globes Order, 19 FCC Rcd., at 4980, ¶12. To
be sure, the (superfluous) explanation in its Remand
Order of why the Cher broadcast would even have violated
its earlier policy may not be entirely convincing. But that
unnecessary detour is irrelevant. There is no doubt that
the Commission knew it was making a change. That is
why it declined to assess penalties; and it relied on the
Golden Globes Order as removing any lingering doubt.
Remand Order, 21 FCC Rcd., at 13308, ¶23, 13325, ¶61.
Moreover, the agency’s reasons for expanding the scope
of its enforcement activity were entirely rational. It was
certainly reasonable to determine that it made no sense to
——————
trine of constitutional avoidance] where an agency’s regulation relies on
a plausible but constitutionally suspect interpretation of a statute.”
Post, at 21. The cases he cites, however, set aside an agency regulation
because, applying the doctrine of constitutional avoidance to the am­
biguous statute under which the agency acted, the Court found the
agency’s interpretation of the statute erroneous. See Solid Waste
Agency of Northern Cook Cty. v. Army Corps of Engineers, 531 U. S.
159, 174 (2001); NLRB v. Catholic Bishop of Chicago, 440 U. S. 490,
507 (1979). But JUSTICE BREYER does not urge that we issue such a
holding, evidently agreeing that we should limit our review to what the
Court of Appeals decided, see Part IV, infra—which included only the
adequacy of the Commission’s rulemaking procedure, and not the
statutory question. Rather, JUSTICE BREYER seeks a “remand [that]
would do no more than ask the agency to reconsider its policy decision
in light of” constitutional concerns. Post, at 21. That strange and novel
disposition would be entirely unrelated to the doctrine of constitutional
avoidance, and would better be termed the doctrine of judicial arm­
twisting or appellate review by the wagged finger.
14 FCC v. FOX TELEVISION STATIONS, INC.
Opinion of the Court
distinguish between literal and nonliteral uses of offensive
words, requiring repetitive use to render only the latter
indecent. As the Commission said with regard to expletive
use of the F-Word, “the word’s power to insult and offend
derives from its sexual meaning.” Id., at 13323, ¶58. And
the Commission’s decision to look at the patent offensive­
ness of even isolated uses of sexual and excretory words
fits with the context-based approach we sanctioned in
Pacifica, 438 U. S., at 750. Even isolated utterances can
be made in “pander[ing,] . . . vulgar and shocking” man­
ners, Remand Order, 21 FCC Rcd., at 13305, ¶17, and can
constitute harmful “ ‘first blow[s]’ ” to children, id., at
13309, ¶25. It is surely rational (if not inescapable) to
believe that a safe harbor for single words would “likely
lead to more widespread use of the offensive language,”
Golden Globes Order, supra, at 4979, ¶9.
When confronting other requests for per se rules govern­
ing its enforcement of the indecency prohibition, the
Commission has declined to create safe harbors for par­
ticular types of broadcasts. See In re Pacifica Foundation,
Inc., 2 FCC Rcd., at 2699, ¶12 (repudiating the view that
the Commission’s enforcement power was limited to “de­
liberate, repetitive use of the seven words actually con­
tained in the George Carlin monologue”); In re Infinity
Broadcasting Corp. of Pa., 3 FCC Rcd., at 932, ¶17 (“re­
ject[ing] an approach that would hold that if a work has
merit, it is per se not indecent”). The Commission could
rationally decide it needed to step away from its old re­
gime where nonrepetitive use of an expletive was per se
nonactionable because that was “at odds with the Com­
mission’s overall enforcement policy.” Remand Order,
supra, at 13308, ¶23.
The fact that technological advances have made it easier
for broadcasters to bleep out offending words further
supports the Commission’s stepped-up enforcement policy.
Golden Globes Order, supra, at 4980, ¶11. And the
Cite as: 556 U. S. ____ (2009) 15
Opinion of the Court
agency’s decision not to impose any forfeiture or other
sanction precludes any argument that it is arbitrarily
punishing parties without notice of the potential conse­
quences of their action.
C. The Court of Appeals’ Reasoning
The Court of Appeals found the Commission’s action
arbitrary and capricious on three grounds. First, the court
criticized the Commission for failing to explain why it had
not previously banned fleeting expletives as “harmful ‘first
blow[s].’ ” 489 F. 3d, at 458. In the majority’s view, with­
out “evidence that suggests a fleeting expletive is harmful
[and] . . . serious enough to warrant government regula­
tion,” the agency could not regulate more broadly. Id., at
461. As explained above, the fact that an agency had a
prior stance does not alone prevent it from changing its
view or create a higher hurdle for doing so. And it is not
the Commission, but Congress that has proscribed “any
. . . indecent . . . language.” 18 U. S. C. §1464.
There are some propositions for which scant empirical
evidence can be marshaled, and the harmful effect of
broadcast profanity on children is one of them. One can­
not demand a multiyear controlled study, in which some
children are intentionally exposed to indecent broadcasts
(and insulated from all other indecency), and others are
shielded from all indecency. It is one thing to set aside
agency action under the Administrative Procedure Act
because of failure to adduce empirical data that can read­
ily be obtained. See, e.g., State Farm, 463 U. S., at 46–56
(addressing the costs and benefits of mandatory passive
restraints for automobiles). It is something else to insist
upon obtaining the unobtainable. Here it suffices to know
that children mimic the behavior they observe—or at least
the behavior that is presented to them as normal and
appropriate. Programming replete with one-word inde­
cent expletives will tend to produce children who use (at
16 FCC v. FOX TELEVISION STATIONS, INC.
Opinion of the Court
least) one-word indecent expletives. Congress has made
the determination that indecent material is harmful to
children, and has left enforcement of the ban to the Com­
mission. If enforcement had to be supported by empirical
data, the ban would effectively be a nullity.
The Commission had adduced no quantifiable measure
of the harm caused by the language in Pacifica, and we
nonetheless held that the “government’s interest in the
‘well-being of its youth’ . . . justified the regulation of
otherwise protected expression.” 438 U. S., at 749 (quot­
ing Ginsberg v. New York, 390 U. S. 629, 640, 639 (1968)).
If the Constitution itself demands of agencies no more
scientifically certain criteria to comply with the First
Amendment, neither does the Administrative Procedure
Act to comply with the requirement of reasoned decision­
making.
The court’s second objection is that fidelity to the
agency’s “first blow” theory of harm would require a cate­
gorical ban on all broadcasts of expletives; the Commis­
sion’s failure to go to this extreme thus undermined the
coherence of its rationale. 489 F. 3d, at 458–459. This
objection, however, is not responsive to the Commission’s
actual policy under review—the decision to include pat­
ently offensive fleeting expletives within the definition of
indecency. The Commission’s prior enforcement practice,
unchallenged here, already drew distinctions between the
offensiveness of particular words based upon the context
in which they appeared. Any complaint about the Com­
mission’s failure to ban only some fleeting expletives is
better directed at the agency’s context-based system gen­
erally rather than its inclusion of isolated expletives.
More fundamentally, however, the agency’s decision to
consider the patent offensiveness of isolated expletives on
a case-by-case basis is not arbitrary or capricious. “Even a
prime-time recitation of Geoffrey Chaucer’s Miller’s Tale,”
we have explained, “would not be likely to command the
Cite as: 556 U. S. ____ (2009) 17
Opinion of the Court
attention of many children who are both old enough to
understand and young enough to be adversely affected.”
Pacifica, supra, at 750, n. 29. The same rationale could
support the Commission’s finding that a broadcast of the
film Saving Private Ryan was not indecent—a finding to
which the broadcasters point as supposed evidence of the
Commission’s inconsistency. The frightening suspense
and the graphic violence in the movie could well dissuade
the most vulnerable from watching and would put parents
on notice of potentially objectionable material. See In re
Complaints Against Various Television Licensees Regard
ing Their Broadcast on Nov. 11, 2004 of the ABC Televi
sion Network’s Presentation of the Film “Saving Private
Ryan,” 20 FCC Rcd. 4507, 4513, ¶15 (2005) (noting that
the broadcast was not “intended as family entertain­
ment”). The agency’s decision to retain some discretion
does not render arbitrary or capricious its regulation of
the deliberate and shocking uses of offensive language at
the award shows under review—shows that were expected
to (and did) draw the attention of millions of children.
Finally, the Court of Appeals found unconvincing the
agency’s prediction (without any evidence) that a per se
exemption for fleeting expletives would lead to increased
use of expletives one at a time. 489 F. 3d, at 460. But
even in the absence of evidence, the agency’s predictive
judgment (which merits deference) makes entire sense. To
predict that complete immunity for fleeting expletives,
ardently desired by broadcasters, will lead to a substantial
increase in fleeting expletives seems to us an exercise in
logic rather than clairvoyance. The Court of Appeals was
perhaps correct that the Commission’s prior policy had not
yet caused broadcasters to “barrag[e] the airwaves with
expletives,” ibid. That may have been because its prior
permissive policy had been confirmed (save in dicta) only
at the staff level. In any event, as the Golden Globes order
demonstrated, it did produce more expletives than the
18 FCC v. FOX TELEVISION STATIONS, INC.
Opinion of the Court
Commission (which has the first call in this matter)
deemed in conformity with the statute.
D. Respondents’ Arguments
Respondents press some arguments that the court did
not adopt. They claim that the Commission failed to
acknowledge its change in enforcement policy. That con­
tention is not tenable in light of the Golden Globes Order’s
specific declaration that its prior rulings were no longer
good law, 19 FCC Rcd., at 4980, ¶12, and the Remand
Order’s disavowal of those staff rulings and Commission
dicta as “seriously flawed,” 21 FCC Rcd., at 13308, ¶23.
The broadcasters also try to recharacterize the nature of
the Commission’s shift, contending that the old policy was
not actually a per se rule against liability for isolated
expletives and that the new policy is a presumption of
indecency for certain words. This description of the prior
agency policy conflicts with the broadcasters’ own prior
position in this case. See, e.g., Brief in Opposition for
Respondent Fox Television Stations, Inc., et al. 4 (“For
almost 30 years following Pacifica, the FCC did not con­
sider fleeting, isolated or inadvertent expletives to be
indecent”). And we find no basis for the contention that
the Commission has now adopted a presumption of inde­
cency; its repeated reliance on context refutes this claim.
The broadcasters also make much of the fact that the
Commission has gone beyond the scope of authority ap­
proved in Pacifica, which it once regarded as the farthest
extent of its power. But we have never held that Pacifica
represented the outer limits of permissible regulation, so
that fleeting expletives may not be forbidden. To the
contrary, we explicitly left for another day whether “an
occasional expletive” in “a telecast of an Elizabethan
comedy” could be prohibited. 438 U. S., at 748. By using
the narrowness of Pacifica’s holding to require empirical
evidence of harm before the Commission regulates more
Cite as: 556 U. S. ____ (2009) 19
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Opinion of SCALIA, J.
broadly, the broadcasters attempt to turn the sword of
Pacifica, which allowed some regulation of broadcast
indecency, into an administrative-law shield preventing
any regulation beyond what Pacifica sanctioned. Nothing
prohibits federal agencies from moving in an incremental
manner. Cf. National Cable & Telecommunications Assn.
v. Brand X Internet Services, 545 U. S. 967, 1002 (2005).
Finally, the broadcasters claim that the Commission’s
repeated appeal to “context” is simply a smokescreen for a
standardless regime of unbridled discretion. But we have
previously approved Commission regulation based “on a
nuisance rationale under which context is all-important,”
Pacifica, supra, at 750, and we find no basis in the Admin­
istrative Procedure Act for mandating anything different.
E. The Dissents’ Arguments
JUSTICE BREYER purports to “begin with applicable law,”
post, at 1, but in fact begins by stacking the deck. He
claims that the FCC’s status as an “independent” agency
sheltered from political oversight requires courts to be “all
the more” vigilant in ensuring “that major policy decisions
be based upon articulable reasons.” Post, at 1, 2. Not so.
The independent agencies are sheltered not from politics
but from the President, and it has often been observed
that their freedom from presidential oversight (and protec­
tion) has simply been replaced by increased subservience
to congressional direction. See, e.g., In re Sealed Case, 838
F. 2d 476, 507–508 (CADC) (Silberman, J.), rev’d sub nom.
Morrison v. Olson, 487 U. S. 654 (1988); Kagan, Presiden­
tial Administration, 114 Harv. L. Rev. 2245, 2271, n. 93
(2001); Calabresi & Prakash, The President’s Power to
Execute the Laws, 104 Yale L. J. 541, 583 (1994); Easter­
brook, The State of Madison’s Vision of the State: A Public
Choice Perspective, 107 Harv. L. Rev. 1328, 1341 (1994).
