1 (SlipOpin i o n) OCTOBER T ERM, 20 08

Sy llabu s

N O TE : Wh er e it i s feas ibl e , a s yllab u s (h ead n ot e) wil lbe rel e as ed , as is bein g d o n e incon n ecti onwithth is cas e , a tth e ti meth e op in i o n is is s u ed

. Th e s yll abu s con s titu tes n o p a rt of th e op in i o nof th eC o u r t bu t h a s be en pre p are dbyt h e Re po rte ro f De ci sio n s fo r t h e co nveni e nce of t h e reade r

. Se e United Statesv. Detroit Timbe r& Lumb er Co., 200U. S

. 3 21, 337

. 

## SUPREME CO URT O FTHE UNI TED STATES

Sy llabu s
FEDERAL COMMU NI CATIONS COMMISSION ET AL

. v

. FOX T E LE VISION STATION S , INC., ET AL

.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECON D CIRCUIT

No. 07–5 82. Ar gu ed Nov e mber4, 2008—Dec ided April 28, 20 09
Federa l la w b a n s the b r oa dca s ting of “a ny .

. . indece nt .

. . la ngua ge, ”

18 U. S. C. §1464, wh ic hinclu d es r e fer e nces to sex u al or ex cr etor y ac

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

ing first defined the prohibited speech in 1975, the Federal Commu

nic a tions Co mmis s ion (F CC) tooka ca utious , but gra d ua lly

ex pan d in g , appr oac hto en for c i n gth e statu t or ypr oh ibition

. In2004 , the FCC’s Golden Globes Or der dec l ar ed forthe fir s t time that an ex

pletive (nonliteral) use of th e F-Wordor the S-Word could be actiona

bly indecent, e v en w h enthe word is us ed o n ly on ce.

This case concerns isolated u tterances of the F- and S- Words dur

in gtwo liv e br oadc asts air e d byFox Television Sta t ion s , Inc. In its order up holding theindece ncyfindings
, the FCC, inter alia, stated that the Golden Globe sOr der eliminated any doubt that fleeting ex

pletives could be actionable ; decl ared that under the new policy, a lac kof r e petit i onweigh s again s t a finding of indecency, but is not a safe harb or ; and held that b o th br oadc ast s met the new test bec a use one involved a literaldescri ption of excrement and bo th invoked the F-Word. Th eorder did no t impose sanctions for either broadcast. The Second C i rcuit set asid e the ag ency action, dec lining to address the c o nstitutionalityof the FCC’ s ac tionbu t fin d in gth e FCC’ s r e a

s o ning ina d eq ua te under th e Adminis t rative Pro c edure Act (APA). Held:The jud g ment is rever s ed, and the c a s eis remanded. 489 F. 3d 44 4, r e v e r s ed an d reman d ed. J US TI CE S CALIA delivered th e opinion of th e Cour t, ex c e pt a s to Par t III–E, concludi ng:

1

. The FCC’s orders a r e neit her “ a rb it ra r y” nor “ c a p rici ous ” wit h in2 FCC v. FOX TELEVI SION S TATIONS, IN C.

Sy llabu s
th e mean in gof th e APA, 5 U. S. C. §706(2)(A). Pp. 9–19. (a) Under the APA standard , an ag enc ym u st “ex a mine the r e le

v a n tdat aan d ar tic u late asat i sfac tor y ex plan ationfo rits ac t i on .” Motor V e hic leMfrs. Ass n . of United State s , Inc

. v. Stat e Farm Mut. Automobile Ins. Co. , 463 U

. S. 29, 43. Inov er tur n ingth e FCC’ s j u dgm e nt , t h eS e cond Circu itrelied in part on its precedent inter

preting the APA and State Farm to r e qui r e a mor e sub s tanti a lex pla

na t i on for a g ency a c t i on t h a tcha n ges prior policy. There is , however, no basi s in th e Ac t orthis C o ur t’ s opin ion s fora r e qu ir emen t th at all

a g ency cha n g eb es ubj ect e d t om o re s e a rching re view. Alt h ough a n agency must ordinarily di s p layawar en ess th a ti t is cha n ging pos i

tion, see United Stat esv. N ixon , 418 U. S. 683, 696, an d maysome

t i m e s need t o a ccou n tfor p r ior fa ct findin g orcert a i n r e lia nce int e r
ests c r e ated b ya pr iorpoli c y , it need not demons tr ate to ac o ur t’ s sati sfac tion that the r e a s ons forthe new polic yar e betterthan the reasons for the old one. It s u ffice s th at th e n e w polic yi s per m issibl e under the statute, that there are g ood reason s for it, an d th atth e agency believ e s it to be bette r , whic h the co ns cious cha n g ea d eq ua t e ly in dic a tes. Pp. 9–1 2. (b) Under the s e standard s, th e FCC’s new policy and its order fin d in gth e br oadc ast s at iss u e ac tion ablyi n dec e n twer e n e ith e rarbi

t r a r y no r ca pr icious

. Firs t , t h e F CC forthrightly ac k n o w ledged that its recent acti ons have broken ne w gro u n d , ta king a ccount of incon

sisten tpr iorFCC an d staff a c tion s, an d ex plic itlydi sav o w i n gth em as no longer goo dlaw. The agency’srea s ons for expa nding it s enforce

ment ac tiv i ty , mor eov er, wer eentir e ly rational. Even when used as an expletive, the F-Word’s p o wer to insult and offend derives from its

sex u al me aning

. And the de c i sion tolook at the patent offensiveness of even isolate duses of sexuala n d excret o ry wo rds fit s wit h Pacifica ’s cont ext

- b a s ed a pproa ch. Beca us e t h e FCC’s prior sa fe-ha rb o r-for

single-words approach wo uld likely lead to more widespread use, and in light of technological advances reduci ng the costs of bleeping of

fending wo rds , it was rational for th e agency to step aw ay from its ol d

r e gi me. The FCC’ s dec i s i o nnot to i m po se s a nc tions p r ec ludes any

ar gu men tth at it is arbitr a r ilyp unishing par t ies witho u t notic eof theirac tions’ potential c o nseq uences

. Pp. 1 3

– 1 5

. (c) None of theS e cond Circ uit’s grou nds forfinding theF CC’s a c

tion arbi tr ar yand c a pr ic ious is v a lid. Fi r s t, the FCC did not need empirical evid ence proving that fleet ing expletives consti tute harmful “first blows” t ochildren; it suffi c e s to kn ow that c h ildr e n mimic be

havior they ob serve. Second , the co ur t of appeal s’ fin d i n gth at fidel

ity to the FCC’s “first blow” theory wou l d requ ir e a c a teg o r i c a l bano n all broadcasts of expletives is not r e sponsiv eto the ac tual polic yun
der review since the FCC has alw a ys eval uated the p a tent offensive

-3 Cite as: 55 6 U

. S. ____ (2009)

Sy llabu s

n e ss of w o r d s an d state m en t s inr e la tion to the c o ntex t i nwhic h they were b r oa dca s t

. The FCC’s decis i on t oreta in s o m edis cret i on in less egregious case s does not invalidate its regulation of the broadcast s under review. Third, the FCC’s prediction that a per seex e m p t i o nf o r fleeting expletives would lead to th eir increa s ed us e m e rit s deference

an d makes en t i r esen s e. Pp. 15– 18. (d) Fox ’ s addition al ar gu men t s ar e n o t ten able gr ou n d s foraffir

mance. Fox misconstrues the agency’s orders when itargues that that the new policy is a pre s umption of indecenc y for c e rt a i n words

. Itrea d s m o re int o Pacificath anis th er e byar gu in gth at th e FC C failed adequ a t e ly to explain how this regulation is consistent wit h th at c a se. An d Fox ’ s ar gumen tth at th e FCC’ s r e peat ed appeal to “context” is a smokescreen for a st a n da rdles s regim eof unb ridled dis

cretion ignore s the fact that the opinion i n Pacifi caend o rsed a con

tex t -ba s ed app r oac h

. Pp. 18–19.

2. Absent a lo werc o ur t opinion on the m a tter , this Co ur t dec lines to addr ess the FCC or der s ’ c o nstitutiona lity

. P. 26.

S CALIA , J ., a nnoun ced the j u dgment of the Court and d e livered the opinion of the Court with respect to Parts I, II, III –A through III–D, and IV, in which R OBERTS , C

. J., and K ENNEDY , T HOMAS , an d ALITO , JJ., joined, and an opinion withresp ect to Part III–E, in which R OBERTS , C. J., and T HOMAS an d ALITO , JJ., joined. T HOMAS , J ., filed aconcur ring opinion. K EN NEDY , J., filed an opinion co ncurring in p a rt and concur

r i ngin the judg ment. S TE VENS , J., an d G IN SB U R G , J., filed di ssentin g opinions. B RE Y E R , J., fileda dis s enting opinion, in which S TEVENS , S OUTER , an d G IN SB U R G , JJ., joined._________________

_________________ 1 Cite as: 55 6 U

. S. ____ (2009)

Opinion of theCourt

NOTIC E : Th is op i n ionis subjec t to f o rmalrevi si onbef o r e publicat ioninth e p r eli m in ary p rin t of th e U n it edS t at es R e p o rts

. R e ad ers ar e r e qu es ted to
n o tif yth e R e p o rt e rof D e c i s i on s , Su p r em e C o u rt of th e U n ited St at es , Wa s h

ington, D. C. 2054 3, of any typ o gra p hical or other f o rmal err o rs , in or der th atc o rr ect i on sm a y b e mad eb e f o r e th ep r e lim in aryp rin t go es t o p r es s

. 

## SUPREME CO URT O FTHE UNI TED STATES

No. 07–5 82

FEDERAL COMMU NI CATIONS COMMISSION, ET AL ., PETITIONERS v. F O XTELEVISION STATI O NS, INC., ET AL

. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEAL S FOR THE SECO ND CIRCUIT [Apr il 28, 20 0 9 ]
J USTICE S CALIA delivered the opinion of th e Court, except as to Part III–E. Federal law prohibits the broadcasting of “any .

. . indecent .

. . language,” 1 8U. S. C. §1464, which includes expletives referring to sexualor excretor yactivit yo r organs, see FCC v. Pacifica Fou ndation , 438 U. S. 726 (1978). Th is case con c erns the a d equacy of the Federal Communications Commission’s explanation of its decision that this sometimes forbids the broadcasting of indecent expletives e v en when the offensivewords are not repeated.
I. Statutory and Regul a tory Background The Communications Act of 193 4, 48 Sta t

. 1064, 47 U. S. C. §151 et seq. (20 00 ed. and Supp. V), e s tablished a system of limited-term broadc ast licenses subject to var i

ous “conditions” designed “to maintain the control of the United Sta t es over all the channels of radio tra nsmission,” §301 (2000 ed.). Twenty-seven years ago we s a id that “[a ] licensed broadcaster is granted the free and exclusive use of a limitedand valuab le part of th e public d o main; when he accepts that franch i se it is bu rdened by enforceable2 FCC v. FOX TELEVI SION S TATIONS, IN C.

