(Slip Opinion) OCTOBER TERM, 2008 1 

Syllabus 

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is

being done in connection with this case, at the time the opinion is issued.

The syllabus constitutes no part of the opinion of the Court but has been

prepared by the Reporter of Decisions for the convenience of the reader. 

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. 

SUPREME COURT OF THE UNITED STATES 

Syllabus 

FEDERAL COMMUNICATIONS COMMISSION ET AL. v. 

FOX TELEVISION STATIONS, INC., ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR 

THE SECOND CIRCUIT 

No. 07–582. Argued November 4, 2008—Decided April 28, 2009 

Federal law bans the broadcasting of “any . . . indecent . . . language,”

18 U. S. C. §1464, which includes references to sexual or excretory activity or organs, see FCC v. Pacifica Foundation, 438 U. S. 726. Having first defined the prohibited speech in 1975, the Federal Communications Commission (FCC) took a cautious, but gradually 

expanding, approach to enforcing the statutory prohibition. In 2004, 

the FCC’s Golden Globes Order declared for the first time that an expletive (nonliteral) use of the F-Word or the S-Word could be actionably indecent, even when the word is used only once. 

This case concerns isolated utterances of the F- and S-Words during two live broadcasts aired by Fox Television Stations, Inc. In its 

order upholding the indecency findings, the FCC, inter alia, stated 

that the Golden Globes Order eliminated any doubt that fleeting expletives could be actionable; declared that under the new policy, a 

lack of repetition weighs against a finding of indecency, but is not a

safe harbor; and held that both broadcasts met the new test because 

one involved a literal description of excrement and both invoked the

F-Word. The order did not impose sanctions for either broadcast.

The Second Circuit set aside the agency action, declining to address 

the constitutionality of the FCC’s action but finding the FCC’s reasoning inadequate under the Administrative Procedure Act (APA). 

Held: The judgment is reversed, and the case is remanded. 

489 F. 3d 444, reversed and remanded. 

JUSTICE SCALIA delivered the opinion of the Court, except as to Part

III–E, concluding: 

1. The FCC’s orders are neither “arbitrary” nor “capricious” within 
2 FCC v. FOX TELEVISION STATIONS, INC. 

Syllabus 

the meaning of the APA, 5 U. S. C. §706(2)(A). Pp. 9–19.

(a) Under the APA standard, an agency must “examine the relevant data and articulate a satisfactory explanation for its action.” 

Motor Vehicle Mfrs. Assn. of United States, Inc. v. State Farm Mut. 

Automobile Ins. Co., 463 U. S. 29, 43. In overturning the FCC’s 

judgment, the Second Circuit relied in part on its precedent interpreting the APA and State Farm to require a more substantial explanation for agency action that changes prior policy. There is, however, 

no basis in the Act or this Court’s opinions for a requirement that all

agency change be subjected to more searching review. Although an 

agency must ordinarily display awareness that it is changing position, see United States v. Nixon, 418 U. S. 683, 696, and may sometimes need to account for prior factfinding or certain reliance interests created by a prior policy, it need not demonstrate to a court’s 

satisfaction that the reasons for the new policy are better than the 

reasons for the old one. It suffices that the new policy is permissible

under the statute, that there are good reasons for it, and that the 

agency believes it to be better, which the conscious change adequately 

indicates. Pp. 9–12. 

(b) Under these standards, the FCC’s new policy and its order 

finding the broadcasts at issue actionably indecent were neither arbitrary nor capricious. First, the FCC forthrightly acknowledged that 

its recent actions have broken new ground, taking account of inconsistent prior FCC and staff actions, and explicitly disavowing them as

no longer good law. The agency’s reasons for expanding its enforcement activity, moreover, were entirely rational. Even when used as 

an expletive, the F-Word’s power to insult and offend derives from its

sexual meaning. And the decision to look at the patent offensiveness 

of even isolated uses of sexual and excretory words fits with Pacifica’s 

context-based approach. Because the FCC’s prior safe-harbor-forsingle-words approach would likely lead to more widespread use, and

in light of technological advances reducing the costs of bleeping offending words, it was rational for the agency to step away from its old

regime. The FCC’s decision not to impose sanctions precludes any

argument that it is arbitrarily punishing parties without notice of 

their actions’ potential consequences. Pp. 13–15.

(c) None of the Second Circuit’s grounds for finding the FCC’s action arbitrary and capricious is valid. First, the FCC did not need 

empirical evidence proving that fleeting expletives constitute harmful

“first blows” to children; it suffices to know that children mimic behavior they observe. Second, the court of appeals’ finding that fidelity to the FCC’s “first blow” theory would require a categorical ban on 

all broadcasts of expletives is not responsive to the actual policy under review since the FCC has always evaluated the patent offensive-
Cite as: 556 U. S. ____ (2009) 3 

Syllabus 

ness of words and statements in relation to the context in which they 

were broadcast. The FCC’s decision to retain some discretion in less 

egregious cases does not invalidate its regulation of the broadcasts

under review. Third, the FCC’s prediction that a per se exemption for

fleeting expletives would lead to their increased use merits deference 

and makes entire sense. Pp. 15–18. 

(d) Fox’s additional arguments are not tenable grounds for affirmance. Fox misconstrues the agency’s orders when it argues that 

that the new policy is a presumption of indecency for certain words.

It reads more into Pacifica than is there by arguing that the FCC

failed adequately to explain how this regulation is consistent with

that case. And Fox’s argument that the FCC’s repeated appeal to

“context” is a smokescreen for a standardless regime of unbridled discretion ignores the fact that the opinion in Pacifica endorsed a context-based approach. Pp. 18–19.

2. Absent a lower court opinion on the matter, this Court declines

to address the FCC orders’ constitutionality. P. 26. 

SCALIA, J., announced the judgment of the Court and delivered the 

opinion of the Court with respect to Parts I, II, III–A through III–D,

and IV, in which ROBERTS, C. J., and KENNEDY, THOMAS, and ALITO, JJ., 

joined, and an opinion with respect to Part III–E, in which ROBERTS, 

C. J., and THOMAS and ALITO, JJ., joined. THOMAS, J., filed a concurring 

opinion. KENNEDY, J., filed an opinion concurring in part and concurring in the judgment. STEVENS, J., and GINSBURG, J., filed dissenting 

opinions. BREYER, J., filed a dissenting opinion, in which STEVENS, 

SOUTER, and GINSBURG, JJ., joined. 
_________________ 

_________________ 

Cite as: 556 U. S. ____ (2009) 1 

Opinion of the Court 

NOTICE: This opinion is subject to formal revision before publication in the

preliminary print of the United States Reports. Readers are requested to

notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order

that corrections may be made before the preliminary print goes to press. 

SUPREME COURT OF THE UNITED STATES 

No. 07–582 

FEDERAL COMMUNICATIONS COMMISSION, ET AL., 

PETITIONERS v. FOX TELEVISION STATIONS, 

INC., ET AL. 

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE SECOND CIRCUIT

[April 28, 2009] 

JUSTICE SCALIA delivered the opinion of the Court, 

except as to Part III–E. 

Federal law prohibits the broadcasting of “any . . . indecent . . . language,” 18 U. S. C. §1464, which includes

expletives referring to sexual or excretory activity or 

organs, see FCC v. Pacifica Foundation, 438 U. S. 726 

(1978). This case concerns the adequacy of the Federal 

Communications Commission’s explanation of its decision

that this sometimes forbids the broadcasting of indecent

expletives even when the offensive words are not repeated. 

I. Statutory and Regulatory Background 

The Communications Act of 1934, 48 Stat. 1064, 47 

U. S. C. §151 et seq. (2000 ed. and Supp. V), established a

system of limited-term broadcast licenses subject to various “conditions” designed “to maintain the control of the

United States over all the channels of radio transmission,” 

§301 (2000 ed.). Twenty-seven years ago we said that “[a]

licensed broadcaster is granted the free and exclusive use

of a limited and valuable part of the public domain; when 

he accepts that franchise it is burdened by enforceable 
2 FCC v. FOX TELEVISION STATIONS, INC. 

Opinion of the Court 

public obligations.” CBS, Inc. v. FCC, 453 U. S. 367, 395 

(1981) (internal quotation marks omitted).

One of the burdens that licensees shoulder is the indecency ban—the statutory proscription against “utter[ing] 

any obscene, indecent, or profane language by means of 

radio communication,” 18 U. S. C. §1464—which Congress 

has instructed the Commission to enforce between the 

hours of 6 a.m. and 10 p.m. Public Telecommunications 

Act of 1992, §16(a), 106 Stat. 954, note following 47

U. S. C. §303.1 Congress has given the Commission various means of enforcing the indecency ban, including civil 

fines, see §503(b)(1), and license revocations or the denial 

of license renewals, see §§309(k), 312(a)(6). 

The Commission first invoked the statutory ban on

indecent broadcasts in 1975, declaring a daytime broadcast of George Carlin’s “Filthy Words” monologue 

actionably indecent. Pacifica Foundation, 56 F. C. C. 2d 

94. At that time, the Commission announced the definition of indecent speech that it uses to this day, prohibiting 

“language that describes, in terms patently offensive as

measured by contemporary community standards for the 

broadcast medium, sexual or excretory activities or organs, at times of the day when there is a reasonable risk 

that children may be in the audience.” Id., at 98. 

In FCC v. Pacifica Foundation, supra, we upheld the

Commission’s order against statutory and constitutional 

challenge. We rejected the broadcasters’ argument that 

—————— 

1The statutory prohibition applicable to commercial radio and television stations extends by its terms from 6 a.m. to 12 midnight. The 

Court of Appeals for the District of Columbia Circuit held, however,

that because “Congress and the Commission [had] backed away from 

the consequences of their own reasoning,” by allowing some public

broadcasters to air indecent speech after 10 p.m., the court was forced 

“to hold that the section is unconstitutional insofar as it bars the 

broadcasting of indecent speech between the hours of 10:00 p.m. and

midnight.” Action for Children’s Television v. FCC, 58 F. 3d 654, 669 

(1995) (en banc), cert. denied, 516 U. S. 1043 (1996). 
Cite as: 556 U. S. ____ (2009) 3 

Opinion of the Court 

the statutory proscription applied only to speech appealing 

to the prurient interest, noting that “the normal definition 

of ‘indecent’ merely refers to nonconformance with accepted standards of morality.” Id., at 740. And we held 

that the First Amendment allowed Carlin’s monologue to

be banned in light of the “uniquely pervasive presence” of 

the medium and the fact that broadcast programming is

“uniquely accessible to children.” Id., at 748–749. 

In the ensuing years, the Commission took a cautious, 

but gradually expanding, approach to enforcing the statutory prohibition against indecent broadcasts. Shortly after 

Pacifica, 438 U. S. 726, the Commission expressed its

“inten[tion] strictly to observe the narrowness of the 

Pacifica holding,” which “relied in part on the repetitive

occurrence of the ‘indecent’ words” contained in Carlin’s 

monologue. In re Application of WGBH Educ. Foundation, 

69 F. C. C. 2d 1250, 1254, ¶10 (1978). When the full Commission next considered its indecency standard, however,

it repudiated the view that its enforcement power was

limited to “deliberate, repetitive use of the seven words

actually contained in the George Carlin monologue.” In re 

Pacifica Foundation, Inc., 2 FCC Rcd. 2698, 2699, ¶12 

(1987). The Commission determined that such a “highly 

restricted enforcement standard . . . was unduly narrow as

a matter of law and inconsistent with [the Commission’s]

enforcement responsibilities under Section 1464.” In re 

Infinity Broadcasting Corp. of Pa., 3 FCC Rcd. 930, ¶5 

(1987). The Court of Appeals for the District of Columbia 

Circuit upheld this expanded enforcement standard 

against constitutional and Administrative Procedure Act 

challenge. See Action for Children’s Television v. FCC, 

852 F. 2d 1332 (1988) (R. Ginsburg, J.), superseded in part 

by Action for Children’s Television v. FCC, 58 F. 3d 654 

(1995) (en banc). 

Although the Commission had expanded its enforcement 

beyond the “repetitive use of specific words or phrases,” it 
4 FCC v. FOX TELEVISION STATIONS, INC. 

Opinion of the Court 

preserved a distinction between literal and nonliteral (or 

“expletive”) uses of evocative language. In re Pacifica 

Foundation, Inc., 2 FCC Rcd., at 2699, ¶13. The Commission explained that each literal “description or depiction of 

sexual or excretory functions must be examined in context 

to determine whether it is patently offensive,” but that 

“deliberate and repetitive use . . . is a requisite to a finding 

of indecency” when a complaint focuses solely on the use of 

nonliteral expletives. Ibid. 

Over a decade later, the Commission emphasized that 

the “full context” in which particular materials appear is 

“critically important,” but that a few “principal” factors

guide the inquiry, such as the “explicitness or graphic 

nature” of the material, the extent to which the material 

“dwells on or repeats” the offensive material, and the

extent to which the material was presented to “pander,” to

“titillate,” or to “shock.” In re Industry Guidance On the 

Commission’s Case Law Interpreting 18 U. S. C. §1464 

and Enforcement Policies Regarding Broadcast Indecency, 

16 FCC Rcd. 7999, 8002, ¶9, 8003, ¶10 (2001) (emphasis 

deleted). “No single factor,” the Commission said, “generally provides the basis for an indecency finding,” but 

“where sexual or excretory references have been made

once or have been passing or fleeting in nature, this characteristic has tended to weigh against a finding of indecency.” Id., at 8003, ¶10, 8008, ¶17.

In 2004, the Commission took one step further by declaring for the first time that a nonliteral (expletive) use of 

the F- and S-Words could be actionably indecent, even

when the word is used only once. The first order to this 

effect dealt with an NBC broadcast of the Golden Globe 

Awards, in which the performer Bono commented, “‘This

is really, really, f***ing brilliant.’” In re Complaints 

Against Various Broadcast Licensees Regarding Their 

Airing of the “Golden Globe Awards” Program, 19 FCC 

Rcd. 4975, 4976, n. 4 (2004) (Golden Globes Order). Al­
Cite as: 556 U. S. ____ (2009) 5 

Opinion of the Court 

though the Commission had received numerous complaints directed at the broadcast, its enforcement bureau

had concluded that the material was not indecent because 

“Bono did not describe, in context, sexual or excretory

organs or activities and . . . the utterance was fleeting and 

isolated.” Id., at 4975–4976, ¶3. The full Commission 

reviewed and reversed the staff ruling. 

The Commission first declared that Bono’s use of the FWord fell within its indecency definition, even though the 

word was used as an intensifier rather than a literal 

descriptor. “[G]iven the core meaning of the ‘F-Word,’” it

said, “any use of that word . . . inherently has a sexual 

connotation.” Id., at 4978, ¶8. The Commission determined, moreover, that the broadcast was “patently offensive” because the F-Word “is one of the most vulgar, 

graphic and explicit descriptions of sexual activity in the 

English language,” because “[i]ts use invariably invokes a

coarse sexual image,” and because Bono’s use of the word

was entirely “shocking and gratuitous.” Id., at 4979, ¶9. 

The Commission observed that categorically exempting 

such language from enforcement actions would “likely lead

to more widespread use.” Ibid. Commission action was 

necessary to “safeguard the well-being of the nation’s

children from the most objectionable, most offensive language.” Ibid. The order noted that technological advances

have made it far easier to delete (“bleep out”) a “single and 

gratuitous use of a vulgar expletive,” without adulterating

the content of a broadcast. Id., at 4980, ¶11.

The order acknowledged that “prior Commission and 

staff action have indicated that isolated or fleeting broadcasts of the ‘F-Word’ . . . are not indecent or would not be 

acted upon.” It explicitly ruled that “any such interpretation is no longer good law.” Ibid., ¶12. It “clarif[ied] . . .

that the mere fact that specific words or phrases are not 

sustained or repeated does not mandate a finding that

material that is otherwise patently offensive to the broad­
6 FCC v. FOX TELEVISION STATIONS, INC. 

Opinion of the Court 

cast medium is not indecent.” Ibid. Because, however, 

“existing precedent would have permitted this broadcast,”

the Commission determined that “NBC and its affiliates 

necessarily did not have the requisite notice to justify a 

penalty.” Id., at 4981–4982, ¶15. 

II. The Present Case 

This case concerns utterances in two live broadcasts 

aired by Fox Television Stations, Inc., and its affiliates 

prior to the Commission’s Golden Globes Order. The first 

occurred during the 2002 Billboard Music Awards, when 

the singer Cher exclaimed, “I’ve also had critics for the

last 40 years saying that I was on my way out every year. 

