1

06-1760 Fox v. FCC UNIT ED S TAT ES COU RT OF A PP EALS FOR THE SE CON D CIR CUIT

_______________________________ August Term, 2006 (Argued: December 20, 2006 De cided: June 4, 2007)

Docket Nos. 06-1760-ag (L ), 06-2750-ag (CON), 06-5358-ag (CON)

_______________________________ FOX TELEVI SION STATI ONS, INC., CBS BROADCASTI NG, INC., WLS TELEVI SION, I

NC., KTRK TELEVI SION, INC., KMBC HEARSTARGYLE TEL

EVISI ON, INC., ABC, I

NC., Petitioners ,

v. FEDERAL COMMUNI CATIONS COMMI SSION, UNI TED STATES OF AMERICA,

Responde nts , NBC UNIVERSAL, INC., NBC TELEMUNDO LICENSE CO ., NBC TELEVI SION AFFI

LI ATES, FBC TELEVI SION AFFI LI ATES ASSOCIATI ON, CBS TELEVI SION NETWORK AFFI LI ATES, CENTER FOR THE CR

EATI VE COMMUNITY, INC. , doing b usiness a s CENTER FOR CREATIVE VOI CES IN MEDI A, INC., ABC TEL

EVISI ON AFFIL

IATES ASSOCIATI ON,

Intervenors

.

_______________________________ Before: LEV

AL, POOL

ER, and HALL , Circuit Judges

.

_______________________________ Fox Television Stations, Inc. (“Fox”) petitions for review of the November 6, 2006, order of the Fe deral Com

munications Commission (“FCC”) issuing n otices of appare nt liability

agains t1 CBS is a petitioner in Docket No. 06-1760 and an intervenor in Docket No. 06- 5358. 2 two Fox broadcasts for violating the FCC’s indecency regime. We find that the FCC’s new policy sanctioning “ fleeting expletives” is arbitrary and capricious under the Administrative Procedure Act for failing to articula te a reasoned basis for its change in policy. According

ly, the petition f or revie w is GRANT ED, the or

der of th e FCC is VACATED, a nd the mat

ter is REMANDED to the agency for further proceedings c onsistent with this opinion. Judge Leval dissents in a separa te opinion. CARTER G. PHILL

IPS, Sidley A

ustin LLP, Washington D.C. (R. Clark Wadlow, James P. Young, Jennifer Tatel, David S. Petron, Sidley Austin L LP, Washington D.C. on the brief) for Petitioner Fox Television Stations, Inc. and Intervenor FBC Television Affiliates Association

. ERIC D. MILLER, Deputy Gene ral Counsel, for Samuel L. Fede r, General Counsel, Federal Comm unication s Commis sion, Was hington D.C . (Matthew B. Berry , Daniel Armstrong, Jacob M. Lew is, Joseph R. Palmore, Federal Communications Commission and Jeffrey S. Bucholtz, Acting Assistant Attorney General, Thomas M. Bondy , Department of Justice, Washington D.C. on the brief) for Respon dents

. Ellen S. Agress, Maureen A. O’Connell, Fox Television Stations, New York, NY for Petitioner Fox Television Stations, Inc. Robert Corn-Revere, Ronald G. London, Ambe r L. Husbands, David M. Shapiro, Davis Wrig

ht Trema ine L LP, an

d Lee Levi ne, L evine Sull ivan Koch & Schulz L.L .P., Washington D.C. for Petitioner/Intervenor 1 CBS Broadcasting Inc. Miguel A. Estrada, Andrew S. Tulumello, Matthew D. McGill, Travis D. Lenkner, Gibson, Dunn, and Crutche r LL P, Washington D.C.; Richard Cotton, Susan Weiner, NBC Universal, Inc ., New York, NY; and F. William LeB eau, NBC Universal, Inc. a

nd NBC Telemundo License Co., Washing ton D.C. for Intervenors NBC Universal, Inc. and NBC Telemundo License Co. Andrew J. Sc

hwartzma n, Parul P. Desai, Me dia Acc ess Proje ct, Washin gton D.C

. for Interv

enor Cent er for Crea tive Voic es in Med ia

. Marjorie Heins, Brennan Center for Justice, Free Expression Policy Project, New2 The petit ions for r eview fi led by

Fox and CB S in Docke

t No. 06-1 760 and AB C in Docket No. 06-2750 pertain to portions of a prior order by the FCC that has since been vacated. 3 York, NY for Amici Curiae Brennan Center for Justice, American Civil Liberties Union, New York Civil Liberties Union, National Coaliti on Against Censorship, First Ame

ndment Pr

oject, PE N America n Center, America n Bookse llers Foundatio n for Free

Expressi on, W riters Gui ld of Amer

ica W est, Directors Guil

d of America, Scree

n Actors G

uild, Ame rican Fed eration of Televisio n and Radio Artists, W riters Gui ld of Amer

ica East, M

innesota P

ublic Radi

o/American Public Media, National Federation of Community Broadcasters, Film Arts Foundation, Re:New Media, National Alliance for Media Arts and Culture, International Docume ntary Asso ciation, W

orking Fil

ms, and the

Creative Coalition insupport of Petition ers. John B. Morris, Jr., Sophia Cope, Center for Democracy & Technology

and Adam D. Thierer, The Progress & Freedom Foundation, Washington D.C. for Amici Curiae Center for Democracy & Technology and Adam Thierer, Senior Fellow with The Progress & FreedomFoundation (“PFF”) and the Director of PFF’s Center for

Digital Me

dia Freed om in suppo rt of Petiti

oners. Henry Geller, Washingt

on D.C. an

d Glen O. R

obinson, U

niversity of Virg inia School of Law, Charlottesville, VA for Amici C uriae Form er FCC Offic ials in support of P

etitioner s . Robert R. Sparks, Jr., Sparks & Craig, LL P, McLean Virginia for Amicus Curiae Parents Te levision C

ouncil in s upport of Re

spondents

. Robert W. Peters, Robin S. Whitehead, Morality in Media, I nc., New York, NY for Amicu

s Curiae Mo rality in M

edia, Inc . in support

of Respon dents. Tho mas B. N ort h, S t. Igna ce, MI for Amicus Curiae Thomas B. North, Judge of Probate, Sixth Probate Court of Michigan , in support o f Respond

ents

.

_________________________________ POOLER, Circu it J udge : Fox Television Stations, Inc., along with its affiliates FB C Television Affiliates Association (collectively “ Fox”), petition for review of the November 6, 2006, order of the Federal Communications Commission (“FCC”) issuing notices of apparent liability against two Fox broad

casts fo r violatin

g the F CC’s indec ency

and prof anity prohibitions. 2 Fox, along withAccordingly , those petitions for review are denied as moot. The rema inder of this opinion addresses the petition for review filed by Fox in Docket No. 06-5358. 4 other broadcast networks and numerous amici, raise a dministrative, statutory, and constitutional challen ges to th e FCC’s in

decenc y r egime. The FCC, a

lso suppor

ted by severa l amici, di spute each of these challeng es. We find that the FCC’s new

policy regar ding “f leeting expletives ” represents a significant departur e from positions previously taken by the agency

and relied on by the broadcast industry . We further find that the FCC has failed to articulate a re asoned basis for this change in policy . Accordingly , we hold that the FCC’s new policy regarding “flee

ting expletives” is arbitrary a

nd capricious under the Administrative Procedure Act. The petition for review is therefore gra

nted, the order of the FCC is vacated, and the matter is re manded to the Commission for further proceedings consistent with this opinion. Because we vacate the FCC’s order on this ground, we do not reach the other challenges to the FCC’s indecency regime raised by p etitioners, interv enors, a nd amici. BACKGROUND The FCC’s policing of “indecent” speec h stems from 18 U.S.C. § 1464, which provides that “[w]ho ever utt

ers any obscene , indece

nt, or pro fane la

nguag e by

means of radio communication shall be fined under this title or imprisoned not more than two y ears, or both.” The FCC’s authority to re gulate the broadcast medium is expressly limited by Section 326 of the Communications Act, which prohibits the FCC from engaging in c ensorship. See 47 U.S.C. § 326. In 1960, Congress authorized the F CC to impose forfeiture penalties for violations of Section 1464. See 47 U.S.C. § 5 03(b)(1 )(D). T he FCC first exercis ed its stat utory authority to sanction indecen t (but non- obscene ) speech in 1975, w hen it fou nd Pacifi ca Foun

dation’s radio5

broadca st of come dian George Ca rlin’s “F ilthy

Words” mon

ologue indecen t and subje ct to forfeiture. See Citizen’s Complaint Against Pacifica Found. Station WBAI(FM) , N.Y, N.Y. , 56 F.C.C.2d 94 (1975) . True to its title, the “Filthy Words” monologue contained numerous expletives in the course of a 12-minute monologue broadcast on the ra dio at 2:00 in the afternoon. In ruling

on this complaint, the FCC articulated the following description of “indece nt” conte nt: [T]he concept of ‘indecent’ is intimately c onnected with the exposure of children to language that describes, in ter ms patently offensive a s measured by contemporary

community standards for the br oadcast medium, sexual or excretory activities and organs, at times of the day when there is a reasonable risk that childre n may be in the a

udience . Obnoxious, gutter langua ge des cribing

these matters has the effect of debasing and brutalizing human beings by reducing them to their me

re bodily function s, and we

believe that such words ar e indece nt within the meaning of the statute and have no place on radio when children are in the audience. Id. at ¶ 11 (internal footnote omitted). Pacific a appea

led the F CC’s orde

r to the Cou

rt of Appe als for the D.C. Circ uit. While that appeal was pending, the FCC issued a “cla rification” order in which it specifically noted that its prior order was intended to address only the particular facts of the Carlin monologue as broadcast, and acknowledge d the concern that “in some cases, public events likely to produce offensive speech are cover ed live, and there is no opportunity f or journalistic editing.” ‘Petition for Clarification or Reconsideration’ of a Citizen’s Complaint against Pacifica F oundation, Station WBAI(FM), N.Y., N.Y. , 59 F.C.C. 2d 892, at ¶ 4 n.1 (1976) (“Pacifica Clarification Order”). The FCC stated that in such a situation, “we believe that it would be inequitable for us to hold a licensee responsible for indecent lang uage.” Id. Althoug h acknow ledging the FCC’s

additiona l clarif ication, the D.C. Cir

cuit neve rtheless6

concluded that the FCC’s indecency regime was invalid. See Pacific a Found. v. FCC , 556 F.2d 9 (D.C. Cir. 1977). Labeling the Commission’s actions censorship, the court found the FCC’s order both vague and overbroa d, noting that it would prohibit “the uncensored broadcast of many of the great works of literature inc luding Shakespearian plays and contemporary plays which have won critica l accla im, the wor

ks of ren owned cl assical a

nd contem

porary poets and

writers , and passages from the Bible .” Id. at 14. The Commission appealed this decision to the Supreme Court, which reversed in a plurality opinion. I

n its brief to the Supreme Court, the FCC stressed that its ruling was a narrow one applying

only to the specific fa

cts of the Carlin monologue. See Br. of FCC at 41-49, FCC v. Pacifica Found. , No. 77-528 (U.S. Mar. 3, 1978), available at 1978 WL 206838. The Court took the Commission at its word and confined its review to the specific question of whether the Commission could find indecent the Carlin monologue as broadcast. See FCC v. Pacifica Found. , 438 U.S. 726, 732-35 (1978). The Court first rejected Pacifica’s statutory argument that “indecent” in Section 1464 could not be read to cover spee ch that admittedly did not qualify as obscenity. Id. at 739. Finding that obscene, indecent, and prof ane have distinct meanings in the statute, t he Court h eld that the FCC is pe rmitted to sanction speech w ithout show

ing that it satisfied the elements of obscenity

. Id. at 739-41. The Court then rejected Pacifica’s constituti onal cha

llenge s. The Cour

t stated that “of a

ll forms of

communic ation, it is broadcasting that has received the most limited First Amendment protection” because the broadcast medium is a “uniquely pervasive presence in the lives of all America ns” that extends into the pr

ivacy of the home and is “

uniquely access ible to ch

ildren, e ven those too y oung to read.” Id. at 748-74 9. The Cou rt there fore fo

und that th e FCC cou

ld, consis tent with the First3 The four dissenting

justices would have

held inva lid any attempt by

the FCC to p

rohibit indecent (non-obscene) speech. See Pacifica , 438 U.S. at 762-80.