Indeed, the precise policy change at issue here was
20 FCC v. FOX TELEVISION STATIONS, INC.
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Opinion of SCALIA, J.
spurred by significant political pressure from Congress.4
——————
4A Subcommittee of the FCC’s House oversight Committee held hear­
ings on the FCC’s broadcast indecency enforcement on January 28,
2004. “Can You Say That on TV?”: An Examination of the FCC’s
Enforcement with respect to Broadcast Indecency, Hearing before the
Subcommittee on Telecommunications and the Internet of the House
Committee on Energy and Commerce, 108th Cong., 2d Sess. Members
of the Subcommittee specifically “called on the full Commission to
reverse [the staff ruling in the Golden Globes case]” because they
perceived a “feeling amongst many Americans that some broadcasters
are engaged in a race to the bottom, pushing the decency envelope to
distinguish themselves in the increasingly crowded entertainment
field.” Id., at 2 (statement of Rep. Upton); see also, e.g., id., at 17(statement of Rep. Terry), 19 (statement of Rep. Pitts). They repeatedly
expressed disapproval of the FCC’s enforcement policies, see, e.g., id.,
at 3 (statement of Rep. Upton) (“At some point we have to ask the FCC:
How much is enough? When will it revoke a license?”); id., at 4 (state­
ment of Rep. Markey) (“Today’s hearing will allow us to explore the
FCC’s lackluster enforcement record with respect to these violations”).
About two weeks later, on February 11, 2004, the same Subcommit­
tee held hearings on a bill increasing the fines for indecency violations.
Hearings on H. R 3717 before the Subcommittee on Telecommunica­
tions and the Internet of the House Committee on Energy and Com­
merce, 108th Cong., 2d Sess. All five Commissioners were present and
were grilled about enforcement shortcomings. See, e.g., id., at 124(statement of Rep. Terry) (“Chairman Powell, . . . it seems like common
sense that if we had . . . more frequent enforcement instead of a few
examples of fines . . . that would be a deterrent in itself”); id., at 7(statement of Rep. Dingell) (“I see that apparently . . . there is no
enforcement of regulations at the FCC”). Certain statements, more­
over, indicate that the political pressure applied by Congress had its
desired effect. See ibid. (“I think our committee’s work has gotten the
attention of FCC Chairman Powell and the Bush Administration. And
I’m happy to see the FCC now being brought to a state of apparent alert
on these matters”); see also id., at 124 (statement of Michael Copps,
FCC Commissioner) (noting “positive” change in other Commissioners’
willingness to step up enforcement in light of proposed congressional
action). A version of the bill ultimately became law as the Broadcast
Decency Enforcement Act of 2005, 120 Stat. 491.
The FCC adopted the change that is the subject of this litigation on
March 3, 2004, about three weeks after this second hearing. See
Golden Globes Order, 19 FCC Rcd. 4975.
Cite as: 556 U. S. ____ (2009) 21
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Opinion of SCALIA, J.
JUSTICE STEVENS apparently recognizes this political
control by Congress, and indeed sees it as the manifesta­
tion of a principal-agency relationship. In his judgment,
the FCC is “better viewed as an agent of Congress” than
as part of the Executive. Post, at 3 (dissenting opinion).
He nonetheless argues that this is a good reason for re­
quiring the FCC to explain “why its prior policy is no
longer sound before allowing it to change course.” Post, at
4. Leaving aside the unconstitutionality of a scheme
giving the power to enforce laws to agents of Congress, see
Bowsher v. Synar, 478 U. S. 714, 726 (1986), it seems to us
that JUSTICE STEVENS’ conclusion does not follow from his
premise. If the FCC is indeed an agent of Congress, it
would seem an adequate explanation of its change of
position that Congress made clear its wishes for stricter
enforcement, see n. 4, supra.5 The Administrative Proce­
dure Act, after all, does not apply to Congress and its
agencies.6
——————
5 JUSTICE STEVENS accuses us of equating statements made in a con­
gressional hearing with the intent of Congress. Post, at 4, n. 3. In this
opinion, we do not. The intent of the full Congress (or at least a major­
ity of each House) is thought relevant to the interpretation of statutes,
since they must be passed by the entire Congress. See U. S. Const.,
Art. I, §7. It is quite irrelevant, however, to the extrastatutory influ­
ence Congress exerts over agencies of the Executive Branch, which is
exerted by the congressional committees responsible for oversight and
appropriations with respect to the relevant agency. That is a major
reason why committee assignments are important, and committee
chairmanships powerful. Surely JUSTICE STEVENS knows this.
6 The Administrative Procedure Act defines “agency” to mean “each
authority of the Government of the United States,” 5 U. S. C. §551(1),
but specifically excludes “the Congress,” §551(1)(A). The Court of
Appeals for the District of Columbia Circuit has “interpreted [this]
exemption for ‘the Congress’ to mean the entire legislative branch,”
Washington Legal Foundation v. United States Sentencing Comm’n, 17
F. 3d 1446, 1449 (1994); see also Ethnic Employees of Library of Con
gress v. Boorstin, 751 F. 2d 1405, 1416, n. 15 (CADC 1985) (holding
that the Library of Congress is not an “agency” under the Act).
22 FCC v. FOX TELEVISION STATIONS, INC.
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Opinion of SCALIA, J.
Regardless, it is assuredly not “applicable law” that
rulemaking by independent regulatory agencies is subject
to heightened scrutiny. The Administrative Procedure
Act, which provides judicial review, makes no distinction
between independent and other agencies, neither in its
definition of agency, 5 U. S. C. §701(b)(1), nor in the stan­
dards for reviewing agency action, §706. Nor does any
case of ours express or reflect the “heightened scrutiny”
JUSTICE BREYER and JUSTICE STEVENS would impose.
Indeed, it is hard to imagine any closer scrutiny than that
we have given to the Environmental Protection Agency,
which is not an independent agency. See Massachusetts v.
EPA, 549 U. S. 497, 533–535 (2007); Whitman v. American
Trucking Assns., Inc., 531 U. S. 457, 481–486 (2001).
There is no reason to magnify the separation-of-powers
dilemma posed by the Headless Fourth Branch, see Frey
tag v. Commissioner, 501 U. S. 868, 921 (1991) (SCALIA, J.,
concurring in part and concurring in judgment), by letting
Article III judges—like jackals stealing the lion’s kill—
expropriate some of the power that Congress has wrested
from the unitary Executive.
JUSTICE BREYER and JUSTICE STEVENS rely upon two
supposed omissions in the FCC’s analysis that they believe
preclude a finding that the agency did not act arbitrarily.
Neither of these omissions could undermine the coherence
of the rationale the agency gave, but the dissenters’
evaluation of each is flawed in its own right.
First, both claim that the Commission failed adequately
to explain its consideration of the constitutional issues
inherent in its regulation, post, at 7–11 (opinion of
BREYER, J.); post, at 4–7 (opinion of STEVENS, J.). We are
unaware that we have ever before reversed an executive
agency, not for violating our cases, but for failure to dis­
cuss them adequately. But leave that aside. According to
JUSTICE BREYER, the agency said “next to nothing about
the relation between the change it made in its prior ‘fleet­
Cite as: 556 U. S. ____ (2009) 23
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Opinion of SCALIA, J.
ing expletive’ policy and the First-Amendment-related
need to avoid ‘censorship,’ ” post, at 7–8. The Remand
Order does, however, devote four full pages of small-type,
single-spaced text (over 1,300 words not counting the
footnotes) to explaining why the Commission believes that
its indecency-enforcement regime (which includes its
change in policy) is consistent with the First Amend­
ment—and therefore not censorship as the term is under­
stood. More specifically, JUSTICE BREYER faults the FCC
for “not explain[ing] why the agency changed its mind
about the line that Pacifica draws or its policy’s relation to
that line,” post, at 10. But in fact (and as the Commission
explained) this Court’s holding in Pacifica, 438 U. S. 726,
drew no constitutional line; to the contrary, it expressly
declined to express any view on the constitutionality of
prohibiting isolated indecency. JUSTICE BREYER and
JUSTICE STEVENS evidently believe that when an agency
has obtained this Court’s determination that a less restric­
tive rule is constitutional, its successors acquire some
special burden to explain why a more restrictive rule is
not unconstitutional. We know of no such principle.7
Second, JUSTICE BREYER looks over the vast field of
——————
7 JUSTICE STEVENS criticizes us for “assuming that Pacifica endorsed”
the enforcement at issue here. Post, at 4. We do nothing of the sort.
We rely on the fact that certain aspects of the agency’s decision mirror
the context-based approach Pacifica approved, supra, at 14, but that
goes to our holding on administrative law, and says nothing about
constitutionality. JUSTICE STEVENS also argues that heightened defer­
ence should be due the FCC’s prior policy because the “FCC’s initial
views . . . reflect the views of the Congress that delegated the Commis­
sion authority to flesh out details not fully defined in the enacting
statute.” Post, at 3. We do not believe that the dead hand of a departed
Congressional oversight Committee should constrain the discretion that
the text of a statute confers—but the point is in any event irrelevant in
this appeal, which concerns not whether the agency has exceeded its
statutory mandate but whether the reasons for its actions are ade­
quate.
24 FCC v. FOX TELEVISION STATIONS, INC.
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Opinion of SCALIA, J.
particular factual scenarios unaddressed by the FCC’s 35­
page Remand Order and finds one that is fatal: the plight
of the small local broadcaster who cannot afford the new
technology that enables the screening of live broadcasts
for indecent utterances. Cf. post, at 11–16. The Commis­
sion has failed to address the fate of this unfortunate, who
will, he believes, be subject to sanction.
We doubt, to begin with, that small-town broadcasters
run a heightened risk of liability for indecent utterances.
In programming that they originate, their down-home
local guests probably employ vulgarity less than big-city
folks; and small-town stations generally cannot afford or
cannot attract foul-mouthed glitteratae from Hollywood.
Their main exposure with regard to self-originated pro­
gramming is live coverage of news and public affairs. But
the Remand Order went out of its way to note that the
case at hand did not involve “breaking news coverage,”
and that “it may be inequitable to hold a licensee respon­
sible for airing offensive speech during live coverage of a
public event,” 21 FCC Rcd., at 13311, ¶33. As for the
programming that small stations receive on a network
“feed”: This will be cleansed by the expensive technology
small stations (by JUSTICE BREYER’s hypothesis) cannot
afford.
But never mind the detail of whether small broadcasters
are uniquely subject to a great risk of punishment for
fleeting expletives. The fundamental fallacy of JUSTICE
BREYER’s small-broadcaster gloomyscenario is its demon­
strably false assumption that the Remand Order makes no
provision for the avoidance of unfairness—that the single­
utterance prohibition will be invoked uniformly, in all
situations. The Remand Order made very clear that this
is not the case. It said that in determining “what, if any,
remedy is appropriate” the Commission would consider
the facts of each individual case, such as the “possibility of
human error in using delay equipment,” id., at 13313, ¶35.
Cite as: 556 U. S. ____ (2009) 25
Opinion of the Court
Thus, the fact that the agency believed that Fox (a large
broadcaster that used suggestive scripting and a deficient
delay system to air a prime-time awards show aimed at
millions of children) “fail[ed] to exercise ‘reasonable judg­
ment, responsibility and sensitivity,’ ” id., at 13311, ¶33,
and n. 91 (quoting Pacifica Foundation, Inc., 2 FCC Rcd.,
at 2700, ¶18), says little about how the Commission would
treat smaller broadcasters who cannot afford screening
equipment. Indeed, that they would not be punished for
failing to purchase equipment they cannot afford is posi­
tively suggested by the Remand Order’s statement that
“[h]olding Fox responsible for airing indecent material in
this case does not . . . impose undue burdens on broadcast­
ers.” 21 FCC Rcd., at 13313, ¶36.
There was, in sum, no need for the Commission to com­
pose a special treatise on local broadcasters.8 And
JUSTICE BREYER can safely defer his concern for those
yeomen of the airwaves until we have before us a case that
involves one.
IV. Constitutionality
The Second Circuit did not definitively rule on the con­
stitutionality of the Commission’s orders, but respondents
nonetheless ask us to decide their validity under the First
Amendment. This Court, however, is one of final review,
“not of first view.” Cutter v. Wilkinson, 544 U. S. 709, 718,
n. 7 (2005). It is conceivable that the Commission’s orders
may cause some broadcasters to avoid certain language
that is beyond the Commission’s reach under the Consti­
——————
8 JUSTICE BREYER posits that the FCC would have been required to
give more explanation had it used notice-and-comment rulemaking,
which “should lead us to the same conclusion” in this review of the
agency’s change through adjudication. Post, at 17. Even assuming the
premise, there is no basis for incorporating all of the Administrative
Procedure Act’s notice-and-comment procedural requirements into
arbitrary-and-capricious review of adjudicatory decisions. Cf. Vermont
Yankee, 435 U. S., at 545–549.