Right. So f*** ‘em.” Brief for Petitioners 9. The second 

involved a segment of the 2003 Billboard Music Awards, 

during the presentation of an award by Nicole Richie and 

Paris Hilton, principals in a Fox television series called

“The Simple Life.” Ms. Hilton began their interchange by 

reminding Ms. Richie to “watch the bad language,” but 

Ms. Richie proceeded to ask the audience, “Why do they 

even call it ‘The Simple Life?’ Have you ever tried to get 

cow s*** out of a Prada purse? It’s not so f***ing simple.” 

Id., at 9–10. Following each of these broadcasts, the Commission received numerous complaints from parents

whose children were exposed to the language.

On March 15, 2006, the Commission released Notices of 

Apparent Liability for a number of broadcasts that the

Commission deemed actionably indecent, including the 

two described above. In re Complaints Regarding Various 

Television Broadcasts Between February 2, 2002 and 

March 8, 2005, 21 FCC Rcd. 2664 (2006). Multiple parties

petitioned the Court of Appeals for the Second Circuit for

judicial review of the order, asserting a variety of constitutional and statutory challenges. Since the order had 

declined to impose sanctions, the Commission had not

previously given the broadcasters an opportunity to re­
Cite as: 556 U. S. ____ (2009) 7 

Opinion of the Court 

spond to the indecency charges. It therefore requested

and obtained from the Court of Appeals a voluntary remand so that the parties could air their objections. 489 

F. 3d 444, 453 (2007). The Commission’s order on remand 

upheld the indecency findings for the broadcasts described 

above. See In re Complaints Regarding Various Television 

Broadcasts Between February 2, 2002, and March 8, 2005, 

21 FCC Rcd. 13299 (2006) (Remand Order). 

The order first explained that both broadcasts fell comfortably within the subject-matter scope of the Commission’s indecency test because the 2003 broadcast involved

a literal description of excrement and both broadcasts

invoked the “F-Word,” which inherently has a sexual

connotation. Id., at 13304, ¶16, 13323, ¶58. The order 

next determined that the broadcasts were patently offensive under community standards for the medium. Both 

broadcasts, it noted, involved entirely gratuitous uses of 

“one of the most vulgar, graphic, and explicit words for 

sexual activity in the English language.” Id., at 13305, 

¶17, 13324, ¶59. It found Ms. Richie’s use of the “F-Word” 

and her “explicit description of the handling of excrement”

to be “vulgar and shocking,” as well as to constitute “pandering,” after Ms. Hilton had playfully warned her to 

“‘watch the bad language.’” Id., at 13305, ¶17. And it 

found Cher’s statement patently offensive in part because

she metaphorically suggested a sexual act as a means of 

expressing hostility to her critics. Id., at 13324, ¶60. The 

order relied upon the “critically important” context of the 

utterances, id., at 13304, ¶15, noting that they were aired 

during prime-time awards shows “designed to draw a 

large nationwide audience that could be expected to include many children interested in seeing their favorite

music stars,” id., at 13305, ¶18, 13324, ¶59. Indeed, approximately 2.5 million minors witnessed each of the 

broadcasts. Id., at 13306, ¶18, 13326, ¶65. 

The order asserted that both broadcasts under review 
8 FCC v. FOX TELEVISION STATIONS, INC. 

Opinion of the Court 

would have been actionably indecent under the staff rulings and Commission dicta in effect prior to the Golden 

Globes Order—the 2003 broadcast because it involved a 

literal description of excrement, rather than a mere expletive, because it used more than one offensive word, and 

because it was planned, 21 FCC Rcd., at 13307, ¶22; and 

the 2002 broadcast because Cher used the F-Word not as a 

mere intensifier, but as a description of the sexual act to

express hostility to her critics, id., at 13324, ¶60. The 

order stated, however, that the pre-Golden Globes regime 

of immunity for isolated indecent expletives rested only

upon staff rulings and Commission dicta, and that the

Commission itself had never held “that the isolated use of 

an expletive . . . was not indecent or could not be indecent,” 21 FCC Rcd., at 13307, ¶21. In any event, the order

made clear, the Golden Globes Order eliminated any doubt

that fleeting expletives could be actionably indecent, 21 

FCC Rcd., at 13308, ¶23, 13325, ¶61, and the Commission 

disavowed the bureau-level decisions and its own dicta 

that had said otherwise, id., at 13306–13307, ¶¶20, 21.

Under the new policy, a lack of repetition “weigh[s]

against a finding of indecency,” id., at 13325, ¶61, but is

not a safe harbor. 

The order explained that the Commission’s prior “strict

dichotomy between ‘expletives’ and ‘descriptions or depictions of sexual or excretory functions’ is artificial and does 

not make sense in light of the fact that an ‘expletive’s’ 

power to offend derives from its sexual or excretory meaning.” Id., at 13308, ¶23. In the Commission’s view, 

“granting an automatic exemption for ‘isolated or fleeting’ 

expletives unfairly forces viewers (including children)” to 

take “‘the first blow’” and would allow broadcasters “to air 

expletives at all hours of a day so long as they did so one

at a time.” Id., at 13309, ¶25. Although the Commission

determined that Fox encouraged the offensive language by

using suggestive scripting in the 2003 broadcast, and 
Cite as: 556 U. S. ____ (2009) 9 

Opinion of the Court 

unreasonably failed to take adequate precautions in both

broadcasts, id., at 13311–13314, ¶¶31–37, the order again

declined to impose any forfeiture or other sanction for 

either of the broadcasts, id., at 13321, ¶53, 13326, ¶66.

Fox returned to the Second Circuit for review of the 

Remand Order, and various intervenors including CBS, 

NBC, and ABC joined the action. The Court of Appeals

reversed the agency’s orders, finding the Commission’s

reasoning inadequate under the Administrative Procedure 

Act. 489 F. 3d 444. The majority was “skeptical that the 

Commission [could] provide a reasoned explanation for its 

‘fleeting expletive’ regime that would pass constitutional 

muster,” but it declined to reach the constitutional question. Id., at 462. Judge Leval dissented, id., at 467. We 

granted certiorari, 552 U. S. ___ (2008). 

III. Analysis

A. Governing Principles 

The Administrative Procedure Act, 5 U. S. C. §551 et 

seq., which sets forth the full extent of judicial authority to 

review executive agency action for procedural correctness, 

see Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U. S. 519, 545–549 

(1978), permits (insofar as relevant here) the setting aside 

of agency action that is “arbitrary” or “capricious,” 5 

U. S. C. §706(2)(A). Under what we have called this “narrow” standard of review, we insist that an agency “examine the relevant data and articulate a satisfactory explanation for its action.” Motor Vehicle Mfrs. Assn. of United 

States, Inc. v. State Farm Mut. Automobile Ins. Co., 463 

U. S. 29, 43 (1983). We have made clear, however, that “a 

court is not to substitute its judgment for that of the 

agency,” ibid., and should “uphold a decision of less than 

ideal clarity if the agency’s path may reasonably be discerned,” Bowman Transp., Inc. v. Arkansas-Best Freight 

System, Inc., 419 U. S. 281, 286 (1974). 
10 FCC v. FOX TELEVISION STATIONS, INC. 

Opinion of the Court 

In overturning the Commission’s judgment, the Court of 

Appeals here relied in part on Circuit precedent requiring

a more substantial explanation for agency action that

changes prior policy. The Second Circuit has interpreted 

the Administrative Procedure Act and our opinion in State 

Farm as requiring agencies to make clear “‘why the original reasons for adopting the [displaced] rule or policy are

no longer dispositive’” as well as “‘why the new rule effectuates the statute as well as or better than the old rule.’” 

489 F. 3d, at 456–457 (quoting New York Council, Assn. of 

Civilian Technicians v. FLRA, 757 F. 2d 502, 508 (CA2 

1985); emphasis deleted). The Court of Appeals for the 

District of Columbia Circuit has similarly indicated that a

court’s standard of review is “heightened somewhat” when 

an agency reverses course. NAACP v. FCC, 682 F. 2d 993, 

998 (1982).

We find no basis in the Administrative Procedure Act or 

in our opinions for a requirement that all agency change

be subjected to more searching review. The Act mentions 

no such heightened standard. And our opinion in State 

Farm neither held nor implied that every agency action

representing a policy change must be justified by reasons

more substantial than those required to adopt a policy in

the first instance. That case, which involved the rescission of a prior regulation, said only that such action requires “a reasoned analysis for the change beyond that 

which may be required when an agency does not act in the 

first instance.” 463 U. S., at 42 (emphasis added).2 Treat­

—————— 

2 JUSTICE BREYER’s contention that State Farm did anything more, 

post, at 4–6 (dissenting opinion), rests upon his failure to observe the 

italicized phrase and upon a passage quoted in State Farm from a 

plurality opinion in Atchison, T. & S. F. R. Co. v. Wichita Bd. of Trade, 

412 U. S. 800 (1973). That passage referred to “a presumption that 

[congressional] policies will be carried out best if the settled rule is

adhered to.” Id., at 807–808 (opinion of Marshall, J.). But the Atchison 

plurality made this statement in the context of requiring the agency to 
Cite as: 556 U. S. ____ (2009) 11 

Opinion of the Court 

ing failures to act and rescissions of prior action differently for purposes of the standard of review makes good

sense, and has basis in the text of the statute, which 

likewise treats the two separately. It instructs a reviewing court to “compel agency action unlawfully withheld or

unreasonably delayed,” 5 U. S. C. §706(1), and to “hold 

unlawful and set aside agency action, findings, and conclusions found to be [among other things] . . . arbitrary [or]

capricious,” §706(2)(A). The statute makes no distinction, 

however, between initial agency action and subsequent

agency action undoing or revising that action.

To be sure, the requirement that an agency provide

reasoned explanation for its action would ordinarily demand that it display awareness that it is changing position. An agency may not, for example, depart from a prior 

policy sub silentio or simply disregard rules that are still 

on the books. See United States v. Nixon, 418 U. S. 683, 

696 (1974). And of course the agency must show that 

there are good reasons for the new policy. But it need not 

demonstrate to a court’s satisfaction that the reasons for 

the new policy are better than the reasons for the old one; 

it suffices that the new policy is permissible under the 

statute, that there are good reasons for it, and that the 

agency believes it to be better, which the conscious change 

of course adequately indicates. This means that the 

agency need not always provide a more detailed justification than what would suffice for a new policy created on a

blank slate. Sometimes it must—when, for example, its 

new policy rests upon factual findings that contradict 

those which underlay its prior policy; or when its prior 

—————— 

provide some explanation for a change, “so that the reviewing court 

may understand the basis of the agency’s action and so may judge the 

consistency of that action with the agency’s mandate,” id., at 808. The 

opinion did not assert the authority of a court to demand explanation 

sufficient to enable it to weigh (by its own lights) the merits of the 

agency’s change. Nor did our opinion in State Farm. 
12 FCC v. FOX TELEVISION STATIONS, INC. 

Opinion of the Court 

policy has engendered serious reliance interests that must

be taken into account. Smiley v. Citibank (South Dakota), 

N. A., 517 U. S. 735, 742 (1996). It would be arbitrary or

capricious to ignore such matters. In such cases it is not 

that further justification is demanded by the mere fact of 

policy change; but that a reasoned explanation is needed 

for disregarding facts and circumstances that underlay or

were engendered by the prior policy.

In this appeal from the Second Circuit’s setting aside of 

Commission action for failure to comply with a procedural

requirement of the Administrative Procedure Act, the

broadcasters’ arguments have repeatedly referred to the 

First Amendment. If they mean to invite us to apply a

more stringent arbitrary-and-capricious review to agency

actions that implicate constitutional liberties, we reject

the invitation. The so-called canon of constitutional 

avoidance is an interpretive tool, counseling that ambiguous statutory language be construed to avoid serious

constitutional doubts. See Edward J. DeBartolo Corp. v. 

Florida Gulf Coast Building & Constr. Trades Council, 

485 U. S. 568, 575 (1988). We know of no precedent for 

applying it to limit the scope of authorized executive action. In the same section authorizing courts to set aside

“arbitrary [or] capricious” agency action, the Administrative Procedure Act separately provides for setting aside 

agency action that is “unlawful,” 5 U. S. C. §706(2)(A), 

which of course includes unconstitutional action. We 

think that is the only context in which constitutionality

bears upon judicial review of authorized agency action. If 

the Commission’s action here was not arbitrary or capricious in the ordinary sense, it satisfies the Administrative 

Procedure Act’s “arbitrary [or] capricious” standard; its

lawfulness under the Constitution is a separate question 

to be addressed in a constitutional challenge.3 

—————— 

3 JUSTICE BREYER claims that “[t]he Court has often applied [the doc­
Cite as: 556 U. S. ____ (2009) 13 

Opinion of the Court 

B. Application to This Case 

Judged under the above described standards, the Commission’s new enforcement policy and its order finding the

broadcasts actionably indecent were neither arbitrary nor 

capricious. First, the Commission forthrightly acknowledged that its recent actions have broken new ground, 

taking account of inconsistent “prior Commission and staff 

action” and explicitly disavowing them as “no longer good 

law.” Golden Globes Order, 19 FCC Rcd., at 4980, ¶12. To 

be sure, the (superfluous) explanation in its Remand 

Order of why the Cher broadcast would even have violated 

its earlier policy may not be entirely convincing. But that 

unnecessary detour is irrelevant. There is no doubt that 

the Commission knew it was making a change. That is 

why it declined to assess penalties; and it relied on the 

Golden Globes Order as removing any lingering doubt. 

Remand Order, 21 FCC Rcd., at 13308, ¶23, 13325, ¶61. 

Moreover, the agency’s reasons for expanding the scope 

of its enforcement activity were entirely rational. It was 

certainly reasonable to determine that it made no sense to 

—————— 

trine of constitutional avoidance] where an agency’s regulation relies on

a plausible but constitutionally suspect interpretation of a statute.” 

Post, at 21. The cases he cites, however, set aside an agency regulation

because, applying the doctrine of constitutional avoidance to the ambiguous statute under which the agency acted, the Court found the 

agency’s interpretation of the statute erroneous. See Solid Waste 

Agency of Northern Cook Cty. v. Army Corps of Engineers, 531 U. S. 

159, 174 (2001); NLRB v. Catholic Bishop of Chicago, 440 U. S. 490, 

507 (1979). But JUSTICE BREYER does not urge that we issue such a 

holding, evidently agreeing that we should limit our review to what the

Court of Appeals decided, see Part IV, infra—which included only the

adequacy of the Commission’s rulemaking procedure, and not the

statutory question. Rather, JUSTICE BREYER seeks a “remand [that]

would do no more than ask the agency to reconsider its policy decision 

in light of” constitutional concerns. Post, at 21. That strange and novel

disposition would be entirely unrelated to the doctrine of constitutional

avoidance, and would better be termed the doctrine of judicial armtwisting or appellate review by the wagged finger. 
14 FCC v. FOX TELEVISION STATIONS, INC. 

Opinion of the Court 

distinguish between literal and nonliteral uses of offensive 

words, requiring repetitive use to render only the latter

indecent. As the Commission said with regard to expletive 

use of the F-Word, “the word’s power to insult and offend

derives from its sexual meaning.” Id., at 13323, ¶58. And 

the Commission’s decision to look at the patent offensiveness of even isolated uses of sexual and excretory words

fits with the context-based approach we sanctioned in 

Pacifica, 438 U. S., at 750. Even isolated utterances can 

be made in “pander[ing,] . . . vulgar and shocking” manners, Remand Order, 21 FCC Rcd., at 13305, ¶17, and can

constitute harmful “‘first blow[s]’” to children, id., at 

13309, ¶25. It is surely rational (if not inescapable) to

believe that a safe harbor for single words would “likely

lead to more widespread use of the offensive language,” 

Golden Globes Order, supra, at 4979, ¶9. 

When confronting other requests for per se rules governing its enforcement of the indecency prohibition, the 

Commission has declined to create safe harbors for particular types of broadcasts. See In re Pacifica Foundation, 

Inc., 2 FCC Rcd., at 2699, ¶12 (repudiating the view that

the Commission’s enforcement power was limited to “deliberate, repetitive use of the seven words actually contained in the George Carlin monologue”); In re Infinity 

Broadcasting Corp. of Pa., 3 FCC Rcd., at 932, ¶17 (“reject[ing] an approach that would hold that if a work has

merit, it is per se not indecent”). The Commission could 

rationally decide it needed to step away from its old regime where nonrepetitive use of an expletive was per se

nonactionable because that was “at odds with the Commission’s overall enforcement policy.” Remand Order, 

supra, at 13308, ¶23. 