4 At the time, the Commission interpreted Pacifica as involvi

ng a situ ation “a bout as lik

ely to occur again a s Halley ’s Comet.” Br. of A mici Curia

e Forme r FCC Off

icials at 6 (quoting

FCC Chairman Charles D. Ferris, Speech to New Eng land Broad. Assoc., Boston, Mass. (July 21, 1978)). 7 Amendmen

t, regu late inde cent mate

rial like the Carli n monolog

ue. The Co

urt then once ag ain “emphasize[d] the narrowness of our holding . . . We simply hold that whe n the Commission finds that a pig has entered the parlor, the e xercise of its regulatory

power does not depend on proof that the pig is obscene.” Id. at 750-51. Justices Powell and Blackmun, who concurred in the judgment and supplied two of the

vo te s n ec es sa ry f

or th e 5 -4 ma

jo ri ty, 3 also emphasized in their concurring opinion that the Court’s holding was a narrow one limited to the facts of the Car lin monologue as broadcast. Id. at 755-56 (Powell J., c oncurri

ng). F oreshad

owing th e question now bef ore us, th ey

explicitly noted that “[t]he Commission’s holding, and certainly the Court’s holding toda y, does not speak

to cases involving

the isolat ed use of a potenti ally

offensi ve word i n the cour

se of a r adio broadcast, as distinguished from the verbal shock tre atment administered by re spondent here.” Id. at 760-61 (Powell J., concurring). Furthermore, c iting the FCC’s brief to the Court, Justice Powell stated that he did not foresee an undue chilling eff ect on broadcasters by

the FCC’s decision because “the Commission may be expected to proceed cautiously , as it has in the past.” Id. at 761 n.4 (Powell J., concurring). The FCC took the Pacifica Court’s a dmonitions s eriously

in its subse quent dec isions. 4 Shortly after the Pacifica

rulin g, the F CC st ated t he fol lowi ng in an opin ion re jecti ng a chal lenge to a broadcaster’s license renewal on the basis that the broadcaster had aired indec ent8

program ming: With regard to ‘indecent’ or ‘profa ne’ utterances, the First Amendment and the ‘no cens orship’ provision o f Section 326 of the

Communica

tions Act s everel

y limit any role by

the Commission and the courts in enforcing the proscription contained in Section 1464. The Supreme Court’s decision in FCC v. Pacifica Foundation , 46 U.S.L.W. 5018 (1978), No. 77-528, decided July 3, 1978, affords this Commission no general prerogative to intervene in any case where words similar or identical to those in Pacifica are broadcast over a licensed radio or television station. We intend strictly to observe the nar rowness of the Pacifica hold ing. In thi s rega

rd, the Co mmission’s

opinion, a s approve d by

the Court, relied in part on the repetitive occurrence of the ‘indecent’ words in question. The opinion of the Court specifically state d that it was not ruling that ‘an occasional expletive . . . would justify any sanction . . .’ Further, Justice Powell’s concurring opinion emphasized the fact that the language the re in issue had been ‘repeated over and over as a sort of verbal shock tre atment.’ He specifically distinguished ‘the ver bal shock treatme nt [in Pacif

ica]’ fr om ‘the iso lated use

of a pote ntially offensive word in the course of a radio broa dcast.’ Application of WGBH Educ. Found. , 69 F.C.C.2d 1250, at ¶ 10 (1978) (emphasis added) (ellipses in original; internal footnotes and citations omitted). The FCC a lso speci fically

held that the single use of an expletive in a program that air ed at 5:30pm “should not call for us to act under the holding of Pacifica .” Id. at ¶ 10 n.6. A few y ears later, the Commission again rejected a challenge to a license re newal that complained the broadcaster had a ired indecent programming in violation of Section 1464. The FCC acknowledged the complaint that the broadc aster on three separate occasions had aired prog ramming during the morning hours containing language such as “motherfucker,” “fuck,” a nd “shit,” but nevertheless concluded that “it is clear that the petitioner has failed to make a prima faci e case that [the broadcaster] has violated 18 U.S.C. 1464” since the language did not amount to “verbal shoc k treatment” and the complainant had failed to show this was more than “isolated use.” Application of Pacifica Found. , 95 F.C.C.2d 750, at ¶¶ 16, 18 (1983).9

It was not until 1987 that the FCC would find another broadca st “indecent” under Section 1464. See Infi

nity Broad. Corp., et

al. , 3 F.C.C.R. 930 (1987) (“Infinity Order ”). The Commission explained: In cases decide d subsequent to the Supreme Court’s ruling [in Pacifica ], the Commission to ok a very

limited ap

proach t o enforc ing the prohibition agains t indecen t broadc asts. Unst

ated, but widely assumed, and imple

mented f or the mos t part through staff rulings, was the be lief that only material that c losely resembled the George Carlin monologue would satisfy the indecency

test articulated by the FCC in 1975. Thus, no action was taken unless material involved the repeated use, for shock va lue, of w ords simila

r or iden tical to those satir

ized in the C arlin “Filthy Words” mon

ologue . . . As a r

esult, the Commission, since the

time of its ruling in 1975, has taken no action against any broadcast licensee for violating the prohibition again st indece nt broadc asts. Id. at ¶ 4 (internal footnotes omitted). The I nfinity Order a

ffirmed on reconsideration three decisions issued simultaneously by the FCC in April 1987 that found certain programs indece nt. See Pacifica Found., Inc

. , 2 F.C.C.R . 2698 (19 87); The Reg ents of th e Univ. of Cal. , 2 F.C.C.R

. 2703 (198 7); Infinity

Broad. Corp. , 2 F.C.C.R. 2705 (1987). The FCC explained in the I nfinity Order that it would no longer take the narrow view that a finding of indecency required the use of one of the seven “dirty

words” used in Carlin’s monologue. See Infinity Order , at ¶ 5. The FCC instead would use th e gene ric def inition of i

ndecency it had ar ticulate d in conne ction with its prior decision in Pacifica

. Id. Under the Commission’s definition , “ind ecent s peech i s langu age that describes, in terms patently offensive as measured by contemporary

community standards for the broa dcast me dium, sexua

l or excre tory activitie s and org ans. Such indecen t speech is actionable when broadcast at times of the day when there is a reasonable risk that children may be in the audience.” Regent s of the Un iv. of Cal. , 2 F.C.C.R . 2703, at ¶ 3 (inter nal footn ote omitted). The FCC a

lso reaf firmed, h owever , the pre

vailing view that a fleeti ng explet ive would10

not be actionable. See id. (“Speech that is indecent must involve more than an isolated use of an offensi ve word. ”); Pacifica Found., Inc

. , 2 F.C.C.R. 2698 , at ¶ 13 ( “If a compla int focus es solely on the use

of expletiv es, we be lieve tha t under th e lega

l standar ds set for th in Pacif

ica, del iberate and repetitive use in a patently offensive manner is a requisite to a finding of indec ency.” ). Notably, in Pacifica Foundation , the Commission declined to make a finding of indecency against a radio broadcast of the pr ogram “Shocktime America,” which ha d contained words and phrases such as “ eat shit,”

“mother -fucke r” and “ fuck the

U.S.A,” i n part be cause, w

ithout a

transcr ipt or tape

of the pr ogram, the FCC wa s unable t o determ ine “whe ther the use of pa tently offensive speech was isolated.” Id. at ¶¶ 3, 17. Broadcasters appealed the I nfinity Order to the D.C. Circuit, cha llenging the FCC’s definition of indecency

as unconstitutionally vague

. See Action for Children’s Television v. FCC , 852 F.2d 1332 (D.C. Cir. 1988) (“ACT I” ), superseded in part by Action for Children’s Televisi on v. FCC , 58 F.3d 6 54 (D.C. Ci r. 1995) ( in banc) . The D.C. Circuit re jected th is argument on the basis that the definition at issue was “virtually the same definition the Commission articulated in the order reviewed by the Supreme Court in the Pacifica case.” Id. at 1338. The

court concluded t

hat Pacifica

implicitly rejected any

vagueness challenge

to the FCC’s definition of “indecent,” which therefore foreclosed its ability to revisit any such argument. Id. at 1339. The court then invited correction from “Hig her Authority” if its re ading of Pacifica

was incorrect. Id. Before leaving the F irst Amendment issue, however, the court explicitly noted tha t the “FC C has assu

red this c ourt, at oral arg

ument, tha

t it will con

tinue to give weight to reasonable lice nsee judgments when deciding whethe r to impose sanctions in a particular case. Thus, the potential chilling effe ct of the FCC’s generic definition of indece ncy11

will be tempered by the

Commission’s restrained enforcement policy .” Id. at 1340 n.14 (citing Pacifica , 438 U.S. at 761 (Powell J., concurring)). This restrained enforcement policy would continue. In 2001, pursuant to a settlement agreement by

which the FCC agreed to clarify its indecency standa

rds, the Commission issued a policy statement to “provide g uidance to the broadcast industry regarding our ca se law interpreting 18 U.S.C. § 1464 and our enforcement policies with re spect to broadcast indecency .” Industry Guidance on the Commission’s Case Law I nterpreting 18 U.S.C. § 1464 , 16 F.C.C. R. 7999, at ¶ 1 & ¶ 30 n.23 (2001) (“I ndustry Guidance ”). The FCC first noted that “indecent sp ee ch is pr ot ec te d b y th e F ir st Am en dm en t, an d t hu s, th e g ov er nm en t m us t b ot h i de nt if y a compellin g inter est for a ny r egulat ion it may

impose on i

ndecen t speech and choo se the le ast restrictive means to further that interest.” Id. at ¶ 3. The FCC then explained that an indecency finding involves the following two determinations: (1) whether the material falls within the “subject matter sc ope of [the] indecency definition – that is, the material must describe or depict sexual or excretory organs or activities”; and (2) w hether t he broad cast is “ patently offensive as measu red by contemporary

community standards for the broadcast medium.” Id. at ¶¶ 7-8. The FCC considers the following three factors in determining whether the mater ial is patently offensive: “ (1) the explicit ness or gra

phic

nature of the description or depiction of sexual or excretory organs or activities; (2) whether the materia ls dwells on or

repeats a t length descrip tions of sexual or excr etory organ s or activ

ities; (3) whether th e materia l appears t o pander o r is used totitillate , or whether the material appears to have been presented for its shock value .” Id. at ¶ 10. The policy state ment contained

numerous examples o f prior F CC decisio ns evalua ting whe ther ce rtain mat erial wa s indece

nt in12

an attempt to provid

e guida nce to br oadcast ers. I n discussi ng the se cond fac

tor in the “

patently offensive” analy sis, the FCC cited examples distinguishing between material that “dwells” on the offensive content (indecent) and materia l that was “fleeting and isolated” (not indece nt). Id. at ¶¶ 17-18. This restrained enforcement policy would soon change. During NBC’s January 19, 2003, live broa dcast of the Golde

n Globe Awards, mus ician Bono stated in his acc eptance

speech “ this is really, rea

lly, fucking br

illiant. Really, really

, great.” Complaints

Agains t Various

Broadc ast Licensees Reg arding Their Airing of the “G olden Globe Awards” Program , 19 F.C.C.R. 4975, at ¶ 3 n.4 (20 04) (“G olden Glo bes”). I ndividual s associa

ted with th e Parent s Televis ion Counci l filed complaints that the material was obscene and indecent unde r FCC regulations. Id. at ¶ 3. The FCC’s Enforcement Bureau, how ever, denied the complaints on the basis that the expletive as used in context did not describe sexual or excretory or gans or activities and that the utterance was fleeting and isolated. See Complaints Agains t Various

Broadc ast L icensee s Regar ding The ir Airing of the “Golden Globe Awards” Program , 18 F.C.C.R. 19859, at ¶¶ 5-6 (Enforcement Bureau 2003) (“Golden Globes (B ureau Decision)”). The Bureau accordingly found that the speech “does not fall within the scope of the Commission’s indecency prohibition,” and reaffirmed FCC policy

that “fleeting and isolated remarks of this nature do not warrant Commission action.” Id. at ¶ 6. Five mont

hs later, the full Co mmission re versed t he Bure au’s dec ision. First, the FC C held that any use of

any varia nt of “the F-Word” inherently has sexual connotation and therefore falls within the scope of the indecency definition. Golden Globes , at ¶ 8. The FCC then held that “the ‘F-Word ’ is one of

the most vu

lgar, g raphic, and explic it descri ptions of s exual act

ivity13

in the English language” a nd therefore the use of that word was pate ntly offensive under contemporary

community standards. Id. at ¶ 9. The Commission found the fleeting and isolated use of the word irrelevant and overruled a ll prior decisions in which fleeting use of an expletive was held not indecent. Id. at ¶ 12 (“While prior Commission and staff action have indicated that isolated or fleeting broadcasts of the ‘F -Word’ such as that here are not indecent or would not be acted upon, consistent with our decision today we conclude that any

such interpretation is no longer good law.”). The FCC then held that the material in question was also “profane” under Section 1464. Id. at ¶ 13. The Commission acknowledged that prior decisions interpreting “profane” had defined that term as blasphemy , but found that nothing in its prior decisions limited the definition of profane in such a manner. Id. at ¶ 14. The Commission, however, declined to impose a forfeiture beca use “exis ting precedent would have p ermitted t his broadcas t” and therefo re NBC and its affiliates “necessarily did not have the requisite notice to justify a penalty.” Id. at ¶ 15. The Commission emphasized, though, that licensees were now on notice that any broadcast of the “F-Word” could subject them to monetary penalties and suggested that implementing de lay technology

would ensure future compliance with its policy

. Id. at ¶ 17. NBC, along with several other parties including Fox, filed petitions for reconsideration of the Golden Globes order, r aising s tatutory

and cons titutional

challen ges to th e new pol icy . NBC, Fox, and Viacom Inc. also filed a joint petition to stay the effect of the Golden Globes order. These petitions have been pending for more than two years without any action by the FCC. Nevertheless, the FCC has applied the policy a nnounced in Golden Globes in subsequent cases. On Febr uary 21, 2006, t

he FCC issu

ed an ord er reso lving va

rious com plaints against14

several television broadcasts. See Complaints Regar ding Va rious Tel evision B roadca sts Between February

2, 2002 and March 8, 2005 , 21 F.C.C.R. 2664 (2006) (“Omnibus Order”). Through this order, the FCC intended to “provide substantial guida nce to broadcasters and the public about the types of prog ramming that are impermissible under our indecenc y standard.” Id. at ¶ 2. In Section I

II .B of the Omnibus Order, the Commission found four programs—F ox’s broadca st of the 2 002 Billbo ard Music Awards, Fox’s broa

dcast of the 2003 B illboard M

usic Awards, various episodes of ABC’s NYPD Blue, a nd CBS’s The Early

Show—indecent and profane under the policy

announced in Golden Globes . The factual situations at issue are as follows:

• 2002 Billboa rd Music A wards : In her acce

ptance speech, Cher stated: “People have bee

n telling me I’ m on the wa

y ou t every ye ar, rig ht? So fuck ‘em.”