26 FCC v. FOX TELEVISION STATIONS, INC.
Opinion of the Court
tution. Whether that is so, and, if so, whether it is uncon­
stitutional, will be determined soon enough, perhaps in
this very case. Meanwhile, any chilled references to excre­
tory and sexual material “surely lie at the periphery of
First Amendment concern,” Pacifica, 438 U. S., at 743(plurality opinion of STEVENS, J.). We see no reason to
abandon our usual procedures in a rush to judgment
without a lower court opinion. We decline to address the
constitutional questions at this time.
* * *
The Second Circuit believed that children today “likely
hear this language far more often from other sources than
they did in the 1970’s when the Commission first began
sanctioning indecent speech,” and that this cuts against
more stringent regulation of broadcasts. 489 F. 3d, at 461.
Assuming the premise is true (for this point the Second
Circuit did not demand empirical evidence) the conclusion
does not necessarily follow. The Commission could rea­
sonably conclude that the pervasiveness of foul language,
and the coarsening of public entertainment in other media
such as cable, justify more stringent regulation of broad­
cast programs so as to give conscientious parents a rela­
tively safe haven for their children. In the end, the Second
Circuit and the broadcasters quibble with the Commis­
sion’s policy choices and not with the explanation it has
given. We decline to “substitute [our] judgment for that of
the agency,” State Farm, 463 U. S., at 43, and we find the
Commission’s orders neither arbitrary nor capricious.
The judgment of the United States Court of Appeals for
the Second Circuit is reversed, and the case is remanded
for further proceedings consistent with this opinion.
It is so ordered.
Cite as: 556 U. S. ____ (2009) 1
THOMAS, J., concurring
SUPREME COURT OF THE UNITED STATES
_________________
No. 07–582
_________________
FEDERAL COMMUNICATIONS COMMISSION, ET AL.,
PETITIONERS v. FOX TELEVISION STATIONS,
INC., ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SECOND CIRCUIT
[April 28, 2009]
JUSTICE THOMAS, concurring.
I join the Court’s opinion, which, as a matter of adminis
trative law, correctly upholds the Federal Communica
tions Commission’s (FCC) policy with respect to indecent
broadcast speech under the Administrative Procedure Act.
I write separately, however, to note the questionable
viability of the two precedents that support the FCC’s
assertion of constitutional authority to regulate the pro
gramming at issue in this case. See Red Lion Broadcast
ing Co. v. FCC, 395 U. S. 367 (1969); FCC v. Pacifica
Foundation, 438 U. S. 726 (1978). Red Lion and Pacifica
were unconvincing when they were issued, and the pas
sage of time has only increased doubt regarding their
continued validity. “The text of the First Amendment
makes no distinctions among print, broadcast, and cable
media, but we have done so” in these cases. Denver Area
Ed. Telecommunications Consortium, Inc. v. FCC, 518
U. S. 727, 812 (1996) (THOMAS, J., concurring in judgment
in part and dissenting in part).
In Red Lion, this Court upheld the so-called “fairness
doctrine,” a Government requirement “that discussion of
public issues be presented on broadcast stations, and that
each side of those issues must be given fair coverage.” 395
U. S., at 369, 400–401. The decision relied heavily on the
2 FCC v. FOX TELEVISION STATIONS, INC.
THOMAS, J., concurring
scarcity of available broadcast frequencies. According to
the Court, because broadcast spectrum was so scarce, it
“could be regulated and rationalized only by the Govern
ment. Without government control, the medium would be
of little use because of the cacophony of competing voices,
none of which could be clearly and predictably heard.” Id.,
at 376. To this end, the Court concluded that the Gov
ernment should be “permitted to put restraints on licen
sees in favor of others whose views should be expressed on
this unique medium.” Id., at 390; see also id., at 389(concluding that “as far as the First Amendment is con
cerned those who are licensed stand no better than those
to whom licenses are refused”). Applying this principle,
the Court held that “[i]t does not violate the First
Amendment to treat licensees given the privilege of using
scarce radio frequencies as proxies for the entire commu
nity, obligated to give suitable time and attention to mat
ters of great public concern.” Id., at 394.
Red Lion specifically declined to answer whether the
First Amendment authorized the Government’s “refusal to
permit the broadcaster to carry a particular program or to
publish his own views[,] . . . [or] government censorship of
a particular program,” id., at 396. But then in Pacifica,
this Court rejected a challenge to the FCC’s authority to
impose sanctions on the broadcast of indecent material.
See 438 U. S., at 729–730, 750–751; id., at 742 (plurality
opinion), relying on Red Lion, the Court noted that “broad
casting . . . has received the most limited First Amend
ment protection.” 438 U. S., at 748. The Court also em
phasized the “uniquely pervasive presence” of the
broadcast media in Americans’ lives and the fact that
broadcast programming was “uniquely accessible to chil
dren.” Id., at 748–749.
This deep intrusion into the First Amendment rights of
broadcasters, which the Court has justified based only on
the nature of the medium, is problematic on two levels.
Cite as: 556 U. S. ____ (2009) 3
THOMAS, J., concurring
First, instead of looking to first principles to evaluate the
constitutional question, the Court relied on a set of transi
tory facts, e.g., the “scarcity of radio frequencies,” Red
Lion, supra, at 390, to determine the applicable First
Amendment standard. But the original meaning of the
Constitution cannot turn on modern necessity: “Constitu
tional rights are enshrined with the scope they were un
derstood to have when the people adopted them, whether
or not future legislatures or (yes) even future judges think
that scope too broad.” District of Columbia v. Heller, 554
U. S. ___, ___ (2008) (slip op., at 63). In breaching this
principle, Red Lion adopted, and Pacifica reaffirmed, a
legal rule that lacks any textual basis in the Constitution.
Denver Area, supra, at 813 (THOMAS, J., concurring in
judgment in part and dissenting in part) (“First Amend
ment distinctions between media [have been] dubious from
their infancy”). Indeed, the logical weakness of Red Lion
and Pacifica has been apparent for some time: “It is cer
tainly true that broadcast frequencies are scarce but it is
unclear why that fact justifies content regulation of broad
casting in a way that would be intolerable if applied to the
editorial process of the print media.” Telecommunications
Research & Action Center v. FCC, 801 F. 2d 501, 508
(CADC 1986) (Bork, J.).
Highlighting the doctrinal incoherence of Red Lion and
Pacifica, the Court has declined to apply the lesser stan
dard of First Amendment scrutiny imposed on broadcast
speech to federal regulation of telephone dial-in services,
see Sable Communications of Cal., Inc. v. FCC, 492 U. S.
115, 127–128 (1989), cable television programming, see
Turner Broadcasting System, Inc. v. FCC, 512 U. S. 622,
637 (1994), and the Internet, see Reno v. American Civil
Liberties Union, 521 U. S. 844, 867–868 (1997). “There is
no justification for this apparent dichotomy in First
Amendment jurisprudence. Whatever the merits of
Pacifica when it was issued[,] . . . it makes no sense now.”
4 FCC v. FOX TELEVISION STATIONS, INC.
THOMAS, J., concurring
Action for Children’s Television v. FCC, 58 F. 3d 654, 673
(CADC 1995) (Edwards, C. J., dissenting). The justifica
tions relied on by the Court in Red Lion and Pacifica—
“spectrum scarcity, intrusiveness, and accessibility to
children—neither distinguish broadcast from cable, nor
explain the relaxed application of the principles of the
First Amendment to broadcast.” 58 F. 3d, at 673; see also
In re Industry Guidance on Commission’s Case Law Inter
preting 18 U. S. C. §1464 and Enforcement Policies Re
garding Broadcast Indecency, 16 FCC Rcd. 7999, 8021,
n. 11 (2001) (statement of Commissioner Furchtgott-Roth)
(“It is ironic that streaming video or audio content from a
television or radio station would likely receive more con
stitutional protection, see Reno [v. American Civil Liberties
Union, 521 U. S. 844 (1997)], than would the same exact
content broadcast over-the-air”).
Second, even if this Court’s disfavored treatment of
broadcasters under the First Amendment could have been
justified at the time of Red Lion and Pacifica, dramatic
technological advances have eviscerated the factual as
sumptions underlying those decisions. Broadcast spec
trum is significantly less scarce than it was 40 years ago.
See Brief for Respondents NBC Universal et al. 37–38
(hereinafter NBC Brief). As NBC notes, the number of
over-the-air broadcast stations grew from 7,411 in 1969,
when Red Lion was issued, to 15,273 by the end of 2004.
See NBC Brief 38; see also FCC Media Bureau Staff Re
search Paper, J. Berresford, The Scarcity Rationale for
Regulating Traditional Broadcasting: An Idea Whose Time
Has Passed 12–13 (Mar. 2005) (No. 2005–2). And the
trend should continue with broadcast television’s immi
nent switch from analog to digital transmission, which
will allow the FCC to “stack broadcast channels right
beside one another along the spectrum, and ultimately
utilize significantly less than the 400 MHz of spectrum the
analog system absorbs today.” Consumer Electronics
Cite as: 556 U. S. ____ (2009) 5
THOMAS, J., concurring
Assn. v. FCC, 347 F. 3d 291, 294 (CADC 2003).
Moreover, traditional broadcast television and radio are
no longer the “uniquely pervasive” media forms they once
were. For most consumers, traditional broadcast media
programming is now bundled with cable or satellite ser
vices. See App. to Pet. for Cert. 107a. Broadcast and
other video programming is also widely available over the
Internet. See Stelter, Serving Up Television Without the
TV Set, N. Y. Times, Mar. 10, 2008, p. C1. And like radio
and television broadcasts, Internet access is now often
freely available over the airwaves and can be accessed by
portable computer, cell phones, and other wireless devices.
See May, Charting a New Constitutional Jurisprudence
for the Digital Age, 3 Charleston L. Rev. 373, 375 (2009).
The extant facts that drove this Court to subject broad
casters to unique disfavor under the First Amendment
simply do not exist today. See In re Industry Guidance,
supra, at 8020 (statement of Commissioner Furchtgott-
Roth) (“If rules regulating broadcast content were ever a
justifiable infringement of speech, it was because of the
relative dominance of that medium in the communications
marketplace of the past. As the Commission has long
recognized, the facts underlying this justification are no
longer true” (footnote omitted)).*
These dramatic changes in factual circumstances might
well support a departure from precedent under the pre
vailing approach to stare decisis. See Planned Parenthood
of Southeastern Pa. v. Casey, 505 U. S. 833, 855 (1992)
(asking “whether facts have so changed, or come to be seen
——————
* With respect to reliance by FCC v. Pacifica Foundation, 438 U. S.
726 (1978), on the ease with which children could be exposed to inde
cent television programming, technology has provided innovative
solutions to assist adults in screening their children from unsuitable
programming—even when that programming appears on broadcast
channels. See NBC Brief 43–47 (discussing V-chip technology, which
allows targeted blocking of television programs based on content).
6 FCC v. FOX TELEVISION STATIONS, INC.
THOMAS, J., concurring
so differently, as to have robbed the old rule of significant
application or justification”); see also American Trucking
Assns., Inc. v. Scheiner, 483 U. S. 266, 302 (1987)
(O’Connor, J., dissenting) (“Significantly changed circum
stances can make an older rule, defensible when formu
lated, inappropriate . . .”). “In cases involving constitu
tional issues” that turn on a particular set of factual
assumptions, “this Court must, in order to reach sound
conclusions, feel free to bring its opinions into agreement
with experience and with facts newly ascertained.” Burnet
v. Coronado Oil & Gas Co., 285 U. S. 393, 412 (1932)
(Brandeis, J., dissenting). For all these reasons, I am open
to reconsideration of Red Lion and Pacifica in the proper
case.
Cite as: 556 U. S. ____ (2009) 1
Opinion of KENNEDY, J.
SUPREME COURT OF THE UNITED STATES
_________________
No. 07–582
_________________
FEDERAL COMMUNICATIONS COMMISSION, ET AL.,
PETITIONERS v. FOX TELEVISION STATIONS,
INC., ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SECOND CIRCUIT
[April 28, 2009]
JUSTICE KENNEDY, concurring in part and concurring in
the judgment.