The fact that technological advances have made it easier 

for broadcasters to bleep out offending words further 

supports the Commission’s stepped-up enforcement policy. 

Golden Globes Order, supra, at 4980, ¶11. And the 
Cite as: 556 U. S. ____ (2009) 15 

Opinion of the Court 

agency’s decision not to impose any forfeiture or other

sanction precludes any argument that it is arbitrarily

punishing parties without notice of the potential consequences of their action. 

C. The Court of Appeals’ Reasoning 

The Court of Appeals found the Commission’s action 

arbitrary and capricious on three grounds. First, the court 

criticized the Commission for failing to explain why it had

not previously banned fleeting expletives as “harmful ‘first 

blow[s].’” 489 F. 3d, at 458. In the majority’s view, without “evidence that suggests a fleeting expletive is harmful

[and] . . . serious enough to warrant government regulation,” the agency could not regulate more broadly. Id., at 

461. As explained above, the fact that an agency had a

prior stance does not alone prevent it from changing its 

view or create a higher hurdle for doing so. And it is not 

the Commission, but Congress that has proscribed “any 

. . . indecent . . . language.” 18 U. S. C. §1464.

There are some propositions for which scant empirical 

evidence can be marshaled, and the harmful effect of 

broadcast profanity on children is one of them. One cannot demand a multiyear controlled study, in which some

children are intentionally exposed to indecent broadcasts 

(and insulated from all other indecency), and others are 

shielded from all indecency. It is one thing to set aside 

agency action under the Administrative Procedure Act

because of failure to adduce empirical data that can readily be obtained. See, e.g., State Farm, 463 U. S., at 46–56 

(addressing the costs and benefits of mandatory passive

restraints for automobiles). It is something else to insist 

upon obtaining the unobtainable. Here it suffices to know 

that children mimic the behavior they observe—or at least

the behavior that is presented to them as normal and 

appropriate. Programming replete with one-word indecent expletives will tend to produce children who use (at 
16 FCC v. FOX TELEVISION STATIONS, INC. 

Opinion of the Court 

least) one-word indecent expletives. Congress has made

the determination that indecent material is harmful to 

children, and has left enforcement of the ban to the Commission. If enforcement had to be supported by empirical 

data, the ban would effectively be a nullity.

The Commission had adduced no quantifiable measure 

of the harm caused by the language in Pacifica, and we 

nonetheless held that the “government’s interest in the

‘well-being of its youth’ . . . justified the regulation of 

otherwise protected expression.” 438 U. S., at 749 (quoting Ginsberg v. New York, 390 U. S. 629, 640, 639 (1968)). 

If the Constitution itself demands of agencies no more

scientifically certain criteria to comply with the First 

Amendment, neither does the Administrative Procedure 

Act to comply with the requirement of reasoned decisionmaking.

The court’s second objection is that fidelity to the

agency’s “first blow” theory of harm would require a categorical ban on all broadcasts of expletives; the Commission’s failure to go to this extreme thus undermined the 

coherence of its rationale. 489 F. 3d, at 458–459. This 

objection, however, is not responsive to the Commission’s 

actual policy under review—the decision to include patently offensive fleeting expletives within the definition of

indecency. The Commission’s prior enforcement practice,

unchallenged here, already drew distinctions between the 

offensiveness of particular words based upon the context

in which they appeared. Any complaint about the Commission’s failure to ban only some fleeting expletives is 

better directed at the agency’s context-based system generally rather than its inclusion of isolated expletives. 

More fundamentally, however, the agency’s decision to 

consider the patent offensiveness of isolated expletives on

a case-by-case basis is not arbitrary or capricious. “Even a 

prime-time recitation of Geoffrey Chaucer’s Miller’s Tale,” 

we have explained, “would not be likely to command the 
Cite as: 556 U. S. ____ (2009) 17 

Opinion of the Court 

attention of many children who are both old enough to

understand and young enough to be adversely affected.” 

Pacifica, supra, at 750, n. 29. The same rationale could 

support the Commission’s finding that a broadcast of the

film Saving Private Ryan was not indecent—a finding to 

which the broadcasters point as supposed evidence of the

Commission’s inconsistency. The frightening suspense

and the graphic violence in the movie could well dissuade

the most vulnerable from watching and would put parents 

on notice of potentially objectionable material. See In re 

Complaints Against Various Television Licensees Regarding Their Broadcast on Nov. 11, 2004 of the ABC Television Network’s Presentation of the Film “Saving Private 

Ryan,” 20 FCC Rcd. 4507, 4513, ¶15 (2005) (noting that

the broadcast was not “intended as family entertainment”). The agency’s decision to retain some discretion 

does not render arbitrary or capricious its regulation of 

the deliberate and shocking uses of offensive language at 

the award shows under review—shows that were expected 

to (and did) draw the attention of millions of children. 

Finally, the Court of Appeals found unconvincing the

agency’s prediction (without any evidence) that a per se

exemption for fleeting expletives would lead to increased 

use of expletives one at a time. 489 F. 3d, at 460. But 

even in the absence of evidence, the agency’s predictive

judgment (which merits deference) makes entire sense. To 

predict that complete immunity for fleeting expletives, 

ardently desired by broadcasters, will lead to a substantial

increase in fleeting expletives seems to us an exercise in

logic rather than clairvoyance. The Court of Appeals was 

perhaps correct that the Commission’s prior policy had not 

yet caused broadcasters to “barrag[e] the airwaves with

expletives,” ibid. That may have been because its prior 

permissive policy had been confirmed (save in dicta) only

at the staff level. In any event, as the Golden Globes order 

demonstrated, it did produce more expletives than the 
18 FCC v. FOX TELEVISION STATIONS, INC. 

Opinion of the Court 

Commission (which has the first call in this matter)

deemed in conformity with the statute. 

D. Respondents’ Arguments 

Respondents press some arguments that the court did 

not adopt. They claim that the Commission failed to

acknowledge its change in enforcement policy. That contention is not tenable in light of the Golden Globes Order’s 

specific declaration that its prior rulings were no longer 

good law, 19 FCC Rcd., at 4980, ¶12, and the Remand 

Order’s disavowal of those staff rulings and Commission

dicta as “seriously flawed,” 21 FCC Rcd., at 13308, ¶23.

The broadcasters also try to recharacterize the nature of

the Commission’s shift, contending that the old policy was

not actually a per se rule against liability for isolated 

expletives and that the new policy is a presumption of 

indecency for certain words. This description of the prior

agency policy conflicts with the broadcasters’ own prior 

position in this case. See, e.g., Brief in Opposition for 

Respondent Fox Television Stations, Inc., et al. 4 (“For

almost 30 years following Pacifica, the FCC did not consider fleeting, isolated or inadvertent expletives to be

indecent”). And we find no basis for the contention that 

the Commission has now adopted a presumption of indecency; its repeated reliance on context refutes this claim. 

The broadcasters also make much of the fact that the 

Commission has gone beyond the scope of authority approved in Pacifica, which it once regarded as the farthest 

extent of its power. But we have never held that Pacifica 

represented the outer limits of permissible regulation, so 

that fleeting expletives may not be forbidden. To the 

contrary, we explicitly left for another day whether “an

occasional expletive” in “a telecast of an Elizabethan

comedy” could be prohibited. 438 U. S., at 748. By using 

the narrowness of Pacifica’s holding to require empirical

evidence of harm before the Commission regulates more 
Opinion of the Court 

Cite as: 556 U. S. ____ (2009) 19 

Opinion of SCALIA, J. 

broadly, the broadcasters attempt to turn the sword of 

Pacifica, which allowed some regulation of broadcast 

indecency, into an administrative-law shield preventing 

any regulation beyond what Pacifica sanctioned. Nothing

prohibits federal agencies from moving in an incremental 

manner. Cf. National Cable & Telecommunications Assn. 

v. Brand X Internet Services, 545 U. S. 967, 1002 (2005).

Finally, the broadcasters claim that the Commission’s

repeated appeal to “context” is simply a smokescreen for a 

standardless regime of unbridled discretion. But we have 

previously approved Commission regulation based “on a 

nuisance rationale under which context is all-important,” 

Pacifica, supra, at 750, and we find no basis in the Administrative Procedure Act for mandating anything different. 

E. The Dissents’ Arguments 

JUSTICE BREYER purports to “begin with applicable law,” 

post, at 1, but in fact begins by stacking the deck. He 

claims that the FCC’s status as an “independent” agency 

sheltered from political oversight requires courts to be “all

the more” vigilant in ensuring “that major policy decisions

be based upon articulable reasons.” Post, at 1, 2. Not so. 

The independent agencies are sheltered not from politics

but from the President, and it has often been observed 

that their freedom from presidential oversight (and protection) has simply been replaced by increased subservience 

to congressional direction. See, e.g., In re Sealed Case, 838 

F. 2d 476, 507–508 (CADC) (Silberman, J.), rev’d sub nom. 

Morrison v. Olson, 487 U. S. 654 (1988); Kagan, Presidential Administration, 114 Harv. L. Rev. 2245, 2271, n. 93 

(2001); Calabresi & Prakash, The President’s Power to 

Execute the Laws, 104 Yale L. J. 541, 583 (1994); Easterbrook, The State of Madison’s Vision of the State: A Public 

Choice Perspective, 107 Harv. L. Rev. 1328, 1341 (1994).

Indeed, the precise policy change at issue here was 
Opinion of the Court 

20 FCC v. FOX TELEVISION STATIONS, INC. 

Opinion of SCALIA, J. 

spurred by significant political pressure from Congress.4 

—————— 

4A Subcommittee of the FCC’s House oversight Committee held hearings on the FCC’s broadcast indecency enforcement on January 28,

2004. “Can You Say That on TV?”: An Examination of the FCC’s 

Enforcement with respect to Broadcast Indecency, Hearing before the

Subcommittee on Telecommunications and the Internet of the House 

Committee on Energy and Commerce, 108th Cong., 2d Sess. Members 

of the Subcommittee specifically “called on the full Commission to

reverse [the staff ruling in the Golden Globes case]” because they

perceived a “feeling amongst many Americans that some broadcasters

are engaged in a race to the bottom, pushing the decency envelope to

distinguish themselves in the increasingly crowded entertainment 

field.” Id., at 2 (statement of Rep. Upton); see also, e.g., id., at 17 

(statement of Rep. Terry), 19 (statement of Rep. Pitts). They repeatedly 

expressed disapproval of the FCC’s enforcement policies, see, e.g., id., 

at 3 (statement of Rep. Upton) (“At some point we have to ask the FCC:

How much is enough? When will it revoke a license?”); id., at 4 (statement of Rep. Markey) (“Today’s hearing will allow us to explore the 

FCC’s lackluster enforcement record with respect to these violations”). 

About two weeks later, on February 11, 2004, the same Subcommittee held hearings on a bill increasing the fines for indecency violations. 

Hearings on H. R 3717 before the Subcommittee on Telecommunications and the Internet of the House Committee on Energy and Commerce, 108th Cong., 2d Sess. All five Commissioners were present and

were grilled about enforcement shortcomings. See, e.g., id., at 124 

(statement of Rep. Terry) (“Chairman Powell, . . . it seems like common

sense that if we had . . . more frequent enforcement instead of a few

examples of fines . . . that would be a deterrent in itself”); id., at 7 

(statement of Rep. Dingell) (“I see that apparently . . . there is no 

enforcement of regulations at the FCC”). Certain statements, moreover, indicate that the political pressure applied by Congress had its 

desired effect. See ibid. (“I think our committee’s work has gotten the

attention of FCC Chairman Powell and the Bush Administration. And 

I’m happy to see the FCC now being brought to a state of apparent alert 

on these matters”); see also id., at 124 (statement of Michael Copps,

FCC Commissioner) (noting “positive” change in other Commissioners’ 

willingness to step up enforcement in light of proposed congressional

action). A version of the bill ultimately became law as the Broadcast

Decency Enforcement Act of 2005, 120 Stat. 491. 

The FCC adopted the change that is the subject of this litigation on

March 3, 2004, about three weeks after this second hearing. See 

Golden Globes Order, 19 FCC Rcd. 4975. 
Opinion of the Court 

Cite as: 556 U. S. ____ (2009) 21 

Opinion of SCALIA, J. 

JUSTICE STEVENS apparently recognizes this political

control by Congress, and indeed sees it as the manifestation of a principal-agency relationship. In his judgment,

the FCC is “better viewed as an agent of Congress” than

as part of the Executive. Post, at 3 (dissenting opinion). 

He nonetheless argues that this is a good reason for requiring the FCC to explain “why its prior policy is no 

longer sound before allowing it to change course.” Post, at 

4. Leaving aside the unconstitutionality of a scheme

giving the power to enforce laws to agents of Congress, see 

Bowsher v. Synar, 478 U. S. 714, 726 (1986), it seems to us 

that JUSTICE STEVENS’ conclusion does not follow from his 

premise. If the FCC is indeed an agent of Congress, it 

would seem an adequate explanation of its change of 

position that Congress made clear its wishes for stricter

enforcement, see n. 4, supra.5 The Administrative Procedure Act, after all, does not apply to Congress and its

agencies.6 

—————— 

5 JUSTICE STEVENS accuses us of equating statements made in a congressional hearing with the intent of Congress. Post, at 4, n. 3. In this 

opinion, we do not. The intent of the full Congress (or at least a majority of each House) is thought relevant to the interpretation of statutes,

since they must be passed by the entire Congress. See U. S. Const., 

Art. I, §7. It is quite irrelevant, however, to the extrastatutory influence Congress exerts over agencies of the Executive Branch, which is 

exerted by the congressional committees responsible for oversight and

appropriations with respect to the relevant agency. That is a major

reason why committee assignments are important, and committee

chairmanships powerful. Surely JUSTICE STEVENS knows this. 6The Administrative Procedure Act defines “agency” to mean “each 

authority of the Government of the United States,” 5 U. S. C. §551(1),

but specifically excludes “the Congress,” §551(1)(A). The Court of 

Appeals for the District of Columbia Circuit has “interpreted [this]

exemption for ‘the Congress’ to mean the entire legislative branch,” 

Washington Legal Foundation v. United States Sentencing Comm’n, 17 

F. 3d 1446, 1449 (1994); see also Ethnic Employees of Library of Congress v. Boorstin, 751 F. 2d 1405, 1416, n. 15 (CADC 1985) (holding

that the Library of Congress is not an “agency” under the Act). 
Opinion of the Court 

22 FCC v. FOX TELEVISION STATIONS, INC. 

Opinion of SCALIA, J. 

Regardless, it is assuredly not “applicable law” that 

rulemaking by independent regulatory agencies is subject 

to heightened scrutiny. The Administrative Procedure 

Act, which provides judicial review, makes no distinction

between independent and other agencies, neither in its

definition of agency, 5 U. S. C. §701(b)(1), nor in the standards for reviewing agency action, §706. Nor does any

case of ours express or reflect the “heightened scrutiny”

JUSTICE BREYER and JUSTICE STEVENS would impose.

Indeed, it is hard to imagine any closer scrutiny than that

we have given to the Environmental Protection Agency,

which is not an independent agency. See Massachusetts v. 

EPA, 549 U. S. 497, 533–535 (2007); Whitman v. American 

Trucking Assns., Inc., 531 U. S. 457, 481–486 (2001).

There is no reason to magnify the separation-of-powers 

dilemma posed by the Headless Fourth Branch, see Freytag v. Commissioner, 501 U. S. 868, 921 (1991) (SCALIA, J., 

concurring in part and concurring in judgment), by letting 

Article III judges—like jackals stealing the lion’s kill—

expropriate some of the power that Congress has wrested 

from the unitary Executive.

JUSTICE BREYER and JUSTICE STEVENS rely upon two

supposed omissions in the FCC’s analysis that they believe

preclude a finding that the agency did not act arbitrarily.

Neither of these omissions could undermine the coherence 

of the rationale the agency gave, but the dissenters’ 

evaluation of each is flawed in its own right. 