• 2003 Billboa rd Music A wards : Nicole Richie, a presenter on the show, stated: “Have y

ou ever tried to get cow shit out of a Prada purse ? It’s not so fucking simple.”

• NYPD Bl ue : In various episodes, Detective A ndy Sipowitz and other characters used certain expletives including “ bullshit,” “dick,” and “dickhead.”

• The Early Show : During a live inte

rview of a contes tant on CB S’s real ity show Survivor: Vanuatu, the interviewee referr ed to a fellow contestant as a “bullshitter.” Id. at ¶¶ 101 , 112 n. 64, 125, 137. I n finding these pr ograms indecen t and prof ane, the FCC reaffirmed its decision in Golden Globes that any use of the

word “f uck” is pr esumptive ly indecent and profane. Id. at ¶¶ 102, 107. The Commission then concluded that any use of the word “shit” was also presumptively indecent and profane. Id. at ¶¶ 138, 143. Turning to the second p art of its

indecen cy test, the F CC found tha

t each of the prog rams wer e “pate ntly15

offensive” because the material wa s explicit, shocking, and gratuitous. Id. at ¶¶ 106, 120, 131, 141. C itin g Golden Globes , the Commission dismissed the fact that the expletives were fleeting and isolated and held that repeated use is not necessar y for a f inding of indecency

. Id. at ¶¶ 104, 116, 129, 1 40. The F CC, howeve r, decli ned to issue a forf

eiture in each ca se for th e express reason that the broadcasts in question occurred be fore the decision in Golden Globes , and thus

“ existing precedent would have permitted this broadcast.” Id. at ¶¶ 111, 124, 136, 145. Fox and CBS filed a petition for review of the Omnibus Order in this court. ABC filed a petition for review in the D.C. Circuit, which was then transferre d to this court and consolidated with the petition for review filed by Fox and CBS. Before any briefing took place, however, the FCC moved

for a vol untary remand i n order t o give the Commission

the first opportuni

ty to address petitioners’ arguments and “e nsure that all licensees are afforde d a full opportunity to be heard before the Commission issues a final decision.” See FCC Mot. for Voluntary Remand a t 2, No. 06-1760 (July 6, 2006). On September 7, 2006, this court g ranted the FCC’s request for

re ma nd an d s ta yed en fo rc em en t o f t he Om ni bu s O rd er . T he Co mm is si on wa s g iv en si xt y da ys to issue a final or a ppealab le order , at which time the pe

nding a ppeal wo uld be aut omatical ly reinstated. The FCC promptly issued a public notice soliciting comments on its decision in the Omnibus Or

der. Num erous pa

rties, inc luding those who ha ve parti cipated

in the brie fing in t

his appeal, submitted comments raising various statutory and constitutional arguments against the FCC’s indecency

regime. The FCC then issued a new order on November 6, 2006. See Complaints Regarding Various Television Broadc asts Between February 2, 2002 and March 8, 2005 , FCC 06-166 (Nov. 6, 2006) (“Remand Order”). The Remand Order vacated Section I II .B5 The Commission dismissed the complaint against NYPD Blue because the only person who complained of the material resided in the Eastern time zone, wher e NYPD Blue aired during the “safe harbor” period af ter 10pm. Remand Order , at ¶ 75; see also 47 C.F.R. § 73.3999(b) (providing that broadcasting of indece nt material is prohibited only betwee n the hours of 6am and 10pm) ; Action for Childre n’s Tele vision v. F CC , 932 F.2d 1504 (D.C. Cir. 1991) (“ACT II ”) (“safe harbor” period is constitutionally required), superseded in part by Action for Children’s Televisi on v. FCC , 58 F.3d 654 (D.C. Cir. 1995) (in banc). I n light of the FCC’s revised decision regar ding NY PD Blue, ABC is no lo

nger p articipa

ting in th is appea l. 16 of the Omnibus Order in its entirety and replaced it with the Remand Order. Id. at ¶ 11. In the Remand Order, the FCC reaffirmed its finding tha t the 2002 and 2003 Billboard Music Award progra ms were i ndecen t and prof ane, but r everse d its findin

g aga inst The Ea

rly Show. I t also dismissed on procedural grounds the complaint aga inst NYPD Blue. 5 With reg ard to the

2003 Billb oard Musi c Award s, the Commi ssion foun d that it wo

uld have been actionably

indecent even prior to the decision in Golden Globes because the potentia lly o ffensiv e materi al was “r epeate d,” since

Nicole Ric

hie used “ two extrem ely

graph ic and offensive words,” and was “deliber ately uttered”

because of “Ms. Richie’s confident and fluid delivery of the lines.” Id. at ¶ 22. With regard to the 2002 Billboard Music Awards, the Commission “acknowledge[d] that it was not apparent that Fox could be penalized for Cher’s comment at the time it was broadcast.” Id. at ¶ 60. In both cases, the F CC rejected Fox’s argument that fleeting expletives were not a ctionable, now characterizing its prior decisions on that issue as “staff letters and dicta.” Id. at ¶ 20. The Commission , howeve r, decli ned to impo se a forfeiture for either broadc ast. Id. at ¶¶ 53, 66. Turning to The Early

Show, the FCC reversed its finding that the expletive used was indecent or profane because it occ urred in the context of a “ bona fide news interview.” Id. at ¶ 68. The Commission stated that in light of First Amendment concerns, “it is imperative that we17

procee d with the u

tmost rest raint whe n it comes t

o news pr ogramm ing,” a nd found it “appropriate . . . to defer to CBS’s plausible char acterization of its own programming” as a ne ws interview. Id. at ¶ 71-72. Given this context, the FCC declined to find the comment indecent or profane. Id. at ¶ 73. In accorda

nce with our September 6th order, this appeal was automatica lly reinstated on Novembe r 8, 2006. Fox then fi led a pet ition for r eview of the Reman

d Order and moved

to consolidate that appeal with the one already pending before this court. We grante d the motion for consoli dation as wel l as motio ns to int ervene by CBS Broadcasti ng Inc. (“CBS”) and NBC Universal Inc. and NB C Telemundo License Co. (collectively , “NBC”). We have also received

severa l briefs f rom vario us amici. DISCUSSION Fox, CBS, and NBC (collectively , “the Networks”), supported by several amici, raise a variety of a

rguments against the validity of the Remand Order, including: (1) the Remand Or der is arbitr ary and capricious b ecause

the Commissi on’s reg

ulation of “fleeti ng explet ives” represents a dramatic chang e in agency policy without adequate e xplanation; (2) the FCC’s “comm unit y standar ds” an alysis i s arbi trary and m eanin gless; (3) th e FCC’ s ind ecency fin dings are invalid because the Commission made no finding of scienter; ( 4) the FCC’s definition of “profane” is contrary

to law; (5) the FCC’s indecency regime is unconstitutionally vag ue; (6) the FCC’s indecency

test permits the Commission to make subjective determinations about the quality of speec

h in violation of the First Amendment; and (7) the FCC’s indecency regime is an impermiss ible cont

ent-bas ed reg

ulation of speech t hat viola tes the F irst Amendment. The FCC, also supported by

severa l amici, di spute ea

ch of the se conte

ntions. We a

gree w ith the first18

argume nt advanc ed by

the Netw orks, and

theref ore do no t reach

any other pot ential pr oblems with the FCC’s decision. I. Scope of Review Before turning to the merits of the Networ ks’ arguments, we first note that we reje ct the FCC’s contention that our review here is narrowly confined to the specific question of whether the two Fox broadcasts of the Billboard Music Awards were indecent and/or profane. The Remand Order applies the policy announced in Golden Globes . If that policy is invalid, then we cannot sustain the indecency findings against Fox. Thus, as the Commission conceded during oral argument, the validity of the new “fleeting expletive” policy announced in Golden Globes and applied in the Remand Order is a question properly before us on this petition for review. As the D.C. Circuit explained in rejecting this precise argument in anothe r proceeding, “the ag ency may not resort to adjudica tion as a means of insulating a generic standard from judicial review.” ACT I , 852 F.2d at 1337. II. Administrative Procedure Ac t Courts will set aside agency decisions found to be “arbitrary , capricious, an abuse of discreti on, or othe

rwise not in accor dance w ith law.” 5 U.S.C. § 70 6(2)(A) . As the Supreme Court has e

xplained: “ The scop e of rev iew unde r the ‘a rbitrar y a nd capri cious’ sta

ndard is narrow and a court is not to substitute its judgment for that of the age ncy. Neve

rtheless, the agency must examine the relevant data and articulate a satisfactory explanation for its action including a ‘rational connection between the facts found and the choice made.’” Motor Veh icle Mfrs. Ass’n of U.S., Inc. v. State Fa rm Mut. Auto. Ins. Co. , 463 U.S. 29, 43 (1983). Agency action is arbitrary

and capricious “if the agenc y has relied on f

actors which Congress has not19

intended it to consider, entirely f ailed to consider an important aspect of the problem, offer ed an explanation for its de cision tha t runs cou nter to the

evidenc e befor

e the ag ency , or is so implausible that it could not be ascribed to a difference in view or the pr oduct of agency expertise.” Id. Reviewing courts “may not supply a reasone d basis for the agency ’s action that the agency

itself has not given.” Id. (quot ing SEC v. Chenery Corp. , 332 U.S. 194, 196 (1947)). The Networks contend that the Remand Order is arbitra ry and ca pricious because the FCC has made a 1 80-de gree tur n regard ing it s trea tment of “fl eetin g expl etive s” wit hout provi ding a reasoned explanation justifying the about-face. We agree

. First, th ere is no

question t

hat the F CC has cha

nged its policy . As outline d in detai l above, prior to the Golden Globes decision the FCC had consistently take n the view that isolated, non-literal, fleeting expletives did not run afoul of its indecency regime. See , e.g. , Pacifica Clarification Order , 59 F.C.C. 2d 892, at ¶ 4 n.1 (advising broadcasters that “it would be inequ itabl e for us to ho ld a li censee respo nsib le for indec ent la nguage” t hat oc curred durin g a live broa dcast wit hout an op

portunity for jour nalistic e diting) ; Application of WGBH Educ. Found. , 69 F.C.C.2d 1250, at ¶ 10 & n.6 (distinguishing between the “ verbal shock treatment” of the George Carlin monologue and “ the isolated use of a potentially of fensive word” and finding that the single use of an expletive in a program “should not ca ll for us to act under the holding of Pacifica ”) ; Pacifica Foundation, Inc

. , 2 F.C.C.R. 2698, at ¶ 13 (“If a c omplaint focuses solely on the use of expletives , we belie

ve that un der the l egal st

andards set forth in Pacific a, delibe

rate and repetitive use in a patently offensive manner is a requisite to a finding of indecency .” (emphas is added) ); Industry Guidance , 16 F.C.C.R. 7999, at ¶¶ 17-18 (distinguishing between

mater ial t hat is repeat ed or d welle d on an d mate rial t hat is “fleet ing and isol ated”) (citi ng L.M.20