Opinion of theCourt public oblig ations.” CB S
, I n c

. v. FCC, 453 U. S. 367, 395 (1981) (internal quotation marks omitted). One of the burdens that licensee s shoulder i s the indecency ban—the statu t ory proscription against “utter[in g] any obscen e, indecent, or pr ofane language by means of radio communication,” 18 U. S. C. §1464—which Congress has instruc t ed the Co mmission to enforce between the hours of 6 a.m. and 1 0 p.m. Public Telecommunications Act of 199 2, §16(a), 106 Stat. 954, note following 47 U. S. C. §30 3

. 1 Congres s has given the Commission various means of enforcing the indecency ban, including civil fines, s ee §503(b)(1), and license r e vocations 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 da ytime broadcast of George Carlin’s “Filthy Words” monologu e actionably indecent. Pacifica Foundation , 56 F. C. C. 2d 94. At tha ttime, the Commission announced the definition of indecent speechthat i tuse s to this da y, prohibiti n g “language that describes, in term s patently offensive a s measured by contemporary comm unity standards for th e broadcast medium, sexual or excretory activities or organs, at times of the day when there is a reasonable risk that childre n may be in the audien c e.” Id., at 98. In FCC v. Pacifica Foundation
, supra , we upheld th e Commission’s order a g ainst statutory an d constitutional challenge. We rejected the broadcasters’ ar gument tha t

——————

1 The statutory prohibition a pplicable to commercial rad i o and te levisionst ation s ex ten d s byits ter m s fr om 6 a.m. to 12 midn igh t

. Th e Courtof Appea l s for t h e Dis t rictof Colum b ia Circuitheld, howev e r, th at bec a u s e “Con gr ess an d th e Commis s i on[h ad] bac ked awayfr om the conseque nces of their own reas oning,” by allowing some public b r oa dca s t e rs to a i r indecents p eech a f t e r 1 0p.m ., t h e courtwa s force d “to hold that the s e ction is uncons t itutiona l ins o fa r a s it ba rs th e broadcasting of indecent speech be tween th e h o u r s of 10:00 p.m. an d midnight.” Action fo r Children’s Tele visi onv. FCC, 58 F. 3d 654, 66 9 (199 5) (enban c)
, c e r t . den i ed, 516 U. S. 104 3 (199 6).3 Cite as: 55 6 U

. S. ____ (2009)

Opinion of theCourt the statutory proscription applie d only to speech appealing to the pruri e nt interest, notingthat “the norm al definition of ‘indecent’ merely r e fers to nonconformance with ac

cepted stan dards of m o rality.” Id., at 740. And we held that the Fi rst Amend m ent allowed Carlin’s monologue to be banned in light of the “uniquely pervasive presence” of the medium and the fact that br oadcast pro gramming i s “uniquely accessible to children.” Id., at 748–749. In the ensuing years, the Commission tooka cautious, but gradual ly expandin g, approachto enforcing the statutory prohibi t ion against indecent broadcasts. Shortly after Pacifica , 4 38 U. S. 726, the Commission expressed its “inten[tion] strictly t oobserve the narrowness of the Pacificaholding,” whic h “relied in parton th e repetitive

occurrence of the ‘indecent’ wor d s ” contained in Carlin’s monologue. In re Application of WGBH Edu c . Foundatio n, 69 F. C. C. 2d 1250, 1254, ¶10 (1978). When the full Commission n e xt considered its indec e ncy standard, however, it repudiated the view that its enforcement power was limited to “deliberate, repetitive u s e of the seven words actually co ntained in the George Carlin monologue.” In re Pacifica Fo undation, Inc. , 2 FCC Rcd. 2698 , 2699, ¶12 (1987). Th e Commission determined that su ch a “highl y restricted e n forcement standard .

. . was un duly narrow as a matter of law and inconsistent with [the Commission’ s ] enforcemen tresponsib ilities und er Section 1464.” In re Infinity Broadcasting Corp. of Pa. , 3 FCC Rcd. 930, ¶5 (1987). Th e Court of Appeals for the District of Columb ia Circuit upheld this expanded enforcem e nt standard against constitutional and Ad ministrative Procedure Act challenge. SeeActio nfor Child ren’s Televi sion v. FCC
, 852 F. 2d 1 332 (1988) (R . Ginsburg, J.), super s eded in pa rt byAction f o r Children ’s Televi sion v. FCC
, 58 F. 3d 65 4 (1995) (en b anc). Although the Commissi on had expanded its enforcement beyond the “repetitive use of specific wor d s orphrases,” i t4 FCC v. FOX TELEVI SION S TATIONS, IN C.

Opinion of theCourt preserved a distinction betweenliteral and nonliteral (or “expletive”) uses of evocative language. In re Pacifi c a Foundation, Inc. , 2 FCC Rcd., at 2 699, ¶13. The Commission explai ned that each literal “description or depiction of sexual or excretor yfu nctions must be examined in context to determine whether it is pa tently offensive,” but that “deliberate and repetiti ve use .

. . is a requisite to a finding of indecency” when a complaint focuses solelyon the use of nonliteral e x pletives. Ibid. Over a decade later, the Commis sion empha s ized that the “full context” in which partic u lar materials appear is “critically i m portant,” but that afew “prin c ipal” factor s guide the inquiry, such as the “explicitness or gra p hic nature” of the material , the extent to which the material “dwells on or repeat s” the offensive material, and t h e extent to which the material was presented to “pander,” to “titillate,” or to “shock.” In re Industry Guid ance On th e Commissio n ’s Case Law Interpreting 18 U. S. C. §1464 and Enforc ement Poli c i es Rega rdi n g Broadc a s t Indecen c y , 16 FCC Rcd. 7999, 8002, ¶9, 800 3, ¶10 (2001) (emphasis deleted). “ N o single factor,” the Commission said, “generally provides the basis for an indecency fi nding,” but “where sexual or excretory references have been made once or hav e beenpass ing or fleeti n g in nature, this char

acteristic h a s tended to weigh against a fin d ing of indecency.” Id., at 8003, ¶10, 8008, ¶17. In 2004, the Commission took one step further by de

claring for t h e 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 Glob e Awar ds, in which the performer Bono commented, “ ‘Thi s is really, really, f***i ng brilliant.’ ” In re Complain ts Agains t V a rious B ro a dcas t L i c e nsee s Re ga rding Th eir Airing of the “ G olden Globe Awards” Program, 19 FCC Rcd. 4975, 4976, n. 4 (2004) (Golden Globes Order)

. Al

­5 Cite as: 55 6 U

. S. ____ (2009)

Opinion of theCourt though the Commissi on 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 excretor y organs or activities and .

. . the utterance was fleeting an d isolated.” Id., at 497 5–4976, ¶3. The full Commission reviewed and reversedthe staff ruling. The Commi ssion first d e clared that Bono’s use of the FWord fell within its indecency def i nition, even though t h e word was used as an intensifierrather th an a literal descriptor. “[G]iven th e core meaning of the ‘F-Word,’ ” i t 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 o n e of the most vulga r , graphic an d explicit descriptions of sexual a ctivity 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. , a t4979, ¶9. The Commission observ ed 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 mostobjectionab le, most o ffensive lan

guage.” Ibid. The order noted that technological advances have made it far easier to delete (“bleep out”) a “single and gratuitous use of a vulgar expletive,” without adulteratin g the content of a broadcast. Id. , at 4980, ¶11. The order ack n owledged that “prior Commissionandstaff action have indicated that isolated or fleeting broadcasts of the ‘F-Word’ .

. . are not indecent or would not be acted upon. ” It explici t ly ruled th at “any suc hinterpret a

tion is n ol o nger good law.” Ibid., ¶12. It “clarif[ied] .

. . that the mere fact that specif ic words or phrases are not sustained or repeated does not m andate a finding tha t material th at is other w ise patent ly offensive to the b r oad­6 FCC v. FOX TELEVI SION S TATIONS, IN C.

Opinion of theCourt
cast medium is notin decent.” Ibid. Because, however, “existing pr ecedent would have permitted thi s broadcast,” the Commission determined that “NBC and its affiliates necessarily did not have the re quisite 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 Televisi on Stations, Inc., and its affiliat e s prior to the Commission’s Golden Globes Ord e r

. The first occurred during the 2 002 Billboa rd Music Awards, when the singer Cher exclaimed, “I’ve also had critics for th e last 40 years saying that I was on my way ou t every yea r

. Right. So f*** ‘em.” Brief for Petitioners 9. The secon d involved a segment of the 2003 Billboard Music Awa r ds, 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 int e rchange by reminding Ms. Richie to “watchthe bad language,” but Ms. Richie proceeded to askthe a u dience, “Why do they even call it ‘The Simple Life?’ H ave you evertried to ge t cow s*** out of a Prada purse? It’s not so f***i ng simple.” Id., at 9–10

. Following each of these broadcasts, the Commission re ceived numerous co mplaints from parents whose children were exposed to the language. On March 15, 2006, the Commission releasedNotices of Apparent Liability for a number of broadcasts that the Commission deemed actionably indecent, including the two describ e d above. In re Compla intsRega r d ing Va riou s Television Broadcasts Be tween February 2, 2002 and March 8, 2005, 21 FCC Rcd. 2664 (2006). Multiple parties petitioned the Court of Appeals for the Secon dCircuitfo r judicial review of the order, asserting a variet yof constitutional and statutory challenges. Since the order had declined to impose sanctions, the Commission had not previously given the broadcasters an opport unity to re­7 Cite as: 55 6 U

. S. ____ (2009)

Opinion of theCourt spond to the indecen c y charges. It therefore requested and obtained from th e Court of Appeals a voluntary remand so that the part ies could air their objections. 489 F. 3d 444, 453 (2007). The Commission’s order on reman d upheld the indecency fi ndings for the broadcasts described above. See In re Compla ints R e ga r d ing Variou s Tel e vision Broadcasts Between February 2, 2002, and M a rch 8, 2005, 21 FCC Rcd. 13299 (2006) (Remand Order)

. The order first explain e d that both broadcasts fell comfortably wi thin the subject-matte r scope of the Commission’s indec e ncy test because the 2003 broadcast involve d a literal description of excrement and both broadcasts invoked th e “F-Word, ” whichinherently has a sexual connotation. Id. , at 1 3304, ¶16, 13323, ¶58. The orde r next determined that the broa dc asts were p a tently offensive under community standards for the medium. Both broadcasts, it noted, i nvolved entirely gra t uitous uses of “one of the most vulgar, graphic, and explicit words for sexual activity in the English la nguage.” Id. , at 13305, ¶17, 13324, ¶59. It found Ms. Rich ie’s use of the “F-Word” and her “explicit description of the handling of excrement” to be “vulg a r and shoc king,” as well as to constitute “pa n
dering,” after Ms. Hilton had playfully wa rned 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 133 24, ¶60. The order relied upon the “critically i m portant” c o ntext of th e utterances, id. , at 13304, ¶15, noting that the ywere aired during pri m e-time awards shows “design e d to draw a large nationwide audience that could be expected to include many children interested in seeing their favorite music stars , ” id. , at 13 305, ¶18, 1 3324, ¶59. Indeed, approximately 2.5 mill io n minors witnessed each of th e broadcasts. Id. , at 1330 6, ¶18, 13326, ¶65. The order asserted th at both bro a dcasts un der revie w8 FCC v. FOX TELEVI SION S TATIONS, IN C.