I join Parts I, II, III–A through III–D, and IV of the
opinion of the Court and agree that the judgment must be
reversed. This separate writing is to underscore certain
background principles for the conclusion that an agency’s
decision to change course may be arbitrary and capricious
if the agency sets a new course that reverses an earlier
determination but does not provide a reasoned explana­
tion for doing so. In those circumstances I agree with the
dissenting opinion of JUSTICE BREYER that the agency
must explain why “it now reject[s] the considerations that
led it to adopt that initial policy.” Post, at 5.
The question whether a change in policy requires an
agency to provide a more-reasoned explanation than when
the original policy was first announced is not susceptible,
in my view, to an answer that applies in all cases. There
may be instances when it becomes apparent to an agency
that the reasons for a longstanding policy have been al­
tered by discoveries in science, advances in technology, or
by any of the other forces at work in a dynamic society. If
an agency seeks to respond to new circumstances by modi­
fying its earlier policy, the agency may have a substantial
body of data and experience that can shape and inform the
2 FCC v. FOX TELEVISION STATIONS, INC.
Opinion of KENNEDY, J.
new rule. In other cases the altered circumstances may be
so new that the agency must make predictive judgments
that are as difficult now as when the agency’s earlier
policy was first announced. Reliance interests in the prior
policy may also have weight in the analysis.
The question in each case is whether the agency’s rea­
sons for the change, when viewed in light of the data
available to it, and when informed by the experience and
expertise of the agency, suffice to demonstrate that the
new policy rests upon principles that are rational, neutral,
and in accord with the agency’s proper understanding of
its authority. That showing may be required if the agency
is to demonstrate that its action is not “arbitrary, capri­
cious, an abuse of discretion, or otherwise not in accor­
dance with law.” 5 U. S. C. §706(2)(A). And, of course, the
agency action must not be “in excess of statutory jurisdic­
tion, authority, or limitations, or short of statutory right.”
§706(2)(C).
These requirements stem from the administrative
agency’s unique constitutional position. The dynamics of
the three branches of Government are well understood as
a general matter. But the role and position of the agency,
and the exact locus of its powers, present questions that
are delicate, subtle, and complex. The Federal Govern­
ment could not perform its duties in a responsible and
effective way without administrative agencies. Yet the
amorphous character of the administrative agency in the
constitutional system escapes simple explanation.
If agencies were permitted unbridled discretion, their
actions might violate important constitutional principles
of separation of powers and checks and balances. To that
end the Constitution requires that Congress’ delegation of
lawmaking power to an agency must be “specific and
detailed.” Mistretta v. United States, 488 U. S. 361, 374
(1989). Congress must “clearly delineat[e] the general
policy” an agency is to achieve and must specify the
Cite as: 556 U. S. ____ (2009) 3
Opinion of KENNEDY, J.
“boundaries of [the] delegated authority.” Id., at 372–373.
Congress must “ ‘lay down by legislative act an intelligible
principle,’ ” and the agency must follow it. Id., at 372(quoting J. W. Hampton, Jr., & Co. v. United States, 276
U. S. 394, 409 (1928)).
Congress passed the Administrative Procedure Act
(APA) to ensure that agencies follow constraints even as
they exercise their powers. One of these constraints is the
duty of agencies to find and formulate policies that can be
justified by neutral principles and a reasoned explanation.
To achieve that end, Congress confined agencies’ discre­
tion and subjected their decisions to judicial review. See
R. Stewart & C. Sunstein, Public Programs and Private
Rights, 95 Harv. L. Rev. 1193, 1248 (1982) (the APA was a
“working compromise, in which broad delegations of dis­
cretion were tolerated as long as they were checked by
extensive procedural safeguards”). If an agency takes
action not based on neutral and rational principles, the
APA grants federal courts power to set aside the agency’s
action as “arbitrary” or “capricious.” 5 U. S. C. §706(2)(A);
Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U. S.
402, 416 (1971). For these reasons, agencies under the
APA are subject to a “searching and careful” review by the
courts. Ibid.Where there is a policy change the record may be much
more developed because the agency based its prior policy
on factual findings. In that instance, an agency’s decision
to change course may be arbitrary and capricious if the
agency ignores or countermands its earlier factual find­
ings without reasoned explanation for doing so. An agency
cannot simply disregard contrary or inconvenient factual
determinations that it made in the past, any more than it
can ignore inconvenient facts when it writes on a blank
slate.
This is the principle followed in the Court’s opinion in
Motor Vehicle Mfrs. Assn. of United States, Inc. v. State
4 FCC v. FOX TELEVISION STATIONS, INC.
Opinion of KENNEDY, J.
Farm Mut. Automobile Ins. Co., 463 U. S. 29 (1983).
There, Congress directed the agency to issue regulations
that would “ ‘meet the need for motor vehicle safety.’ ” Id.,
at 33. The agency promulgated a regulation requiring
cars to have passive-restraint systems—either airbags or
automatic seatbelts. Id., at 37. The agency based this
regulation on its factual finding that these systems save
lives. Id., at 35.
Following a change in Presidential administration,
however, the agency reversed course and rescinded the
regulation. In doing so, the agency did not address its
prior finding that airbags save lives. Id., at 47–48. In­
deed, “[n]ot one sentence” of the agency’s “rulemaking
statement” in support of rescinding the regulation dis­
cussed the benefits of airbags. Id., at 48. This Court
found the agency’s rescission arbitrary and capricious
because the agency did not address its prior factual find­
ings. See id., at 49–51.
The present case does not raise the concerns addressed
in State Farm. Rather than base its prior policy on its
knowledge of the broadcast industry and its audience, the
FCC instead based its policy on what it considered to be
our holding in FCC v. Pacifica Foundation, 438 U. S. 726(1978). See In re Application of WGBH Educ. Foundation,
69 F. C. C. 2d 1250, 1254, ¶10 (1978) (“We intend strictly
to observe the narrowness of the Pacifica holding”). The
FCC did not base its prior policy on factual findings.
The FCC’s Remand Order explains that the agency has
changed its reading of Pacifica. The reasons the agency
announces for this change are not so precise, detailed, or
elaborate as to be a model for agency explanation. But, as
the opinion for the Court well explains, the FCC’s reasons
for its action were the sort of reasons an agency may
consider and act upon. The Court’s careful and complete
analysis—both with respect to the procedural history of
the FCC’s indecency policies, and the reasons the agency
Cite as: 556 U. S. ____ (2009) 5
Opinion of KENNEDY, J.
has given to support them—is quite sufficient to sustain
the FCC’s change of course against respondents’ claim
that the agency acted in an arbitrary or capricious fashion.
The holding of the Court of Appeals turned on its con­
clusion that the agency’s explanation for its change of
policy was insufficient, and that is the only question pre­
sented here. I agree with the Court that as this case
comes to us from the Court of Appeals we must reserve
judgment on the question whether the agency’s action is
consistent with the guarantees of the Constitution.
Cite as: 556 U. S. ____ (2009) 1
STEVENS, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 07–582
_________________
FEDERAL COMMUNICATIONS COMMISSION, ET AL.,
PETITIONERS v. FOX TELEVISION STATIONS,
INC., ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SECOND CIRCUIT
[April 28, 2009]
JUSTICE STEVENS, dissenting.
While I join JUSTICE BREYER’s cogent dissent, I think it
important to emphasize two flaws in the Court’s reason­
ing. Apparently assuming that the Federal Communica­
tions Commission’s (FCC or Commission) rulemaking
authority is a species of executive power, the Court es­
pouses the novel proposition that the Commission need
not explain its decision to discard a longstanding rule in
favor of a dramatically different approach to regulation.
See ante, at 10–11. Moreover, the Court incorrectly as­
sumes that our decision in FCC v. Pacifica Foundation,
438 U. S. 726 (1978), decided that the word “indecent,” as
used in 18 U. S. C. §1464,1 permits the FCC to punish the
broadcast of any expletive that has a sexual or excretory
origin. Pacifica was not so sweeping, and the Commis­
sion’s changed view of its statutory mandate certainly
would have been rejected if presented to the Court at the
time.
I
“The structure of our Government as conceived by the
——————
1 Section 1464 provides: “Whoever utters any obscene, indecent, or
profane language by means of radio communication shall be fined
under this title or imprisoned not more than two years, or both.”
2 FCC v. FOX TELEVISION STATIONS, INC.
STEVENS, J., dissenting
Framers of our Constitution disperses the federal power
among the three branches—the Legislative, the Executive,
and the Judicial—placing both substantive and procedural
limitations on each.” Metropolitan Washington Airports
Authority v. Citizens for Abatement of Aircraft Noise, Inc.,
501 U. S. 252, 272 (1991). The distinction among the
branches is not always sharp, see Bowsher v. Synar, 478
U. S. 714, 749 (1986) (STEVENS, J., concurring in judg­
ment) (citing cases), a consequence of the fact that the
“great ordinances of the Constitution do not establish and
divide fields of black and white,” Springer v. Philippine
Islands, 277 U. S. 189, 209 (1928) (Holmes, J., dissenting).
Strict lines of authority are particularly elusive when
Congress and the President both exert a measure of con­
trol over an agency. As a landmark decision involving the
Federal Trade Commission (FTC) made clear, however,
when Congress grants rulemaking and adjudicative au­
thority to an expert agency composed of commissioners
selected through a bipartisan procedure and appointed for
fixed terms, it substantially insulates the agency from
executive control. See Humphrey’s Executor v. United
States, 295 U. S. 602, 623–628 (1935).
With the view that broadcast regulation “should be as
free from political influence or arbitrary control as possi­
ble,” S. Rep. No. 772, 69th Cong., 1st Sess., 2 (1926), Con­
gress established the FCC with the same measure of
independence from the Executive that it had provided the
FTC. Just as the FCC’s commissioners do not serve at the
will of the President, see 47 U. S. C. §154(c) (2000 ed.), its
regulations are not subject to change at the President’s
will. And when the Commission fashions rules that gov­
ern the airwaves, it exercises legislative power delegated
to it by Congress. See Whitman v. American Trucking
Assns., Inc., 531 U. S. 457, 489–490 (2001) (STEVENS, J.,
concurring in part and concurring in judgment); Bowsher,
478 U. S., at 752 (opinion of STEVENS, J.). Consequently,
Cite as: 556 U. S. ____ (2009) 3
STEVENS, J., dissenting
the FCC “cannot in any proper sense be characterized as
an arm or an eye of the executive” and is better viewed as
an agent of Congress established “to carry into effect
legislative policies embodied in the statute in accordance
with the legislative standard therein prescribed, and to
perform other specified duties as a legislative . . . aid.”
Humphrey’s Executor, 295 U. S., at 628.2
The FCC, like all agencies, may revise its regulations
from time to time, just as Congress amends its statutes as
circumstances warrant. But the FCC is constrained by its
congressional mandate. There should be a strong pre­
sumption that the FCC’s initial views, reflecting the in­
formed judgment of independent commissioners with
expertise in the regulated area, also reflect the views of
the Congress that delegated the Commission authority to
flesh out details not fully defined in the enacting statute.
The rules adopted after Pacifica, 438 U. S. 726, have been
in effect for decades and have not proved unworkable in
the intervening years. As JUSTICE BREYER’s opinion
explains, broadcasters have a substantial interest in
regulatory stability; the threat of crippling financial pen­
alties looms large over these entities. See post, at 10–14.
The FCC’s shifting and impermissibly vague indecency
——————
2 JUSTICE SCALIA erroneously concludes that treating the FCC’s rule­
making authority as an exercise of legislative power would somehow be
unconstitutional. See ante, at 21 (citing Bowsher v. Synar, 478 U. S.
714, 726 (1986)). But that is the nature of rulemaking: Rules promul­
gated by agencies (independent or not) carry the force of law precisely
because they are exercises of such legislative authority. This may
offend JUSTICE SCALIA’s theory of the “unitary Executive,” ante, at 22,
but it does not offend the Constitution. Indeed, “the Framers vested
‘All legislative Powers’ in the Congress, Art. I, §1, just as in Article II
they vested the ‘executive Power’ in the President, Art. II, §1. Those
provisions do not purport to limit the authority of either recipient of
power to delegate authority to others.” Whitman v. American Trucking
Assns., Inc., 531 U. S. 457, 489 (2001) (STEVENS, J., concurring in part
and concurring in judgment).
4 FCC v. FOX TELEVISION STATIONS, INC.
STEVENS, J., dissenting
policy only imperils these broadcasters and muddles the
regulatory landscape. It therefore makes eminent sense to
require the Commission to justify why its prior policy is no
longer sound before allowing it to change course.3 The
FCC’s congressional charter, 47 U. S. C. §151 et seq., the
Administrative Procedure Act, 5 U. S. C. §706(2)(A) (2006
ed.) (instructing courts to “hold unlawful and set aside . . .
arbitrary [or] capricious” agency action), and the rule of
law all favor stability over administrative whim.