Communications of S.C., Inc. , 7 F.C.C.R . 1595 (Ma ss Media B ureau 19 92) (finding the single utterance of “mother-fucker ” not indecent because it was a “flee ting and isolated utterance which, within the context of live and spontaneous programming, does not warr ant a Commission sanction ”); Lincoln Dellar, For Rene wal of the Licenses of Stations KPRL (AM) and KDDB(F M) , 8 F.C.C.R. 2582 (Audio Serv. Div. 1993) (news announcer’s remar k that he “fucked that one up” not indecent because the “use of a single expletive” did not warrant furthe r review “in light of the isolated and accidenta l nature of the broadcast”)). This consistent enforcement policy

changed with the issuance of Golden Globes : While prior Commission and staff action have indicated that isolated or fleeting broadcasts of the “F-Word” such as that her e are not indecent or would not be acted upon, consistent with our decision today we conclude that any

such interpretation is no longer good law . . . . The staf f has since found that the isolated or fleeti

ng use o f the “F -Word” is n ot indece nt in situat

ions arg uably similar to that here. We now depart from this portion of the Commission’s 1987 Pacifica decision as well as all of the cases cited in notes 31 and 32 and any similar cases holding that isolated or fleeting use of the “ F-Word” or a variant thereof in situations such as this is not indecent and conclude that such cases ar e not good law to tha

t extent. Golden Globes , 19 F.C.C. R. 4975, at ¶ 12 (inte

rnal foo tnote omitt

ed); see also id. at ¶ 14 (providing new definition of “profane” speech). The Commission declined to issue a forfeiture in Golden Globes precisely be cause its decision represented a depar ture from its prior rulings. See id. at ¶ 15 (“Given, however, that Commission and staff prece dent prior to our decision today permitted the broadcast at issue , and that we take a new appr oach to pr ofanity, NBC and

its affiliates necessarily

did not have the requisite notice to justify a penalty.” (e

mphasis added)). The Omnib

us Order similarly decline d to issue a

forfeit ure bec ause “existing pre cedent would have permitted this broadcast.” Omnibus Order , 21 F.C.C. R. 2664, at ¶¶ 111, 124, 136, 145.6 In the Remand Order, the FCC “reject[s] Fox’s suggestion that Nicole Richie’s comments would not have been actionably indecent prior to our Golden Globe decision,” and would only

conced e that it w as “not a

pparent ” that Che

r’s comme

nt at the 2 002 Billbo ard Music Awards would have been actionably indecent at the time it was broadcast. Remand Order , at ¶¶ 22, 60. Decisions expressly overrule d in Golden Globes were now dismissed as “staff letters and dicta,” and the Co mmission ev en implied that the is sue of fl eeting

expletives

was one o f first impression for the FCC in Golden Globes

. Id. at ¶ 21 (“ [I]n 200 4, the Commi ssion itsel f consider ed for th e first time in an enforcem ent action whethe r a sing le use of

an expletiv e could be indecent.”). 21 Although the Remand Order backpedals somewha t on this clear recognition that the Commission w as depar

ting fr om prior precede

nt, 6 in its brief to this court, the FCC now conced es that Golden Globes changed the landscape with re gard to the treatment of fleeting expletives. See Br. of Respondent FCC at 33 (“I n the Golden Globe Order , the Commission made cle ar that it

was cha nging course w ith respe ct to the tr

eatment o f isolate d expletive s.”); see also Br. of Amici Curiae Former FCC Offic ials at 9 (noting that the “extraordinary and unprecedented” decision in Golden Globes repres ented a r adical c hange in policy that “g reatly expanded the scope of what constituted indecency ”). Agencies are of course free to revise their rules and policies. See Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc

. , 467 U.S. 83 7, 863 (19 84) (“A n initial a gency interpre tation is not instantly carved in stone.”) . Such a change, however, must provide a reasoned analy sis for departing from prior precede nt. As this court has explained: [W]hen an agency r

everses its course, a court must satisfy itself that the agency knows it is changing course, has g iven sound reasons for the change, a nd has shown tha

t the rule is consiste

nt with the

law that g

ives the a gency its author

ity t o act. I n addition , the ag ency

must consid

er rea sonably

obvious al

ternativ es and, if it rejec ts those a

lternati ves, it must

give re asons for

the reje ction, suf

ficient t o allow for meaningful judicial review. Althoug h there is not a “heightened standard of scrutiny

. . . the agency must explain why the original reasons for adopting the rule or policy are no longer dispositive .” Even in the absence of cumulativ e experie

nce, ch anged

circumst ances or judicial c riticism, a n agency is22

free to change course

after reweighing the

competing statutory

policies. But such a flip-f lop must be

accompa nied by a reasoned explanation of w hy t he new r ule effectuates the statute as well a s or bette r than the old rule

. N.Y. Council, Ass’n of Civilian Technicians v. Fed. L abor Relations Auth. , 757 F.2d 502, 508 (2d Cir. 19 85) (sec ond empha sis added ; interna l citation s omitted) ; see also State Farm , 463 U.S. at 41-42 (“A settled course of behavior embodies the agency ’s informed judgment that, by pursuing that course, it will carry out the policies committed to it by Congress. Ther e is, then, at least a presumption that those policies will be carried out best if the settled rule is adhere d to.” (interna l quotation

marks omit

ted)); Huntington Hosp. v. Thompson , 319 F.3d 74, 79 (2d Cir. 2002) (“While an a

gency is not lock

ed into the

first inte rpreta tion of a s tatute it e

mbrace s, it cannot si mply adopt inc onsistent p ositions wi thout pre senting

‘some re asoned a

naly sis.’”); Mr. Sprout, Inc. v. United States , 8 F.3d 11 8, 129 (2d Cir. 1993)(“When th e Commission departs from its ow

n settled p

recede nt, as her e, it must pr

esent a ‘ reasone d analy

sis’ that j ustifies i

ts change of interpretation so as to permit judicial revie w of its new policies.”). An agency ’s “failure to come to grips with conflicting pre cedent constitutes an inexcusable departure from the essential requirement of reasoned decision making .” Ramaprakash v. FAA. , 346 F.3d 1121, 1125 (D.C. Cir. 2003) (internal quotation marks omitted). Accordingly , agency action will be set aside as arbitra ry and capricious if

the age ncy fails to pr

ovide a r easoned explanation for its decision. See , e.g. , Massach usetts v. EPA , 127 S. Ct. 1438, 1463 (2007) (“EPA has offered no

reasone d explanat

ion for its refusa l to decid e whethe r gree nhouse g ases ca

use or contribute t

o climate change. I

ts action was therefore arbitrary , capricious, ... or otherwise not in accordance with law. ”) (elli

pses in or iginal; i nternal quotation

marks omit

ted); State Farm , 463 U.S. at 34 (agency ’s rescinding of rule requiring passive restraints in automobiles was arbitrary and23

capric ious for f

ailure to provide a reasone d explanat

ion justify

ing revocation) ; see also Yale-New Haven H osp. v. L eavitt , 470 F.3d 71, 72 (2d

Cir. 2006)(agen

cy action ba sed on ne

w rule governing Medicare r

eimbursement was arbitrary and capricious “because the Secr etary did not satisfac torily explain his r

easons” for cha nging historica l practic e); ANR Pipeline Co. v. Fed. Energy Regulatory

Comm’n , 71 F.3d 8 97, 901 (D .C. Cir. 199 5) (“[W]her e an ag ency

departs from established precedent without a reasoned e xplanation, its decision will be vacated as arbitrary and capricious.”). Our evaluation of the agency ’s reasons for its change in policy is confined to the reasons articulated by the

agency itself. See State Farm , 463 U.S. at 50 (“[C]ourts may not accept appella te counse l’s post hoc rationalizations for agency action. It is well-established that an agency ’s action must be upheld, if at all, on the basis articulated by the agency

itself.” (internal citation omitted)) ; Yale-New Haven Hosp. , 470 F.3d at 81 (“Generally speaking, after-the-fa

ct rationalization for agency action is disfavored.”). The primary reason for the crackdown on fleeting expletives advanced by the FCC is the so-called “first blow” theory described in the Supreme C ourt’s Pacifica decision. In Pacifica , the Supreme Court justified the FCC’s regulation of the broadcast media in part on the ba sis that indecent material on the airwaves enters into the privacy

of the home uninvited and without warning. 438 U.S. at 748. The Court rejecte d the arg

ument tha t the audi ence co

uld simply

tune-out : “To say

that one may

avoid further offense by

turning off the radio when he hears indecent language is like say ing that the remedy f or an assault is to run away after the first blow.” Id. at 748-49 . Rely ing on thi s statement in Pacifica , the Commission attempts to justify its stance on fleeting expletives on the basis that “granting an automatic exemption for ‘isolated or f leeting’ expletives unfairly forces7 Such a per se ban would likely raise constitutional questions above and bey ond the concerns raised by

the current policy

. See Pacifica , 438 U.S. at 746 (plurality opinion) (“Althou gh these words or dinarily lack lite rary , politica

l, or scie ntific va lue, they are not e ntirely outside the protection of the First Amendment. Some uses of even the most offensive wor ds are unquestionably protecte d.”). 24 viewers (including children) to take ‘the f irst blow.’” Remand Order , at ¶ 25. We cannot accept this argument as a re asoned basis justifying the Commission’s new rule. Fi rst, the Co mmission pr

ovides no r

easonab le explana

tion for w hy i t has cha nged its perception that a fleeting expletive was not a harmful “ first blow” for the nearly thirty y ears between Pacifica

and Golden Globes . More problematic, however, is that the “first blow” theory bears no rational connection to the Commission’s actual policy regarding fleeting

expletives. As the FCC itself stressed during oral argume nt in this case, the Commission does not take the position tha

t anyoccurr

ence of an expletiv e is indec ent or pr ofane un der its ru les. 7 For example, although “there is no outright news exemption from our indecenc y rules,” Remand Order , at ¶ 71, the Commission will apparently excuse an expletive when it occurs dur ing a “ bona fide news interview,” id. at ¶ 72-73 (deferring to CBS’s “pla usible characterization” of a segment of The Early Show interviewing

a contestant on its reality show Survivor: Va nuatu as news programming and finding expletive uttered dur ing that part of the show not indecent or profane ). Certainly viewers (including children) watching the live broa dcast of The Early

Show were “force[d]...to take the ‘first blow’” of the expletive uttered by the Survivor: Vanuatu contestant. Yet the Commission emphasized during oral argument that its news exception is a broad one and “the Commission has never found a broadcast to be indecent on the ba sis of an isolated expletive in the face of some claim that the use of that langua ge was necessary

for any journa

listic or artistic purpose.” The Commission further explained to this court that a broadcast of oral8 Thus, our rejection of the agency ’s proffered rationale as the re quired “reasoned

explanation” is not th at the “Commission’s chang e of stan

dard is ir rationa l becaus e it is inconsiste nt” as the dissent su

gges ts, dissen

t op. at [47] , but that the Commission’s proffered 25 argument in this case, in which the same lang uage used in the Fox broadcasts was repe ated multiple times in the courtroom, would “plainly not” be indece nt or profane under its standards because of the context in whic

h it occur red. The Commission e

ven conc eded tha

t a re-b roadca st of precisely

the same offending clips from the two Billboard Music Award programs for the purpose of providing background infor mation on this case would not result in any ac tion by the FCC, even though in those circumstances viewers would be subjected to the same “first blow” that resu lted from the orig inal airi

ng of thi s materia

l. Furthe rmore, the Commission

has also h eld that even repeated and deliberate use of numerous expletives is not indecent or profane under the FCC’s policy if the expletives are “ integral” to the work. See Complaints Against Various Television Licensees Reg arding Their Broadca st on November 11, 2004, of the ABC Televison Network’s Presentation of the Film “Saving Private Ry an” , 20 F.C.C.R. 4507, at ¶ 14 (2005) (“Saving Private Ry

an”) (finding numerous expletives uttered during f ilm Saving Private Ryan not indecent or profane because de leting the expletives “would have altered the nature of the artistic work and diminished the power, realism and immediacy of the film experience for viewers”). In a

ll of these scenarios, viewers, including children w ho may have no unde

rstanding of whether expletives are “integral” to a program or whether the interview of a contestant on a reality show is a “ bona fide news interview,” will have to accept the alleg ed “first blow” caused by use of these e

xpletives. Thus, the record simply does not support the position that the Commission’ s new polic

y w as based

on its conc ern with t

he public ’s mere e

xposure to t

his langua ge on th e airwa

ves. 8 The “first blow” theory , therefore, fails to provide the reasonedrationale is disconnected from the actual policy implemented by the Commission. See State Farm , 463 U.S. at 43 (Agency action is arbitrary

and capricious if the agency fails to “articulate a satisfactory e

xplanation for its action including a ‘ rational connection between the facts found and the choice made.’”) (emphasis added).