Opinion of theCourt
would have beenactionably indecent under the staff rulings and Commission dicta in effect prior to the Golden Globes Ord e r —the 200 3 broadcast because itinvolved a literal description of excrement, ra ther than amere expletive, because it used more than one off e nsive word, and because it was planned, 21 FCC Rcd., at 13 307, ¶22; and the 2002 broadcast because Cher used the F-Word not as a mere inten s ifier, but a s a des cription of the sexual act to express hostility to he r critics, id

. , at 13324, ¶60. The order stated, however, that the pre- Golden Globes regi me of immunityfor isolat ed indecent expletives rested onl y upon staff rulings and Commission dicta, and that the Commission itself had never held “that the i s olated 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 GoldenGlobes Ord er eliminated any doubt that fleetin g expletives could be actionably indecent, 21 FCC Rcd., at 13308, ¶23, 13325, ¶61, and th e Commission disavowed the bureau-level decis i ons and it s own dicta that had s a id otherwi s e, id. , at 13306–13307, ¶¶20, 21. Under the new policy, a lack of repetition “weigh[s] against a finding of in decency,” id. , at 13325, ¶61, but is not a safe h a rbor. The order explained that th e Commission’s prior “stric t dichotomy between ‘expletives’and ‘descripti o ns or depictions of sexual or excretory functio n s’ is artificial and does not make s e nse in light of the f a ct tha tan‘expletive’s ’ power to off e nd derives from its se xual or exc r e tory meaning.” Id. , at 13308, ¶23. In th e Commis sion’s view, “grantin g an automatic exemptio n for ‘isolat e d or fleeting’ expletives unfairly forces view ers (including children)” to take “ ‘the first blow’ ” a n d would allow broadcasters “to air expletives at all hours of a day so long as they did so one at a time.” Id. , at 133 09, ¶25. Although the Commission determined that Fox encouraged the offensive language by using suggestive scripting in the 2003 broadcast, a n d9 Cite as: 55 6 U

. S. ____ (2009)

Opinion of theCourt
unreasonab ly failed to take adequate precautions inboth 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 retu rn ed to the SecondCir c uit for review of the Remand Order , and v a rious intervenors including CBS
, NBC, and ABC joinedthe action. The Court of Appeals reversed th e agency’s orders, finding the C o mmission’ s reasoning inadequate under the Administra tive Procedure Act. 489 F. 3d 444. Th e majority was “s kepti c al that the Commissio n[could] provide a rea s oned expla nation for i t s ‘fleeting expletive’ regime t hat would pass constitutionalmuster,” but it declined to reach the constitutional question. Id., at 462. Judge Leval di ssented, id., at 467. We granted certiorari, 552 U. S. ___ (2008).
III. Analysi s A. Governi n g Principl es The Admin i strative Procedure Act, 5 U. S. C. §551 et seq. , which sets forth the full extent of judicial authority to review executive agency actionforproceduralcorrectness , see Vermont Yankee N u clearPower Cor p

. v. Natu ral Re

sources Def e nse Counc il, Inc. , 43 5 U. S. 519, 545–54 9 (1978), permits (insofa ras relevan there) the setting aside of agency action thatis “arbit r a ry” or “ c apricious,” 5 U. S. C. §706(2)(A). Un der what we have called this “narrow” standard of review, we insist that an agency “exa mine the relevant data a n d articula te a satisfactory explanation for its action.” Motor Vehi cle Mf rs. A s sn. of Uni t e d Sta t es, Inc. v. State Farm Mut. Automobile Ins. Co. , 4 6 3 U. S. 29, 43 (1983). W ehave made clear, however, that “a court is no t to substi tute its ju dgment forthat of th e agency,” ibi d
., and should “uphold a decision of less than ideal clarity if the agency’s pathmay reasonably be discerned,” Bowman Tra n sp., Inc. v. Arkansas- Bes t Frei gh t System, Inc

. , 419 U. S. 281, 286 (1974).10 FCC v. FOX TELEVI SION S TATIONS, IN C.

Opinion of theCourt
In overturn ing the Co mmissi on’s judgment, the Court of Appeals here relied in part on Cir c uit preced ent requiring

a more substantial explanation for agency action tha t changes pri o r policy. The Se cond Circuit ha s interprete d the Administrative Pro c edure Act and our opinion in State Farm as re quiring agencies to make clear “ ‘why the original reasons for adoptin gthe [displ aced] rule or policy are no longer di spositive’ ” as well as “ ‘why the new rule effectuates the statute as well as or b e tter than the oldrule.’ ” 489 F. 3d, a t456–457 (quoting Ne w York Council, As sn. of Civilian Technicians v. FLRA , 757 F. 2d 502, 508 (CA2 1985); emp hasis deleted). The Court of Appeals for the Districtof Columbia Circuit has si milarly indicated tha t a court’s stan dard of revi ew is “heightened somewhat” whe n an agency reverses course. NAACP v. FCC, 6 82 F. 2d 993, 998 (1982). We find no basis in the Administrative Proce d ure Act o r in our opinions for a requirementthat all agency change be subjected to more searchin g review. The Act mentions no such heightened standard. And our opi n ion in Sta t e Farm neither held norimplied th at every agency action representing a policy change must be justified by reasons more substantial than those required to adopt a policy in the first in stance. Th at case, wh ich involved the resci s
sion of a prior regulat i on, said only that su ch action r e

quires “a r e asoned an alysis for th e change beyond that which may be required when an a g ency does not actin the first instance.” 463 U. S., at 42 (emphasis added). 2T r e a t

­

——————

2 J US TI CE B REYER ’s contention that State Farm did anything more, post , at 4–6 ( d issen t in gopi n ion) , r e sts uponh i s failu r eto observ e th e ital icized phrase and up on a passage quoted in State Farm from a plurality opini o n in Atchi s on, T. & S. F. R. Co. v. Wichita Bd. of Trade
, 4 1 2 U

. S

. 80 0 (1 97 3 )

. That pa ss a g e referred t o“apresum pt i o n t h at [congressional ] policies will be carriedo u t best if the settled rule is adh e r e d to.” Id., at 807– 80 8(opin i onof Mar s h a ll, J.). B u t th e Atchi s o n plurality m a d ethis st ate m e n t in the context of requiring the agency to11 Cite as: 55 6 U

. S. ____ (2009)

Opinion of theCourt ing failures to act andresci ssions of prior action differently for purposes of the standard of review mak e s goo d sense, andhas basis in the text of the statute, whi c h likewise treats the two separately. It instruc t s a reviewing court to “compel agency action unlawfully withheld o r unreasonab ly delayed,” 5 U. S. C. §706(1), and to “hol d unlawful and set asid e agency action, findings, and conclusions fou n d to be [among ot her things] .

. . arbitrar y[or] capricious,” §706(2)(A). The statute makes no distinction, however, between init ial agency action and subsequen t agency action undoing or revising that action. To be sure, the requireme nt that an agency provide reasoned explanation for its acti on would ordinarily demand that it display awareness that it is changing position. An ag ency may not, for example, depart from a prior policy sub silentio or si mply disregard rules that are stil l on the b ook s. SeeUnited Statesv. Nixon , 41 8 U. S. 683, 696 (1974). And of course the agency mu st show th at there are good reason s for the n e w policy. But it need n o t demonstrate to a court ’ s satisfacti on that the reasons for the new pol i cy are better than the reasons for the old one; it suffices that the new policy is permissib l e under th e statute, that there are good reas ons for it, and that the agency beli eves it to be better, whi c h the cons cious change of course adequately indicates. This means that the agency need not always provide a more detai l ed justification than what would suffice for a new policy created on a blank slate. Sometimes it must—when, for e x ample, its

new policy rests upo nfactual findings th at contradict those which underlay its prior policy; or when its prior

—————— provide som e ex plan ationfo ra c h an g e , “so th at th e r e v i ewin g c o u r t may understand the basi s o f the agen c y ’ s ac tion and so mayjudg e the

c o nsistenc yof that ac tion with the ag enc y ’s mandate,” id., at 808. The opinion did not asser t the author ityof a c o ur t to demand ex planatio n suffic i ent to e n able itto w e igh (byits o w n lights) the mer i ts of the

a g ency ’s cha n ge. No r did ou r opinion in St ate Farm

.12 FCC v. FOX TELEVI SION S TATIONS, IN C.