II
The Court commits a second critical error by assuming
that Pacifica endorsed a construction of the term “inde­
cent,” as used in 18 U. S. C. §1464, that would include any
expletive that has a sexual or excretory origin. Neither
the opinion of the Court, nor Justice Powell’s concurring
opinion, adopted such a far-reaching interpretation. Our
holding was narrow in two critical respects. First, we
concluded, over the dissent of four Justices, that the statu­
tory term “indecent” was not limited to material that had
prurient appeal and instead included material that was in
“nonconformance with accepted standards of morality.”
Pacifica, 438 U. S., at 740. Second, we upheld the FCC’s
adjudication that a 12-minute, expletive-filled monologue
——————
3 It appears that JUSTICE SCALIA has come to the view that isolated
statements by members of a congressional oversight subcommittee are
sufficient evidence of Congress’ intent. See ante, at 20, n. 4. Delving
into the details of how various lawmakers “grilled” the full slate of FCC
Commissioners, JUSTICE SCALIA concludes, quite remarkably, that this
encounter “made clear [Congress’] wishes for stricter enforcement” and
“would seem an adequate explanation of [the FCC’s] change of posi­
tion.” Ante, at 21. Putting to the side the question whether congres­
sional outrage is the kind of evidence sufficient to explain the Commis­
sion’s decision to adopt a thinly-reasoned and unconstitutional policy,
JUSTICE SCALIA’s treatment of these proceedings as evidencing the
intent of Congress would make even the most ardent student of legisla­
tive history blush.
Cite as: 556 U. S. ____ (2009) 5
STEVENS, J., dissenting
by satiric humorist George Carlin was indecent “as broad­
cast.” Id., at 735. We did not decide whether an isolated
expletive could qualify as indecent. Id., at 750; id., at
760–761 (Powell, J., concurring in part and concurring in
judgment). And we certainly did not hold that any word
with a sexual or scatological origin, however used, was
indecent.
The narrow treatment of the term “indecent” in Pacifica
defined the outer boundaries of the enforcement policies
adopted by the FCC in the ensuing years. The Commis­
sion originally explained that “under the legal standards
set forth in Pacifica, deliberate and repetitive use [of
expletives] in a patently offensive manner is a requisite to
a finding of indecency.” In re Pacifica Foundation, 2 FCC
Rcd. 2698, 2699, ¶13 (1987). While the “repetitive use”
issue has received the most attention in this case, it
should not be forgotten that Pacifica permitted the Com­
mission to regulate only those words that describe sex or
excrement. See 438 U. S., at 743 (plurality opinion)
(“[T]he Commission’s definition of indecency will deter
only the broadcasting of patently offensive references to
excretory and sexual organs and activities” (emphasis
added)). The FCC minimizes the strength of this limita­
tion by now claiming that any use of the words at issue in
this case, in any context and in any form, necessarily
describes sex or excrement. See In re Complaints Regard
ing Various Television Broadcasts Between February 2,
2002 and March 8, 2005, 21 FCC Rcd. 13299, 13308, ¶23
(2006) (Remand Order) (“[A]ny strict dichotomy between
expletives and descriptions or depictions of sexual or
excretory functions is artificial and does not make sense in
light of the fact that an expletive’s power to offend derives
from its sexual or excretory meaning” (internal quotation
marks omitted)). The customs of speech refute this claim:
There is a critical distinction between the use of an exple­
tive to describe a sexual or excretory function and the use
6 FCC v. FOX TELEVISION STATIONS, INC.
STEVENS, J., dissenting
of such a word for an entirely different purpose, such as to
express an emotion. One rests at the core of indecency;
the other stands miles apart. As any golfer who has
watched his partner shank a short approach knows, it
would be absurd to accept the suggestion that the resul­
tant four-letter word uttered on the golf course describes
sex or excrement and is therefore indecent. But that is the
absurdity the FCC has embraced in its new approach to
indecency.4 See In re Complaints Against Various Broad
cast Licensees Regarding Their Airing of the “Golden Globe
Awards” Program, 19 FCC Rcd. 4975, 4978–4979, ¶¶8–9
(2004) (declaring that even the use of an expletive to
emphasize happiness “invariably invokes a coarse sexual
image”).
Even if the words that concern the Court in this case
sometimes retain their sexual or excretory meaning, there
are surely countless instances in which they are used in a
manner unrelated to their origin. These words may not be
polite, but that does not mean they are necessarily “inde­
cent” under §1464. By improperly equating the two, the
Commission has adopted an interpretation of “indecency”
that bears no resemblance to what Pacifica contemplated.5
Most distressingly, the Commission appears to be entirely
unaware of this fact, see Remand Order, 21 FCC Rcd., at
13308 (erroneously referencing Pacifica in support of its
new policy), and today’s majority seems untroubled by this
significant oversight, see ante, at 4–5, 13–14. Because the
——————
4 It is ironic, to say the least, that while the FCC patrols the airwaves
for words that have a tenuous relationship with sex or excrement,
commercials broadcast during prime-time hours frequently ask viewers
whether they too are battling erectile dysfunction or are having trouble
going to the bathroom.
5 While JUSTICE THOMAS and I disagree about the continued wisdom
of Pacifica, see ante, p. 1 (concurring opinion), the changes in technol­
ogy and the availability of broadcast spectrum he identifies certainly
counsel a restrained approach to indecency regulation, not the wildly
expansive path the FCC has chosen.
Cite as: 556 U. S. ____ (2009) 7
STEVENS, J., dissenting
FCC has failed to demonstrate an awareness that it has
ventured far beyond Pacifica’s reading of §1464, its policy
choice must be declared arbitrary and set aside as unlaw­
ful. See Citizens to Preserve Overton Park, Inc. v. Volpe,
401 U. S. 402, 416 (1971).
III
For these reasons and those stated in JUSTICE BREYER’s
dissenting opinion, I would affirm the judgment of the
Court of Appeals.
Cite as: 556 U. S. ____ (2009) 1
GINSBURG, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 07–582
_________________
FEDERAL COMMUNICATIONS COMMISSION, ET AL.,
PETITIONERS v. FOX TELEVISION STATIONS,
INC., ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SECOND CIRCUIT
[April 28, 2009]
JUSTICE GINSBURG, dissenting.
The mainspring of this case is a Government restriction
on spoken words. This appeal, I recognize, arises under
the Administrative Procedure Act.* JUSTICE BREYER’s
dissenting opinion, which I join, cogently describes the
infirmities of the Federal Communications Commission’s
(FCC or Commission) policy switch under that Act. The
Commission’s bold stride beyond the bounds of FCC v.
Pacifica Foundation, 438 U. S. 726 (1978), I agree, exem
plified “arbitrary” and “capricious” decisionmaking. I
write separately only to note that there is no way to hide
the long shadow the First Amendment casts over what the
Commission has done. Today’s decision does nothing to
diminish that shadow.
More than 30 years ago, a sharply divided Court allowed
the FCC to sanction a midafternoon radio broadcast of
comedian George Carlin’s 12-minute “Filthy Words” mono
——————
* The Second Circuit, presented with both constitutional and statu
tory challenges, vacated the remand order on APA grounds. The court
therefore “refrain[ed] from deciding” the “constitutional questions.” 489
F. 3d 444, 462 (2007) (quoting Lyng v. Northwest Indian Cemetery
Protective Assn., 485 U. S. 439, 445 (1988)). The majority, however,
stated and explained why it was “skeptical” that the Commission’s
policy could “pass constitutional muster.” 489 F. 3d, at 462.
2 FCC v. FOX TELEVISION STATIONS, INC.
GINSBURG, J., dissenting
logue. Ibid. Carlin satirized the “original” seven dirty
words and repeated them relentlessly in a variety of collo
quialisms. The monologue was aired as part of a program
on contemporary attitudes toward the use of language. In
re Citizen’s Complaint Against Pacifica Foundation Sta
tion WBAI (FM), 56 F. C. C. 2d 94, 95 (1975). In rejecting
the First Amendment challenge, the Court “emphasize[d]
the narrowness of [its] holding.” Pacifica, 438 U. S., at
750. See also ante, at 1 (STEVENS, J., dissenting). In this
regard, the majority stressed that the Carlin monologue
deliberately repeated the dirty words “over and over
again.” 438 U. S., at 729, 751–755 (Appendix). Justice
Powell, concurring, described Carlin’s speech as “verbal
shock treatment.” Id., at 757 (concurring in part and
concurring in judgment).
In contrast, the unscripted fleeting expletives at issue
here are neither deliberate nor relentlessly repetitive. Nor
does the Commission’s policy home in on expressions used
to describe sexual or excretory activities or organs. Spon
taneous utterances used simply to convey an emotion or
intensify a statement fall within the order’s compass. Cf.
Cohen v. California, 403 U. S. 15, 26 (1971) (“[W]ords are
often chosen as much for their emotive as their cognitive
force. We cannot sanction the view that the Constitution,
while solicitous of the cognitive content of individual
speech, has little or no regard for that emotive function
which, practically speaking, may often be the more impor
tant element of the overall message sought to be commu
nicated.”); Denver Area Ed. Telecommunications Consor
tium, Inc. v. FCC, 518 U. S. 727, 805 (1996) (KENNEDY, J.,
concurring in part, concurring in judgment in part, and
dissenting in part) (a word categorized as indecent “often
is inseparable from the ideas and viewpoints conveyed, or
separable only with loss of truth or expressive power”).
The Pacifica decision, however it might fare on reas
sessment, see ante, at 6 (THOMAS, J., concurring), was
Cite as: 556 U. S. ____ (2009) 3
GINSBURG, J., dissenting
tightly cabined, and for good reason. In dissent, Justice
Brennan observed that the Government should take care
before enjoining the broadcast of words or expressions
spoken by many “in our land of cultural pluralism.” 438
U. S., at 775. That comment, fitting in the 1970’s, is even
more potent today. If the reserved constitutional question
reaches this Court, see ante, at 26 (majority opinion), we
should be mindful that words unpalatable to some may be
“commonplace” for others, “the stuff of everyday conversa
tions.” 438 U. S., at 776 (Brennan, J., dissenting).
Cite as: 556 U. S. ____ (2009) 1
BREYER, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 07–582
_________________
FEDERAL COMMUNICATIONS COMMISSION, ET AL.,
PETITIONERS v. FOX TELEVISION STATIONS,
INC., ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SECOND CIRCUIT
[April 28, 2009]
JUSTICE BREYER, with whom JUSTICE STEVENS, JUSTICE
SOUTER, and JUSTICE GINSBURG join, dissenting.
In my view, the Federal Communications Commission
failed adequately to explain why it changed its indecency
policy from a policy permitting a single “fleeting use” of an
expletive, to a policy that made no such exception. Its
explanation fails to discuss two critical factors, at least
one of which directly underlay its original policy decision.
Its explanation instead discussed several factors well
known to it the first time around, which by themselves
provide no significant justification for a change of policy.
Consequently, the FCC decision is “arbitrary, capricious,
an abuse of discretion.” 5 U. S. C. §706(2)(A); Motor Vehi
cle Mfrs. Assn. of United States, Inc. v. State Farm Mut.
Automobile Ins. Co., 463 U. S. 29, 41–43 (1983); Citizens to
Preserve Overton Park, Inc. v. Volpe, 401 U. S. 402, 420–
421 (1971). And I would affirm the Second Circuit’s simi­
lar determination.
I
I begin with applicable law. That law grants those in
charge of independent administrative agencies broad
authority to determine relevant policy. But it does not
permit them to make policy choices for purely political
2 FCC v. FOX TELEVISION STATIONS, INC.
BREYER, J., dissenting
reasons nor to rest them primarily upon unexplained
policy preferences. Federal Communications Commission­
ers have fixed terms of office; they are not directly respon­
sible to the voters; and they enjoy an independence ex­
pressly designed to insulate them, to a degree, from “ ‘the
exercise of political oversight.’ ” Freytag v. Commissioner,
501 U. S. 868, 916 (1991) (SCALIA, J., concurring in part
and concurring in judgment); see also Morrison v. Olson,
487 U. S. 654, 691, n. 30 (1988). That insulation helps to
secure important governmental objectives, such as the
constitutionally related objective of maintaining broadcast
regulation that does not bend too readily before the politi­
cal winds. But that agency’s comparative freedom from
ballot-box control makes it all the more important that
courts review its decisionmaking to assure compliance
with applicable provisions of the law—including law re­
quiring that major policy decisions be based upon articu­
lable reasons.