First, both claim that the Commission failed adequately 

to explain its consideration of the constitutional issues 

inherent in its regulation, post, at 7–11 (opinion of 

BREYER, J.); post, at 4–7 (opinion of STEVENS, J.). We are 

unaware that we have ever before reversed an executive 

agency, not for violating our cases, but for failure to discuss them adequately. But leave that aside. According to 

JUSTICE BREYER, the agency said “next to nothing about

the relation between the change it made in its prior ‘fleet­
Opinion of the Court 

Cite as: 556 U. S. ____ (2009) 23 

Opinion of SCALIA, J. 

ing expletive’ policy and the First-Amendment-related 

need to avoid ‘censorship,’” post, at 7–8. The Remand 

Order does, however, devote four full pages of small-type, 

single-spaced text (over 1,300 words not counting the

footnotes) to explaining why the Commission believes that 

its indecency-enforcement regime (which includes its 

change in policy) is consistent with the First Amendment—and therefore not censorship as the term is understood. More specifically, JUSTICE BREYER faults the FCC 

for “not explain[ing] why the agency changed its mind 

about the line that Pacifica draws or its policy’s relation to 

that line,” post, at 10. But in fact (and as the Commission

explained) this Court’s holding in Pacifica, 438 U. S. 726, 

drew no constitutional line; to the contrary, it expressly

declined to express any view on the constitutionality of

prohibiting isolated indecency. JUSTICE BREYER and 

JUSTICE STEVENS evidently believe that when an agency 

has obtained this Court’s determination that a less restrictive rule is constitutional, its successors acquire some 

special burden to explain why a more restrictive rule is 

not unconstitutional. We know of no such principle.7

 Second, JUSTICE BREYER looks over the vast field of 

—————— 

7 JUSTICE STEVENS criticizes us for “assuming that Pacifica endorsed” 

the enforcement at issue here. Post, at 4. We do nothing of the sort.

We rely on the fact that certain aspects of the agency’s decision mirror 

the context-based approach Pacifica approved, supra, at 14, but that 

goes to our holding on administrative law, and says nothing about

constitutionality. JUSTICE STEVENS also argues that heightened deference should be due the FCC’s prior policy because the “FCC’s initial 

views . . . reflect the views of the Congress that delegated the Commission authority to flesh out details not fully defined in the enacting

statute.” Post, at 3. We do not believe that the dead hand of a departed

Congressional oversight Committee should constrain the discretion that

the text of a statute confers—but the point is in any event irrelevant in

this appeal, which concerns not whether the agency has exceeded its 

statutory mandate but whether the reasons for its actions are adequate. 
Opinion of the Court 

24 FCC v. FOX TELEVISION STATIONS, INC. 

Opinion of SCALIA, J. 

particular factual scenarios unaddressed by the FCC’s 35­

page Remand Order and finds one that is fatal: the plight

of the small local broadcaster who cannot afford the new 

technology that enables the screening of live broadcasts

for indecent utterances. Cf. post, at 11–16. The Commission has failed to address the fate of this unfortunate, who 

will, he believes, be subject to sanction. 

We doubt, to begin with, that small-town broadcasters

run a heightened risk of liability for indecent utterances. 

In programming that they originate, their down-home

local guests probably employ vulgarity less than big-city

folks; and small-town stations generally cannot afford or 

cannot attract foul-mouthed glitteratae from Hollywood. 

Their main exposure with regard to self-originated programming is live coverage of news and public affairs. But 

the Remand Order went out of its way to note that the 

case at hand did not involve “breaking news coverage,” 

and that “it may be inequitable to hold a licensee responsible for airing offensive speech during live coverage of a 

public event,” 21 FCC Rcd., at 13311, ¶33. As for the 

programming that small stations receive on a network 

“feed”: This will be cleansed by the expensive technology 

small stations (by JUSTICE BREYER’s hypothesis) cannot 

afford. 

But never mind the detail of whether small broadcasters 

are uniquely subject to a great risk of punishment for

fleeting expletives. The fundamental fallacy of JUSTICE 

BREYER’s small-broadcaster gloomyscenario is its demonstrably false assumption that the Remand Order makes no 

provision for the avoidance of unfairness—that the singleutterance prohibition will be invoked uniformly, in all

situations. The Remand Order made very clear that this 

is not the case. It said that in determining “what, if any,

remedy is appropriate” the Commission would consider 

the facts of each individual case, such as the “possibility of 

human error in using delay equipment,” id., at 13313, ¶35. 
Cite as: 556 U. S. ____ (2009) 25 

Opinion of the Court 

Thus, the fact that the agency believed that Fox (a large 

broadcaster that used suggestive scripting and a deficient 

delay system to air a prime-time awards show aimed at

millions of children) “fail[ed] to exercise ‘reasonable judgment, responsibility and sensitivity,’” id., at 13311, ¶33, 

and n. 91 (quoting Pacifica Foundation, Inc., 2 FCC Rcd., 

at 2700, ¶18), says little about how the Commission would 

treat smaller broadcasters who cannot afford screening 

equipment. Indeed, that they would not be punished for 

failing to purchase equipment they cannot afford is positively suggested by the Remand Order’s statement that 

“[h]olding Fox responsible for airing indecent material in 

this case does not . . . impose undue burdens on broadcasters.” 21 FCC Rcd., at 13313, ¶36. 

There was, in sum, no need for the Commission to compose a special treatise on local broadcasters.8 And 

JUSTICE BREYER can safely defer his concern for those 

yeomen of the airwaves until we have before us a case that 

involves one. 

IV. Constitutionality 

The Second Circuit did not definitively rule on the constitutionality of the Commission’s orders, but respondents 

nonetheless ask us to decide their validity under the First

Amendment. This Court, however, is one of final review, 

“not of first view.” Cutter v. Wilkinson, 544 U. S. 709, 718, 

n. 7 (2005). It is conceivable that the Commission’s orders 

may cause some broadcasters to avoid certain language 

that is beyond the Commission’s reach under the Consti­

—————— 

8 JUSTICE BREYER posits that the FCC would have been required to 

give more explanation had it used notice-and-comment rulemaking, 

which “should lead us to the same conclusion” in this review of the 

agency’s change through adjudication. Post, at 17. Even assuming the

premise, there is no basis for incorporating all of the Administrative

Procedure Act’s notice-and-comment procedural requirements into 

arbitrary-and-capricious review of adjudicatory decisions. Cf. Vermont 

Yankee, 435 U. S., at 545–549. 
26 FCC v. FOX TELEVISION STATIONS, INC. 

Opinion of the Court 

tution. Whether that is so, and, if so, whether it is unconstitutional, will be determined soon enough, perhaps in

this very case. Meanwhile, any chilled references to excretory and sexual material “surely lie at the periphery of

First Amendment concern,” Pacifica, 438 U. S., at 743 

(plurality opinion of STEVENS, J.). We see no reason to 

abandon our usual procedures in a rush to judgment

without a lower court opinion. We decline to address the 

constitutional questions at this time. 

* * * 

The Second Circuit believed that children today “likely

hear this language far more often from other sources than

they did in the 1970’s when the Commission first began 

sanctioning indecent speech,” and that this cuts against 

more stringent regulation of broadcasts. 489 F. 3d, at 461. 

Assuming the premise is true (for this point the Second

Circuit did not demand empirical evidence) the conclusion

does not necessarily follow. The Commission could reasonably conclude that the pervasiveness of foul language,

and the coarsening of public entertainment in other media

such as cable, justify more stringent regulation of broadcast programs so as to give conscientious parents a relatively safe haven for their children. In the end, the Second 

Circuit and the broadcasters quibble with the Commission’s policy choices and not with the explanation it has

given. We decline to “substitute [our] judgment for that of

the agency,” State Farm, 463 U. S., at 43, and we find the 

Commission’s orders neither arbitrary nor capricious. 

The judgment of the United States Court of Appeals for 

the Second Circuit is reversed, and the case is remanded 

for further proceedings consistent with this opinion. 

It is so ordered. 
_________________ 

_________________ 

Cite as: 556 U. S. ____ (2009) 1 

THOMAS, J., concurring 

SUPREME COURT OF THE UNITED STATES 

No. 07–582 

FEDERAL COMMUNICATIONS COMMISSION, ET AL., 

PETITIONERS v. FOX TELEVISION STATIONS, 

INC., ET AL. 

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE SECOND CIRCUIT

[April 28, 2009] 

JUSTICE THOMAS, concurring. 

I join the Court’s opinion, which, as a matter of administrative law, correctly upholds the Federal Communications Commission’s (FCC) policy with respect to indecent

broadcast speech under the Administrative Procedure Act. 

I write separately, however, to note the questionable 

viability of the two precedents that support the FCC’s

assertion of constitutional authority to regulate the programming at issue in this case. See Red Lion Broadcasting Co. v. FCC, 395 U. S. 367 (1969); FCC v. Pacifica 

Foundation, 438 U. S. 726 (1978). Red Lion and Pacifica 

were unconvincing when they were issued, and the passage of time has only increased doubt regarding their

continued validity. “The text of the First Amendment 

makes no distinctions among print, broadcast, and cable 

media, but we have done so” in these cases. Denver Area 

Ed. Telecommunications Consortium, Inc. v. FCC, 518 

U. S. 727, 812 (1996) (THOMAS, J., concurring in judgment

in part and dissenting in part). 

In Red Lion, this Court upheld the so-called “fairness

doctrine,” a Government requirement “that discussion of

public issues be presented on broadcast stations, and that 

each side of those issues must be given fair coverage.” 395 

U. S., at 369, 400–401. The decision relied heavily on the 
2 FCC v. FOX TELEVISION STATIONS, INC. 

THOMAS, J., concurring 

scarcity of available broadcast frequencies. According to

the Court, because broadcast spectrum was so scarce, it

“could be regulated and rationalized only by the Government. Without government control, the medium would be 

of little use because of the cacophony of competing voices, 

none of which could be clearly and predictably heard.” Id., 

at 376. To this end, the Court concluded that the Government should be “permitted to put restraints on licensees in favor of others whose views should be expressed on 

this unique medium.” Id., at 390; see also id., at 389 

(concluding that “as far as the First Amendment is concerned those who are licensed stand no better than those 

to whom licenses are refused”). Applying this principle, 

the Court held that “[i]t does not violate the First 

Amendment to treat licensees given the privilege of using 

scarce radio frequencies as proxies for the entire community, obligated to give suitable time and attention to matters of great public concern.” Id., at 394. 

Red Lion specifically declined to answer whether the

First Amendment authorized the Government’s “refusal to 

permit the broadcaster to carry a particular program or to

publish his own views[,] . . . [or] government censorship of 

a particular program,” id., at 396. But then in Pacifica, 

this Court rejected a challenge to the FCC’s authority to

impose sanctions on the broadcast of indecent material.

See 438 U. S., at 729–730, 750–751; id., at 742 (plurality

opinion), relying on Red Lion, the Court noted that “broadcasting . . . has received the most limited First Amendment protection.” 438 U. S., at 748. The Court also emphasized the “uniquely pervasive presence” of the 

broadcast media in Americans’ lives and the fact that 

broadcast programming was “uniquely accessible to children.” Id., at 748–749. 

This deep intrusion into the First Amendment rights of

broadcasters, which the Court has justified based only on 

the nature of the medium, is problematic on two levels. 
Cite as: 556 U. S. ____ (2009) 3 

THOMAS, J., concurring 

First, instead of looking to first principles to evaluate the 

constitutional question, the Court relied on a set of transitory facts, e.g., the “scarcity of radio frequencies,” Red 

Lion, supra, at 390, to determine the applicable First 

Amendment standard. But the original meaning of the

Constitution cannot turn on modern necessity: “Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether 

or not future legislatures or (yes) even future judges think 

that scope too broad.” District of Columbia v. Heller, 554 

U. S. ___, ___ (2008) (slip op., at 63). In breaching this

principle, Red Lion adopted, and Pacifica reaffirmed, a 

legal rule that lacks any textual basis in the Constitution. 

Denver Area, supra, at 813 (THOMAS, J., concurring in

judgment in part and dissenting in part) (“First Amendment distinctions between media [have been] dubious from 

their infancy”). Indeed, the logical weakness of Red Lion 

and Pacifica has been apparent for some time: “It is certainly true that broadcast frequencies are scarce but it is 

unclear why that fact justifies content regulation of broadcasting in a way that would be intolerable if applied to the 

editorial process of the print media.” Telecommunications 

Research & Action Center v. FCC, 801 F. 2d 501, 508 

(CADC 1986) (Bork, J.). 

Highlighting the doctrinal incoherence of Red Lion and 

Pacifica, the Court has declined to apply the lesser standard of First Amendment scrutiny imposed on broadcast

speech to federal regulation of telephone dial-in services, 

see Sable Communications of Cal., Inc. v. FCC, 492 U. S. 

115, 127–128 (1989), cable television programming, see 

Turner Broadcasting System, Inc. v. FCC, 512 U. S. 622, 

637 (1994), and the Internet, see Reno v. American Civil 

Liberties Union, 521 U. S. 844, 867–868 (1997). “There is 

no justification for this apparent dichotomy in First 

Amendment jurisprudence. Whatever the merits of 

Pacifica when it was issued[,] . . . it makes no sense now.” 
4 FCC v. FOX TELEVISION STATIONS, INC. 

THOMAS, J., concurring 

Action for Children’s Television v. FCC, 58 F. 3d 654, 673 

(CADC 1995) (Edwards, C. J., dissenting). The justifications relied on by the Court in Red Lion and Pacifica— 

“spectrum scarcity, intrusiveness, and accessibility to 

children—neither distinguish broadcast from cable, nor 

explain the relaxed application of the principles of the

First Amendment to broadcast.” 58 F. 3d, at 673; see also 

In re Industry Guidance on Commission’s Case Law Interpreting 18 U. S. C. §1464 and Enforcement Policies Regarding Broadcast Indecency, 16 FCC Rcd. 7999, 8021, 

n. 11 (2001) (statement of Commissioner Furchtgott-Roth) 

(“It is ironic that streaming video or audio content from a 

television or radio station would likely receive more constitutional protection, see Reno [v. American Civil Liberties 

Union, 521 U. S. 844 (1997)], than would the same exact 

content broadcast over-the-air”). 

Second, even if this Court’s disfavored treatment of 

broadcasters under the First Amendment could have been 

justified at the time of Red Lion and Pacifica, dramatic 

technological advances have eviscerated the factual assumptions underlying those decisions. Broadcast spectrum is significantly less scarce than it was 40 years ago.

See Brief for Respondents NBC Universal et al. 37–38

(hereinafter NBC Brief). As NBC notes, the number of 

over-the-air broadcast stations grew from 7,411 in 1969,

when Red Lion was issued, to 15,273 by the end of 2004.

See NBC Brief 38; see also FCC Media Bureau Staff Research Paper, J. Berresford, The Scarcity Rationale for

Regulating Traditional Broadcasting: An Idea Whose Time

Has Passed 12–13 (Mar. 2005) (No. 2005–2). And the 

trend should continue with broadcast television’s imminent switch from analog to digital transmission, which

will allow the FCC to “stack broadcast channels right

beside one another along the spectrum, and ultimately

utilize significantly less than the 400 MHz of spectrum the 

analog system absorbs today.” Consumer Electronics 
Cite as: 556 U. S. ____ (2009) 5 

THOMAS, J., concurring 

Assn. v. FCC, 347 F. 3d 291, 294 (CADC 2003).

Moreover, traditional broadcast television and radio are 

no longer the “uniquely pervasive” media forms they once 

were. For most consumers, traditional broadcast media 

programming is now bundled with cable or satellite services. See App. to Pet. for Cert. 107a. Broadcast and 

other video programming is also widely available over the 

Internet. See Stelter, Serving Up Television Without the 

TV Set, N. Y. Times, Mar. 10, 2008, p. C1. And like radio 

and television broadcasts, Internet access is now often 

freely available over the airwaves and can be accessed by 

portable computer, cell phones, and other wireless devices.

See May, Charting a New Constitutional Jurisprudence

for the Digital Age, 3 Charleston L. Rev. 373, 375 (2009).

The extant facts that drove this Court to subject broadcasters to unique disfavor under the First Amendment 

simply do not exist today. See In re Industry Guidance, 

supra, at 8020 (statement of Commissioner FurchtgottRoth) (“If rules regulating broadcast content were ever a 

justifiable infringement of speech, it was because of the 

relative dominance of that medium in the communications 

marketplace of the past. As the Commission has long

recognized, the facts underlying this justification are no 

longer true” (footnote omitted)).* 

These dramatic changes in factual circumstances might 

well support a departure from precedent under the prevailing approach to stare decisis. See Planned Parenthood 

of Southeastern Pa. v. Casey, 505 U. S. 833, 855 (1992) 

(asking “whether facts have so changed, or come to be seen 

—————— 

*With respect to reliance by FCC v. Pacifica Foundation, 438 U. S. 