Opinion of theCourt policy has engendered serious reliance interests that must be taken into account. Smileyv. Citibank (South Dakota), N. A. , 517 U. S. 735, 7 42 (1996). It would be arbitrary o r capricious to ignore such matte rs. In such cases it is not that furthe rjustification is dema nded 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 setti ng aside of Commission action forfailure to c o mply with a procedura l requirement of the A d ministrative Procedu r e Act, th e broadcaster s ’ argumen t s have rep e atedly referred to th e First Amendment. If they mean to invite us to apply a more stringent arbitrary-and- c apr i cious review to agenc y actions that implicate constitu tional liberties, we rejec t the invitat i on. The so-called canon of c o nstitutional avoidance is an interp retive tool, counseling that ambiguous statutory langua ge be construed to avoid serious constitutional doubts. See Edwar dJ. DeBar t olo Corp. v. Florida Gu lf Coast Buildin g & Constr. Trades Council
, 485 U. S. 568, 575 (19 88). We know of no precedent for applying it to limit the scop e of authorized executive action. In th e same section authorizing cour ts to set asid e “arbitrar y[ o r] capricious” agency action, the Administra

tive Proced ure Act separately pr ovides for setting aside agency acti on that is “unlawful,” 5 U. S. C. §706(2)(A), which of course includes unconstitutional action. W e think that is the onlycontext in which constitutionality bears upon judicial review of authorized agency action. I f the Commission’s action here wa s not arbitr ary orcap r icious in the ordinary sense, it sati sfies the Ad ministrative Procedure Act ’ s “arbit rary [or] c a pricious” standard; i t s lawfulness under the Constitution is a s e pa rate question to be addressed in a constitutional challenge. 3

——————

3 J US TI CE B REYERc l ai ms that“[t]he Cour t has often a ppl ied [the doc

­13 Cite as: 55 6 U

. S. ____ (2009)

Opinion of theCourt
B. Application to This Case Judged under the above described standards, the Commission’s n e w enforcement policy and its order finding the broadcasts actionably indecent we re neither arbitrary n o r capricious. First, the Comm ission forthrigh tly ackno w ledged that its recent actions have broken new groun d , takingacco unt of incon s istent “pri or Commission and staf f action” and explicitly disavowi ng them as “no longer good law.” Golde nGlobes Or der, 19 FCC Rcd., at 4980, ¶12. To be sure, the (superfluous) explanation in its Remand Orde r of why the Cher broadcast would even have violated its earlier policy may n o t be entirely convincin g

. Butthat unnecessary detour is irrelevant. There is n odoubt that the Commission knew it was ma king a change. That is why it decl ined to assess penalti es; and it relied on the Golden Globes Orde r as removing any lingering doub t. Remand Order , 21 FCC Rcd., at 13 308, ¶23, 13325, ¶61. Moreover, the agency’s reasons f o r expanding the scope of its enfor c ement activity were entirely rati onal. It was certainly re asonable to determine that it made no sense to

—————— tr ine of c o nstitutional av oidance] where an agency’s regulation relies on a plausible b u t c o nstitutio n allysusp ec tinter p r e tatio nof a statut e.” Post , at 21. Th e c a ses h ec i t e s, h o wev e r , s e t aside anag en c yr e gu lation b e ca us e, a pplying the do ctr i ne of c o nstitutional av oida nc e to the ambiguous statu t e under wh ich the agency acted, the Courtfound th e
a g ency ’s int e rpret a t i on of the statute erroneous. See Solid Waste Agencyof Northern Cook Ct y. v. A r myCo rps of Engi ne ers , 531 U. S. 159, 17 4 (20 0 1 ); NLRBv. Catholic Bishop of Chica go , 440 U. S. 49 0, 507 (1 97 9). Bu t J US TI CE B REYERdoes not urgetha t weissu e su cha holding, evide n tly agreeing that we shoul dlimi tour review to what th e Court of Appeals decided, see Part IV, infra—which included only the adequacy of the Commissi on’s ru lemaking procedure, and not the statutory que s tion. Rather, J US TI CE B REYERseeks a “remand [that] would do no m o re t h a na s k t h e a g ency t orecons ider it s policy decis i on in light of” cons titutiona lconcerns

. Post , at 21. Th at str a n g e an d n o v e l disposition wo uld be entirely unrelatedto t h e doc t r i ne of c o nstitutiona l

av oidan c e, an d wou l d bette rbe ter m ed t h e doc t r i n eof ju dic i al ar mtwis ting or appellate review by the waggedfinger

.14FCC v. FOX TELEVI SION S TATIONS, IN C.

Opinion of theCourt distinguish between literal and nonliteral uses of offens ive words, req u iring repetitive use to render only the latt er indecent. As the Commission said with regar dto expletive use of the F-Word, “th e word’s po wer to insult and offend derives from its sexual meaning.” Id. , at 133 23, ¶58. And the Commission’s decision to lookat the patent offensiveness of even isolated uses of sexual and excretory words fits with t h e context- based appr oach we sanctioned in Pacifica , 43 8 U. S., at 750. Even isolated utterances can be made in“pander[ing,] .

. . vulgar and shocking” manners, Remand Order
, 2 1 FCC Rcd. , at 13305, ¶17, and can constitute harmful “ ‘f irst blow[s]’ ” to child ren, id. , at 13309, ¶25. It is surely rational (if not ines capable) to believe tha ta safe harbor fo r single words would “likely lead to more widespre ad use of the offensiv e language,” Golden Glo b es Order, s u pra, at 49 79, ¶9. When confronting other requests for per s e rul e s governing its enf o rcement of the indecency prohibition, the Commission has declined to crea t e safe harbors for pa rticular type s of broadcasts. See In re Pacifica Foundation, Inc. , 2 FCC Rcd., at 2699, ¶12 (repudiating the view that the Commission’s enforcement power was li mited to “d eliberate, repetitive use of the seven words actually co ntained in the George Carlin monologue”); In re Infinity Broadcasting Corp. of Pa. , 3 FCC Rcd., at 932, ¶17 (“reject[ing] anapproachthat wo uld hold that if a work ha s merit, it is per s e not indecent”). The Commission could rationally decide it needed to step away from its old regime where nonrepetitive use of an expletive was per s e nonactionable becaus e that was “at odds with the Commission’s o v erall enfo rcement policy.” Remand Ord e r , supra, at 13 308, ¶23. The fact that technological advan c es have m a de it easier for broadc asters to bleep out offending words fur t her supports the Commissi on’s step ped-up enforcement polic y. Golden Glo b es Ord er, supra, at 4980, ¶1 1. And t h e15 Cite as: 55 6 U

. S. ____ (2009)

Opinion of theCourt agency’s de cision not to impo se any forfeiture or other sanction precludes an y argument that it is arbitraril y punishing parties wit h out notice of the pot e ntial consequences of th eir action.
C. The Court of Appeal s’ Reasoning The Court of Appeals found the Commissi on’s action arbitrar ya n d capri c ious on three grounds. Fi rst, the cou r t criticized the Commissi on for failing to explain why it had not previou s ly banned fleeting expl etives as “harmful ‘first blow[s].’ ” 489 F. 3d, at 458. In th e majority’s view, without “evidence that suggests a fleeting expletive is harmf ul [and] .

. . serious enou gh to warrant govern ment regulation,” the agency couldnot 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 cre ate a higher hurdle for doing so. And it is not the Commission, but Congress that has proscribed “any . . . indecen t. . . language.” 18 U. S. C. §1464. There are some propo s itions for which scant empirical evidence can be marshaled, an d the harmful effect of broadcast profanity on children is one of them. One cannot deman da multiyear controlled study, in which some children are intention a lly exposed to indecent broadcas ts (and insulated from al l other indecency), an d others are shielded from all indec e ncy. It is one thing to set aside agency action under the Administrative Procedure Act because of failure to adduce empirical data th at can read

ily be obtai n ed. See, e

. g., State F a rm , 463 U. S., at 46– 56 (addressing the costs and benefit s of manda t ory passive restraints for automobiles). It is something else to ins i st upon obtain ing the unobtainable. Here it suffices to know that childre n mimic the behavior they observe—or at least the behavior that is presented to them as normal an d appropriate

. Programming replete with one-word indecent expletives will ten dto produce children who use (at16 FCC v. FOX TELEVI SION S TATIONS, IN C.

Opinion of theCourt least) on e-word indecent expletiv es. Congress has ma de the determination that indecent material is harmful to children, and has left enforcement of the banto the Co mmission. If enforcement had tobe supported by empirical data, the ban would effectively be a nullity. The Commission had a dduced no quantifiable measure of the har m caused b ythe language in Pacifica
, and we nonetheless held that the “govern m ent’s interest in the ‘well-being of its youth’ .

. . jus t ified the regulation of otherwise protected expression.” 438 U. S., at 749 (quoting Gin s ber g

v. New Yo rk , 390 U. S. 629, 640, 639 (1968)). If the Constitution itself demands of agencies no more scientificall ycertain criteria to comply with the First Amendment, neither does the Administrative Procedure Act to com p ly with th e require m e nt of reasoned decisionmaking. The court’s second objection is that fidelity to the agency’s “fi r st blow” th eory of harm would require a categorical ban on all bro a dcasts of expletives; the Commission’s failure to go to t h is extreme thus und ermined the coherence of its rationale. 489 F

. 3d, at 458–459. This objection, however, is not re sponsive to the Commission’s actual policy under review—the decision to include pa tently offensive fleeting expletives within the definition o f indecency. The Commission’s prior enforcement prac tice, unchallenged here, a l ready drew distinctions between th e offensiveness of particular words based upon the context in which th ey appeared. Any complaint about the Commission’s f a ilure to b an only so me fleeting expletives is better direc t ed at the agency’s co ntext-basedsystem ge nerally rather than its inclus ion of is olated expletives. More fundamentally, however, the agency’s d e cision to consider the patent off e nsivenes s of iso l ated expletives o n a case-by-ca se basis is not arbitrary or capricious. “Even a prime-time recitation of Geo ffrey Chaucer’s Miller’s Tale,” we have explained, “would not be likely to command the17 Cite as: 55 6 U

. S. ____ (2009)

Opinion of theCourt attention of many children who are both old enough to understand and young enough tobe adversely affected.” Pacifica
, su pra , a t750 , n. 29. Th e same rati onale 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 vu lnerable from watching and would put pa rents on notice of potentiallyobjectionable material. SeeIn re ComplaintsAgains t V a rious Tele vision Lice nsees R e ga r d

ing Their Broadcast on Nov. 11, 2004 of the ABC Televi

sion Ne two rk’s Pre sen tation of th e Film “Sa v ing Pr iva t e Ryan,” 20 FCC Rcd. 4507, 4513, ¶15 (2005) (noting tha tthe broadcast was not “intended as family entertainment”). The agency’s decisionto retain some discretion does not render arbitrary or capricious its regulation of the deliber ate and shocking uses of offensive language at the award shows under review—sh o ws thatwere expecte d to (and did) draw the attention of million s of c h ildren. Finally, the Court of Appeals found unconvincing the agency’s prediction (witho ut any evidence) that a per s e exemption for fleeting expletiv es would lead to increased use of expletives one at a time. 489 F. 3d, at 460. B u t even in the absence of evidence, the agency’s predictive judgment (w hich merits deferenc e) makes enti re sense. T o predict tha tcomplete immunity for fleeting expletives, ardently desired by broadcaste rs, will lead to a substantial increase infleeting ex pletives see m s to us a nexercise i n logic rather than clairvoyance. The Court of Appeals wa s perhaps cor r ect that th e Commission’s prior p o licy had not yet caused broadcaster s to “barra g[e] the air w aves with expletives,” ibid. That may have been beca use its prior permissive policy had been confir med (save in dicta) onl y at the staff level. In an y event, as the Golden Globes orde r demonstrated, it did produce more expletives than the18FCC v. FOX TELEVI SION S TATIONS, IN C.