The statutory provision applicable here is the Adminis­
trative Procedure Act’s (APA) prohibition of agency action
that is “arbitrary, capricious, [or] an abuse of discretion,” 5
U. S. C. §706(2)(A). This legal requirement helps assure
agency decisionmaking based upon more than the per­
sonal preferences of the decisionmakers. Courts have
applied the provision sparingly, granting agencies broad
policymaking leeway. But they have also made clear that
agency discretion is not “ ‘unbounded.’ ” Burlington Truck
Lines, Inc. v. United States, 371 U. S. 156, 167–168 (1962).
In so holding, American courts have followed a venerable
legal tradition, stretching back at least to the days of Sir
Edward Coke and the draining of the English fens. See
Rooke’s Case, 77 Eng. Rep. 209, 210, 5 Coke Rep. 99b,
100a (C. P. 1598) (Coke, J.) (members of sewer commission
with authority to act according “to their discretio[n]” are
nonetheless “limited and bound with the rule of reason
and law . . . and [cannot act] according to their wills and
Cite as: 556 U. S. ____ (2009) 3
BREYER, J., dissenting
private affections” (quoted in Jaffe, Judicial Review: Con­
stitutional and Jurisdictional Fact, 70 Harv. L. Rev. 953,
954 (1957))).
The law has also recognized that it is not so much a
particular set of substantive commands but rather it is a
process, a process of learning through reasoned argument,
that is the antithesis of the “arbitrary.” This means agen­
cies must follow a “logical and rational” decisionmaking
“process.” Allentown Mack Sales & Service, Inc. v. NLRB,
522 U. S. 359, 374 (1998). An agency’s policy decisions
must reflect the reasoned exercise of expert judgment. See
Burlington Truck Lines, supra, at 167 (decision must
reflect basis on which agency “exercised its expert discre­
tion”); see also Humphrey’s Executor v. United States, 295
U. S. 602, 624 (1935) (independent agencies “exercise . . .
trained judgment . . . ‘informed by experience’ ”). And, as
this Court has specified, in determining whether an
agency’s policy choice was “arbitrary,” a reviewing court
“must consider whether the decision was based on a con­
sideration of the relevant factors and whether there has
been a clear error of judgment.” Overton Park, supra, at
416.
Moreover, an agency must act consistently. The agency
must follow its own rules. Arizona Grocery Co. v. Atchi
son, T. & S. F. R. Co., 284 U. S. 370, 389–390 (1932). And
when an agency seeks to change those rules, it must focus
on the fact of change and explain the basis for that
change. See, e.g., National Cable & Telecommunications
Assn. v. Brand X Internet Services, 545 U. S. 967, 981
(2005) (“Unexplained inconsistency is” a “reason for hold­
ing an interpretation to be an arbitrary and capricious
change from agency practice” (emphasis added)).
To explain a change requires more than setting forth
reasons why the new policy is a good one. It also requires
the agency to answer the question, “Why did you change?”
And a rational answer to this question typically requires a
4 FCC v. FOX TELEVISION STATIONS, INC.
BREYER, J., dissenting
more complete explanation than would prove satisfactory
were change itself not at issue. An (imaginary) adminis­
trator explaining why he chose a policy that requires
driving on the right-side, rather than the left-side, of the
road might say, “Well, one side seemed as good as the
other, so I flipped a coin.” But even assuming the ration­
ality of that explanation for an initial choice, that expla­
nation is not at all rational if offered to explain why the
administrator changed driving practice, from right-side to
left-side, 25 years later.
In State Farm, a unanimous Court applied these com­
monsense requirements to an agency decision that re­
scinded an earlier agency policy. The Court wrote that an
agency must provide an explanation for the agency’s “revo
cation” of a prior action that is more thorough than the
explanation necessary when it does not act in the first
instance. The Court defined “revocation,” not simply as
rescinding an earlier policy, cf. ante, at 10–11, but as “a
reversal of the agency’s former views as to the proper
course.” State Farm, 463 U. S., at 41 (emphasis added).
See also Verizon Communications Inc. v. FCC, 535 U. S.
467, 502, n. 20 (2002) (portion of Court’s opinion joined by
SCALIA, KENNEDY, and THOMAS, JJ.) (noting State Farm
“may be read as prescribing more searching judicial re­
view” when “an agency [is] ‘changing its course’ as to the
interpretation of a statute”); Thomas Jefferson Univ. v.
Shalala, 512 U. S. 504, 524, n. 3 (1994) (THOMAS, J., dis­
senting) (similar).
At the same time, the Court described the need for
explanation in terms that apply, not simply to pure rescis
sions of earlier rules, but rather to changes of policy as it
more broadly defined them. But see ante, at 10–11. It
said that the law required an explanation for such a
change because the earlier policy, representing a “ ‘settled
course of behavior[,] embodies the agency’s informed
judgment that, by pursuing that course, it will carry out
Cite as: 556 U. S. ____ (2009) 5
BREYER, J., dissenting
the policies . . . best if the settled rule is adhered to.’ ”
State Farm, supra, at 41–42. Thus, the agency must
explain why it has come to the conclusion that it should
now change direction. Why does it now reject the consid­
erations that led it to adopt that initial policy? What has
changed in the world that offers justification for the
change? What other good reasons are there for departing
from the earlier policy?
Contrary to the majority’s characterization of this dis­
sent, it would not (and State Farm does not) require a
“heightened standard” of review. Ante, at 10 (emphasis
added). Rather, the law requires application of the same
standard of review to different circumstances, namely
circumstances characterized by the fact that change is at
issue. It requires the agency to focus upon the fact of
change where change is relevant, just as it must focus
upon any other relevant circumstance. It requires the
agency here to focus upon the reasons that led the agency
to adopt the initial policy, and to explain why it now comes
to a new judgment.
I recognize that sometimes the ultimate explanation for
a change may have to be, “We now weigh the relevant
considerations differently.” But at other times, an agency
can and should say more. Where, for example, the agency
rested its previous policy on particular factual findings,
see ante, at 3–5 (KENNEDY, J., concurring in part and
concurring in judgment); or where an agency rested its
prior policy on its view of the governing law, see infra, at
7–11; or where an agency rested its previous policy on,
say, a special need to coordinate with another agency, one
would normally expect the agency to focus upon those
earlier views of fact, of law, or of policy and explain why
they are no longer controlling. Regardless, to say that the
agency here must answer the question “why change” is not
to require the agency to provide a justification that is
“better than the reasons for the old [policy].” Ante, at 11.
6 FCC v. FOX TELEVISION STATIONS, INC.
BREYER, J., dissenting
It is only to recognize the obvious fact that change is some­
times (not always) a relevant background feature that
sometimes (not always) requires focus (upon prior justifi­
cations) and explanation lest the adoption of the new
policy (in that circumstance) be “arbitrary, capricious, an
abuse of discretion.”
That is certainly how courts of appeals, the courts that
review agency decisions, have always treated the matter
in practice. See, e.g., Pennsylvania Federation of Sports
men’s Clubs, Inc. v. Kempthorne, 497 F. 3d 337, 351 (CA3
2007); Yale-New Haven Hosp. v. Leavitt, 470 F. 3d 71, 79
(CA2 2006); Citizens Awareness Network, Inc. v. United
States, 391 F. 3d 338, 352 (CA1 2004). But see NAACP v.
FCC, 682 F. 2d 993, 998 (CADC 1982) (using word “height­
ened”). The majority’s holding could in this respect sig­
nificantly change judicial review in practice, and not in a
healthy direction. But see, ante, at 1–5 (KENNEDY, J.,
concurring in part and concurring in judgment). After all,
if it is always legally sufficient for the agency to reply to
the question “why change?” with the answer “we prefer
the new policy” (even when the agency has not considered
the major factors that led it to adopt its old policy), then
why bother asking the agency to focus on the fact of
change? More to the point, why would the law exempt this
and no other aspect of an agency decision from “arbitrary,
capricious” review? Where does, and why would, the APA
grant agencies the freedom to change major policies on the
basis of nothing more than political considerations or even
personal whim?
Avoiding the application of any heightened standard of
review, the Court in State Farm recognized that the APA’s
“nonarbitrary” requirement affords agencies generous
leeway when they set policy. 463 U. S., at 42. But it also
recognized that this leeway is not absolute. The Court
described its boundaries by then listing considerations
that help determine whether an explanation is adequate.
Cite as: 556 U. S. ____ (2009) 7
BREYER, J., dissenting
Mirroring and elaborating upon its statement in Overton
Park, 401 U. S. 402, the Court said that a reviewing court
should take into account whether the agency had “relied
on factors which Congress has not intended it to consider,
entirely failed to consider an important aspect of the
problem, offered an explanation for its decision that runs
counter to the evidence before the agency, or is so implau­
sible that it could not be ascribed to a difference in view or
the product of agency expertise.” State Farm, supra, at 43;
see also Overton Park, supra, at 416.
II
We here must apply the general standards set forth in
State Farm and Overton Park to an agency decision that
changes a 25-year-old “fleeting expletive” policy from (1)
the old policy that would normally permit broadcasters to
transmit a single, fleeting use of an expletive to (2) a new
policy that would threaten broadcasters with large fines
for transmitting even a single use (including its use by a
member of the public) of such an expletive, alone with
nothing more. The question is whether that decision
satisfies the minimal standards necessary to assure a
reviewing court that such a change of policy is not “arbi­
trary, capricious, [or] an abuse of discretion,” 5 U. S. C.
§706(2)(A), particularly as set forth in, e.g., State Farm
and Overton Park, supra, at 2–7. The decision, in my
view, does not satisfy those standards.
Consider the requirement that an agency at least mini­
mally “consider . . . important aspect[s] of the problem.”
State Farm, supra, at 43. The FCC failed to satisfy this
requirement, for it failed to consider two critically impor­
tant aspects of the problem that underlay its initial policy
judgment (one of which directly, the other of which indi­
rectly). First, the FCC said next to nothing about the
relation between the change it made in its prior “fleeting
expletive” policy and the First-Amendment-related need to
8 FCC v. FOX TELEVISION STATIONS, INC.
BREYER, J., dissenting
avoid “censorship,” a matter as closely related to broad­
casting regulation as is health to that of the environment.
The reason that discussion of the matter is particularly
important here is that the FCC had explicitly rested its
prior policy in large part upon the need to avoid treading
too close to the constitutional line.
Thirty years ago, the Court considered the location of
that constitutional line. In FCC v. Pacifica Foundation,
438 U. S. 726 (1978), the Court reviewed an FCC decision
forbidding the broadcast of a monologue that deliberately
and repeatedly uttered the expletives here at issue more
than 100 times in one hour at a time of day when children
were likely to hear the broadcast. Id., at 739. The Court
held that the FCC’s prohibition did not violate the First
Amendment. But the Court divided 5 to 4. And two Mem­
bers of the majority, Justices Powell and Blackmun, ex­
plicitly noted that the Court “does not speak to cases
involving the isolated use of a potentially offensive word
. . . as distinguished from the verbal shock treatment
administered by respondent here.” Id., at 760–761 (Pow­
ell, J., concurring in part and concurring in judgment)
(emphasis added). This statement by two Members of the
majority suggested that they could reach a different re­
sult, finding an FCC prohibition unconstitutional, were
that prohibition aimed at the fleeting or single use of an
expletive.
The FCC subsequently made clear that it thought that
Justice Powell’s concurrence set forth a constitutional line
that its indecency policy should embody. In 1978, the
Commission wrote that the First Amendment “severely
limit[s]” the Commission’s role in regulating indecency. It
added that the Court, in Pacifica, had “relied . . . on the
repetitive occurrence of the ‘indecent’ words in question.”
And it said that, in setting policy, it “intend[ed] strictly to
observe the narrowness of the Pacifica holding.” In re
Application of WGBH Educ. Foundation, 69 F. C. C. 2d
Cite as: 556 U. S. ____ (2009) 9
BREYER, J., dissenting
1250, 1254, ¶10.
In 1983, the Commission again wrote that it understood
the Court’s decision in Pacifica to rest on the “repetitive
occurrence of the ‘indecent’ words in question.” And,
again, the Commission explained that its regulation of
fleeting or isolated offensive words would reflect Justice
Powell’s understanding of the First Amendment’s scope.