9 The di ssent takes the po siti on th at the “reaso ned an alysis” u nderl ying the FC C’s ch ange in policy is its statement in Golden Globes that “g iven the c ore mea ning of t he ‘F-Word,’ any

use of that word or a variation, in any context, inherently has a sexual connotation. . . . The ‘F -Word’ is one of t he most vul gar, g

raphic a nd explicit d

escripti ons of sexua

l activity in the English langua ge. I ts use inva

riably invokes a

coarse sexual imag e.” Disse

nt Op. at [43-44] (quoting Golden Globes , at ¶¶ 8-9). Much like the “first-blow” theory , however, this cannot provide the requisite “reasoned analy sis” because it is not consistent with the Commission’s actual policy. The FCC’s change in policy cannot be based on a categor ical view that “any

use of that word or a variation, in an

y c onte xt , inherently has a sexual connotation,” Golden Globes , at ¶ 8 (e mphasis added), because, as discussed above, the Commission permits even numerous and deliberate uses of that word in cer

tain cont exts. Notab ly, the FCC did not rely on this stat

ement fr om Golden Globes in arguing that it provided a reasone d explanation for its decision. See Br. of Respondent FCC, at 36-37. 26 explanation necess ary

to justify the FCC’s

departu re from e stablishe d prece dent. 9 The Rema

nd Order makes pa ssing re ferenc e to other reasons that purp ortedly

support its change in policy , none of which we find sufficient. For instance, the Commission states that

even non -litera

l uses of e

xpletives f

all within i

ts indece ncy definition becau se it is “di fficult ( if not impossible) to distinguish whether a word is being used as an expletive or as a litera l description of sexual or excretory f unctions.” Remand Order , at ¶ 23. This defies anycommonsense und erstand ing of th ese wor

ds, which , as the g eneral

public we ll knows, a

re ofte n used in every day convers ation without any “sexual or

excretor y” meaning . Bono’s

exclamati on that his victory at the Golden Globe Awards was “really , really fuc

king brilliant” is a prime example of a non-literal use of the “F-Word” that has no sexual connotation. See Golden Globes (Bureau Decision) , 18 F.C.C.R. 19859, at ¶ 5 (“As a threshold matter, the material aired dur ing the ‘Golden Globe Awards’ progra m does not describe or depict sexual and excretory activities and10 Co nt ra ry t o t he di ss en t’ s v ie w, ou r r ej ec ti on of th is pr of fe re d r at io na le is no t m er el y a “difference of opinion” with the ag ency. Dissent op . at [52] . We reje ct this re ason not be cause we disagree with it, but because it is both unsupported by any rec ord evidence as well as contradicted by

evidence submitted by the N etworks. Thus, we need not consider whether the FCC’s sta tement tha

t “any use of [the

F-Word] or

a varia tion, in an

y c ontext, inhe

rently has a sexual connotation,” in actuality means, “ even when the speaker does not intend a sexual meaning, a substantial part of the community , and of the television audience, will understand the word as freighted with an offensive se xual connotation,” as the dissent suggests. Id. at [51-52] Even if we accept the dissent’s reading , the FCC still has failed to set forth the required reasoned explanation because its proffered rationale re mains unsupported by any record evidence and contradicted by

the evidence submitted by the Networks. See Bowen v. Am. Hosp. Ass’n , 476 U.S. 610, 626 (1986) (“Agency deference has not come so far that we will uphold regulations whenever it is possible to ‘conceive a basis’ for administrative a ction.”) (plurality op)

. 11 We agree with the dissent that this proffered ra tionale “is at most a small part of the agenc y’ s justific ation for

its action ,” dissen

t op. at [50] , but because it is one of the reasons advanced by

the agency , we address it here. We disagree with the dissent, however, that our 27 organ s . . . . Rath er, the p erforme r used the word ‘fu cking’ as an adj ective or expletive to emphasize an exclamation.”), rev’d by G olden Globes , 19 F.C.C.R. 4975 (2004). Similarly, as NBC illustrates in its brief, in recent times even the top leaders of our government have used variants of these expletives in a manner that no reasonable per son would believe referenced “sexual or excretory organs or activities.” See Br. of Interve nor NBC at 31-32 & n.3 (citing Presiden t Bush’s r emark to British Pr

ime Ministe

r Tony Blair th at the Uni

ted Nations neede d to “get Sy ria to get Hezbollah to stop doing this shit” and Vice President Cheney ’s widely-re ported “Fuck y ourself” comment to Senator Patrick Le ahy on the floor of the U.S. Senate). 10 Similarly, the Commission’s warning that a per se exemption for fleeting expletives would “pe

rmit broa dcasters to air expl etives a t all hours of the da y so long as t hey did so one a

t a time,” Remand Order , at ¶ 25, i s equally divorce d from re ality

because the Commissi on itself recog nizes that broadca sters ha ve neve r barra ged the airwave s with expletives eve n prior to Golden Globes , see Remand Order , at ¶ 29. 11 Finally, the Commission’s claim thatrejection of this proffered rationale is a mer e difference of opinion with the age ncy in predicting the future. The FCC’s obligation to provide a “rea soned analysis” f or its change in policy

is not satisfied when the proffered rationale—tha t without its new policy the airwave s will be overtaken by fleeting

expletives—is both unsupported by any evidence and directly

contradicted by

prior experience. We further note while the dissent attempts to provide support for the ag ency’s prediction, including broadcasters’ nee d to compete with cable “which increasing ly make liberal use of the ir free dom to fill progra mming wit

h such exple

tives,” d issent op. at [50] , no evidence supporting this proposition is contained in the record that was considered by the FCC when rendering its decision. See, e .g. , State Farm , 463 U.S. at 43 (“The reviewing court should not attempt itself to make up for [the agency ’s] deficiencies : ‘We may not supply

a reasoned basis for th e agency's act ion t hat th e agency its elf has not gi ven.’ ”) (quo ting SEC v. Chenery Corp. , 332 U.S. 194, 196 (1947)). 28 “categorically

requiring repeated use...is inconsistent with our g eneral approach to indecency enforcement, which stresses the critical nature of context,” Remand Order , at ¶ 23, also does not provide sufficient justification for its departure from prior pre cedent. First, the Commission’s own policy of trea

ting all variants of certain expletives as presumptively indecent and profane, whether used in a literal or non-literal sense, also fa ils to comport with this “general approach” that “stresses the critical nature of context.” See , e.g. , Golden Globes , 19 F.C.C.R. 4975, at ¶ 8 (declaring that “any

use of [the F-Word] or a variation, in an y c onte xt , inherently has a sexual

connotat ion, and therefor

e falls within the f

irst prong of our ind

ecency definition”) (em

phasis added). In addition, the Commission’s indecency test itself remains unchanged, but the Commission fails to provide a reasoned explanation for why a single, isolated expletive now should fit within the articulation of that test set forth in Golden Globes , see Pacifica Found., Inc

. , 2 F.C.C.R. 2698 , at ¶ 13 (“If a complaint focuses solely on the use of expletives, we believe that under the legal standards set forth in Pacifica , deliberate and repetitive use in a patently offensive manner is a requisite to a finding of indecenc y.”). For decades broadcaster

s relied on the FCC’s restrained approach to indec ency re gulation29

and its consistent rejection of arguments that isolated expletives were indec ent. The agency asserts the same interest in protecting children as it asse rted thirty y

ears ago, but until the Golden Globes decision , it had ne ver banned fleeting exple tives. While

the FCC is f

ree to change

its previously settled view on this issue, it must provide a rea soned basis for that change. Cf. State Farm , 463 U.S. a

t 42 (“[A]n a

gency chang ing its c ourse by

rescind ing a ru le is oblig ated to supply a rea soned analysis for the change beyond that which may be required

when an agency does not act in the first instance.”) (emphasis added). The FCC’s decision, however, is devoid of any evidenc e that sug

gests a fleeting expletive i s harmfu

l, let alone establ ishes tha t this harm

is serious e nough to warran t gover nment re gulation. Such ev idence would seem

to be par ticularl y relevant today

when children likely he ar this language far more often from other sources than they did in the 1970s when the Commission first bega n sanctioning indecent speech. Yet the Remand Or

der prov ides no re asoned a

naly sis of the p

urporte d “proble

m” it is see

king to a ddress with its new indecency

policy from which this court c an conclude that such regulation of spee ch is reasonable. See , e.g. , United States v. Playboy Enter. Group, Inc. , 529 U.S. 803, 822-23 (2000) ( rejecti ng inde cency

regula tion of ca ble telev ision in pa

rt beca use “[t]he q

uestion is whether an actual problem has been prove d in this case. We agree that the Government ha s failed to establish a pervasive, nationwide problem justify ing its nationwide daytime spe ech ban.”); Turner B road. Sy

s. v. FCC , 512 U.S. 622, 664 (1994) (remanding for additional fact finding to deter mine whet

her spee ch reg

ulation jus tified be cause g overnme nt had fa iled to demonstr ate “tha t the rec ited har

ms are re al, not me

rely conject ural, an d that the regula tion will in fact a lleviate these ha rms in a dir

ect and material

way ”); Quincy

Cable TV, Inc . v. FCC , 768 F.2d 1434, 1463 (D.C. Cir. 1985) (invalidating FCC regulation bec ause “the Commission has30

failed entirely

to determine whether the evil the rules seek to corre ct ‘is a real or merely a fanciful threat’ ”); Home Box O ffice, Inc . v. FCC , 567 F.2d 9, 36 (D.C. Cir. 1977) (“[A] regulation perfectly r

easonab le and ap

propria te in the f ace of a given problem ma

y be highly capric ious if that problem does not exist.” (internal quotation marks omitted)). The Commiss ion has simi larly failed to explain how

its curre nt policy would re medy the purported “pr

oblem” or to point to supporting evidence. The Commission’s new approach to profanity is supported by even less a nalysis, reasone d or not. The Commission sets forth no independent reasons that would justify its newly -expanded definition of “profane” speech, aside f rom merely stating

that its prior precedent does not prevent it from setting forth a new definition, see Golden Globes , 19 F.C.C.R. 4975, at ¶ 14. To the extent the Commission believes its arguments for expanding its indecency enforcement support its new policy reg arding profanity , those arguments are rejecte d for the reasons stated above. Furthermore, the Commission fails to provide any explanation for why this separa te ban on profani ty is even ne cessar

y. Pr ior to 2004 , the Commis sion neve r attempt ed to reg ulate “profane” speech. I

n fact, the Commission took the view that a separate ban on profane spe ech was unconstitutional. See 122 Cong. Rec. 33359, 33359, 33364-65 (1976) (recommending Congre ss delete

“profa ne” fro m Section 1 464 “[b]ec ause of t he serio us constitu

tional pro blems involved”); FCC, The Public and Broadcasting , 1999 WL 391297 (June 1999) (“Profanity that does not fall under one of the above two categ ories [indecent or obscene] is fully prote cted by the First Amendment and cannot be regulate d.”). The Commission again has not provided this court with a reasoned analysis of why it has undertake n this separate regulation of speech. F inally, the Commission provides no explanation of what harm this separate enforcement ag ainst profane12 We recog nize that w

hat follow s is dicta, but we not e that “d icta ofte n serve e xtremely valuable purposes . They

can help clarify a complic ated subj ect. The y c an assist f

uture co urts to reach sensible, well-reasoned re sults. They can help law yers and soc iety to predict the future course of the court’s rulings. They can guide future courts to adopt fair a nd efficient procedures. What is problematic is not the utterance of dicta, but the failure to distinguish between holding and dictum.” The Honorable Pierre N. L eval, Judging Under the Constitution: Dicta About Dicta , 81 N.Y.U. L. Rev. 1249, 1253 (2006). 31 speech a ddresse s that is not

alread y a ddresse d by

the FCC’s

indecen cy and obsc enity enforcement. Particularly considering that the scope of the FCC’s new prof anity definition appears to be largely

(if not completely) r

edundant with its indecency prohibition, see infra

Part IV.A, this would seem to be an important question for the Commission to consider. The Remand Order, however, provides no indication that the Commission has engag ed in any such a nalysis. Accord ingly , we find

that the F CC’s new p olicy regar ding “f leeting expletives ” fails to provide a reasoned analy

sis justifying its departure f rom the agency ’s established practice. For this reas on, Fox’s p etition for revie w is gra nted, the Remand Or

der is va cated, a nd the mat

ter is remanded to the FCC for further procee dings consistent with this opinion. Because we have found that the FCC’s new indecency regime, announced in Golden Globes and applied in the Remand Order, is invalid under the Administrative Procedure Act, the stay of enforcement previous ly g

ranted by th

is court in our Septe

mber 6th order is v acated as moot. 12 III. Constitutional Challenges “A funda mental an d longsta nding pr inciple o f judicia

l restra int requir es that c ourts avo id reaching constitutional questions in advance of the nec essity of deciding them.” Ly

ng v. N.W. Indian Cemetery

Protective Ass’n , 485 U.S. 439, 445 (1988). Thus, we refrain from deciding the various constitutional challenges to the Remand Order ra ised by the Networ

ks. We note, however , that in re

viewing these numerous constitutiona l challen ges, wh ich were fully briefe d to32

this court and discussed at length during oral ar gument, we are skeptical that the Commission can provide a reasoned explanation for its “fleeting e xpletive” regime that would pass constitutional muster. B ecause

we doubt t

hat the Ne

tworks wi ll refra

in from fu

rther lit igation on these precise issues if, on remand, the Commission merely provides f urther explanation with no other changes to its policy, in the interest of judicial economy we make the following observations. As an initi al matter , we note that all speech c overed by th e FCC’s in decenc y po licy is fully protected by

the First Amendment. See Sable Commc ’ns v. FCC , 492 U.S. 115, 126 (1989) (noting that speech “which is indecent but not obscene is prote cted by the F irst Amendment”); Industry Guidance , 16 F.C.C. R. 7999, at ¶ 3 (“[I ]ndecent

speech i s protec ted by

the Firs t Amendment, and thus, the government must both identify a compelling interest for any regulation it may

impose on indecent speech and choose the least restric tive means to further that interest.”). With that backdrop in mind, we question whether the FCC’s indecency test can survive First Amendment scrutiny . For instance, we are sy mpathetic to the Networks’ contention th at th e F CC ’s in de ce nc y te st is un de fi ne d, in di sc er ni bl e, in co ns is te nt , a nd co ns eq ue nt ly, unconstitutionally vague. A lthough the Commission has declared that all variants of “fuck” a nd “shit” a re pres umptively

indecen t and prof ane, re peated u se of thos e words in “Saving Private Ryan,” for e

xample, was neither indecent nor profane. And while multiple occurr ences of expletives in “Saving Private Ryan” was not gratuitous, Saving Private Rya n , 20 F.C.C.R. 4507, at ¶ 14, a single occurrence of “fucking” in the Golden Globe Awa rds was “shocking and gratuitous,” Golden Globes , 19 F.C.C.R. 4975, at ¶ 9. Parental ratings and advisories were important in finding “Saving Private Ry an” not patently off

ensive under contemporary community standards, Saving Private Rya n , 20 F.C.C.R . 4507, at