Opinion of theCourt Commission (which has the first call inthis matt er) deemed in c o nformity with the statute.
D. Respondents’ Arguments Respondents press s o me arguments that the court did not adopt. They clai m that the Commissi on fail ed t o acknowledge its change in enforcement policy. That contention is not tenable in light of th e Golden Globes Ord e r’s specific declaration that its prior rulings we re no longer good law, 19 FCC Rcd., at 4980, ¶12, and the Remand Orde r’s disavowal of those staff rulings and Commissio n dicta as “seriously fla w ed,” 21 FCC Rcd., a t13308, ¶2 3. The broadcasters also try to rech aracterize t h e nature of the Commission’s shift, contending tha tthe old policy wa s not actually a per serule 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 broadcaster s ’ 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 Pacifi ca, the FCC did not consider fleeti n g, isolated or i nadvertent expl etives to be indecent”). And we find no basis for the co ntention that the Commission has n o w adopted a presumption of indecency; its re peated reliance on context refutes this claim. The broadc asters also make muchof the factthat the Commission has gone beyond the scope of authority a p
proved in Pacifica
, whi c h it once r e garded as the farthest extent of its power. But we have never held that Pacifica represented the outer l i mits of permissible regulation, so that fleeting expletive s may notb ef o rb i d d e n

. T ot h e contrar y , we explicitly left for another day whether “a n occasional expletive” in “a telecast of an Elizabethan comedy” could be proh ibited. 438 U. S., a t7 48. By usi n g the narrowness of Pac ifica ’s holding to require empirical evidence of harm befo re the Com m issionregulates mor eOpinion of theCourt 19 Cite as: 55 6 U

. S. ____ (2009)

Opinion of S CALIA , J. broadly, the broadcasters attempt to turn t h e sword of Pacifica , which allowed some regulation of broadcast indecency, into an ad ministrative-law shield preventing any regulation beyond what Pacifi ca sanction ed. Nothing prohibits federal agencies from moving in an incremental

manner. Cf. National Cable & Te lecommunic a tions Assn

. v. Brand X Interne tSe r v ices , 545 U. S. 967, 1002 (2005). Finally, the broadcasters claim that the Commission’s repeated ap peal to “con t ext” is sim p ly a smoke screen 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
, su pra, at 750, and we find no basis in the Admi nistrative Procedure Act for mandating anythin g different.
E. The Dissents’ Arguments J USTICE B R E YER purpo rts to “be gin with ap plicable law, ” post , at 1, but in fact begins by stacking th e deck. He claims that the FCC’s status as a n“independent” agency sheltered from politicaloversi ght r e quires courts to be “al l the more” vigilant in ensuring“th at major policy decisions be basedu p on articulable reas on s.” Post , at 1, 2. Not so. The independent agencies are sheltered not from politics but from the Preside n t, and it has often b een obs e rved that their freedom frompresid entia loversight ( and protection) has simply been replaced by increased subservience to congressional direction. See, e.g. , In re Seal ed Cas e , 83 8 F. 2d 476, 507–508 (CADC) (Silberman, J.), rev’dsub nom

. Morrisonv. Olson , 487 U. S. 654 (1988); Kagan, Presidential Administration, 114 Harv. L. Rev. 2245, 2271, n. 93 (2001); Calabresi & Prakash, Th e 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 wasOpinion of theCourt 20 FCC v. FOX TELEVI SION S TATIONS, IN C.

Opinion of S CALIA , J. spurred by significant political pressure from Congress. 4

——————

4 A Subcommi ttee of the FCC’ s Hous e oversi ght Commi tte e held hearings on the F CC’s b r oa dcast indecencye n forcement o nJ a nua ry 2 8 , 200 4. “Can Yo uSayTh a tonTV? ” : AnEx amin at io nof th e FC C ’ s Enfor c e ment with r e spec t to Br oadc ast I n dec e ncy , Hea r ingbefor ethe Subc ommit t ee on Telec o mm unic a tion s an d the Internet of the House Commi ttee onEner gyand Commer c e , 10 8th Cong ., 2d Sess. M e mbe r s of the Subcommittee speci f ically “c alledon the full Commi ssion t o
revers e [t he s t a ff ruling i nt h e Go lde nGlobes case]” because they per c e iv ed a “f eelin gamon g s t man yA m er i c an s th at som ebr oadc as ter s
ar e eng a g e d in a r a c eto the botto m, pushing t h e dece ncy e nvelope t o distinguish t h emselves in the in crea s ingly crowded ent e rt a i nm ent field.” Id. , at2 (s ta tementof Rep. Up to n); see also, e. g

. , id

. , a t17 (sta tement of Rep. Ter r y), 19 (sta tement o f Rep. Pitts). Theyr e peatedly expressed disapproval of th e F CC’s enforcement policies, see, e.g. , id. , at 3 (s tate ment of Rep. Upto n) (“At some p o int we hav et oask the FCC : How much is enough? When will itrevoke a l i cense?”); id., at 4 ( s t a te

ment of Rep. Markey) (“To day’s he aring will allow us to explore the FCC’s la cklus t er enfo rcem e n trecord with respec t to these v i olations”).

About two weeks later, on Februa r y11, 200 4, th e sa m eSubc ommittee held hearings on a bill increasing the fines for indecency violations. Hear in g s on H. R 3717 bef o r eth e Subc ommit t ee onTelec o mmu n i c a

tions and the Internet of the Ho use Committee on Energy and Commer c e , 108th Con g ., 2d Sess

. All fiv eCo m m iss i on er s wer epr esen t an d

were grilled about enforce ment shortcomings. See, e.g

. , id

. , at 124 (sta tement of Rep. Ter r y) (“Chair m anPowell, .

. . it see m s like comm on
s e ns e tha tif we ha d .

. . more freq ue nt e n forcement in s t ea d of afew examples of fines

. . . that would be a deterrent in its e lf”); id., at 7 (sta tement of Rep. Ding ell) (“I see tha tappar e ntly

. . . ther e is no enfor c e ment of r e gulations at the FCC”). Certain stat ements, moreov er , indic a te thatthe po li tic a l pr essure appl ied by C o ngress had i t s desired effect. See ibid. (“I think ourc o m m ittee’ s wor khas g o tten the atten t ionof FCC Ch air m anPowell an d the Bush Administrat i on. And I’ m happyto s ee the FCC now beingbr ought to a state of apparent aler t on these matters”); see also id., at 1 2 4(s tate ment of M i c h ael Copp s, FCC Commissioner) (noting “posi t ive” change in othe r Commi ssioner s’ willingness to step up enforcement inlight of proposed congressiona l

ac tion). A v e r s ion of the bi ll ultima telyb e c a me law as the Br oadc ast Dec e nc yEn forc emen t Ac t of 200 5, 120 S t a t . 491.

The FCC ado p ted the c h ang ethat i s the subject of this lit igation on M a r c h3, 200 4, abou tth r ee weeks af terthis sec o nd hear ing

. See Golde nGlobe sOrde r , 19 FCC Rc d. 4975.Opinion of theCourt 21 Cite as: 55 6 U

. S. ____ (2009)

Opinion of S CALIA , J. J USTICE S T EVEN Sapparently recognizes thi s political control by Congress, a n d indeed sees it as th e manifestation of a principal-agency relationship. In his judgment, the FCC is “better viewed as an agent of Co ngress” tha n 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 “wh yits prior policy is no longer sound before allowing it to change course.” Post, at 4. Leaving aside the unconstitutionality of a schem e giving the p o wer to enforce laws to agents of Congress, see Bowshe r v. Synar , 478 U. S. 714, 7 26 (1986), it seems to u s that J US T I CE S T EVEN S ’ conclusion does not fo l l ow from hi s premise. If the FCC is indeed an agent of Congress, it would seem an adequate explanation of its change of position that Congres s made clear its wishes for stric t er enforcemen t , see n. 4, supra. 5The Administrative Proce

dure Act, after all, does not apply to Congress and its agencies. 6

——————

5 J US TI CE S TEVENS a ccus e s us of eq uating statements made in a congressional hearing with the i n tent of Congress. Post , at 4 , n

. 3. In this opinion, we donot. The inte nt of th e fu ll Con gr e ss (orat leas t a m a jor

ity of each Ho use) is th ought r e lev a nt to th e inter p r e tation of statutes
, since they must be p a sse d by the en t i re Congres s

. S ee U. S

. Cons t

. , Art. I, §7. It is quite irrelevant, howev e r, to the ex tr as tatutor yinfluence Congressexerts over agencies of the Executive Branch, whi c h is

ex er ted bythe c o ngr e ssional c o mmi tt ees responsible f o r oversight a n d appr opr i ation s withr e spec t to th e r e lev a nt ag en c y

. That is a m a jo r reason why committee assignment s ar e impor t ant, and c o mmitte e cha i rm a n s h ips powerful. S u rely J USTI CE S TEVENS know s this.

6 The Administ r a tiv ePr oc edur e Ac t defines “ a g e nc y” to mean “eac h

au th or ityof th e Gov e r n men tof th e Un ited Sta t es,” 5 U. S. C. §551(1), but specifical l yexcludes “the Congress,” §551(1)(A). The Court of Appea l s for t h e Dis t rictof Colum b iaCi rcuit has “interpreted [this] exemption for ‘the Congres s ’ to mean th e entire legi slative br an c h ,” Washin gton L e gal Foun dati onv. Unit ed S t ates Se nte n ci ng Com m ’ n , 17 F. 3d 1446, 1 4 49 (19 94); see also Ethnic Em ployees of Lib rary of Con

gre s sv. Boorstin , 751 F. 2d 14 05, 141 6, n

. 15 (C ADC 19 85) (h old i n g that the Libr a r yof Congr e ssis not an “ag e nc y” under the Ac t).Opinion of theCourt 22 FCC v. FOX TELEVI SION S TATIONS, IN C.