In re Application of Pacifica Foundation, 95 F. C. C. 2d
750, 760, ¶¶17–18. In 1987, the Commission once more
explained that its “fleeting expletives” policy reflected the
Court’s decision in Pacifica. It said that, under its policy,
“speech that is indecent must involve more than an iso­
lated use of an offensive word,” adding that “we believe
that under the legal standards set forth in Pacifica, delib­
erate and repetitive use in a patently offensive manner is
a requisite to a finding of indecency.” In re Pacifica Foun
dation, 2 FCC Rcd. 2698, 2699, ¶13 (emphasis added). In
another order that same year, the Commission stated that
“the First Amendment dicate[s] a careful and restrained
approach with regard to review of matters involving
broadcast programming”; it then explained, citing
Pacifica, that “[s]peech that is indecent must involve more
than the isolated use of an offensive word.” In re Infinity
Broadcasting, 2 FCC Rcd. 2705, 2705, ¶¶6–7 (1987) (em­
phasis added). And in 2001, in giving the industry guid­
ance, the FCC once again said in respect to its regulation
of indecent speech that it “must both identify a compelling
interest for any regulation . . . and choose the least restric­
tive means to further that interest.” In re Industry Guid
ance On Commission’s Case Law Interpreting 18 U. S. C.
§1464 and Enforcement Policies Regarding Broadcast
Indecency, 16 FCC Rcd. 7999, 8000–8001, ¶3–5.
The FCC thus repeatedly made clear that it based its
“fleeting expletive” policy upon the need to avoid treading
too close to the constitutional line as set forth in Justice
Powell’s Pacifica concurrence. What then did it say, when
10 FCC v. FOX TELEVISION STATIONS, INC.
BREYER, J., dissenting
it changed its policy, about why it abandoned this Consti­
tution-based reasoning? The FCC devoted “four full pages
of small-type, single-spaced text,” ante, at 23, responding
to industry arguments that, e.g., changes in the nature of
the broadcast industry made all indecency regulation, i.e.,
18 U. S. C. §1464, unconstitutional. In doing so it repeat­
edly reaffirmed its view that Pacifica remains good law.
In re Complaints Regarding Various Television Broadcasts
Between February 2, 2002, and March, 8, 2008, 21 FCC
Rcd. 13299, 13317–13321, ¶¶42–52 (2006) (Remand Or
der). All the more surprising then that, in respect to why
it abandoned its prior view about the critical relation
between its prior fleeting expletive policy and Justice
Powell’s Pacifica concurrence, it says no more than the
following:
“[O]ur decision is not inconsistent with the Supreme
Court ruling in Pacifica. The Court explicitly left open the
issue of whether an occasional expletive could be consid­
ered indecent.” In re Complaints Against Various Broad
cast Licensees Regarding Their Airing of the “Golden Globe
Awards” Program, 19 FCC Rcd. 4975, 4982, ¶16 (2004)
(Golden Globe Order). And, (repeating what it already
had said), “[Pacifica] specifically reserved the question of
‘an occasional expletive’ and noted that it addressed only
the ‘particular broadcast’ at issue in that case.” Remand
Order, supra, at 13308–13309, ¶24.
These two sentences are not a summary of the FCC’s
discussion about why it abandoned its prior understanding
of Pacifica. They are the discussion. These 28 words
(repeated in two opinions) do not acknowledge that an
entirely different understanding of Pacifica underlay the
FCC’s earlier policy; they do not explain why the agency
changed its mind about the line that Pacifica draws or its
policy’s relation to that line; and they tell us nothing at all
about what happened to the FCC’s earlier determination
to search for “compelling interests” and “less restrictive
Cite as: 556 U. S. ____ (2009) 11
BREYER, J., dissenting
alternatives.” They do not explain the transformation of
what the FCC had long thought an insurmountable obsta­
cle into an open door. The result is not simply Hamlet
without the prince, but Hamlet with a prince who, in mid­
play and without explanation, just disappears.
I have found one other related reference to Pacifica, but
that reference occurs in an opinion written by a dissenting
Commissioner. That dissenter said that the FCC had
“ ‘fail[ed] to address the many serious [constitutional]
concerns raised’ ” by the new policy, while adding that the
new policy was “not the restrained enforcement policy
encouraged by the Supreme Court in Pacifica.” Remand
Order, supra, at 13331, 13334. Neither that Commis­
sioner in his dissent, nor I in this dissent, claim that
agencies must always take account of possible constitu­
tional issues when they formulate policy. Cf. ante, at 12.
But the FCC works in the shadow of the First Amendment
and its view of the application of that Amendment to
“fleeting expletives” directly informed its initial policy
choice. Under these circumstances, the FCC’s failure to
address this “aspect” of the problem calls for a remand to
the agency. Overton Park, 401 U. S., at 420–421.
Second, the FCC failed to consider the potential impact
of its new policy upon local broadcasting coverage. This
“aspect of the problem” is particularly important because
the FCC explicitly took account of potential broadcasting
impact. Golden Globe Order, supra, at 4980, ¶11 (“The
ease with which broadcasters today can block even fleeting
words in a live broadcast is an element in our decision”).
Indeed, in setting forth “bleeping” technology changes
(presumably lowering bleeping costs) as justifying the
policy change, it implicitly reasoned that lower costs,
making it easier for broadcasters to install bleeping
equipment, made it less likely that the new policy would
lead broadcasters to reduce coverage, say by canceling
coverage of public events. Ibid. (“[T]echnological advances
12 FCC v. FOX TELEVISION STATIONS, INC.
BREYER, J., dissenting
have made it possible . . . to prevent the broadcast of a
single offending word or action without blocking or dispro­
portionately disrupting the message of the speaker or
performer”).
What then did the FCC say about the likelihood that
smaller independent broadcasters, including many public
service broadcasters, still would not be able to afford
“bleeping” technology and, as a consequence, would reduce
local coverage, indeed cancel coverage, of many public
events? It said nothing at all.
The FCC cannot claim that local coverage lacks special
importance. To the contrary, “the concept of localism has
been a cornerstone of broadcast regulation for decades.”
In re Broadcast Localism, 23 FCC Rcd. 1324, 1326, 1327,
¶¶3, 5 (2008). That policy seeks to provide “viewers and
listeners . . . access to locally responsive programming
including, but not limited to, local news and public affairs
matter” and to ensure “diversity in what is seen and heard
over the airwaves.” That policy has long favored local
broadcasting, both as a means to increase coverage of local
events and, insofar as it increases the number of broadcast
voices, as an end in itself. See, e.g., In re Reexamination of
Comparative Standards for Noncommercial Educ. Appli
cants, 15 FCC Rcd. 7386, 7399, ¶29 (2000) (adopting a
system for selecting applicants for broadcast channels that
“would foster our goal of broadcast diversity by enabling
the local public to be served by differing . . . licensees”); In
re 2002 Biennial Regulatory Review, 18 FCC Rcd. 13620,
13644, ¶¶77, 79 (2003) (“We remain firmly committed to
the policy of promoting localism among broadcast outlets.
. . . A . . . measure of localism is the quantity and quality
of local news and public affairs programming”).
Neither can the FCC now claim that the impact of its
new policy on local broadcasting is insignificant and obvi­
ously so. Broadcasters tell us, as they told the FCC, the
contrary. See Brief for Former FCC Commissioners as
Cite as: 556 U. S. ____ (2009) 13
BREYER, J., dissenting
Amici Curiae 17–19; App. 235–237; Joint Comments of
Fox Television Stations, Inc. et al., In re Remand of Sec
tion III.B of the Commission’s March 15, 2006 Omnibus
Order Resolving Numerous Broadcast Television Indecency
Complaints 14–15, http://www.fcc.gov/DA06–1739/joint­
networks.pdf (all Internet materials as visited Apr. 7,
2009, and available in Clerk of Court’s case file). They
told the FCC, for example, that the costs of bleeping/delay
systems, up to $100,000 for installation and annual opera­
tion, place that technology beyond the financial reach of
many smaller independent local stations. See id., at 14
(“The significant equipment and personnel costs associ­
ated with installing, maintaining, and operating delay
equipment sufficient to cover all live news, sports, and
entertainment programs could conceivably exceed the net
profits of a small local station for an entire year”); id., at
App. XI. And they ask what the FCC thinks will happen
when a small local station without bleeping equipment
wants to cover, say a local city council meeting, a high
school football game, a dance contest at community center,
or a Fourth of July parade.
Relevant literature supports the broadcasters’ financial
claims. See, e.g., Ho, Taking No Chances, Austin Ameri­
can-Statesman, June 18, 2006, p. J1; Dotinga, Dirty-Word
Filters Prove Costly, Wired.com, July 9, 2004, http://www.
wired.com/entertainment/music/news/2004/07/64127; Sta­
tions, Cable Networks Finding Indecency Rules Expen­
sive, Public Broadcasting Report, Aug. 4, 2006. It also
indicates that the networks with which some small sta­
tions are affiliated are not liable for the stations’ local
transmissions (unless the networks own them). Ho, supra,
at J1; Public Stations Fear Indecency Fine Jump Means
Premium Hikes, Public Broadcasting Report, July 7, 2006.
The result is that smaller stations, fearing “fleeting exple­
tive” fines of up to $325,000, may simply cut back on their
coverage. See Romano, Reporting Live. Very Carefully,
14 FCC v. FOX TELEVISION STATIONS, INC.
BREYER, J., dissenting
Broadcasting & Cable, July 4, 2005, p. 8; see also ibid.
(“Afraid to take chances” of getting fined under the FCC’s
new policy, “local broadcasters are responding by alter­
ing—or halting altogether—the one asset that makes local
stations so valuable to their communities: live TV”);
Daneman, WRUR Drops Its Live Radio Programs, Roches­
ter Democrat and Chronicle, May 27, 2004, p. 1B (report­
ing that a local broadcast station ceased broadcasting all
local live programming altogether in response to the
Commission’s policy change). And there are many such
smaller stations. See, e.g., Corporation for Public Broad­
casting, Frequently Asked Questions, available at http://
www.cpb.org/aboutpb/faq/stations.html (noting there are
over 350 local public television stations and nearly 700
local public radio stations that receive support from the
Corporation for Public Broadcasting).
As one local station manager told the FCC,
“[t]o lessen the risk posed by the new legal framework
. . . I have directed [the station’s] news staff that [our
station] may no longer provide live, direct-to-air cov­
erage” of “live events where crowds are present . . .
unless they affect matters of public safety or conven­
ience. Thus, news coverage by [my station] of live
events where crowds are present essentially will be
limited to civil emergencies.” App. 236–237 (declara­
tion of Dennis Fisher).
What did the FCC say in response to this claim? What
did it say about the likely impact of the new policy on the
coverage that its new policy is most likely to affect, cover­
age of local live events—city council meetings, local sports
events, community arts productions, and the like? It said
nothing at all.
The plurality acknowledges that the Commission en­
tirely failed to discuss this aspect of the regulatory prob­
lem. But it sees “no need” for discussion in light of its, i.e.,
Cite as: 556 U. S. ____ (2009) 15
BREYER, J., dissenting
the plurality’s, own “doubt[s]” that “small-town broadcast­
ers run a heightened risk of liability for indecent utter­
ances” as a result of the change of policy. Ante, at 24–25.
The plurality's “doubt[s]” rest upon its views (1) that
vulgar expression is less prevalent (at least among broad­
cast guests) in smaller towns, ante, at 24; (2) that the
greatest risk the new policy poses for “small-town broad­
casters” arises when they broadcast local “news and public
affairs,” ibid., and (3) that the Remand Order says “little
about how the Commission would treat smaller broadcast­
ers who cannot afford screening equipment,” while also
pointing out that the new policy “ ‘does not . . . impose
undue burdens on broadcasters’ ” and emphasizing that
the case before it did not involve “ ‘breaking news.’ ” Ante,
at 24–25.
As to the first point, about the prevalence of vulgarity in
small towns, I confess ignorance. But I do know that there
are independent stations in many large and medium sized
cities. See Television & Cable Factbook, Directory of
Television Stations in Operation 2008. As to the second
point, I too believe that coverage of local public events, if
not news, lies at the heart of the problem.