726 (1978), on the ease with which children could be exposed to indecent television programming, technology has provided innovative 

solutions to assist adults in screening their children from unsuitable 

programming—even when that programming appears on broadcast 

channels. See NBC Brief 43–47 (discussing V-chip technology, which 

allows targeted blocking of television programs based on content). 
6 FCC v. FOX TELEVISION STATIONS, INC. 

THOMAS, J., concurring 

so differently, as to have robbed the old rule of significant 

application or justification”); see also American Trucking 

Assns., Inc. v. Scheiner, 483 U. S. 266, 302 (1987) 

(O’Connor, J., dissenting) (“Significantly changed circumstances can make an older rule, defensible when formulated, inappropriate . . .”). “In cases involving constitutional issues” that turn on a particular set of factual

assumptions, “this Court must, in order to reach sound 

conclusions, feel free to bring its opinions into agreement 

with experience and with facts newly ascertained.” Burnet 

v. Coronado Oil & Gas Co., 285 U. S. 393, 412 (1932) 

(Brandeis, J., dissenting). For all these reasons, I am open 

to reconsideration of Red Lion and Pacifica in the proper 

case. 
_________________ 

_________________ 

Cite as: 556 U. S. ____ (2009) 1 

Opinion of KENNEDY, J. 

SUPREME COURT OF THE UNITED STATES 

No. 07–582 

FEDERAL COMMUNICATIONS COMMISSION, ET AL., 

PETITIONERS v. FOX TELEVISION STATIONS, 

INC., ET AL. 

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE SECOND CIRCUIT

[April 28, 2009] 

JUSTICE KENNEDY, concurring in part and concurring in 

the judgment. 

I join Parts I, II, III–A through III–D, and IV of the

opinion of the Court and agree that the judgment must be 

reversed. This separate writing is to underscore certain

background principles for the conclusion that an agency’s

decision to change course may be arbitrary and capricious 

if the agency sets a new course that reverses an earlier

determination but does not provide a reasoned explanation for doing so. In those circumstances I agree with the 

dissenting opinion of JUSTICE BREYER that the agency

must explain why “it now reject[s] the considerations that 

led it to adopt that initial policy.” Post, at 5. 

The question whether a change in policy requires an 

agency to provide a more-reasoned explanation than when 

the original policy was first announced is not susceptible,

in my view, to an answer that applies in all cases. There 

may be instances when it becomes apparent to an agency 

that the reasons for a longstanding policy have been altered by discoveries in science, advances in technology, or

by any of the other forces at work in a dynamic society. If 

an agency seeks to respond to new circumstances by modifying its earlier policy, the agency may have a substantial

body of data and experience that can shape and inform the 
2 FCC v. FOX TELEVISION STATIONS, INC. 

Opinion of KENNEDY, J. 

new rule. In other cases the altered circumstances may be

so new that the agency must make predictive judgments

that are as difficult now as when the agency’s earlier 

policy was first announced. Reliance interests in the prior 

policy may also have weight in the analysis. 

The question in each case is whether the agency’s reasons for the change, when viewed in light of the data

available to it, and when informed by the experience and 

expertise of the agency, suffice to demonstrate that the 

new policy rests upon principles that are rational, neutral,

and in accord with the agency’s proper understanding of

its authority. That showing may be required if the agency 

is to demonstrate that its action is not “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U. S. C. §706(2)(A). And, of course, the 

agency action must not be “in excess of statutory jurisdiction, authority, or limitations, or short of statutory right.” 

§706(2)(C).

These requirements stem from the administrative 

agency’s unique constitutional position. The dynamics of 

the three branches of Government are well understood as 

a general matter. But the role and position of the agency, 

and the exact locus of its powers, present questions that 

are delicate, subtle, and complex. The Federal Government could not perform its duties in a responsible and

effective way without administrative agencies. Yet the 

amorphous character of the administrative agency in the 

constitutional system escapes simple explanation.

If agencies were permitted unbridled discretion, their 

actions might violate important constitutional principles 

of separation of powers and checks and balances. To that 

end the Constitution requires that Congress’ delegation of 

lawmaking power to an agency must be “specific and 

detailed.” Mistretta v. United States, 488 U. S. 361, 374 

(1989). Congress must “clearly delineat[e] the general 

policy” an agency is to achieve and must specify the 
Cite as: 556 U. S. ____ (2009) 3 

Opinion of KENNEDY, J. 

“boundaries of [the] delegated authority.” Id., at 372–373. 

Congress must “‘lay down by legislative act an intelligible

principle,’” and the agency must follow it. Id., at 372 

(quoting J. W. Hampton, Jr., & Co. v. United States, 276 

U. S. 394, 409 (1928)).

Congress passed the Administrative Procedure Act 

(APA) to ensure that agencies follow constraints even as

they exercise their powers. One of these constraints is the 

duty of agencies to find and formulate policies that can be 

justified by neutral principles and a reasoned explanation.

To achieve that end, Congress confined agencies’ discretion and subjected their decisions to judicial review. See 

R. Stewart & C. Sunstein, Public Programs and Private 

Rights, 95 Harv. L. Rev. 1193, 1248 (1982) (the APA was a

“working compromise, in which broad delegations of discretion were tolerated as long as they were checked by

extensive procedural safeguards”). If an agency takes

action not based on neutral and rational principles, the

APA grants federal courts power to set aside the agency’s

action as “arbitrary” or “capricious.” 5 U. S. C. §706(2)(A); 

Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U. S. 

402, 416 (1971). For these reasons, agencies under the

APA are subject to a “searching and careful” review by the 

courts. Ibid. 

Where there is a policy change the record may be much 

more developed because the agency based its prior policy 

on factual findings. In that instance, an agency’s decision 

to change course may be arbitrary and capricious if the

agency ignores or countermands its earlier factual findings without reasoned explanation for doing so. An agency 

cannot simply disregard contrary or inconvenient factual 

determinations that it made in the past, any more than it

can ignore inconvenient facts when it writes on a blank 

slate. 

This is the principle followed in the Court’s opinion in 

Motor Vehicle Mfrs. Assn. of United States, Inc. v. State 
4 FCC v. FOX TELEVISION STATIONS, INC. 

Opinion of KENNEDY, J. 

Farm Mut. Automobile Ins. Co., 463 U. S. 29 (1983).

There, Congress directed the agency to issue regulations 

that would “‘meet the need for motor vehicle safety.’” Id., 

at 33. The agency promulgated a regulation requiring 

cars to have passive-restraint systems—either airbags or

automatic seatbelts. Id., at 37. The agency based this

regulation on its factual finding that these systems save

lives. Id., at 35. 

Following a change in Presidential administration, 

however, the agency reversed course and rescinded the 

regulation. In doing so, the agency did not address its

prior finding that airbags save lives. Id., at 47–48. Indeed, “[n]ot one sentence” of the agency’s “rulemaking 

statement” in support of rescinding the regulation discussed the benefits of airbags. Id., at 48. This Court 

found the agency’s rescission arbitrary and capricious

because the agency did not address its prior factual findings. See id., at 49–51. 

The present case does not raise the concerns addressed 

in State Farm. Rather than base its prior policy on its

knowledge of the broadcast industry and its audience, the

FCC instead based its policy on what it considered to be

our holding in FCC v. Pacifica Foundation, 438 U. S. 726 

(1978). See In re Application of WGBH Educ. Foundation, 

69 F. C. C. 2d 1250, 1254, ¶10 (1978) (“We intend strictly 

to observe the narrowness of the Pacifica holding”). The 

FCC did not base its prior policy on factual findings. 

The FCC’s Remand Order explains that the agency has

changed its reading of Pacifica. The reasons the agency 

announces for this change are not so precise, detailed, or 

elaborate as to be a model for agency explanation. But, as 

the opinion for the Court well explains, the FCC’s reasons 

for its action were the sort of reasons an agency may

consider and act upon. The Court’s careful and complete 

analysis—both with respect to the procedural history of

the FCC’s indecency policies, and the reasons the agency 
Cite as: 556 U. S. ____ (2009) 5 

Opinion of KENNEDY, J. 

has given to support them—is quite sufficient to sustain

the FCC’s change of course against respondents’ claim 

that the agency acted in an arbitrary or capricious fashion. 

The holding of the Court of Appeals turned on its conclusion that the agency’s explanation for its change of 

policy was insufficient, and that is the only question presented here. I agree with the Court that as this case 

comes to us from the Court of Appeals we must reserve 

judgment on the question whether the agency’s action is

consistent with the guarantees of the Constitution. 
_________________ 

_________________ 

Cite as: 556 U. S. ____ (2009) 1 

STEVENS, J., dissenting 

SUPREME COURT OF THE UNITED STATES 

No. 07–582 

FEDERAL COMMUNICATIONS COMMISSION, ET AL., 

PETITIONERS v. FOX TELEVISION STATIONS, 

INC., ET AL. 

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE SECOND CIRCUIT

[April 28, 2009] 

JUSTICE STEVENS, dissenting. 

While I join JUSTICE BREYER’s cogent dissent, I think it 

important to emphasize two flaws in the Court’s reasoning. Apparently assuming that the Federal Communications Commission’s (FCC or Commission) rulemaking 

authority is a species of executive power, the Court espouses the novel proposition that the Commission need 

not explain its decision to discard a longstanding rule in

favor of a dramatically different approach to regulation.

See ante, at 10–11. Moreover, the Court incorrectly assumes that our decision in FCC v. Pacifica Foundation, 

438 U. S. 726 (1978), decided that the word “indecent,” as

used in 18 U. S. C. §1464,1 permits the FCC to punish the

broadcast of any expletive that has a sexual or excretory 

origin. Pacifica was not so sweeping, and the Commission’s changed view of its statutory mandate certainly 

would have been rejected if presented to the Court at the 

time. 

I 

“The structure of our Government as conceived by the 

—————— 

1Section 1464 provides: “Whoever utters any obscene, indecent, or

profane language by means of radio communication shall be fined 

under this title or imprisoned not more than two years, or both.” 
2 FCC v. FOX TELEVISION STATIONS, INC. 

STEVENS, J., dissenting 

Framers of our Constitution disperses the federal power

among the three branches—the Legislative, the Executive,

and the Judicial—placing both substantive and procedural

limitations on each.” Metropolitan Washington Airports 

Authority v. Citizens for Abatement of Aircraft Noise, Inc., 

501 U. S. 252, 272 (1991). The distinction among the

branches is not always sharp, see Bowsher v. Synar, 478 

U. S. 714, 749 (1986) (STEVENS, J., concurring in judgment) (citing cases), a consequence of the fact that the 

“great ordinances of the Constitution do not establish and 

divide fields of black and white,” Springer v. Philippine 

Islands, 277 U. S. 189, 209 (1928) (Holmes, J., dissenting).

Strict lines of authority are particularly elusive when 

Congress and the President both exert a measure of control over an agency. As a landmark decision involving the

Federal Trade Commission (FTC) made clear, however, 

when Congress grants rulemaking and adjudicative authority to an expert agency composed of commissioners 

selected through a bipartisan procedure and appointed for 

fixed terms, it substantially insulates the agency from

executive control. See Humphrey’s Executor v. United 

States, 295 U. S. 602, 623–628 (1935). 

With the view that broadcast regulation “should be as

free from political influence or arbitrary control as possible,” S. Rep. No. 772, 69th Cong., 1st Sess., 2 (1926), Congress established the FCC with the same measure of 

independence from the Executive that it had provided the 

FTC. Just as the FCC’s commissioners do not serve at the 

will of the President, see 47 U. S. C. §154(c) (2000 ed.), its 

regulations are not subject to change at the President’s

will. And when the Commission fashions rules that govern the airwaves, it exercises legislative power delegated 

to it by Congress. See Whitman v. American Trucking 

Assns., Inc., 531 U. S. 457, 489–490 (2001) (STEVENS, J., 

concurring in part and concurring in judgment); Bowsher, 

478 U. S., at 752 (opinion of STEVENS, J.). Consequently, 
Cite as: 556 U. S. ____ (2009) 3 

STEVENS, J., dissenting 

the FCC “cannot in any proper sense be characterized as

an arm or an eye of the executive” and is better viewed as

an agent of Congress established “to carry into effect

legislative policies embodied in the statute in accordance

with the legislative standard therein prescribed, and to

perform other specified duties as a legislative . . . aid.” 

Humphrey’s Executor, 295 U. S., at 628.2 

The FCC, like all agencies, may revise its regulations 

from time to time, just as Congress amends its statutes as 

circumstances warrant. But the FCC is constrained by its 

congressional mandate. There should be a strong presumption that the FCC’s initial views, reflecting the informed judgment of independent commissioners with 

expertise in the regulated area, also reflect the views of 

the Congress that delegated the Commission authority to

flesh out details not fully defined in the enacting statute.

The rules adopted after Pacifica, 438 U. S. 726, have been 

in effect for decades and have not proved unworkable in 

the intervening years. As JUSTICE BREYER’s opinion

explains, broadcasters have a substantial interest in 

regulatory stability; the threat of crippling financial penalties looms large over these entities. See post, at 10–14. 

The FCC’s shifting and impermissibly vague indecency 

—————— 

2 JUSTICE SCALIA erroneously concludes that treating the FCC’s rulemaking authority as an exercise of legislative power would somehow be

unconstitutional. See ante, at 21 (citing Bowsher v. Synar, 478 U. S. 

714, 726 (1986)). But that is the nature of rulemaking: Rules promulgated by agencies (independent or not) carry the force of law precisely

because they are exercises of such legislative authority. This may

offend JUSTICE SCALIA’s theory of the “unitary Executive,” ante, at 22, 

but it does not offend the Constitution. Indeed, “the Framers vested 

‘All legislative Powers’ in the Congress, Art. I, §1, just as in Article II 

they vested the ‘executive Power’ in the President, Art. II, §1. Those 

provisions do not purport to limit the authority of either recipient of 

power to delegate authority to others.” Whitman v. American Trucking 

Assns., Inc., 531 U. S. 457, 489 (2001) (STEVENS, J., concurring in part 

and concurring in judgment). 
4 FCC v. FOX TELEVISION STATIONS, INC. 

STEVENS, J., dissenting 

policy only imperils these broadcasters and muddles the

regulatory landscape. It therefore makes eminent sense to 

require the Commission to justify why its prior policy is no 

longer sound before allowing it to change course.3 The 

FCC’s congressional charter, 47 U. S. C. §151 et seq., the 

Administrative Procedure Act, 5 U. S. C. §706(2)(A) (2006 

ed.) (instructing courts to “hold unlawful and set aside . . . 

arbitrary [or] capricious” agency action), and the rule of 

law all favor stability over administrative whim. 

II 

The Court commits a second critical error by assuming 

that Pacifica endorsed a construction of the term “indecent,” as used in 18 U. S. C. §1464, that would include any 

expletive that has a sexual or excretory origin. Neither 

the opinion of the Court, nor Justice Powell’s concurring

opinion, adopted such a far-reaching interpretation. Our 

holding was narrow in two critical respects. First, we 

concluded, over the dissent of four Justices, that the statutory term “indecent” was not limited to material that had 

prurient appeal and instead included material that was in

“nonconformance with accepted standards of morality.” 

Pacifica, 438 U. S., at 740. Second, we upheld the FCC’s

adjudication that a 12-minute, expletive-filled monologue 

—————— 

3 It appears that JUSTICE SCALIA has come to the view that isolated 

statements by members of a congressional oversight subcommittee are

sufficient evidence of Congress’ intent. See ante, at 20, n. 4. Delving 

into the details of how various lawmakers “grilled” the full slate of FCC

Commissioners, JUSTICE SCALIA concludes, quite remarkably, that this 

encounter “made clear [Congress’] wishes for stricter enforcement” and

“would seem an adequate explanation of [the FCC’s] change of position.” Ante, at 21. Putting to the side the question whether congressional outrage is the kind of evidence sufficient to explain the Commission’s decision to adopt a thinly-reasoned and unconstitutional policy, 

JUSTICE SCALIA’s treatment of these proceedings as evidencing the 

intent of Congress would make even the most ardent student of legislative history blush. 
Cite as: 556 U. S. ____ (2009) 5 

STEVENS, J., dissenting 

by satiric humorist George Carlin was indecent “as broadcast.” Id., at 735. We did not decide whether an isolated 

expletive could qualify as indecent. Id., at 750; id., at 

760–761 (Powell, J., concurring in part and concurring in

judgment). And we certainly did not hold that any word 

with a sexual or scatological origin, however used, was

indecent. 