Opinion of S CALIA , J. Regardless, it is assu redly not “applicable law” that rulemakingby indepen d ent regula tory a g enci es is subject to heightened scrutiny

. The Administrativ eProcedure Act, which provides ju dicial review, makes n odistinction between independent and other agencies, neither in its definition of agency, 5 U. S. C. §701(b)(1), nor in the standards for reviewing a g ency a ction, §706. Nor does any case of ours express or refl ect the “heightened scrutiny” J USTICE B REYERand J USTICE S TEVE NS would impose. Indeed, it is hard to imagine any closer scrutiny than tha t we have given to the Environmental Protection Agency, which is not an independent agency. See Massachu s e t tsv. EPA , 549 U. S. 497, 533–535 (2007); Whitma nv. Americ a n Truckin g

Assns., Inc. , 531 U. S. 457, 48 1–486 (200 1). There is no reason tomagnify the separation-of-powers dilemma posed by the Headless Fourth Bran ch, seeFrey

tag v. Commissioner , 5 01 U. S. 86 8, 921 (1991) (S CAL IA , J., concurring in part andconcurri n gin judgme nt), by letti ng Article III judges—like jack als stealing the lion’s k ill

— expropriate someof th e powe r that Congress has wrested from the unitary Executive. J USTICE B RE YE Rand J USTICE S T EVEN S relyupon t w o supposed omissions in the FCC’s a nalysis that they believe preclude a finding that the agency did not act arbitrarily. Neither of these om issi ons could u n dermine 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 Commis sion failed adequately to explain its consideration of the constitutional issu es inherent in its regulation, pos t , at 7–11 (opinion of B REYER , J.); post, at 4– 7 (opinion of S TEVENS , J.). We are unaware th at we have ever be fore reversed an executive agency, not for violating our ca ses, but for failure to discuss them a d equately. But leave that aside. Accordin g to J USTICE B RE YE R , the agency said “next to nothing about the relation between th e change it made in its prior ‘fleet­Opinion of theCourt 23 Cite as: 55 6 U

. S. ____ (2009)

Opinion of S CALIA , J. ing expletive’ policy and the First-Amendment-related need to avoid ‘censorship,’ ” post , at 7–8. The Remand Orde r does, however, d e vote four full pages of small-type, single-spaced text (over 1,300 words not counting the footnotes) to explainin gwh y the Commission believes that its indecency-enforcem e nt regime (which includes its change in policy) is consistent with the First Amendment—and therefore not censorship as the term is understood. More specificall y , J USTI CE B REYER fau l ts the FC C for “not explain[ing] why the agency chan ged its mind about the line that Pacificadraws or its policy’s relation t o that line,” pos t , at 10. But in fa ct (and as the Commission explained) this Court’s holding in Pacifica, 438 U. S. 726, drew no co nstitutional line; to the contrary, it expressl y declined to express any view on the constitutionality of prohibiting isolated i n decency. J USTICE B REYERan d J USTICE S T EVEN S evidently believe that whe nan agency has obtained this Cour t’s determin ation that aless restrictive rule is constitutional , its successors acquire some special burden to explain why a more restrictive rule is not un constitutional. We know of no such principle. 7 Second, J USTICE B RE YER look s over the vast field of

——————

7 J US TI CE S TEVENS c r i tic i zes us for“assumi ngthat Pacifi ca endorsed” the enforcement at issue here. Po st , a t4

. W ed on o t h i n go f t h es o r t

. We rely o nt h e fa ctt h a tcer t a i n a s pects of t h e a g en cy’s decis i on m i rror the context-based approach Pacificaapproved, supra , at14, bu t th at goes t oour h o lding on a d m i nis t rat ive la w, a n d s a ys not h ing ab o ut

c o nstitutionali t y

. J US TI CE S TEVENS al so ar gu es th at h e i gh t en ed deference should be due the FCC’s prio r policy because the “FCC’s init ia l views .

. . refle c t the views of th e Congr e ss that de leg a tedthe Co mmi ssion authority to flesh out detail s not fullydefined in the enac ting statute.” Post, at 3. We do n o t bel i ev e th atth e deadh a n dof a depar t e d Congressional oversight Committee shou ld c o nstr ain the disc r e tion that the text of a statute confers—but the point is in any eve n t irrelevant i n this a ppea l , which con c er ns not wh ether the agency has exceeded its statutory mandate but whether the rea s ons for its actions are adequ ate.Opinion of theCourt 24FCC v. FOX TELEVI SION S TATIONS, IN C.

Opinion of S CALIA , 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 broa dcaster wh o cannot afford the new technology that enables the screening of live broadcasts for indecent utterances. Cf. post, a t11–16. The Commission has fa iled to address the fate of this unfortunate, wh o will, he bel i e ves, be subj ect to sanction. We doubt, to begin with, that small-town broadcasters run a heightened risk of liabilityfor 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 Hollywo od. Their main exposure with regar dto self-ori ginated pr ogramming i s live coverage of news and public affairs. Bu t the Remand Order we nt out of its way to n o te that the case at hand did not involve “breaking ne ws covera ge,” and that “it may be inequitable to hold a licensee responsible for a i ring offensiv e speech d u ring live coverage of a public event,” 21 FCC Rcd., a t 13311, ¶33. As for th e programmi ng that s m all stat ions receive on a network “feed”: This will be cle ansed by the expensive technology small stations (by J U S TICE B RE YE R ’s hypothesis) cann ot afford. But never mind the de tail of whet her small broadcasters are uniquely subject to a great risk of punishment for fleeting expletives. The fundamental fallacy of J U S TICE B REYER ’s s m all-broadcaster gloomyscenario is its demonstrably fals e assumption that the Remand Order ma kes no provision for the avoidance of unfairness—that the singl e

utterance prohibitionwill be invoked uniformly, in all situations. The Remand Ord er made very clear that t h is 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, ¶35.25 Cite as: 55 6 U

. S. ____ (2009)

Opinion of theCourt Thus, the f a ct tha tth e agency be lieved that Fox (a lar g e broadcaster that used suggestive scripting a n d a deficient delay syste mto air a prime-time awards sh ow aimed a t million s of children) “fail[ed] to exercise ‘rea sonable judgment, responsibility and sensitivity,’ ” id. , at 13311, ¶3 3, and n. 91 (quoting Pacifica Found ation, Inc. , 2 FCC Rcd.
, at 2700, ¶1 8), says littl e about how the Commission would treat smaller broadca s ters who cannot afford screening equipment. Indeed, that they would not b epunished f o rfailing to purchase equipment they cannot afford is positively sugg ested by the Remand Order’ s sta t ement that “[h]olding Fox respon sible for airing indecent material in this case does not .

. . impose und ue burdens on broadcasters.” 21 FCC Rcd., at 1 3313, ¶36. There was, in sum, n o need for th e Commissi on to compose a special treatise on loca l broadcasters. 8An d J USTICE B REYER cansafely defer his conc ern for those yeomen of th e airwaves until we have before us a case that involves on e. IV. Constitutionality The Second Circuit didnot de finit i vely rule on the constitutionality of the Commission’s orders, but respondents nonetheles s ask us to decide their validity un der the Fi rs t Amendment. This Co urt, however, is on e of final review
, “not of first view.” Cutter v. Wilkin son , 544 U. S. 709, 718,

n. 7 (2005). It is conceivable that the Commis sion’s orders may cause some broad c asters to avoid certain language that is beyond the Commission’s reach under the Consti­

——————

8 J US TI CE B REY ERposits that the FCC wo uld have been required to give more ex pla n a t ion ha d it us ednotice-a nd-comment rulema king, whic h “shouldlead us to t h e same c o nc lusion” in this r e v i ew of the

a g ency ’s cha n ge t h rough a d judica t i on. Po st, at 1 7

. Ev enassu m i n gth e premise, there is no basis for inco rporating all of the Administrativ e ProcedureAc t’s notice-a nd-commentprocedural requ irements into

arbitr ar y
- an d-c a pr ic iou s r e v i ew of adju dic a tor ydec i sion s. Cf. Verm ont Yankee , 435 U

. S., at 545–5 4 9

.26 FCC v. FOX TELEVI SION S TATIONS, IN C.

Opinion of theCourt
tution. Whether that i s so, and, if so, whether it is unconstitutional, will be determinedsoon en ough, perhaps i n this very case. Meanwhile, anychilled references to excretory and sexual material “surely lie at the periphery of First Amendment concern,” Pacifica, 438 U. S., at 743 (plurality o p inion of S TEVEN S , J.). We see no reason to abandon our usual procedures in a rush to judgmen t without a lower court opinion. We decline to address the constitutional questions at this time.
* * * The SecondCircuit bel i eved that children today “likel y hear this language far more often from other sources than they did inthe 1970’s when the Commission first began sanctioning indecent s p eech,” and that this cuts agains t more stringent regulation of broadcasts. 489 F. 3d, at 46 1. Assuming t h e premise is true (for this point the Second Circuit did not demand empirical evidence) th e conclusion does not necessarily follow. The Commission could reasonably conclude that the pervasiveness of fou llanguage, and the coarsening of public entertainment in other media such as cab l e, justify more string ent regulation of broadcast p r ogra ms so as to give conscientious parents a relatively safe haven for their child ren. In the end, the SecondCircuit and the broadcasters quibble with the Commission’s polic y choices and not with the explanation it has given. We decline to “substitute [our] judgm e nt for thatof the agency,” Sta t e Farm , 463 U. S., at 43, and we find the Commission’s orders neither arbitrary nor ca pricious. The judgme nt of the United State s Court of Appeals for the Second Circuit is r e versed, and the case is remanded for further proceedings consistent with this opinion.

It is so orde red._________________

_________________ 1 Cite as: 55 6 U

. S. ____ (2009)

T HOMAS , J

. , co ncu rrin g 

## SUPREME CO URT O FTHE UNI TED STATES

No. 07–5 82

FEDERAL COMMU NI CATIONS COMMISSION, ET AL ., PETITIONERS v. F O XTELEVISION STATI O NS, INC., ET AL

. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEAL S FOR THE SECO ND CIRCUIT [Apr il 28, 20 0 9 ]
J USTICE T HOMA S , concurring. I join the Court’s opinion, which, as a matter of adminis

trative la w, correctl y upholds the Federal Communica

tions Commission’s ( F CC) polic ywith respect to indece nt broadcast s p eech under the Admi nistrative Procedure Act. I write separately, however, to note the questionable viability of the two precedents that support the FCC’s assertion of constitutional aut hority to regul a te the p r o

gramming at issue in this case. See Red Lion Broadcast

ing Co. v. FCC, 395 U. S. 367 (1969); FCC v. Pacifica Foundation , 438 U. S. 726 (1978). Red Lion and Pacifi ca were unconvincing when they were issued, and the pa s
sage of time has only increased doubt regarding th eir continued validity. “ T he text of the First Amendment makes no distinctions among print, broadcast, and cable media, but we have do ne so” in th ese cases. De nver Area Ed. Tele communicatio n s Consortium, Inc. v. FCC, 518 U. S. 727, 812 (1996) (T HOMAS , J., concurring in judgment in part and dissenting in part). In Red Lion , this Court upheld the so-called “fairness doctrine,” aGovernment require ment “thatdiscussion of public issues be presen ted on broadcast statio ns, and that each side of those issue s must be given fair coverage.” 395 U. S., at 369, 400–401. The decision relied h e avily on the2 FCC v. FOX TELEVI SION S TATIONS, IN C.