¶ 15, but ir

releva nt in13 Section 22 3(d) of t he of the Communica

tions Dec ency

Act proh ibited mat

erial tha t “in context, depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs.” Reno , 521 U.S. at 860. 33 evaluating a rape scene

in another fictional movie, see Omnibus Order , 21 F.C.C.R. 2664, at ¶ 38 (issuing maximum for

feiture penalty agains t NBC Tel emundo for movie “ Con el Cora zón en la Mano”). The use of numerous expletives was “integr al” to a fictional movie about war, Saving Private Ryan , 20 F.C.C.R. 4507, at ¶ 14, but occasional expletives spoken by r eal musicians were indecent and profane because the educational purpose of the documentary “could have been fulfilled and all viewpoints expressed without the repeated broadcast of e xpletives,” Omnibus Order , 21 F.C.C. R. 2664, at ¶ 82 (fin ding Mar tin Scorse se’s PBS d

ocumenta ry “The Bl ues: Godfath ers and Sons” indec ent). The “S-Word”

on The Ea

rly Show was n

ot indece nt becau se it was in the context of a “ bona fide news interview,” but “there is no outright news exemption from our indecency

rules,” Remand Order , at ¶¶ 68, 71-73. We can understand why the Network s argue

that FCC’ s “paten

tly o ffensiv e as mea sured by contemporary

community standards” indecency

test coupled with its “artistic necessity” exception fails to provide the clarity re quired by the Constitution, creates a n undue chilling effect on free spe ech, and requires broadcasters to “steer far wide r of the unlawful zone,” Speiser v . Randall , 357 U.S. 513, 526 (1958). The Networks’ position is further buttressed by the Supreme Court’s decision in Reno v. ACLU , 521 U.S. 844 (1997), which struck down as unconstitutionally va gue a similarly-worded indecen cy regula tion of the

Inte rnet. 13 The Court

found tha

t the statu te’s use of the “g eneral , undefine d terms ‘i

ndecen t’ and ‘p atently

offensi ve’ cove r larg e amounts

of nonpor

nogra phic material with serious educational or other value. Moreove r, the ‘community standar ds’ criterion34

as applie d to the I

nternet means tha

t any communic ation ava

ilable to a nation wid

e audien ce will be judged by

the standards of the community most likely to be offended by

the message.” Id. at 877-78. B ecause

of the “v ague c ontours”

of the re gulation, the Cour t held tha t “it unquestionably silences some spea kers whose messages would be entitled to constitutional protection,” and thus violated the First Amendment. Id. at 874. Because Reno holds that a regulation that covers speech that “in c ontext, depicts or describes, in terms patently of fensive as

measure d by

contemporary

community

standar ds, sexual or excreto

ry activitie s or org ans” is unconstit utionally vague , we are

skeptica l that the F CC’s identi cally -worde d indece

ncy test could nevertheless provide the requisite clarity to withstand constitutional scrutiny. I ndeed, we are hard pressed to imagine a regime that is more vague than one that relies entirely on consideration of th e o th er wi se un sp ec if

ie d “ co nt ex t” of

a b ro ad ca st in de ce nc y. We also note that the FCC’s indecency test raises the separate constitutional question of whether it permits the FCC to sanction speech based on its subjective view of the mer it of that speech. It appea

rs that under the FCC’s current indecency regime, any

and all uses of an expletive i s presump tively indecen t and prof ane with t he broad caster then havi ng to de monstrate to the satisfaction of the Commission, under an unidentified burden of proof, that the expletives were “ integr

al” to the work. I n the lice nsing context, the Su

preme Cou

rt has ca utioned a gainst speech regulations that give too much discre tion to government officials. See , e.g. , Forsy th County, Ga. v. Nationalist Movement , 505 U.S. 123, 130 (1992) (“A government reg ulation that allows arbitrary

application is inherently inconsistent with a valid time, place , and manner regulat ion b ecause such d iscre tion has th e pote ntial for bec omin g a means of sup press ing a particu lar point o f view.” ); City of L akewood v. Plain Dealer Publ’g Co. , 486 U.S. 750, 75835

(1988) (finding a permit scheme fac ially unconstitutional because “ post hoc rationalizations by the licen sing off

icial and the use of

shifting or illeg itimate criteria

are fa r too easy, making it difficult for courts to determine in any particular case whether the licensor is permitting favorable, and suppressing unfavor able, expression”). In succe eding on this challenge, the Networks need not prove that the FCC “has exercised [its] discretion in a content-based manne r, but whether there is any

thing in [its policy] preventing [it] from doing so.” Forsythe , 505 U.S. at 133 n.10 (“It is not merely the sporadic abuse of power by the censor but the pervasive threat inherent in its very existence that c onstitutes the danger to freedom of discussion.”). Finally, we r

ecognize there is some tension in the law rega rding the appropriate level of First Ame

ndment scrutiny . In g eneral , restric tions on Fi

rst Amend

ment liber

ties promp t courts to apply strict scrutiny

. FCC v. League of Women Voters , 468 U.S. 364, 376 (1984). Outside the broadcasting context, the Supreme Court has consistently applied strict scrutiny to indece ncy regulations. See , e.g. , Playboy, 529 U.S. at 811-813 (holding that regulation proscribing indecent content on cable television was content-based restriction of spe ech subject to strict scrutiny) ; Sable , 492 U.S. a

t 126 (hold

ing that indecen cy regula tion of tel ephone me ssages was contentbased re striction

subject to

strict scrutiny

); Reno , 521 U.S. at 868 (holding that indecency regulation of Inte

rnet was a content-based restriction subject to strict scrutiny ). At the same time, however , the Supre

me Court ha s also con sidered broadca st media exceptiona l. “[B]ec ause broadca st regu

lation invo lves uniqu

e conside rations, our case s . . . have never gone so fa

r as to demand that such regulations serve ‘compe lling’ governmental interests.” League of Women Voters , 468 U.S. at 376. Restrictions on broadcast “speech” have bee n upheld “when we [are] satisfied that the restriction is narrowly tailored to further a substantial governmental intere st.”36

Id. at 380. The Networks contend that the bases for trea ting broadcast media “different[ly ]” have “erode d over time ,” parti cularly because 86 perce nt of Amer

ican hous eholds now

subscrib e to cable or satellite services, Remand Order , at ¶ 49. As the Networks argue, this and other r ealities have “eviscerated” the notion that broadc ast content is, as it was termed in Pacifica , 438 U.S. at 748-49, “ uniquely pervasi ve” and “uniquel y a ccessib le to child

ren.” Wha

tever me rit these arguments may

have, they

cannot sway us in lig

ht of Supreme Court precedent. See , e.g. , Reno , 521 U.S. a

t 867 (noti

ng that “ as a matte

r of histor y” broadca st televis ion has en joy ed less F irst Amendmen

t protec tion than o ther med ia, inclu ding the internet); Pacifica , 438 U.S. at 748-50. Nevertheless, we

would be r

emiss not to

observe that it is inc

reasingly d

ifficult to describe the broadcast media as uniquely pervasive and uniquely

accessible to children, and at some point

in the futu

re, stric t scrutiny may properl y a pply in the con

text of reg

ulating broadca st television. In

light of this possibi lity , the Networks rig htly rest thei r constitu tional ar gument i n part on the holding of Playboy, which involved a challenge to a statute requiring cable operators who provide channels primarily dedicated to sexually explicit or otherwise indece nt progra mming to e ither ful ly s cramble these channels or

limit their

transmiss ion to the 1 0pm to 6a m s af e h ar bo r p er io d. 52 9 U .S . a t 8 06 . T he Su pr em e C ou rt , a pp lyi ng st ri ct sc ru ti ny, invalidated the statute because a less restrictive alter native to the prohibition existed: “One plausible, less restrictive alternative could be found in another sec tion of the [T el ec om mu ni ca ti on s] Ac t [ of 19 96 ]: § 5 04 , w hi ch re qu ir es a c ab le op er at or , ‘ up on re qu es t b y a cable service subscriber . . . without charg e, [to] fully scramble or otherwise fully block’ any channel the subscriber does not wish to receive.” Id. at 809-10

. The Court held: This “targeted14 In 1996, Congress mandate d that every te levision, 13 inches or larger, sold in the United

States, come equipped with blocking technology commonly known as the V-c hip. See 47 U.S.C. § 303(x) (stating that in the case of an “appara tus” designed to receive television signals, “ such appara tus [shall] be

equipped with a fe ature de signed t o enable viewers to block di splay

of all programs with a common rating”). To implement V- chip technology , Congress also required a television rating s sy stem. The industry develope d the “TV

Parenta l Guidelines” rat

ing sy stem, which was approved by

the FCC. See In the Matter of I mplementation of Section 551 of the Telecommunications Act of 1996 , 13 F.C.C.R. 8232, at ¶ 2. 37 blocking is less restrictive than banning, and the Gove rnment cannot ban speech if targe ted blocking is a feasible and effec tive means of furthering its compelling interests.” Id. at 8 15. In so holding, the Court suggested its decision might go be yond the mecha

nistic application of strict scrutiny , and rel y in part on a notional p illar of f

ree spe ech—na

mely , choice : When a student first encounters our free speec h jurisprudence, he or she might think it is influenced by the philosophy that one idea is as good as any other, and

that in art and literature objective standar ds of sty le, taste , decoru

m, beauty, and e sthetics are deemed by the Constitution to be inappropriate, indeed unattainable. Quite the opposite is true. The Constitution no more enforces a relativistic philosophy or moral nihilism than it does any other point of view. The Constitution exists precisely so that opinions and judg

ments, inc luding e sthetic a nd moral j udgm ents about art and lite ratu re, can be formed, tested, and expressed. What the Constitution say s is that the se judgments are for the individual to make, not for the Governme nt to decree , even with the mandate

or approval of a majority . Techno logy expands the

capaci ty to choose; and it den

ies the po tential of

this revolution if we assume the Government is best pos itioned to make thes e choice s for us. Id. at 818. The Court specifically rejected the arguments that pare nts’ ignorance of this option, its underutilization, or its inability to be 100% effective rende red targeted blocking a

n ineffective alternative: “It is no response tha t voluntary blocking r

equires a consumer to take action, or may be inconv enient, or may

not go pe rfectly every time. A co

urt should

not assume

a plausib le, less restric tive alte

rnative would be i

neffective; and

a court should not pr

esume pa rents, given full information, will fail to act.” Id. at 824. The Networks argue that the adve nt of the V-chip and parental ratings sy stem 14 similarly38

provide a less restrictive alternative to the FCC’s indecenc y ban. The F CC counters that the Vchip is an ineffe ctive alt

ernativ e becau se, in its vi ew, few televisions featu

re a V-c hip, most parents do not know

how to use

it, prog rams are often ina ccurat ely rated, a nd fleet ing exple tives, such as those witnessed at the programs at issue here , could elude V-chip blocking even if the show during which they

occurred was otherwise acc urately labe led. See Remand Order , at ¶ 51 & n. 1 62. The FCC ’s ar

gume nts ar e not witho ut mer it, bu t they must b e eva

luate d in th e con

text of today’s re alities. The proliferation of satellite and cable television channe ls—not to mention internet-based video outlets—has begun to erode the “uniqueness” of broadcast media, while at the same time, blocking tec

hnologie s such as t

he V-ch ip have e mpowere d viewers to make their own choices about what they do, and do not, want to see on television. Playboy distinguished Pacifica on the grounds that “[c]able sy stems have the capacity to block unwanted channels on a household

-by -househo ld basis”

and thus “ [t]he option t

o block re duces the

likelihood , so concerning to the Court in Pacifica , that traditional First Amendment scrutiny would deprive the Government of all authority to address this sort of problem.” 529 U.S. at 815 (internal citation omitted). The FCC is free to regulate indece ncy, but its reg

ulatory powers are bounded by the Constitution. If the Playboy decision is any g

uide, technological advances may obviate the constitutional legitimacy of the FCC’s robust oversight. IV. The FCC ’s Constr uction of P rofane The Networks also argue that the F CC employed an improper de finition of “profane” under Section 1464. Although we need not reac h this argument to dispose of this appeal, on remand, the FCC may

desire to explain its gloss on the definition of “profane.” I n the Remand Order , the FCC applied its new definition of “profane” as set forth in Golden Globes . The FCC39

now defines “profane” as “those pe rsonally reviling

epithets naturally tending to provoke violent

resentme nt or deno ting lan

guag e which u

nder con tempora ry community

standar ds is so gr

ossly offensive to members of the public who actually hear it as to amount to a nuisance.” Golden Globes , 19 F. C.C. R. 49 75, at ¶ 13 (q uoti ng Tallman v. United States , 465 F.2d 282, 286 (7th Cir. 1972)). The FCC, noting that “shit” and “fuck” f all within this definition, ruled that Cher’s and Nicole Richie’s fleeting expletives were “prof ane,” as well as indecent. Most dictionaries interpret the term “profane” to denote something that pertains to the irreligious, and since 1927,

courts—a s well as t

he FCC itse lf—have

assumed t

hat “pro fane” i

n the broa

dcast context refe

rs to sacrilege, and nothing more. See, e.g. Duncan v. United States , 48 F.2d 128, 134 (9th Cir. 1931) (collecting cases and holding def endant “was properly

convicted of using profane lang uage” wh er e h e “ re fe rr ed to an in di vi du al as ‘d am ne d, ’ .