The narrow treatment of the term “indecent” in Pacifica 

defined the outer boundaries of the enforcement policies 

adopted by the FCC in the ensuing years. The Commission originally explained that “under the legal standards

set forth in Pacifica, deliberate and repetitive use [of 

expletives] in a patently offensive manner is a requisite to

a finding of indecency.” In re Pacifica Foundation, 2 FCC 

Rcd. 2698, 2699, ¶13 (1987). While the “repetitive use”

issue has received the most attention in this case, it 

should not be forgotten that Pacifica permitted the Commission to regulate only those words that describe sex or 

excrement. See 438 U. S., at 743 (plurality opinion)

(“[T]he Commission’s definition of indecency will deter 

only the broadcasting of patently offensive references to 

excretory and sexual organs and activities” (emphasis 

added)). The FCC minimizes the strength of this limitation by now claiming that any use of the words at issue in

this case, in any context and in any form, necessarily 

describes sex or excrement. See In re Complaints Regarding Various Television Broadcasts Between February 2, 

2002 and March 8, 2005, 21 FCC Rcd. 13299, 13308, ¶23 

(2006) (Remand Order) (“[A]ny strict dichotomy between 

expletives and descriptions or depictions of sexual or 

excretory functions is artificial and does not make sense in 

light of the fact that an expletive’s power to offend derives

from its sexual or excretory meaning” (internal quotation

marks omitted)). The customs of speech refute this claim: 

There is a critical distinction between the use of an expletive to describe a sexual or excretory function and the use 
6 FCC v. FOX TELEVISION STATIONS, INC. 

STEVENS, J., dissenting 

of such a word for an entirely different purpose, such as to

express an emotion. One rests at the core of indecency; 

the other stands miles apart. As any golfer who has

watched his partner shank a short approach knows, it 

would be absurd to accept the suggestion that the resultant four-letter word uttered on the golf course describes 

sex or excrement and is therefore indecent. But that is the 

absurdity the FCC has embraced in its new approach to 

indecency.4 See In re Complaints Against Various Broadcast Licensees Regarding Their Airing of the “Golden Globe 

Awards” Program, 19 FCC Rcd. 4975, 4978–4979, ¶¶8–9

(2004) (declaring that even the use of an expletive to 

emphasize happiness “invariably invokes a coarse sexual 

image”).

Even if the words that concern the Court in this case 

sometimes retain their sexual or excretory meaning, there 

are surely countless instances in which they are used in a

manner unrelated to their origin. These words may not be

polite, but that does not mean they are necessarily “indecent” under §1464. By improperly equating the two, the

Commission has adopted an interpretation of “indecency”

that bears no resemblance to what Pacifica contemplated.5 

Most distressingly, the Commission appears to be entirely

unaware of this fact, see Remand Order, 21 FCC Rcd., at 

13308 (erroneously referencing Pacifica in support of its

new policy), and today’s majority seems untroubled by this

significant oversight, see ante, at 4–5, 13–14. Because the 

—————— 

4 It is ironic, to say the least, that while the FCC patrols the airwaves 

for words that have a tenuous relationship with sex or excrement, 

commercials broadcast during prime-time hours frequently ask viewers 

whether they too are battling erectile dysfunction or are having trouble 

going to the bathroom. 5While JUSTICE THOMAS and I disagree about the continued wisdom

of Pacifica, see ante, p. 1 (concurring opinion), the changes in technology and the availability of broadcast spectrum he identifies certainly

counsel a restrained approach to indecency regulation, not the wildly 

expansive path the FCC has chosen. 
Cite as: 556 U. S. ____ (2009) 7 

STEVENS, J., dissenting 

FCC has failed to demonstrate an awareness that it has 

ventured far beyond Pacifica’s reading of §1464, its policy 

choice must be declared arbitrary and set aside as unlawful. See Citizens to Preserve Overton Park, Inc. v. Volpe,

401 U. S. 402, 416 (1971). 

III 

For these reasons and those stated in JUSTICE BREYER’s 

dissenting opinion, I would affirm the judgment of the 

Court of Appeals. 
_________________ 

_________________ 

Cite as: 556 U. S. ____ (2009) 1 

GINSBURG, J., dissenting 

SUPREME COURT OF THE UNITED STATES 

No. 07–582 

FEDERAL COMMUNICATIONS COMMISSION, ET AL., 

PETITIONERS v. FOX TELEVISION STATIONS, 

INC., ET AL. 

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE SECOND CIRCUIT

[April 28, 2009] 

JUSTICE GINSBURG, dissenting. 

The mainspring of this case is a Government restriction 

on spoken words. This appeal, I recognize, arises under 

the Administrative Procedure Act.* JUSTICE BREYER’s 

dissenting opinion, which I join, cogently describes the

infirmities of the Federal Communications Commission’s 

(FCC or Commission) policy switch under that Act. The 

Commission’s bold stride beyond the bounds of FCC v. 

Pacifica Foundation, 438 U. S. 726 (1978), I agree, exemplified “arbitrary” and “capricious” decisionmaking. I 

write separately only to note that there is no way to hide

the long shadow the First Amendment casts over what the 

Commission has done. Today’s decision does nothing to 

diminish that shadow. 

More than 30 years ago, a sharply divided Court allowed 

the FCC to sanction a midafternoon radio broadcast of 

comedian George Carlin’s 12-minute “Filthy Words” mono-

—————— 

*The Second Circuit, presented with both constitutional and statutory challenges, vacated the remand order on APA grounds. The court 

therefore “refrain[ed] from deciding” the “constitutional questions.” 489 

F. 3d 444, 462 (2007) (quoting Lyng v. Northwest Indian Cemetery 

Protective Assn., 485 U. S. 439, 445 (1988)). The majority, however,

stated and explained why it was “skeptical” that the Commission’s 

policy could “pass constitutional muster.” 489 F. 3d, at 462. 
2 FCC v. FOX TELEVISION STATIONS, INC. 

GINSBURG, J., dissenting 

logue. Ibid. Carlin satirized the “original” seven dirty

words and repeated them relentlessly in a variety of colloquialisms. The monologue was aired as part of a program

on contemporary attitudes toward the use of language. In 

re Citizen’s Complaint Against Pacifica Foundation Station WBAI (FM), 56 F. C. C. 2d 94, 95 (1975). In rejecting

the First Amendment challenge, the Court “emphasize[d]

the narrowness of [its] holding.” Pacifica, 438 U. S., at 

750. See also ante, at 1 (STEVENS, J., dissenting). In this 

regard, the majority stressed that the Carlin monologue 

deliberately repeated the dirty words “over and over 

again.” 438 U. S., at 729, 751–755 (Appendix). Justice 

Powell, concurring, described Carlin’s speech as “verbal 

shock treatment.” Id., at 757 (concurring in part and 

concurring in judgment). 

In contrast, the unscripted fleeting expletives at issue

here are neither deliberate nor relentlessly repetitive. Nor 

does the Commission’s policy home in on expressions used 

to describe sexual or excretory activities or organs. Spontaneous utterances used simply to convey an emotion or 

intensify a statement fall within the order’s compass. Cf. 

Cohen v. California, 403 U. S. 15, 26 (1971) (“[W]ords are 

often chosen as much for their emotive as their cognitive 

force. We cannot sanction the view that the Constitution, 

while solicitous of the cognitive content of individual

speech, has little or no regard for that emotive function 

which, practically speaking, may often be the more important element of the overall message sought to be communicated.”); Denver Area Ed. Telecommunications Consortium, Inc. v. FCC, 518 U. S. 727, 805 (1996) (KENNEDY, J., 

concurring in part, concurring in judgment in part, and

dissenting in part) (a word categorized as indecent “often

is inseparable from the ideas and viewpoints conveyed, or 

separable only with loss of truth or expressive power”).

The Pacifica decision, however it might fare on reassessment, see ante, at 6 (THOMAS, J., concurring), was 
Cite as: 556 U. S. ____ (2009) 3 

GINSBURG, J., dissenting 

tightly cabined, and for good reason. In dissent, Justice 

Brennan observed that the Government should take care 

before enjoining the broadcast of words or expressions

spoken by many “in our land of cultural pluralism.” 438 

U. S., at 775. That comment, fitting in the 1970’s, is even

more potent today. If the reserved constitutional question 

reaches this Court, see ante, at 26 (majority opinion), we

should be mindful that words unpalatable to some may be

“commonplace” for others, “the stuff of everyday conversations.” 438 U. S., at 776 (Brennan, J., dissenting). 
_________________ 

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Cite as: 556 U. S. ____ (2009) 1 

BREYER, J., dissenting 

SUPREME COURT OF THE UNITED STATES 

No. 07–582 

FEDERAL COMMUNICATIONS COMMISSION, ET AL., 

PETITIONERS v. FOX TELEVISION STATIONS, 

INC., ET AL. 

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE SECOND CIRCUIT

[April 28, 2009] 

JUSTICE BREYER, with whom JUSTICE STEVENS, JUSTICE 

SOUTER, and JUSTICE GINSBURG join, dissenting. 

In my view, the Federal Communications Commission 

failed adequately to explain why it changed its indecency

policy from a policy permitting a single “fleeting use” of an 

expletive, to a policy that made no such exception. Its 

explanation fails to discuss two critical factors, at least 

one of which directly underlay its original policy decision. 

Its explanation instead discussed several factors well 

known to it the first time around, which by themselves 

provide no significant justification for a change of policy.

Consequently, the FCC decision is “arbitrary, capricious,

an abuse of discretion.” 5 U. S. C. §706(2)(A); Motor Vehicle Mfrs. Assn. of United States, Inc. v. State Farm Mut. 

Automobile Ins. Co., 463 U. S. 29, 41–43 (1983); Citizens to 

Preserve Overton Park, Inc. v. Volpe, 401 U. S. 402, 420– 

421 (1971). And I would affirm the Second Circuit’s similar determination. 

I 

I begin with applicable law. That law grants those in

charge of independent administrative agencies broad 

authority to determine relevant policy. But it does not 

permit them to make policy choices for purely political 
2 FCC v. FOX TELEVISION STATIONS, INC. 

BREYER, J., dissenting 

reasons nor to rest them primarily upon unexplained 

policy preferences. Federal Communications Commissioners have fixed terms of office; they are not directly responsible to the voters; and they enjoy an independence expressly designed to insulate them, to a degree, from “‘the

exercise of political oversight.’” Freytag v. Commissioner, 

501 U. S. 868, 916 (1991) (SCALIA, J., concurring in part

and concurring in judgment); see also Morrison v. Olson, 

487 U. S. 654, 691, n. 30 (1988). That insulation helps to

secure important governmental objectives, such as the 

constitutionally related objective of maintaining broadcast

regulation that does not bend too readily before the political winds. But that agency’s comparative freedom from 

ballot-box control makes it all the more important that

courts review its decisionmaking to assure compliance

with applicable provisions of the law—including law requiring that major policy decisions be based upon articulable reasons. 

The statutory provision applicable here is the Administrative Procedure Act’s (APA) prohibition of agency action 

that is “arbitrary, capricious, [or] an abuse of discretion,” 5

U. S. C. §706(2)(A). This legal requirement helps assure

agency decisionmaking based upon more than the personal preferences of the decisionmakers. Courts have 

applied the provision sparingly, granting agencies broad 

policymaking leeway. But they have also made clear that

agency discretion is not “‘unbounded.’” Burlington Truck 

Lines, Inc. v. United States, 371 U. S. 156, 167–168 (1962).

In so holding, American courts have followed a venerable 

legal tradition, stretching back at least to the days of Sir

Edward Coke and the draining of the English fens. See 

Rooke’s Case, 77 Eng. Rep. 209, 210, 5 Coke Rep. 99b,

100a (C. P. 1598) (Coke, J.) (members of sewer commission

with authority to act according “to their discretio[n]” are

nonetheless “limited and bound with the rule of reason 

and law . . . and [cannot act] according to their wills and 
Cite as: 556 U. S. ____ (2009) 3 

BREYER, J., dissenting 

private affections” (quoted in Jaffe, Judicial Review: Constitutional and Jurisdictional Fact, 70 Harv. L. Rev. 953, 

954 (1957))).

The law has also recognized that it is not so much a

particular set of substantive commands but rather it is a 

process, a process of learning through reasoned argument, 

that is the antithesis of the “arbitrary.” This means agencies must follow a “logical and rational” decisionmaking

“process.” Allentown Mack Sales & Service, Inc. v. NLRB, 

522 U. S. 359, 374 (1998). An agency’s policy decisions 

must reflect the reasoned exercise of expert judgment. See 

Burlington Truck Lines, supra, at 167 (decision must

reflect basis on which agency “exercised its expert discretion”); see also Humphrey’s Executor v. United States, 295 

U. S. 602, 624 (1935) (independent agencies “exercise . . . 

trained judgment . . . ‘informed by experience’”). And, as 

this Court has specified, in determining whether an 

agency’s policy choice was “arbitrary,” a reviewing court

“must consider whether the decision was based on a consideration of the relevant factors and whether there has 

been a clear error of judgment.” Overton Park, supra, at 

416. 

Moreover, an agency must act consistently. The agency

must follow its own rules. Arizona Grocery Co. v. Atchison, T. & S. F. R. Co., 284 U. S. 370, 389–390 (1932). And

when an agency seeks to change those rules, it must focus 

on the fact of change and explain the basis for that

change. See, e.g., National Cable & Telecommunications 

Assn. v. Brand X Internet Services, 545 U. S. 967, 981 

(2005) (“Unexplained inconsistency is” a “reason for holding an interpretation to be an arbitrary and capricious

change from agency practice” (emphasis added)). 

To explain a change requires more than setting forth

reasons why the new policy is a good one. It also requires

the agency to answer the question, “Why did you change?” 

And a rational answer to this question typically requires a 
4 FCC v. FOX TELEVISION STATIONS, INC. 

BREYER, J., dissenting 

more complete explanation than would prove satisfactory 

were change itself not at issue. An (imaginary) administrator explaining why he chose a policy that requires

driving on the right-side, rather than the left-side, of the 

road might say, “Well, one side seemed as good as the

other, so I flipped a coin.” But even assuming the rationality of that explanation for an initial choice, that explanation is not at all rational if offered to explain why the 

administrator changed driving practice, from right-side to 

left-side, 25 years later. 

In State Farm, a unanimous Court applied these commonsense requirements to an agency decision that rescinded an earlier agency policy. The Court wrote that an 

agency must provide an explanation for the agency’s “revocation” of a prior action that is more thorough than the

explanation necessary when it does not act in the first

instance. The Court defined “revocation,” not simply as 

rescinding an earlier policy, cf. ante, at 10–11, but as “a 

reversal of the agency’s former views as to the proper

course.” State Farm, 463 U. S., at 41 (emphasis added). 

See also Verizon Communications Inc. v. FCC, 535 U. S. 

467, 502, n. 20 (2002) (portion of Court’s opinion joined by

SCALIA, KENNEDY, and THOMAS, JJ.) (noting State Farm 

“may be read as prescribing more searching judicial review” when “an agency [is] ‘changing its course’ as to the 

interpretation of a statute”); Thomas Jefferson Univ. v. 

Shalala, 512 U. S. 504, 524, n. 3 (1994) (THOMAS, J., dissenting) (similar).

At the same time, the Court described the need for 

explanation in terms that apply, not simply to pure rescissions of earlier rules, but rather to changes of policy as it

more broadly defined them. But see ante, at 10–11. It 

said that the law required an explanation for such a 

change because the earlier policy, representing a “‘settled 

course of behavior[,] embodies the agency’s informed 

judgment that, by pursuing that course, it will carry out 
Cite as: 556 U. S. ____ (2009) 5 

BREYER, J., dissenting 

the policies . . . best if the settled rule is adhered to.’” 

State Farm, supra, at 41–42. Thus, the agency must 

explain why it has come to the conclusion that it should 

now change direction. Why does it now reject the considerations that led it to adopt that initial policy? What has 

changed in the world that offers justification for the

change? What other good reasons are there for departing 

from the earlier policy?