T HOMAS , J

. , co ncu rrin g scarcity of available b r oadcast frequencies. According to the Court, because broadcast spectrum was so scarce, i t “could be regulated and rationalized only by the Govern

ment. With out government control, the medium would be of little us ebecause of the cacophony of competing voices, none of which could be clea rly and predictably heard.” Id. , at 376

. To this end, the Court c o ncluded that the Gov

ernment should be “permitted to put restrai n ts on licen

sees in favor of others whose views should be expressed on this unique medium.” Id. , at 39 0; see a l so id. , at 38 9 (concludingthat“as f a r as the F i rst Amend m ent is co n
cerned those who are licensed sta n d no better than those to whom licenses are refused”). Applying t h is principle, the Courtheld that“[i]t does not violate the Fir s t Amendment to treat licensees given the privilege of using

scarce ra dio frequencies as proxi e s for the entire commu

nity, obligated to give suitable time and attention to m a t

ters of great public concern.” Id., at 394. Red Lion s p ecifically declined to answer whether the First Amendment authorized th e Government’s “refusal t o permit the broadcasterto carry a particular p r ogram or t o publish his own views[,] .

. . [or] government censorship of a particular program,” id. , at 396

. But then in Pacifica
, this Court rejected a c hallenge to the FCC ’ s authority t o 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 notedthat “broad

casting .

. . has received the most limited First Amend

ment protection.” 438 U. S., at 7 48. The Court also em

phasized the “uniquely pervasive presence” of the broadcast media in Americans’ lives and the fact that broadcast programmin g was “uni quely accessible to chil

dren.” Id., at 748–749. This deep intrusion into the FirstAmendment righ ts o f broadcasters, which th e Court has justified b a sed only on the nature of the medium, is problematic on two levels.3 Cite as: 55 6 U

. S. ____ (2009)

T HOMAS , J

. , co ncu rrin g First, instead of looking to first principles to evaluate the constitutional question, the Court relied on a set of transi

tory fac t s, e.g. , the “scarcit yof r a dio frequencies,” Red Lion, supra , at 390, to determine the ap plicable Firs t Amendment standard. But the original meaning of the Constitution cannot tu rn on modern necessity: “Constitu

tional rights are enshri ned with the scope they were un

derstood to have when the peopleadopted them, whether or not future legislatur es or (yes) e v en future judges think that scope too broad.” D i st r i ctof C o lumbiav. Heller , 554 U. S. ___, ___ (2008) (slip op., at 63). In breaching this principle, Red Liona d opted, and Pacifica reaffirmed, a legal rule that lacks a n y textual basis in the Constitution. De nver Area, s u pra , at 813 (T HOMAS , J., concurring in judgment in part and dissentingin part) (“First Amend

ment distinctions between media [have been] dubious from their infancy”). Indeed, the logicalweak ness of Red Lion and Pacifi cahas been apparent f o r some time: “It is cer

tainly true that broadcast frequen c ies are sca rce but it is unclear wh y that fa ct j u stifies content regulat i on of broad

casting in away that would be intolerable if ap plied to the editorial process of theprint media.” Tele communicatio n s Resea rch & Action Center v. FCC, 801 F. 2d 501, 508 (CADC 198 6) (Bork, J.). Highlightin g the doctrinal incoher e nce of Red Lion and Pacifica , th e Court has declined to apply the lesser stan

dard of Fir s t Amendm ent scrutin yimposed on broadcast speech to federal regulation of tel e phone dial -in services,

see Sable Communicati ons of Cal., Inc. v. FCC, 492 U. S. 115, 127–1 28 (1989), cable television programming, se e Turne r Bro a dcas ting S y stem, Inc. v. FCC, 51 2 U. S. 622, 637 (1994), and the In ternet, see Renov. American C i vil Liber t ies U n ion , 521 U

. S. 844, 86 7–868 (199 7). “There is no justification for this apparent dichoto m y in First Amendment jurisprudence. Whatever the merits of Pacifica when it was is sued[,]

. . . i tmakes no sense n o w.”4 FCC v. FOX TELEVI SION S TATIONS, IN C.

T HOMAS , J

. , co ncu rrin g Action for Children ’s Television v. FCC, 58 F. 3d 654, 67 3 (CADC 199 5) (Edwa r ds, C. J., dissenting). The justifica

tions relied on by the Court in Re dL i on an d Pacifica— “spectrum scarcity, in trusiveness, and acce ssibility to children—neither distinguish broadcast from cable, n o r explain therelaxed a p plication of the prin ciples of th e First Amen dment to broadcast.” 5 8F. 3d, at 673; see als o In re Industry Gu idan ce on Com m ission’s Case Law Inter

preting 18 U. S. C. § 1464 and Enforcemen t Policies R e

gardin g Broadcast In decency , 16 FCC Rcd. 7999, 802 1,

n. 11 (2001) (statement of Co mmissioner Furchtgott-Roth) (“It is ironic that streaming video or audio content from a television or radio stat ion would likely receiv e more con

stitutional protection, see Re n o[v. Americ a n Civil Lib erties Union , 521 U. S. 844 (1997)], than would th e same exa c t content broadcast over- t he-air”). Second, even if this Cou rt’s disfavored treatment of broadcasters under the First Amendment could have been justified at the time of Red Lion and Pacifi ca , dramati c technological advances have eviscerated th e factual as

sumptions underlying those decisions. Broadcast spec

trum is significantly less scarce than it was 40 years ago. See Brief f o r Respondents NBC Universal et al. 37–3 8 (hereinafter NBC Brief). As NBC notes, the number of over-the-air broadcast statio ns grew from 7,411 in 196 9, when Red Lion was issued, to 15,273 by the end of 2004

. See NBC Brief 38; see also FCC Media Bureau Staff Re

search Paper, J. Berresford, The Scarcit yRationale for Regulating Traditional Broadcasting: An Idea Whose Tim e Has Passe d 12–13 (Mar. 2005) (No. 2005 –2). And the trend should continue with broadcast television’s immi

nent switch from analog to digital transmission, which will allow the FCC to “stack broadcast channels right beside one another along the spectrum, a n d ultimately utilize significantly less than the 400 MHz of spectrum th e analog system absorbs today.” Consumer Electronics5 Cite as: 55 6 U

. S. ____ (2009)

T HOMAS , J

. , co ncu rrin g Assn. v. FCC, 347 F. 3d 291, 294 (CADC 2003). Moreover, traditional broadcast television and radio are no longer the “uniquely pervas ive” media forms they once

were. For most consumers, traditional broa dcast media programmi ng is now bundled with cable or satellite s e r
vices. See App. to Pet. for Cert. 107a. Broadcast an d other video programming is alsow i dely available over the Internet. See Stelter, Serving U p Television Without the TV Set, N. Y. Times, Mar. 10, 20 08, p. C1. And like radio and television broadcasts, Internet access is now often freely avail able over th e airw aves and can b eaccessed by portable computer, cell phones, and other wireless devices. See May, Charting aNew Cons titutional Jurisprudence for the Digi tal Age, 3 Charleston L. Rev. 373 , 375 (2009). The extantfacts that drove this Court to su bject broad

casters to unique disfavor under the First Amendment simply do not exist to day. See In re Industry Guidan ce, supra , at 8020 (statement of CommissionerFurchtgottRoth) (“If r u les regulating broad c ast contentwere ever a justifiable i n fringement of sp eech, it was because of the relative dominance of that mediu min the co mmunications mark etplace of the past. As the Commission has lon g recognized, the facts underlying this justification are no longer true” (footnote o m itted)).* These dramatic change s in factual circumstan ces might well support a departure from precedent under the pre

vailing approach to sta re decisi s

. See Planned Parentho o d of Southeastern Pa. v. Casey , 505 U. S. 833, 855 (1992 ) (asking “wh e ther facts have so changed, or come to be seen

——————

* Withr e spec t to r e lianc e by FCC v. Pacifica Foundatio n , 438 U. S. 726 (1 97 8), onth e ease withwh ichch ildr e nc o u l d be exposed to in de

c e nt telev i sio npr ogr a mming , tec h nologyha s provided innova tive solu tion s to a ssi st a d u l ts i nsc r eenin g t h eir childre n from uns uitable programming—even when that pr ogr a mminga ppears on broadcast

c h an n e ls. See NBC Br ief 43– 47 (d is cus s ing V-chip te chnology, which allows targete dblocking of t e levi sion programs based on content).6 FCC v. FOX TELEVI SION S TATIONS, IN C.

T HOMAS , J

. , co ncu rrin g so different ly, as to have robbed th e oldrule of significa n t application or justifica t ion”); see also American Trucking Assns., Inc

. v. Scheiner , 483 U. S. 266, 302 (198 7) (O’Connor, J., dissenting) (“ Significantly changed circum

stances canmake an older rule, defensible when form u
lated, inappropriate

. . .”). “In cases involving constitu

tional issues” that turn on a particular set of factual assumptions, “this Court must, i norder to reach sound conclusions, feel free tobring its opinions int oagreement with ex perience and wi th fac t s ne wly asce rtai n ed.” Burn et

v. Coronad oOil & Gas Co. , 28 5 U. S. 39 3, 412 (1932) (Brandeis, J., dissenting). For all these reas ons, I amop en to reconsideration of Red Lion and Pacifi ca in the proper

case._________________

_________________ 1 Cite as: 55 6 U

. S. ____ (2009)

Opinion of K ENNEDY , J. 

## SUPREME CO URT O FTHE UNI TED STATES

No. 07–5 82

FEDERAL COMMU NI CATIONS COMMISSION, ET AL ., PETITIONERS v. F O XTELEVISION STATI O NS, INC., ET AL

. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEAL S FOR THE SECO ND CIRCUIT [Apr il 28, 20 0 9 ]
J USTICE K E NNEDY , concurring in p a rt and con c urring i n the judgme nt. I join Parts I, I I , III– A through III–D, andIV of the opinion of the Court and agree that the judgment must be reversed. This separate writingis to underscore certa in background principles for the conc lusionthat an agency’s decision to change cou r se may be arbitrary a n d capricio us if the agency sets a new course that reverses an earlier determination but does not provi d e a reasoned explanation for doi n g so. In th ose circumstances I a gree with the dissenting opinion of J USTICE B REYERthat the agency must explain why “it now reject[ s] the consid erations th at led it to adopt that initi a l policy.” Post , at 5. The question whether a change in policy requires an agency to provide a more-r easoned explanation than when the original policy was first announced is not susceptible, in my view, to an ans wer that a p plies in all cases. There may be instances when it becomes apparent to an agency that the re asons for a longstanding policy h ave been altered by discoveries in science, advances in tec hnology, or by any of the other forces at work in a dyna mic society. I f an agency s eeks to respond to new circumstan c es by modifying its earlier policy, the agency may have a substantial body of data and experience that can shape and inform the2 FCC v. FOX TELEVI SION S TATIONS, IN C.