. . us ed th e e xp re ss io n ‘ By G od ’ i rr ev er en tl y, and . . . a nnounce d his inten

tion to ca ll down the

curse of God”); Gagliardo v. United States , 366 F.2d 720, 725 (9th Cir. 1966) (“the only words attributed to appellants which could even remotely be consid

ered as being ‘ profane ’ . . . wer

e ‘God da mn it’”); In re Complaint by Warren B. Apple ton, Bro ckton, Ma ss. , 28 F.C.C.2d 36 (1971) (analy zing the word “damn” as a matter of profanity). As the

FCC notes, the Seventh Circuit’s 1972 Tallmandecision, 465 F.2d at 286, sugge sted an a

lternate definition for this t

erm, but w e do not be lieve the FCC can f

ind refu ge in this case. Tallmanconcerned a prosecution for obsce nity, not profanity, and thus the Tallman court had no occasion to determine conclusively how profane should be interpreted. See id. (“The trial judge did not undertake to define the terms ‘indecent’ and ‘profane,’ but he had no occasion to do so because he determined that petitioner’s utter ances were properly

classifiable as ‘obscene.’”). The Tallmancourt’s brief reference to “profane” served only to demonstrate that40

there may be

a construction of “profane” that could pass constitutional scrutiny

. But the FCC’s definition of “profane” here , would substantially overlap with the statutory term “ind ecent.” This over

lap would be so exten sive as to

render the statut ory term “ind

ecent” superfluous. Because our canons of sta tutory construction do not permit such an inter pretation,

see TRW Inc. v. Andrews , 534 U.S. 19, 31 (2001), we do not believe the FCC has proffered a reasonable construction of the term “profa ne.” While we may ow e Chevrondeference to the FCC’s construction, the FCC must still demonstrate that its construction is reasonable, particularly in lig

ht of Congressional intent, the canons of statutory construction, and the historical view of the plain meaning of this term. CONCLUSION As the for

egoing indicate s, we ar

e doubtfu l that by merely proffe ring a r easoned analy sis for its new approach to indecency and profanity, the

Commission can adequately re spond to the constitutional and statutory challeng es raised by the Networks. Nevertheless, because we can decide this case on this narrow ground, we vacate and remand so that the Commission can set forth that analysis. While we fully expect the Networks to raise the same argume nts they have raised to this court if the Commission does nothing more on remand than provide additional explanation for its departure from prior precedent, we can go no further in this opinion. Accord ingly , we gr

ant the pe tition for review, vacate

the orde r of the F CC, and re

mand the c ase for fur ther pro ceeding s consiste nt with this o

pinion. Th e stay

previous ly g

ranted by th

is court is

vacate d as moot.41

Leval, J., dissenting : I respectfully

dissent from my colleag

ues’ ruling because I

believe the Federal Communica

tions Commiss ion (“FC C” or “Com mission”)gave a

reasone d explanat

ion for its change of standard and thus complied with the re quirement of the Administrative Procedures Act, 5 U.S.C. § 706(2)(A). A television broadcaster, Fox Television Stations, Inc., c hallenges the lawfulness of a small change made by

the FCC in its standards for adjudicating complaints of indecency over the airwave s. The Comm

ission exer

cises the responsi bility of deter mining, u pon rece ipt of publ ic complaints, whether a licensed broadcaster ha s violated 18 U.S.C. § 1464 by disseminating indecent material over the airwaves. B eginning with its adjudication of complaints arising from the broa dcast of the Golde

n Globe Awards in 20 02, the Com mission inst

ituted a c hange in its manner of dealing with “fleeting ,” i.e. unrepeated, expletives. During this broadcast, rockmu si ci an Bo no ex pr es se d d el ig ht ov er hi s r ec ei pt of an aw ar d b y sa yin g, “[ T] hi s i s r ea ll y, r ea ll y, fucking brilliant.” In a

lengthy tra

dition of previous FCC rulings, absence of repetition of an expletive had been virtually conc lusive against finding an indecency violation. The staff therefore recommended in Bono’ s case, largely because the expletive was unrepeated, that no violation be found. See Comp laints Agai nst Various

Broadcas t License es Regar ding Their Airing of the “Golden Globe Awards” Program , 18 F.C.C.R. 19859, at ¶ 6 (Enforcement Bureau 2003). The Commission reversed the recommendation of its staff. Adopting a new altered standard, which diminished the significance of the fa ct that the potentially offe nsive expletive was not repeated, the Commission concluded that the broadcast of B ono’s expletive constituted42

indecency in violation of § 1464. See Complaints Against Various Broadcast Licensees Regarding Their Airing of the “Golden Globe Awards” Program , 19 F.C.C.R. 4975, at ¶¶ 12, 17 (2004) (“ Golden Globes ”). The occurrences under re view in this case followed soon after the Bono incident, during live broadcasts by F ox of Billboard Music Awards shows in 2002 and 2003. In the 2002 Billboard Music Awards, the actress and sing er Cher, expressing triumphant delight upon her receip t of an aw ard, sai d, “Peopl e have b een telli ng me I ’m on the w ay

out ever y y ear, ri ght? So fuck ‘em.” The incident during the 2003 B illboard Music Awards involved Nicole Richie and Paris Hilton, the co-stars of a serialized televised comedy show entitled, “The Simple Life,” as presenters of awards. I

n “The Simple Life,” Richie and Hilton play themselves as two spoiled, rich y oung wo men from B everly Hills who c ope with li fe on a f arm. I n joking r efere nce to the ir own show, Richie said, “Why do they even call it ‘The Simple Life?’ Have y ou ever tried to get cow shit out of a Prada purse? It’s not so fucking simple.” The Commission received complain ts about e ach inci dent. Ref erring to its newl

y change d policy

develope d in response to the Bono incident in Golden Globes , the Commis sion found that the two Billboa

rd Music incidents were violations. See Complaints Regarding Various Television Broadcasts Between February 2, 2002 and March 8, 2005 , 21 F.C.C.R. 13299 (2006) (“ Remand Order ”). Fox brought this action seeking to invalidate the Commission’s rulings. In adjudicating indec ency c omplaints the Commission generally employ s a context-based evaluat ion to dete

rmine whe

ther the particu lar utter ance is “ patently offensive as measured by contemporary

community standards.” Industry Guidance on the Commission’s Case Law43

Interpreting 18 U.S.C. § 1464 , 16 F.C.C.R. 7999, at ¶ 8 (2001) (“ Industry Guidance ”) (emphasis in original). Factors weighing in favor of a finding of indecency are: “(1) the explicitness or graphic nature of the description or depiction of sexual or excretory organs or activities; (2) whether the mater

ial dwells on or

repeats a t length descriptions of sexual or excretory or gans or activities; (3) whether the material appears to pander or is used to titillate, or whether the material appears to have been presented for its shock value .” Industry Guidance , at ¶ 10 (emphas is in orig inal). Es pecially in relati on to the “

panderi ng” fa ctor, a f inding of violation i s less likely if the broadc ast of the utterance involved a genuine ne ws report, or if censorship of the expletive would harm or distort artistic integrity. Prior to the B ono incident, the Commission attached great importance to the se cond factor, which focuses on whether a n expletive was repeated. Under the pre- Golden Globes rulings, the fact that an utterance wa s fleeting was virtually conclusive in assuring it would not be deemed a violation (unless it breached special barrie rs, such a s by

refer ring to s exual act

ivities wit h childre n). With its Golden Globes adjudication, however, the Commission adopted a less permissive stance. I t announced that hencef orth flee ting exple tives woul d be judg ed according to a standa rd more c losely

aligne d with repeat ed utter ances of expletives . Thus, the

Commission h as decla

red that it remain s unlikely

to find a violation in an expletive that is broadcast in the context of a genuine news report, or w here censorship by blee

ping out the expletive would compromise artistic integrity , but it will no longer give a near

ly automatic pass mere ly because the expletive was not repeated. See Remand Order , at ¶ 23. The Commission explained succinctly why lack of repetition of the F-Word would no44

longer result in a virtual free pass. “[W]e believe that, g iven the core-meaning of the ‘F -Word,’ any use of tha

t word or a variation, in any context, inherently has a sexual connotation . . . . The ‘F-Word’ is one of the most vulgar, gra phic and explicit descriptions of sexual activity in the English language. I

ts use invariably invokes a c oarse sexual image.” Golden Globes, at ¶¶ 8-9. “[A]ny use of that word has a se xual connotation even if the word is not used literally.” Remand Order , at ¶ 16. My colleag

ues find that in so altering its standards the Commission has acted illegally

. They rule tha

t the Commission failed to give a reasoned analy sis explaining the change of rule. They ac cordingly

find that the change of standard wa s arbitrary and capricious and therefore violated the Admini strative

Procedu re Act. I disagr ee. I n explanat

ion of this r

elativel y mo dest change o f stan dard, the Co mmis sion gave a se nsib le, al thou gh not necess arily com pelli ng, reason. In rela

tion to the word “fuck,” the Commission’s central explanation for the change was essentia lly i ts perce ption that t

he “F- Word” is no t only

of extreme

and gr aphic vul garity

, but also conveys an ine scapably se xual connotation. The Commission thus concluded that the use of the F-Word – e

ven in a si

ngle fl eeting

instance without re

petition – i s likely

to constitu

te an off ense to the decency

standards of § 1464. The standards for judicial review of administrative actions are discussed in a few leading Supreme Court opinions from which the majority quotes. Ag encies operate with broad discreti onary

power to establish rules an d standar ds, and c ourts ar

e requir ed to giv e defer

ence to agency decisions. See Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc. , 467 U.S. 837, 844 (1984). A court must not “substitute its judgment for that of the agency .” Motor Veh icle Mfrs

.15 Judge Friendly noted: What gives concern is the manner, alas not aty pical of the agencies, in which [a] change was made – slipped into an opinion in such a way that only care ful readers would know what had happened, without articulation of reasons, and with prior authorities not overruled, so that the opinion writers remain free to pull them out of the dr awer whenever

the age ncy wishes to r

each a r esult supp ortable

by t he old rule but not the new. Henry J. Friendly

, The Federal Administrative Agenc ies 63 (1962). 45 Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co. , 463 U.S. 2 9, 43 (198 3); see also Vermont Yankee Nuclear Power Corp. v. Natural Res. Def. Council, Inc. , 435 U.S. 519, 558 (1978) (“Administrative decisions should [not] be set aside . . . because the court is unhappy with the result reached.”). I

n general, an age

ncy’s dete

rmination will be upheld by a cour t unless found to be “arbitrary

and capricious.” See 5 U.S.C. 706(2)(A). An agency

is free furthermore to chang e its standards. See Chevron , 467 U.S. at 863 (“An init ial age ncy interpre tation is no t instantly

carved in stone.” ); Huntington Hosp. v. Thompson , 319 F.3d 74, 79 (2d Cir. 2002) (“[A]n agency is not locked into the first interpretation of a statu te it embr aces.” ); Ramaprak

ash , 346 F.3d

at 1125 (“

Agenc ies are

free to chang e course as their expertise and experience may suggest or require.”) . The Supreme Court has made clear that when an agency

changes its standard or rule, it is “obligated to supply a reasoned analysis for the change.” State Farm , 463 U.S. at 42. If an ag ency without explanation were to make an adjudication which is not consistent with the agency ’s previously established standa rds, the troubling question would arise whether the age ncy has lawf

ully chang ed its standard, or whether it has arbitrarily fa

iled to adhere to its standard, which it may not lawfully do. 15 Accordingly our court has ruled that “an agenc y . . . cannot simply

adopt inconsistent positions without presenting46

‘some reasoned analysis.’” Huntington Hosp., 319 F.3d at 79. Such explanation, we have said, is nec essary so that t he revi ewing c ourt m ay “be able to un derst and th e basi s of th e agency's action so that it may judge the consistency of tha

t action with the agency

's mandate.” Mr. Sprout

, Inc. v. United States , 8 F.3d 118, 129 (2d Cir. 1993). The District of Columbia Circuit has similarly reasoned tha

t an agency ’s “failure to come to grips with conflicting pr ecedent constitutes an inexcusable departure from the essential requireme nt of reasoned decision making.” Ramaprak

ash , 346 F.3d at 1125 (quotation marks omitted). In cha nging course, an agency must “provide a reasoned analy sis indicating that prior policies and standards are being deliberately c

hanged, not casually

ignored.” Id . at 1124 (quotation marks omitted). In my view, in changing its position on the repetition of an expletive, the Commission complied with these

require ments. I t made cle ar ackn

owledg ment that i

ts Golden Globes and Remand Order

rul in gs w ere not con si st ent wit h i ts pri or s tan dar d re gar di ng l ack of r epe ti ti on. It announced the adoption of a new standard. And it furnished a reasoned explanation for the chang e. Althou