Contrary to the majority’s characterization of this dissent, it would not (and State Farm does not) require a

“heightened standard” of review. Ante, at 10 (emphasis 

added). Rather, the law requires application of the same 

standard of review to different circumstances, namely

circumstances characterized by the fact that change is at 

issue. It requires the agency to focus upon the fact of 

change where change is relevant, just as it must focus 

upon any other relevant circumstance. It requires the

agency here to focus upon the reasons that led the agency

to adopt the initial policy, and to explain why it now comes 

to a new judgment.

I recognize that sometimes the ultimate explanation for

a change may have to be, “We now weigh the relevant 

considerations differently.” But at other times, an agency 

can and should say more. Where, for example, the agency 

rested its previous policy on particular factual findings, 

see ante, at 3–5 (KENNEDY, J., concurring in part and 

concurring in judgment); or where an agency rested its

prior policy on its view of the governing law, see infra, at 

7–11; or where an agency rested its previous policy on,

say, a special need to coordinate with another agency, one 

would normally expect the agency to focus upon those

earlier views of fact, of law, or of policy and explain why 

they are no longer controlling. Regardless, to say that the 

agency here must answer the question “why change” is not 

to require the agency to provide a justification that is

“better than the reasons for the old [policy].” Ante, at 11. 
6 FCC v. FOX TELEVISION STATIONS, INC. 

BREYER, J., dissenting 

It is only to recognize the obvious fact that change is sometimes (not always) a relevant background feature that 

sometimes (not always) requires focus (upon prior justifications) and explanation lest the adoption of the new

policy (in that circumstance) be “arbitrary, capricious, an 

abuse of discretion.” 

That is certainly how courts of appeals, the courts that

review agency decisions, have always treated the matter 

in practice. See, e.g., Pennsylvania Federation of Sportsmen’s Clubs, Inc. v. Kempthorne, 497 F. 3d 337, 351 (CA3 

2007); Yale-New Haven Hosp. v. Leavitt, 470 F. 3d 71, 79 

(CA2 2006); Citizens Awareness Network, Inc. v. United 

States, 391 F. 3d 338, 352 (CA1 2004). But see NAACP v. 

FCC, 682 F. 2d 993, 998 (CADC 1982) (using word “heightened”). The majority’s holding could in this respect significantly change judicial review in practice, and not in a 

healthy direction. But see, ante, at 1–5 (KENNEDY, J., 

concurring in part and concurring in judgment). After all, 

if it is always legally sufficient for the agency to reply to

the question “why change?” with the answer “we prefer

the new policy” (even when the agency has not considered 

the major factors that led it to adopt its old policy), then

why bother asking the agency to focus on the fact of 

change? More to the point, why would the law exempt this

and no other aspect of an agency decision from “arbitrary,

capricious” review? Where does, and why would, the APA 

grant agencies the freedom to change major policies on the 

basis of nothing more than political considerations or even

personal whim?

Avoiding the application of any heightened standard of 

review, the Court in State Farm recognized that the APA’s

“nonarbitrary” requirement affords agencies generous

leeway when they set policy. 463 U. S., at 42. But it also 

recognized that this leeway is not absolute. The Court 

described its boundaries by then listing considerations

that help determine whether an explanation is adequate. 
Cite as: 556 U. S. ____ (2009) 7 

BREYER, J., dissenting 

Mirroring and elaborating upon its statement in Overton 

Park, 401 U. S. 402, the Court said that a reviewing court

should take into account whether the agency had “relied

on factors which Congress has not intended it to consider, 

entirely failed to consider an important aspect of the 

problem, offered an explanation for its decision that runs

counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or 

the product of agency expertise.” State Farm, supra, at 43; 

see also Overton Park, supra, at 416. 

II 

We here must apply the general standards set forth in 

State Farm and Overton Park to an agency decision that

changes a 25-year-old “fleeting expletive” policy from (1) 

the old policy that would normally permit broadcasters to

transmit a single, fleeting use of an expletive to (2) a new 

policy that would threaten broadcasters with large fines

for transmitting even a single use (including its use by a 

member of the public) of such an expletive, alone with

nothing more. The question is whether that decision

satisfies the minimal standards necessary to assure a 

reviewing court that such a change of policy is not “arbitrary, capricious, [or] an abuse of discretion,” 5 U. S. C. 

§706(2)(A), particularly as set forth in, e.g., State Farm 

and Overton Park, supra, at 2–7. The decision, in my 

view, does not satisfy those standards. 

Consider the requirement that an agency at least minimally “consider . . . important aspect[s] of the problem.” 

State Farm, supra, at 43. The FCC failed to satisfy this

requirement, for it failed to consider two critically important aspects of the problem that underlay its initial policy 

judgment (one of which directly, the other of which indirectly). First, the FCC said next to nothing about the

relation between the change it made in its prior “fleeting 

expletive” policy and the First-Amendment-related need to 
8 FCC v. FOX TELEVISION STATIONS, INC. 

BREYER, J., dissenting 

avoid “censorship,” a matter as closely related to broadcasting regulation as is health to that of the environment.

The reason that discussion of the matter is particularly

important here is that the FCC had explicitly rested its 

prior policy in large part upon the need to avoid treading 

too close to the constitutional line. 

Thirty years ago, the Court considered the location of 

that constitutional line. In FCC v. Pacifica Foundation, 

438 U. S. 726 (1978), the Court reviewed an FCC decision 

forbidding the broadcast of a monologue that deliberately 

and repeatedly uttered the expletives here at issue more 

than 100 times in one hour at a time of day when children 

were likely to hear the broadcast. Id., at 739. The Court 

held that the FCC’s prohibition did not violate the First 

Amendment. But the Court divided 5 to 4. And two Members of the majority, Justices Powell and Blackmun, explicitly noted that the Court “does not speak to cases 

involving the isolated use of a potentially offensive word 

. . . as distinguished from the verbal shock treatment

administered by respondent here.” Id., at 760–761 (Powell, J., concurring in part and concurring in judgment) 

(emphasis added). This statement by two Members of the

majority suggested that they could reach a different result, finding an FCC prohibition unconstitutional, were

that prohibition aimed at the fleeting or single use of an 

expletive.

The FCC subsequently made clear that it thought that

Justice Powell’s concurrence set forth a constitutional line 

that its indecency policy should embody. In 1978, the 

Commission wrote that the First Amendment “severely 

limit[s]” the Commission’s role in regulating indecency. It 

added that the Court, in Pacifica, had “relied . . . on the 

repetitive occurrence of the ‘indecent’ words in question.”

And it said that, in setting policy, it “intend[ed] strictly to

observe the narrowness of the Pacifica holding.” In re 

Application of WGBH Educ. Foundation, 69 F. C. C. 2d 
Cite as: 556 U. S. ____ (2009) 9 

BREYER, J., dissenting 

1250, 1254, ¶10. 

In 1983, the Commission again wrote that it understood 

the Court’s decision in Pacifica to rest on the “repetitive 

occurrence of the ‘indecent’ words in question.” And, 

again, the Commission explained that its regulation of

fleeting or isolated offensive words would reflect Justice

Powell’s understanding of the First Amendment’s scope. 

In re Application of Pacifica Foundation, 95 F. C. C. 2d 

750, 760, ¶¶17–18. In 1987, the Commission once more 

explained that its “fleeting expletives” policy reflected the 

Court’s decision in Pacifica. It said that, under its policy, 

“speech that is indecent must involve more than an isolated use of an offensive word,” adding that “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 indecency.” In re Pacifica Foundation, 2 FCC Rcd. 2698, 2699, ¶13 (emphasis added). In 

another order that same year, the Commission stated that 

“the First Amendment dicate[s] a careful and restrained 

approach with regard to review of matters involving

broadcast programming”; it then explained, citing 

Pacifica, that “[s]peech that is indecent must involve more 

than the isolated use of an offensive word.” In re Infinity 

Broadcasting, 2 FCC Rcd. 2705, 2705, ¶¶6–7 (1987) (emphasis added). And in 2001, in giving the industry guidance, the FCC once again said in respect to its regulation

of indecent speech that it “must both identify a compelling 

interest for any regulation . . . and choose the least restrictive means to further that interest.” In re Industry Guidance On Commission’s Case Law Interpreting 18 U. S. C. 

§1464 and Enforcement Policies Regarding Broadcast 

Indecency, 16 FCC Rcd. 7999, 8000–8001, ¶3–5. 

The FCC thus repeatedly made clear that it based its

“fleeting expletive” policy upon the need to avoid treading 

too close to the constitutional line as set forth in Justice 

Powell’s Pacifica concurrence. What then did it say, when 
10 FCC v. FOX TELEVISION STATIONS, INC. 

BREYER, J., dissenting 

it changed its policy, about why it abandoned this Constitution-based reasoning? The FCC devoted “four full pages

of small-type, single-spaced text,” ante, at 23, responding 

to industry arguments that, e.g., changes in the nature of 

the broadcast industry made all indecency regulation, i.e., 

18 U. S. C. §1464, unconstitutional. In doing so it repeatedly reaffirmed its view that Pacifica remains good law. 

In re Complaints Regarding Various Television Broadcasts 

Between February 2, 2002, and March, 8, 2008, 21 FCC 

Rcd. 13299, 13317–13321, ¶¶42–52 (2006) (Remand Order). All the more surprising then that, in respect to why

it abandoned its prior view about the critical relation 

between its prior fleeting expletive policy and Justice

Powell’s Pacifica concurrence, it says no more than the 

following:

“[O]ur decision is not inconsistent with the Supreme

Court ruling in Pacifica. The Court explicitly left open the 

issue of whether an occasional expletive could be considered indecent.” In re Complaints Against Various Broadcast Licensees Regarding Their Airing of the “Golden Globe 

Awards” Program, 19 FCC Rcd. 4975, 4982, ¶16 (2004) 

(Golden Globe Order). And, (repeating what it already 

had said), “[Pacifica] specifically reserved the question of 

‘an occasional expletive’ and noted that it addressed only 

the ‘particular broadcast’ at issue in that case.” Remand 

Order, supra, at 13308–13309, ¶24.

These two sentences are not a summary of the FCC’s 

discussion about why it abandoned its prior understanding 

of Pacifica. They are the discussion. These 28 words 

(repeated in two opinions) do not acknowledge that an 

entirely different understanding of Pacifica underlay the 

FCC’s earlier policy; they do not explain why the agency

changed its mind about the line that Pacifica draws or its 

policy’s relation to that line; and they tell us nothing at all 

about what happened to the FCC’s earlier determination 

to search for “compelling interests” and “less restrictive 
Cite as: 556 U. S. ____ (2009) 11 

BREYER, J., dissenting 

alternatives.” They do not explain the transformation of 

what the FCC had long thought an insurmountable obstacle into an open door. The result is not simply Hamlet 

without the prince, but Hamlet with a prince who, in midplay and without explanation, just disappears. 

I have found one other related reference to Pacifica, but 

that reference occurs in an opinion written by a dissenting 

Commissioner. That dissenter said that the FCC had 

“‘fail[ed] to address the many serious [constitutional] 

concerns raised’” by the new policy, while adding that the

new policy was “not the restrained enforcement policy

encouraged by the Supreme Court in Pacifica.” Remand 

Order, supra, at 13331, 13334. Neither that Commissioner in his dissent, nor I in this dissent, claim that 

agencies must always take account of possible constitutional issues when they formulate policy. Cf. ante, at 12. 

But the FCC works in the shadow of the First Amendment 

and its view of the application of that Amendment to

“fleeting expletives” directly informed its initial policy 

choice. Under these circumstances, the FCC’s failure to 

address this “aspect” of the problem calls for a remand to

the agency. Overton Park, 401 U. S., at 420–421. 

Second, the FCC failed to consider the potential impact

of its new policy upon local broadcasting coverage. This 

“aspect of the problem” is particularly important because 

the FCC explicitly took account of potential broadcasting

impact. Golden Globe Order, supra, at 4980, ¶11 (“The

ease with which broadcasters today can block even fleeting 

words in a live broadcast is an element in our decision”). 

Indeed, in setting forth “bleeping” technology changes

(presumably lowering bleeping costs) as justifying the 

policy change, it implicitly reasoned that lower costs,

making it easier for broadcasters to install bleeping

equipment, made it less likely that the new policy would 

lead broadcasters to reduce coverage, say by canceling 

coverage of public events. Ibid. (“[T]echnological advances 
12 FCC v. FOX TELEVISION STATIONS, INC. 

BREYER, J., dissenting 

have made it possible . . . to prevent the broadcast of a 

single offending word or action without blocking or disproportionately disrupting the message of the speaker or 

performer”). 

What then did the FCC say about the likelihood that 

smaller independent broadcasters, including many public 

service broadcasters, still would not be able to afford 

“bleeping” technology and, as a consequence, would reduce 

local coverage, indeed cancel coverage, of many public

events? It said nothing at all.

The FCC cannot claim that local coverage lacks special

importance. To the contrary, “the concept of localism has 

been a cornerstone of broadcast regulation for decades.” 

In re Broadcast Localism, 23 FCC Rcd. 1324, 1326, 1327, 

¶¶3, 5 (2008). That policy seeks to provide “viewers and 

listeners . . . access to locally responsive programming

including, but not limited to, local news and public affairs

matter” and to ensure “diversity in what is seen and heard

over the airwaves.” That policy has long favored local 

broadcasting, both as a means to increase coverage of local

events and, insofar as it increases the number of broadcast 

voices, as an end in itself. See, e.g., In re Reexamination of 

Comparative Standards for Noncommercial Educ. Applicants, 15 FCC Rcd. 7386, 7399, ¶29 (2000) (adopting a

system for selecting applicants for broadcast channels that 

“would foster our goal of broadcast diversity by enabling 

the local public to be served by differing . . . licensees”); In 

re 2002 Biennial Regulatory Review, 18 FCC Rcd. 13620, 

13644, ¶¶77, 79 (2003) (“We remain firmly committed to

the policy of promoting localism among broadcast outlets. 

. . . A . . . measure of localism is the quantity and quality 

of local news and public affairs programming”). 

Neither can the FCC now claim that the impact of its

new policy on local broadcasting is insignificant and obviously so. Broadcasters tell us, as they told the FCC, the 

contrary. See Brief for Former FCC Commissioners as 
Cite as: 556 U. S. ____ (2009) 13 

BREYER, J., dissenting 

Amici Curiae 17–19; App. 235–237; Joint Comments of 

Fox Television Stations, Inc. et al., In re Remand of Section III.B of the Commission’s March 15, 2006 Omnibus 

Order Resolving Numerous Broadcast Television Indecency 

Complaints 14–15, http://www.fcc.gov/DA06–1739/jointnetworks.pdf (all Internet materials as visited Apr. 7, 

2009, and available in Clerk of Court’s case file). They

told the FCC, for example, that the costs of bleeping/delay 

systems, up to $100,000 for installation and annual operation, place that technology beyond the financial reach of 

many smaller independent local stations. See id., at 14 

(“The significant equipment and personnel costs associated with installing, maintaining, and operating delay 

equipment sufficient to cover all live news, sports, and

entertainment programs could conceivably exceed the net

profits of a small local station for an entire year”); id., at 

App. XI. And they ask what the FCC thinks will happen 

when a small local station without bleeping equipment 

wants to cover, say a local city council meeting, a high 

school football game, a dance contest at community center, 

or a Fourth of July parade.

Relevant literature supports the broadcasters’ financial 

claims. See, e.g., Ho, Taking No Chances, Austin American-Statesman, June 18, 2006, p. J1; Dotinga, Dirty-Word 

Filters Prove Costly, Wired.com, July 9, 2004, http://www.

wired.com/entertainment/music/news/2004/07/64127; Stations, Cable Networks Finding Indecency Rules Expensive, Public Broadcasting Report, Aug. 4, 2006. It also 

indicates that the networks with which some small stations are affiliated are not liable for the stations’ local 

transmissions (unless the networks own them). Ho, supra, 

at J1; Public Stations Fear Indecency Fine Jump Means

Premium Hikes, Public Broadcasting Report, July 7, 2006.

The result is that smaller stations, fearing “fleeting expletive” fines of up to $325,000, may simply cut back on their 

coverage. See Romano, Reporting Live. Very Carefully, 
14 FCC v. FOX TELEVISION STATIONS, INC. 