I cannot agree with the plurality, however, about the
critical third point, namely that the new policy obviously
provides smaller independent broadcasters with adequate
assurance that they will not be fined. The new policy
removes the “fleeting expletive” exception, an exception
that assured smaller independent stations that they would
not be fined should someone swear at a public event. In
its place, it puts a policy that places all broadcasters at
risk when they broadcast fleeting expletives, including
expletives uttered at public events. The Remand Order
says that there “is no outright news exemption from our
indecency rules.” 21 FCC Rcd., at 13327, ¶71 (emphasis
added). The best it can provide by way of assurance is to
say that “it may be inequitable to hold a licensee responsi­
16 FCC v. FOX TELEVISION STATIONS, INC.
BREYER, J., dissenting
ble for airing offensive speech during live coverage of a
public event under some circumstances.” Id., at 13311,
¶33 (emphasis added). It does list those circumstances as
including the “possibility of human error in using delay
equipment.” Id., at 13313, ¶35. But it says nothing about
a station’s inability to afford delay equipment (a matter
that in individual cases could itself prove debatable). All
the FCC had to do was to consider this matter and either
grant an exemption or explain why it did not grant an
exemption. But it did not. And the result is a rule that
may well chill coverage—the kind of consequence that the
law has considered important for decades, to which the
broadcasters pointed in their arguments before the FCC,
and which the FCC nowhere discusses. See, e.g., Dom
browski v. Pfister, 380 U. S. 479, 494 (1965) (“So long as
the statute remains available to the State the threat of
prosecutions of protected expression is a real and substan­
tial one. Even the prospect of ultimate failure of such
prosecutions by no means dispels their chilling effect on
protected expression”); see also Ashcroft v. Free Speech
Coalition, 535 U. S. 234, 244 (2002); Gibson v. Florida
Legislative Investigation Comm., 372 U. S. 539, 556–557
(1963); Wieman v. Updegraff, 344 U. S. 183, 195 (1952)
(Frankfurter, J., concurring).
Had the FCC used traditional administrative notice­
and-comment procedures, 5 U. S. C. §553, the two failures
I have just discussed would clearly require a court to
vacate the resulting agency decision. See ACLU v. FCC,
823 F. 2d 1554, 1581 (CADC 1987) (“Notice and comment
rulemaking procedures obligate the FCC to respond to all
significant comments, for the opportunity to comment is
meaningless unless the agency responds to significant
points raised by the public” (emphasis added; internal
quotation marks omitted)). Here the agency did not make
new policy through the medium of notice and comment
proceedings. But the same failures here—where the policy
Cite as: 556 U. S. ____ (2009) 17
BREYER, J., dissenting
is important, the significance of the issues clear, the fail­
ures near complete—should lead us to the same conclu­
sion. The agency’s failure to discuss these two “important
aspect[s] of the problem” means that the resulting decision
is “ ‘arbitrary, capricious, an abuse of discretion’ ” requiring
us to remand the matter to the agency. State Farm, 463
U. S., at 43; Overton Park, 401 U. S., at 416.
III
The three reasons the FCC did set forth in support of its
change of policy cannot make up for the failures I have
discussed. Consider each of them. First, as I have pointed
out, the FCC based its decision in part upon the fact that
“bleeping/delay systems” technology has advanced. I have
already set forth my reasons for believing that that fact,
without more, cannot provide a sufficient justification for
its policy change. Supra, at 11–16.
Second, the FCC says that the expletives here in ques­
tion always invoke a coarse excretory or sexual image;
hence it makes no sense to distinguish between whether
one uses the relevant terms as an expletive or as a literal
description. The problem with this answer is that it does
not help to justify the change in policy. The FCC was
aware of the coarseness of the “image” the first time
around. See, e.g., Remand Order, 21 FCC Rcd., at 13308,
¶23 (asserting that FCC has always understood the words
as coarse and indecent). And it explained the first time
around why it nonetheless distinguished between their
literal use and their use as fleeting expletives. See, e.g., In
re Application of WGBH Educ. Foundation, 69 F. C. C. 2d,
at 1254–1255, ¶¶10–11 (discussing First Amendment
considerations and related need to avoid reduced broad­
cast coverage). Simply to announce that the words,
whether used descriptively or as expletives, call forth
similar “images” is not to address those reasons.
Third, the FCC said that “perhaps” its “most impor­
18 FCC v. FOX TELEVISION STATIONS, INC.
BREYER, J., dissenting
tan[t]” justification for the new policy lay in the fact that
its new “contextual” approach to fleeting expletives is
better and more “[c]onsistent with” the agency’s “general
approach to indecency” than was its previous “cate­
gorica[l]” approach, which offered broadcasters virtual
immunity for the broadcast of fleeting expletives. Remand
Order, supra, at 13308, ¶23. This justification, however,
offers no support for the change without an understanding
of why, i.e., in what way, the FCC considered the new
approach better or more consistent with the agency’s
general approach.
The Solicitor General sets forth one way in which the
new policy might be more consistent with statutory policy.
The indecency statute prohibits the broadcast of “any . . .
indecent . . . language.” 18 U. S. C. §1464. The very point
of the statute, he says, is to eliminate nuisance; and the
use of expletives, even once, can constitute such a nui­
sance. The Solicitor General adds that the statutory word
“any” indicates that Congress did not intend a safe-harbor
for a fleeting use of that language. Brief for Petitioners
24–25. The fatal flaw in this argument, however, lies in
the fact that the Solicitor General and not the agency has
made it. We must consider the lawfulness of an agency’s
decision on the basis of the reasons the agency gave, not
on the basis of those it might have given. SEC v. Chenery
Corp., 332 U. S. 194, 196–197 (1947); State Farm, supra,
at 50. And the FCC did not make this claim. Hence, we
cannot take it into account and need not evaluate its
merits.
In fact, the FCC found that the new policy was better in
part because, in its view, the new policy better protects
children against what it described as “ ‘the first blow’ ” of
broadcast indecency that results from the “ ‘pervasive’ ”
nature of broadcast media. It wrote that its former policy
of “granting an automatic exemption for ‘isolated or fleet­
ing’ expletives unfairly forces viewers (including children)
Cite as: 556 U. S. ____ (2009) 19
BREYER, J., dissenting
to take ‘the first blow.’ ” Remand Order, supra, at 13309,
¶25.
The difficulty with this argument, however, is that it
does not explain the change. The FCC has long used the
theory of the “first blow” to justify its regulation of broad­
cast indecency. See, e.g., In re Enforcement of Prohibitions
Against Broadcast Indecency in 18 U. S. C. §1464, 5 FCC
Rcd. 5297, 5302, ¶¶34–35 (1990). Yet the FCC has also
long followed its original “fleeting expletives” policy. Nor
was the FCC ever unaware of the fact to which the major­
ity points, namely that children’s surroundings influence
their behavior. See, e.g., In re Enforcement of Prohibitions
Against Broadcast Indecency in 18 U. S. C. §1464, 8 FCC
Rcd. 704, 706, ¶11 (1993). So, to repeat the question:
What, in respect to the “first blow,” has changed?
The FCC points to no empirical (or other) evidence to
demonstrate that it previously understated the impor­
tance of avoiding the “first blow.” Like the majority, I do
not believe that an agency must always conduct full em­
pirical studies of such matters. Ante, at 15–16. But the
FCC could have referred to, and explained, relevant em­
pirical studies that suggest the contrary. One review of
the empirical evidence, for example, reports that “[i]t is
doubtful that children under the age of 12 understand
sexual language and innuendo; therefore it is unlikely that
vulgarities have any negative effect.” Kaye & Sapolsky,
Watch Your Mouth! An Analysis of Profanity Uttered by
Children on Prime-Time Television, 2004 Mass Communi­
cation & Soc’y 429, 433 (Vol. 7) (citing two studies). The
Commission need not have accepted this conclusion. But
its failure to discuss this or any other such evidence, while
providing no empirical evidence at all that favors its posi­
tion, must weaken the logical force of its conclusion. See
State Farm, 463 U. S., at 43 (explaining that an agency’s
failure to “examine the relevant data” is a factor in deter­
mining whether the decision is “arbitrary”).
20 FCC v. FOX TELEVISION STATIONS, INC.
BREYER, J., dissenting
The FCC also found the new policy better because it
believed that its prior policy “would as a matter of logic
permit broadcasters to air expletives at all hours of a day
so long as they did so one at a time.” Remand Order, 21
FCC Rcd., at 13309, ¶25. This statement, however, raises
an obvious question: Did that happen? The FCC’s initial
“fleeting expletives” policy was in effect for 25 years. Had
broadcasters during those 25 years aired a series of exple­
tives “one at a time?” If so, it should not be difficult to find
evidence of that fact. But the FCC refers to none. Indeed,
the FCC did not even claim that a change had taken place
in this respect. It spoke only of the pure “logic” of the
initial policy “permitting” such a practice. That logic
would have been apparent to anyone, including the FCC,
in 1978 when the FCC set forth its initial policy.
Finally, the FCC made certain statements that suggest
it did not believe it was changing prior policy in any major
way. It referred to that prior policy as based on “staff
letters and dicta” and it said that at least one of the in­
stances before it (namely, the Cher broadcast) would have
been actionably indecent under that prior policy. Id., at
13306–13307, 13324, ¶¶20–21, 60. As we all agree, how­
ever, in fact the FCC did change its policy in a major way.
See ante, at 13. To the extent that the FCC minimized
that fact when considering the change, it did not fully
focus on the fact of change. And any such failure would
make its decision still less supportable. See National
Cable, 545 U. S., at 981.
IV
Were the question a closer one, the doctrine of constitu­
tional avoidance would nonetheless lead me to remand the
case. See United States v. Jin Fuey Moy, 241 U. S. 394,
401 (1916) (“A statute must be construed, if fairly possible,
so as to avoid not only the conclusion that it is unconstitu­
tional but also grave doubts upon that score” (emphasis
Cite as: 556 U. S. ____ (2009) 21
BREYER, J., dissenting
added)). That doctrine seeks to avoid unnecessary judicial
consideration of constitutional questions, assumes that
Congress, no less than the Judicial Branch, seeks to act
within constitutional bounds, and thereby diminishes the
friction between the branches that judicial holdings of
unconstitutionality might otherwise generate. See Al
mendarez-Torres v. United States, 523 U. S. 224, 237–238
(1998); see also Solid Waste Agency of Northern Cook Cty.
v. Army Corps of Engineers, 531 U. S. 159, 172–173 (2001);
Edward J. DeBartolo Corp. v. Florida Gulf Coast Building
& Constr. Trades Council, 485 U. S. 568, 575 (1988); Res
cue Army v. Municipal Court of Los Angeles, 331 U. S. 549,
571 (1947); Ashwander v. TVA, 297 U. S. 288, 345–348
(1936) (Brandeis, J., concurring). The doctrine assumes
that Congress would prefer a less-than-optimal interpreta­
tion of its statute to the grave risk of a constitutional
holding that would set the statute entirely aside. See
Almendarez-Torres, supra, at 238 (construction of statute
that avoids invalidation best reflects congressional will);
cf. United States v. Booker, 543 U. S. 220, 249, 267 (2005).
Unlike the majority, I can find no convincing reason for
refusing to apply a similar doctrine here. The Court has
often applied that doctrine where an agency’s regulation
relies on a plausible but constitutionally suspect interpre­
tation of a statute. See, e.g., Solid Waste Agency, supra, at
172–174; NLRB v. Catholic Bishop of Chicago, 440 U. S.
490, 506–507 (1979). The values the doctrine serves apply
whether the agency’s decision does, or does not, rest upon
a constitutionally suspect interpretation of a statute. And
a remand here would do no more than ask the agency to
reconsider its policy decision in light of the concerns raised
in a judicial opinion. Cf. Fullilove v. Klutznick, 448 U. S.
448, 551 (1980) (STEVENS, J., dissenting) (a holding that a
congressional action implicating the Equal Protection
Clause “was not adequately preceded by a consideration of
less drastic alternatives or adequately explained by a
22 FCC v. FOX TELEVISION STATIONS, INC.
BREYER, J., dissenting
statement of legislative purpose would be far less intru­
sive than a final determination that the substance of” that
action was unconstitutional). I would not now foreclose, as
the majority forecloses, our further consideration of this
matter. (Of course, nothing in the Court’s decision today
prevents the Commission from reconsidering its current
policy in light of potential constitutional considerations or
for other reasons.)
V
In sum, the FCC’s explanation of its change leaves out
two critically important matters underlying its earlier
policy, namely Pacifica and local broadcasting coverage.
Its explanation rests upon three considerations previously
known to the agency (“coarseness,” the “first blow,” and
running single expletives all day, one at a time). With one
exception, it provides no empirical or other information
explaining why those considerations, which did not justify
its new policy before, justify it now. Its discussion of the
one exception (technological advances in bleeping/delay
systems), failing to take account of local broadcast cover­
age, is seriously incomplete.
I need not decide whether one or two of these features,
standing alone, would require us to remand the case.
Here all come together. And taken together they suggest
that the FCC’s answer to the question, “Why change?” is,
“We like the new policy better.” This kind of answer,
might be perfectly satisfactory were it given by an elected
official. But when given by an agency, in respect to a
major change of an important policy where much more
might be said, it is not sufficient. State Farm, 463 U. S.,
at 41–42.
For these reasons I would find the FCC’s decision “arbi­
trary, capricious, an abuse of discretion,” 5 U. S. C.
§706(2)(A), requiring remand of this case to the FCC. And
I would affirm the Second Circuit’s similar determination.
With respect, I dissent.