gh one c an reas onably

disagr ee with th e Commission ’s new po sition, its explanation – at least with respect to the F-Word – is not irrational, arbitrary , or capricious. The Commission thus satisfied the standards of the Administrative Procedures Act. The Commission explained that the F-Word is “one of the most vulgar, graphic and explicit de scription s of sexual activity in the English lang

uage [w hose] use i

nvariab ly in

vokes a coarse sexual image.” Golden Globes , at ¶ 9. I n other w ords, the

Commission f

ound, con trary to its earlier policy, that the word is of such graphic explicitness in inevitable referenc e to sexual activity that absence

of repetition does not save it from violating the standard of dece ncy.47

My colleag

ues offer several arg

uments in support of their conclusion that the Commission’s explanation was not reasonable and therefore arbitrary and capricious. They

argue (i) the Commission’s position is irrational because of inconsistency resulting from the Commission’s willingness to allow viewers to be subjected to a “first blow” if it comes in the context of a genuine news broadcast; (ii) the Commission’s prediction that allowance of fleeting expletives will result in a great increase in their incidence is irrational because prior experience was to the con trary; and (iii) th e Commiss ion is “di vorced from real ity” believing that the FWord invariably invokes a sexual connotation. I respectfully disa

gree. The major

ity a rgues t hat the Com

mission’s c

hange of standa rd is irra tional be cause it

is inconsistent. The opinion goes on to explain: [T]he Commissi on does no t take the position tha

t any occurr

ence of an expletiv e is indecent . . . . [T]he Commission will apparently excuse an expletive when it occurs during a “ bona fide news interview”. . . . The Commission even conceded that a re

broadcast of precisely

the same offending clips of the two Billboard Music Awa rd programs for the purpose of providing background information on this case would not result in any action by the FCC . . . . [E]ven repeated and de liberate use of numerous expletives is not indecent . . . if the expletives are “integral” to the work [as in the case of the film “Saving Private Rya n”]. Majority op. at pag es 24-25. The majority is of c ourse correct that the Commission does not follow an all-or- nothing p olicy . Its s tandard s do attempt to draw c ontext-ba sed distinc tions, with the resu lt that no vi olation wi ll be foun d in circ umstance s where

usage is conside

red suff iciently justified that it does not constitute indecency. This, however, is in no way a consequence of the Commission’s change of standard for fleeting expletives. It applies ac ross the board to all circumstances. Regardle ss of whether the expletive was repe ated or f leeting , the Commis sion will a pply context-b ased sta

ndards to16 Spectators in the courtroom observing the arg ument of this case would have heard the judges and the lawy

ers saying “fuck” in open court. Had the case be en on another subject, such usage would surely

have seemed inappropriate. Bec ause of the issues in this case, the word was central to the issues being discussed. I t is not irrational to take context into account to determine whether use of the

word is ind

ecent. 48 determine whether the incident constituted indecency . A bona fide news context and recognition of artist ic integ rity favor a finding of no viola

tion. The majority ’s critic ism of inconsistency is not prope rly directe d again st the cha

nge of standar d here in question, which ha s done noth ing to increase the inconsistency . If any thing, the change of standard ha s made the Commission more consiste nt rathe r than le ss, beca

use unde r the new rule, the same con text-base d factors will appl y to all circumstances. If ther e is merit in the majority’s arg ument that the Commission’s actions are arbitrary

and capricious because of irrationality in its standards for determining when expletives are permitted and when forbidden, that arg ument must be directed against the entire censorship structure. It does not de monstrate that the Commission’s change of standard for the fleeting expletive was irrat

ional. Furthermore, while the Commission will indeed allow the broadcast of the same mate rial in some circumstances but not in others, I do not see w hy this differentiation should be consider ed irra tional. I t rather seeks to r

econcil e confli cting va

lues. On the one ha

nd, it recognizes, as stressed by the Supreme Court in Pacifica , the potential for harm to children resulting from expos

ure to ind ecency . On the ot

her hand , the Commis sion has hi storical ly recognized that categoric al prohibition of the broadcast of all instances of usage of a word generally considered indecent would suppress material of value, w hich should not be deemed in de ce nt up on co ns id er at io n o f t he co nt ex t. Th is is no t i rr at io na li ty. 16 It is an attempt on the part49

of the Commission over the years to reconcile conflicting values through sta ndards which take account of context. The major

ity t hen arg ues that the Commission

reasone d irratio

nally when in its Remand Order , as a part of its explanation for its change of position, the Commission observed: [G]ranting

an automa

tic exempti on for “i solated or fleeti ng” exple tives . . . would as a matter of logic permit broadcasters to air e xpletives at all hours of a day so long as they did so one at a time. For example, broadcasters would be able to a ir . . . offensive . . . words, regardless of context, with impunity . . . provided that they did not air more than one explet

ive in any progra m segme nt. Remand Order , at ¶ 25. The majority a sserts that this concern was “divorced from rea lity.” Majority op. at pag e 27. On the majority’s view , because broadcasters did not “barr age[] the airwaves with expletives” during the period prior to Golden Gl obes when fleeting expletives received a free pass, they would not do so in the future. The agency

has one prediction of what would likelyoccur in the future under the preGolden Gl

obes policy

. The majority has anothe r. The majority may

be right in speculating that the Commission’s concern is exaggerated. Who knows? As a matter of law, it makes no differe nce. The court is o bligate d to give

defere nce to ag ency

judgmen t and may not substitu

te its judgment for that of the agency , or set aside an agency

action merely be cause the court believes the agency

is wrong. See State

Farm , 463 U.S. a

t 43 (cour t must not “s

ubstitute i ts judgmen t for that of the ag ency

”); Vermont Yankee , 45 U.S. at 558 (“Administrative decisions should [not] be set aside . . . because the court is unhappy with the result.”). Only if the agency ’s action is “arbitrary

and capricious” may

the court nullify it. 5 U.S.C. § 706(2)(A). Furthermore, if obligated to choose, I would bet my money

on the agency ’s prediction.17 See, e.g. , Gail Pennington, Kingpin There Are More Things in Heaven and Earth Than

“Sopranos, ” NBC Insists , St. Louis Post-Dispatch, Feb. 2, 2003, at F1 (“Althoug h they tried at first to feign indifference, broa dcasters have seethed for y ears over the critical acclaim and abundant awards handed to cable serie s like “The Sopranos.” The complaint: that the play ing field isn’t level. Broadcasters are stra ined by FCC rules about c ontent – nudity and sex, violence and language – that don’t apply to cable.”); Jim Rutenberg, Few Viewers Object as Unbleeped Bleep W ords Sprea d on Network

TV , N.Y. Times, Jan. 25, 2003, at B7 (“Broadcast television, under intensifying

attack by saltier

cable competitors, is pushing the limits of decorum further by the year , and hardly a

nyone is pushing ba

ck.”); Jim Rutenberg, Hurt by Cable, Networks Spout Expletives , N.Y. Times, Sept. 2, 2001, at 11 (“Broadcast television is under sieg e by smaller cable competitors that are winning audience s while pushing adult content. In that climate, broadcast is fighting the perce ption that its tastes are lagging behind those of a media-saturated culture whose mores have grown more permissive.”). 50 The majority’s view pr

esupposes that the future would repeat the past. I t argues that because the networks were not flooded with discrete, fleeting expletives when fleeting expletives had a free pass, they would not be flooded in the f uture. This fails to take account of two facts. First, the words pr oscribe d by

the Commissi on’s dec ency standar ds are mu ch more c ommon in da

ily discourse today than the

y were thirty y ears ago. Second, the reg ulated networks compete for audienc e with the

unreg ulated c able cha

nnels, wh ich incr easing ly ma

ke liber al use of their freedom to fill programming with such expletives. The media pre ss regularly reports how difficult it is for networks to compete with cable for that reason. 17 It seems to me the age ncy has good reason to expect that a marked increa se would occur if the old policy were continued. In a ny e vent, eve n if the ma

jority could re asonably

label this aspect

of the Commission’s reasoning “arbitrary

and capricious,” it still would not matter. The agency ’s action in changing the standard for fleeting expletives did not depend on the defe nsibility of this prediction. I t is at most a small part of the agency ’s justification for its action. Finally the majority

disagrees with the Commission’s view that the word “fuck”51

communicates an “inherently . . . sexual connotation [and] invariably invokes a coarse se xual image.” Golden Globes , at ¶¶ 8-9. The majority notes that the F-Word is often used in every day conversation without any se xual meaning. Majority op. at pa ge 26. I ag

ree with the majority tha

t th e w or d i s o ft en us ed wi th ou t a ne ce ss ar y intention o n the part o f the speaker to refer to sex. A student who gets a disappointing grade on a test, a cook who burns the roast, or a driver who returns to his parked car to find a parking ticket on the windshield, might holler out the F-Word to express

anger or disapp ointment. T

he word i s also some

times used

to express

delight , as with Bono’s exhilarated utterance on his receipt of his awa rd. Some use it more as a declaration of uncompromising tou

ghness , or of al ignment

on the side

of vulga rity agains t prissy

manners , without ne cessar

ily i ntending to evoke a

ny s exual mea

ning. Som e use it to i

ntensify whateve r it is they may

be saying , and some sprinkle the word indiscriminately throughout their conversation with no apparent meaning whatsoever. The majority, howeve

r, misunderstands the Commission’s reasoning, or in any event interpre ts it in the ma

nner lea st favor

able to th e Commission . In o bserving that fuck “invari ably invokes a coarse sexual image,” Golden Globes , at ¶ 9, that this is so “even if the word is not used literally,” Remand Order , at ¶ 16, and that its power to offend “derives from its sexual . . . meaning,” id . at ¶ 23, the Commission did not mean that every speake r who utters the word invaria bly intends to

communic ate an of

fensive sexual mea

ning. Th e Commission

explicitly recognized that the word can be used in a ma nner that does not intend a sexual meaning. A fairer reading of the Commission’s meaning is that, even when the spe aker does not intend a sexual meaning, a substantial part of the community , and of the television audience, will understand the52

word as freighted with an offensive se xual connotation. It is surely not irrational for the Commission to conclude that, according to the understanding of a substantial se gment of the community, the F-Word is never completely fre e of an offensive, sexual connotation. I t is no accide nt that in ma

ny l angua ges, the equivale nt of the F -Word find s usage , as in English, to express anger, disgust, insult, and confrontation. What we ha

ve is at mos t a diffe

rence o f opinion b etween a court a nd an ag ency . Beca

use of the de ferenc e courts

must give

to the re asoning

of a duly authorize d administr

ative ag ency

in

matters w ithin the a

gency ’s compe

tence, a court’s disagr eement w ith the Commi ssion on thi s question is of no consequence. The Commission’s position is not irrational; it is not arbitrary and capricious.18 As each of the instances under review in this case involved the use of the F-Word, and because I fin d that the Commission h as give

n a ratio nal justif

ication f or its rule as applie d to use of the F-Word, I do not consider the Commission’s standard which makes it a decency violation to use the word “shit.” In Pacifica , in upholding the constitutionality of censorship under § 1464, the Supreme Court stressed the accessibility of broadcasting to children. See Pacifica , 438 U.S. at 749; Remand Order , at ¶ 51. The potential for harm to children resulting fr om indecent broadca sting wa s clear

ly a major co ncern ju stify

ing the c ensorshi

p scheme . In th

is rega rd, it seems to me there is an enormous difference be tween censorship of referenc es to sex and censorship of re ferenc es to excr ement. F or childr

en, excre ment is a ma

in preoc cupation

of their early ye ars. The

re is sure ly no though

t that chil dren ar

e harme d by

hearing refer ences to excrement. Nicole Richie’s script called for her to say it was not easy to g et “pig crap” out of a Prada purse. I n deliver ing the l ine, Richi e chang ed “pig crap” t o “cow sh it.” Had she stuck w

ith “pig crap,” that reference

would not have been a violation, but her change to “ cow shit” could have resulted in forfeitures and perhaps even the loss of Fox’s license to broadcast. In anothe r instance , the Commis sion found a violation (which

was late r vacat ed on othe

r groun ds) beca use someone was described as a “bullshitter.” See Complaints Regarding Various Television Broadcasts Between February 2, 2002 and March 8, 2005 , 21 F.C.C. R. 2664 (20 06); Remand Order , at ¶ 73. The justification is surely not that childre n will be harmed by he aring “shit” but not by hearing

“crap.” I t appears that at least some of the Commission’s prohibitions are not justified at all by the risk of har m to children but only by concern for good manners. When the censorship is exercised only to protec t polite manners and not by re ason of risk of harm, I question w

hether i t can sur vive scr utiny . Beca

use eac h instanc e of cen sorship a t stake in t

his case involved the F-Word, which in the Commission’s view inherently retains a sexual reference, the question does not arise in this case.

19 I express neither ag

reement nor disagreement with my colleagues’ added discussion of Fox’s othe

r challe nges to t he Commission’s actio

ns becau se, as the

majority opinion re cognize s, it is dictum and therefore not an authoritative precedent in our Circuit’s law . In subsequent adjudications, the respect accorded to dictum depends on its persua sive force and not on the fact that it appears in a court opinion. 53 I believe that in changing its standard, the Commission furnished a reasoned explanation, and thus sa

tisfied th e requir

ements of the Admini strative

Procedu res Act. 18 I therefore respec tfully

dissent. 19