BREYER, J., dissenting 

Broadcasting & Cable, July 4, 2005, p. 8; see also ibid. 

(“Afraid to take chances” of getting fined under the FCC’s 

new policy, “local broadcasters are responding by altering—or halting altogether—the one asset that makes local 

stations so valuable to their communities: live TV”);

Daneman, WRUR Drops Its Live Radio Programs, Rochester Democrat and Chronicle, May 27, 2004, p. 1B (reporting that a local broadcast station ceased broadcasting all

local live programming altogether in response to the 

Commission’s policy change). And there are many such

smaller stations. See, e.g., Corporation for Public Broadcasting, Frequently Asked Questions, available at http://

www.cpb.org/aboutpb/faq/stations.html (noting there are

over 350 local public television stations and nearly 700

local public radio stations that receive support from the

Corporation for Public Broadcasting). 

As one local station manager told the FCC, 

“[t]o lessen the risk posed by the new legal framework 

. . . I have directed [the station’s] news staff that [our 

station] may no longer provide live, direct-to-air coverage” of “live events where crowds are present . . .

unless they affect matters of public safety or convenience. Thus, news coverage by [my station] of live

events where crowds are present essentially will be 

limited to civil emergencies.” App. 236–237 (declaration of Dennis Fisher). 

What did the FCC say in response to this claim? What 

did it say about the likely impact of the new policy on the

coverage that its new policy is most likely to affect, coverage of local live events—city council meetings, local sports 

events, community arts productions, and the like? It said 

nothing at all.

The plurality acknowledges that the Commission entirely failed to discuss this aspect of the regulatory problem. But it sees “no need” for discussion in light of its, i.e., 
Cite as: 556 U. S. ____ (2009) 15 

BREYER, J., dissenting 

the plurality’s, own “doubt[s]” that “small-town broadcasters run a heightened risk of liability for indecent utterances” as a result of the change of policy. Ante, at 24–25. 

The plurality's “doubt[s]” rest upon its views (1) that

vulgar expression is less prevalent (at least among broadcast guests) in smaller towns, ante, at 24; (2) that the 

greatest risk the new policy poses for “small-town broadcasters” arises when they broadcast local “news and public

affairs,” ibid., and (3) that the Remand Order says “little 

about how the Commission would treat smaller broadcasters who cannot afford screening equipment,” while also

pointing out that the new policy “‘does not . . . impose 

undue burdens on broadcasters’” and emphasizing that 

the case before it did not involve “‘breaking news.’” Ante, 

at 24–25. 

As to the first point, about the prevalence of vulgarity in

small towns, I confess ignorance. But I do know that there 

are independent stations in many large and medium sized 

cities. See Television & Cable Factbook, Directory of 

Television Stations in Operation 2008. As to the second 

point, I too believe that coverage of local public events, if 

not news, lies at the heart of the problem. 

I cannot agree with the plurality, however, about the

critical third point, namely that the new policy obviously

provides smaller independent broadcasters with adequate

assurance that they will not be fined. The new policy

removes the “fleeting expletive” exception, an exception 

that assured smaller independent stations that they would

not be fined should someone swear at a public event. In 

its place, it puts a policy that places all broadcasters at

risk when they broadcast fleeting expletives, including 

expletives uttered at public events. The Remand Order 

says that there “is no outright news exemption from our 

indecency rules.” 21 FCC Rcd., at 13327, ¶71 (emphasis 

added). The best it can provide by way of assurance is to

say that “it may be inequitable to hold a licensee responsi­
16 FCC v. FOX TELEVISION STATIONS, INC. 

BREYER, J., dissenting 

ble for airing offensive speech during live coverage of a

public event under some circumstances.” Id., at 13311, 

¶33 (emphasis added). It does list those circumstances as 

including the “possibility of human error in using delay

equipment.” Id., at 13313, ¶35. But it says nothing about 

a station’s inability to afford delay equipment (a matter

that in individual cases could itself prove debatable). All 

the FCC had to do was to consider this matter and either 

grant an exemption or explain why it did not grant an

exemption. But it did not. And the result is a rule that 

may well chill coverage—the kind of consequence that the 

law has considered important for decades, to which the 

broadcasters pointed in their arguments before the FCC,

and which the FCC nowhere discusses. See, e.g., Dombrowski v. Pfister, 380 U. S. 479, 494 (1965) (“So long as

the statute remains available to the State the threat of 

prosecutions of protected expression is a real and substantial one. Even the prospect of ultimate failure of such

prosecutions by no means dispels their chilling effect on 

protected expression”); see also Ashcroft v. Free Speech 

Coalition, 535 U. S. 234, 244 (2002); Gibson v. Florida 

Legislative Investigation Comm., 372 U. S. 539, 556–557 

(1963); Wieman v. Updegraff, 344 U. S. 183, 195 (1952) 

(Frankfurter, J., concurring). 

Had the FCC used traditional administrative noticeand-comment procedures, 5 U. S. C. §553, the two failures 

I have just discussed would clearly require a court to

vacate the resulting agency decision. See ACLU v. FCC, 

823 F. 2d 1554, 1581 (CADC 1987) (“Notice and comment 

rulemaking procedures obligate the FCC to respond to all 

significant comments, for the opportunity to comment is

meaningless unless the agency responds to significant 

points raised by the public” (emphasis added; internal 

quotation marks omitted)). Here the agency did not make 

new policy through the medium of notice and comment 

proceedings. But the same failures here—where the policy 
Cite as: 556 U. S. ____ (2009) 17 

BREYER, J., dissenting 

is important, the significance of the issues clear, the failures near complete—should lead us to the same conclusion. The agency’s failure to discuss these two “important 

aspect[s] of the problem” means that the resulting decision

is “‘arbitrary, capricious, an abuse of discretion’” requiring

us to remand the matter to the agency. State Farm, 463 

U. S., at 43; Overton Park, 401 U. S., at 416. 

III 

The three reasons the FCC did set forth in support of its

change of policy cannot make up for the failures I have 

discussed. Consider each of them. First, as I have pointed 

out, the FCC based its decision in part upon the fact that

“bleeping/delay systems” technology has advanced. I have 

already set forth my reasons for believing that that fact,

without more, cannot provide a sufficient justification for

its policy change. Supra, at 11–16. 

Second, the FCC says that the expletives here in question always invoke a coarse excretory or sexual image;

hence it makes no sense to distinguish between whether

one uses the relevant terms as an expletive or as a literal 

description. The problem with this answer is that it does 

not help to justify the change in policy. The FCC was 

aware of the coarseness of the “image” the first time

around. See, e.g., Remand Order, 21 FCC Rcd., at 13308, 

¶23 (asserting that FCC has always understood the words 

as coarse and indecent). And it explained the first time

around why it nonetheless distinguished between their 

literal use and their use as fleeting expletives. See, e.g., In 

re Application of WGBH Educ. Foundation, 69 F. C. C. 2d, 

at 1254–1255, ¶¶10–11 (discussing First Amendment 

considerations and related need to avoid reduced broadcast coverage). Simply to announce that the words, 

whether used descriptively or as expletives, call forth 

similar “images” is not to address those reasons.

Third, the FCC said that “perhaps” its “most impor­
18 FCC v. FOX TELEVISION STATIONS, INC. 

BREYER, J., dissenting 

tan[t]” justification for the new policy lay in the fact that

its new “contextual” approach to fleeting expletives is 

better and more “[c]onsistent with” the agency’s “general 

approach to indecency” than was its previous “categorica[l]” approach, which offered broadcasters virtual

immunity for the broadcast of fleeting expletives. Remand 

Order, supra, at 13308, ¶23. This justification, however,

offers no support for the change without an understanding

of why, i.e., in what way, the FCC considered the new 

approach better or more consistent with the agency’s 

general approach.

The Solicitor General sets forth one way in which the

new policy might be more consistent with statutory policy.

The indecency statute prohibits the broadcast of “any . . . 

indecent . . . language.” 18 U. S. C. §1464. The very point

of the statute, he says, is to eliminate nuisance; and the 

use of expletives, even once, can constitute such a nuisance. The Solicitor General adds that the statutory word

“any” indicates that Congress did not intend a safe-harbor

for a fleeting use of that language. Brief for Petitioners 

24–25. The fatal flaw in this argument, however, lies in

the fact that the Solicitor General and not the agency has

made it. We must consider the lawfulness of an agency’s

decision on the basis of the reasons the agency gave, not

on the basis of those it might have given. SEC v. Chenery 

Corp., 332 U. S. 194, 196–197 (1947); State Farm, supra, 

at 50. And the FCC did not make this claim. Hence, we 

cannot take it into account and need not evaluate its 

merits. 

In fact, the FCC found that the new policy was better in

part because, in its view, the new policy better protects

children against what it described as “‘the first blow’” of 

broadcast indecency that results from the “‘pervasive’” 

nature of broadcast media. It wrote that its former policy 

of “granting an automatic exemption for ‘isolated or fleeting’ expletives unfairly forces viewers (including children) 
Cite as: 556 U. S. ____ (2009) 19 

BREYER, J., dissenting 

to take ‘the first blow.’” Remand Order, supra, at 13309, 

¶25.

The difficulty with this argument, however, is that it

does not explain the change. The FCC has long used the

theory of the “first blow” to justify its regulation of broadcast indecency. See, e.g., In re Enforcement of Prohibitions 

Against Broadcast Indecency in 18 U. S. C. §1464, 5 FCC 

Rcd. 5297, 5302, ¶¶34–35 (1990). Yet the FCC has also 

long followed its original “fleeting expletives” policy. Nor 

was the FCC ever unaware of the fact to which the majority points, namely that children’s surroundings influence 

their behavior. See, e.g., In re Enforcement of Prohibitions 

Against Broadcast Indecency in 18 U. S. C. §1464, 8 FCC 

Rcd. 704, 706, ¶11 (1993). So, to repeat the question:

What, in respect to the “first blow,” has changed?

The FCC points to no empirical (or other) evidence to

demonstrate that it previously understated the importance of avoiding the “first blow.” Like the majority, I do

not believe that an agency must always conduct full empirical studies of such matters. Ante, at 15–16. But the 

FCC could have referred to, and explained, relevant empirical studies that suggest the contrary. One review of 

the empirical evidence, for example, reports that “[i]t is

doubtful that children under the age of 12 understand 

sexual language and innuendo; therefore it is unlikely that

vulgarities have any negative effect.” Kaye & Sapolsky, 

Watch Your Mouth! An Analysis of Profanity Uttered by

Children on Prime-Time Television, 2004 Mass Communication & Soc’y 429, 433 (Vol. 7) (citing two studies). The 

Commission need not have accepted this conclusion. But 

its failure to discuss this or any other such evidence, while

providing no empirical evidence at all that favors its position, must weaken the logical force of its conclusion. See 

State Farm, 463 U. S., at 43 (explaining that an agency’s

failure to “examine the relevant data” is a factor in determining whether the decision is “arbitrary”). 
20 FCC v. FOX TELEVISION STATIONS, INC. 

BREYER, J., dissenting 

The FCC also found the new policy better because it

believed that its prior policy “would as a matter of logic 

permit broadcasters to air expletives at all hours of a day 

so long as they did so one at a time.” Remand Order, 21 

FCC Rcd., at 13309, ¶25. This statement, however, raises 

an obvious question: Did that happen? The FCC’s initial 

“fleeting expletives” policy was in effect for 25 years. Had 

broadcasters during those 25 years aired a series of expletives “one at a time?” If so, it should not be difficult to find 

evidence of that fact. But the FCC refers to none. Indeed, 

the FCC did not even claim that a change had taken place

in this respect. It spoke only of the pure “logic” of the 

initial policy “permitting” such a practice. That logic

would have been apparent to anyone, including the FCC, 

in 1978 when the FCC set forth its initial policy. 

Finally, the FCC made certain statements that suggest

it did not believe it was changing prior policy in any major 

way. It referred to that prior policy as based on “staff

letters and dicta” and it said that at least one of the instances before it (namely, the Cher broadcast) would have 

been actionably indecent under that prior policy. Id., at 

13306–13307, 13324, ¶¶20–21, 60. As we all agree, however, in fact the FCC did change its policy in a major way.

See ante, at 13. To the extent that the FCC minimized 

that fact when considering the change, it did not fully 

focus on the fact of change. And any such failure would 

make its decision still less supportable. See National 

Cable, 545 U. S., at 981. 

IV 

Were the question a closer one, the doctrine of constitutional avoidance would nonetheless lead me to remand the 

case. See United States v. Jin Fuey Moy, 241 U. S. 394, 

401 (1916) (“A statute must be construed, if fairly possible,

so as to avoid not only the conclusion that it is unconstitutional but also grave doubts upon that score” (emphasis 
Cite as: 556 U. S. ____ (2009) 21 

BREYER, J., dissenting 

added)). That doctrine seeks to avoid unnecessary judicial 

consideration of constitutional questions, assumes that 

Congress, no less than the Judicial Branch, seeks to act 

within constitutional bounds, and thereby diminishes the 

friction between the branches that judicial holdings of 

unconstitutionality might otherwise generate. See Almendarez-Torres v. United States, 523 U. S. 224, 237–238 

(1998); see also Solid Waste Agency of Northern Cook Cty. 

v. Army Corps of Engineers, 531 U. S. 159, 172–173 (2001); 

Edward J. DeBartolo Corp. v. Florida Gulf Coast Building 

& Constr. Trades Council, 485 U. S. 568, 575 (1988); Rescue Army v. Municipal Court of Los Angeles, 331 U. S. 549, 

571 (1947); Ashwander v. TVA, 297 U. S. 288, 345–348 

(1936) (Brandeis, J., concurring). The doctrine assumes 

that Congress would prefer a less-than-optimal interpretation of its statute to the grave risk of a constitutional 

holding that would set the statute entirely aside. See 

Almendarez-Torres, supra, at 238 (construction of statute 

that avoids invalidation best reflects congressional will);

cf. United States v. Booker, 543 U. S. 220, 249, 267 (2005). 

Unlike the majority, I can find no convincing reason for 

refusing to apply a similar doctrine here. The Court has 

often applied that doctrine where an agency’s regulation

relies on a plausible but constitutionally suspect interpretation of a statute. See, e.g., Solid Waste Agency, supra, at 

172–174; NLRB v. Catholic Bishop of Chicago, 440 U. S. 

490, 506–507 (1979). The values the doctrine serves apply 

whether the agency’s decision does, or does not, rest upon 

a constitutionally suspect interpretation of a statute. And 

a remand here would do no more than ask the agency to 

reconsider its policy decision in light of the concerns raised 

in a judicial opinion. Cf. Fullilove v. Klutznick, 448 U. S. 

448, 551 (1980) (STEVENS, J., dissenting) (a holding that a

congressional action implicating the Equal Protection

Clause “was not adequately preceded by a consideration of 

less drastic alternatives or adequately explained by a 
22 FCC v. FOX TELEVISION STATIONS, INC. 

BREYER, J., dissenting 

statement of legislative purpose would be far less intrusive than a final determination that the substance of” that 

action was unconstitutional). I would not now foreclose, as 

the majority forecloses, our further consideration of this 

matter. (Of course, nothing in the Court’s decision today

prevents the Commission from reconsidering its current

policy in light of potential constitutional considerations or 

for other reasons.) 

V 

In sum, the FCC’s explanation of its change leaves out 

two critically important matters underlying its earlier 

policy, namely Pacifica and local broadcasting coverage.

Its explanation rests upon three considerations previously 

known to the agency (“coarseness,” the “first blow,” and

running single expletives all day, one at a time). With one 

exception, it provides no empirical or other information 

explaining why those considerations, which did not justify 

its new policy before, justify it now. Its discussion of the 

one exception (technological advances in bleeping/delay 

systems), failing to take account of local broadcast coverage, is seriously incomplete.

I need not decide whether one or two of these features, 

standing alone, would require us to remand the case. 

Here all come together. And taken together they suggest

that the FCC’s answer to the question, “Why change?” is, 

“We like the new policy better.” This kind of answer, 

might be perfectly satisfactory were it given by an elected 

official. But when given by an agency, in respect to a 

major change of an important policy where much more 

might be said, it is not sufficient. State Farm, 463 U. S., 

at 41–42. 

For these reasons I would find the FCC’s decision “arbitrary, capricious, an abuse of discretion,” 5 U. S. C. 

§706(2)(A), requiring remand of this case to the FCC. And 

I would affirm the Second Circuit’s similar determination. 

With respect, I dissent.