Opinion of K ENNEDY , J.
new rule. I nother cas e s the altered circumst ances may be so new that the agency must make predicti ve judgments that are a s difficult now as wh en the agency’s earlier policy was first announced. Reliance interests in the prio r 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 wh en informed by the experience and expertise of the agenc y , suffice t odemonstrate that th e new policy rests upon principles that are rational, neutr a l, and in accord with the agency’s proper understanding o f its authority. That sho w ing ma y b erequired if the agency is to demonstrate tha tits action is not “arbitrary, ca pr icious, an abuse of discretion, or otherwise not in accordance with law.” 5 U. S. C. §706(2 )(A). And, o f course, th e agency action must not be “in excess of statutory jurisdi c

tion, authority, or limitations, or short of statutory ri ght. ” §706(2)(C). These requirements stem from the ad ministrativ e agency’s un ique constit u tional position. The dynamics of the three branches of Government are well u n derstood as a general matter. But the rolean d position o f the agency, and the ex act locus of its powers, present qu estions that are delicate, subtle, a n d complex. The Federal Government could not perform its dutie s in a responsible and effective way withoutadminis trative agencies. Yet th e amorphous character o f the administrative agency in th e constitutional system escapes simple explanation. If agencies were permitted unbridled discretion, their actions migh t violate important c o nstitutional principles of separation of powers and checks and balanc es. T othat end the Constitution r e quires that Congress’ delegation of lawmaking power to an agency must be “specific and detailed.” Mistretta v. United S t ates , 488 U. S. 361, 37 4 (1989). Congress must “clearly delineat[e] the general policy” an agency is to achieve and must specify th e3 Cite as: 55 6 U

. S. ____ (2009)

Opinion of K ENNEDY , J. “boundaries of [the] delegated authority.” Id. , at 372–373. Congress must “ ‘lay do wn by legis l ative act an intelligibl e principle,’ ” and the agency must follow it. Id. , at 37 2 (quoting J. W. Hampto n, Jr., & Co. v. Uni t edSta t es , 276 U. S. 394, 409 (1928)). Congress passed the Administrative Procedure Act (APA) to e n sure that agencies follow constra ints even a s they exercise their powers. One of these const r aints is the duty of age n cies to fin dand formulate policies that can be justified by neutral principles and a reasoned explanation.To achieve that end, Congress confined agencies’ discretion and subjected thei r decisi ons to judicial r e view. See R. Ste w art & C. Suns tein, Public Programs and Priva t e Rights, 95 Harv. L. Rev. 1193, 124 8 (1982) (th eAPA was a “wor king co mpromise, in which broad delegations of discretion wer etolerated as longas they were checked b y extensive procedural safeguards”). If an agency ta kes action not based on neutral and rational principles, the APA grants federal courts power t oset aside the agency’s action as “a rbitrary” or “capri c ious.” 5 U. S. C. §706(2)(A); Citizen sto Pres erv e Ov erton Pa rk, Inc. v. Vol p e , 401 U. S. 402, 416 (1 971). For these reasons, agencies under th e APA are subject to a “searching and careful” r e view by the courts. Ibid. Where there is a policychange the record may be much more developed because the agen cy based its prior policy on factual findings. In that instan ce, an agency’s decision to change course may be arbitrary and capri c ious if the agency ign o res or countermand s its earlier factual findings withou t reasoned explanation for doing s o

. An a g ency cannot simply disrega r d contrary or inconve n ient factu al determinations that it made in th e past, any more than i t can ignore inconvenien tfacts whe nit writes on a blan k slate. This is the principle followed in the Court’s opinion in Motor Vehicle Mfrs. A ssn. of United State s , Inc. v. State4 FCC v. FOX TELEVI SION S TATIONS, IN C.

Opinion of K ENNEDY , J.
Farm Mu t. Automobile Ins. Co., 463 U. S. 29 (1983). There, Congress direct ed the agency to issue regulations that would “ ‘meet the need for motor vehicle safety.’ ” Id. , at 33. Th e agency promulgated a regulati on requiring cars to have passive-restraint systems—either airbags or automatic seatbelts. Id. , at 37. The agency based thi s regulation on its factual finding that these systems save lives. Id. , a t35. Following a change in Presidential administration, however, the agency reversedcourse and rescinded the regulation. In doing s o , the agency did not address it s prior findin g tha tairb ags save li ves. Id. , a t47–48. Indeed, “[n]ot one sentence” of the agency’s “rulemak i ng statement” in support of rescinding the regulation discussed the benefits of airbags. Id. , at 48. This Court found the agency’s re scission arbitrary an d capricious because the agency did not addres s its prior f a ctual findings. See id. , at 49–51. The present case does not raise the concerns addressed in Sta t e Fa rm

. Rathe rthan base its prior policy on its knowledge of the broadcast indus try and its audience, the FCC instead based its policy on what it considered to be our holding in FCC v. Pacifica Fo undation , 438 U. S. 72 6 (1978). See In re A pplication of WGBH Educ. Foundatio n, 69 F. C. C. 2d 1250, 12 54, ¶10 (19 78) (“We in tend strictl y to observe the narrowness of the Pacifi ca holding”). The FCC did no t base its prior policy on factual findings. The FCC’s Remand Order explains that the a g ency has changed its reading of Pacifica

. The reason s the agency

announces for this change are not so precise, detailed, or elaborate as to be a m o del for agency explanation. But, a s the opinion for the Court well explains, the FCC’s reasons for its acti on were th e sort of r e asons an agency ma y consider and act upon. The Court’s ca reful and complete analysis—both with respect to the procedural history of the FCC ’ s i n decency p o licies, and the reasons the agenc y5 Cite as: 55 6 U

. S. ____ (2009)

Opinion of K ENNEDY , J. has given t osupport t h em—is quite sufficient to sustain the FCC’s change of course against respondents’ claim that the agency acted i nan arbitrary or capricious fashion. The holdin g of the Co urt of Appeals turned on its conclusion that the agen cy’s explanation for its change of policy was i n sufficient, and tha ti s the only question presented here. I agree with the Court tha tas this ca se comes to us from the Court of Ap peals we must reserve judgment o nthe question whether the agency’s action is consistent with the gu arantees of the Constitution._________________

_________________ 1 Cite as: 55 6 U

. S. ____ (2009)

S TEVENS , J., di s s e nting 

## SUPREME CO URT O FTHE UNI TED STATES

No. 07–5 82

FEDERAL COMMU NI CATIONS COMMISSION, ET AL ., PETITIONERS v. F O XTELEVISION STATI O NS, INC., ET AL

. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEAL S FOR THE SECO ND CIRCUIT [Apr il 28, 20 0 9 ]
J USTICE S T EVEN S , dissenting. While I joinJ USTICE B REYER ’s cogent dissent, I think it important t oemphasize two flaws in the Cou rt’s reasoning. Appa rently assuming that the Federal Communications Commission’s (FCC or Commission) rulemaki ng authority is a species of executive power, the Court e s
pouses thenovel proposition that the Co mmission n eed not explain its decision to discard a longsta n ding rule in favor of a dramatically different approach to regulation. See ante , a t10–11. Moreover, the Court incorrectly as

sumes that our decisi on in FCC v. Pacifica Foundation
, 438 U. S. 7 26 (1978), decided that the word “indecent,” a s used in 18 U. S. C. §1464, 1 permits the FCC to punish the broadcast of any expletive that has a s e xual or excretory origin. Pacifica was not so sweeping, and the Commission’s changed view o f its statutory manda t e certainly would have been reject ed if presented to the Court atth e time.
I “The struc t ure of our Government as conceived by th e

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1 Section 1464 provides: “Whoever u tters any obscene, indecent, o r pr ofan e lan guag ebymean s of r a dio c o mmu n i c a tion sh all be fin e d underthis title orimpr isoned not mor etha ntwo y e ar s, orboth.”2 FCC v. FOX TELEVI SION S TATIONS, IN C.

S TEVENS , J., di s s e nting Framers of our Constitution disperses the federal power among the three branches—the Legislative, theExecutive , and the Judicial—placing both substantive and procedura l limitations on each.” Metropolitan Washington Airports Authorityv. Citiz e ns fo r Aba t emen t of Air cra ft Noise, Inc. , 501 U. S. 252, 272 (1991). The distinction among the branches is not always sharp, see Bowshe r v. Synar , 478 U. S. 714, 749 (1986) (S TEVE NS , J., concurring in judgment) (citi n g cases), a consequence of the fact tha tthe “great ordinances of the Constitution do not establish a n d divide fields of black and white,” Sprin ger v. Philippine Islands , 27 7 U. S. 189, 209 (1928) (Holmes, J., dissenting). Stric tlines 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 Tr ade Commission (FTC) made clear, however, when Congress grants rulemaking and adju dicative au

thority to an expert agency composed of commissioner s selected through a bipa rtisan proce d ure and a p pointed for fixed terms, it substa ntially ins u lates the agency fro m executive control. See Humphre y ’s Execu tor v. United Sta t es , 295 U. S. 602, 623–628 (1935). With the view that broadcast regulation “should be as free from political infl uence orarbitrary con trol as possible,” S. Rep. No. 772, 69th Cong., 1st Sess., 2 (1926), Congress established the FCC with the same measure of independen ce from the Executiv e that it had provided the FTC. Jus t 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 ru les that govern the airwaves, it exercises legislative po wer delegated t oi tb yC o n gr e s s

. S e e Whitman v. American Tru c kin g Assns., Inc

. , 531 U. S. 457, 489–4 90 (2001) ( S TEVE NS , J ., concurring in part and concurring in judgment); Bowshe r , 478 U. S., a t752 (opinion of S TEVENS , J.). Consequently,3 Cite as: 55 6 U

. S. ____ (2009)

S TEVENS , J., di s s e nting the FCC “cannot in an y proper sense be characterized as an arm or an eye of the execut ive” and is better viewed as an agent of Congress established “to carryinto effec t legislative policies em bodied in th e statute i naccordance with the legislative standard the r ein prescri bed, and to perform other specifie d duties as a legislativ e .

. . aid.” Humphr ey’sExecutor , 2 95 U. S., at 628. 2 The FCC, l i ke all agencies, may revise its regulations from time to time, just as Congress amends its statutes as circumstan ces war r ant

. Bu t the F CC is const r ained by it s congressional mandate. There should be astrong presumption that the FCC’s initial views, reflecting the informed judgment of independen t commissioners with expertise in the regul a ted area , also reflect the views of the Congre ss that delegated the C o mmission authority t o flesh out details not fully defined i nthe enacting statu t e. The rules adopted after Pacifi ca , 438 U. S. 726, have been in effect fordecades a n d have no t pro v ed u n workable in the intervening years. As J UST I CE B RE YER ’s opinion explains, b r oadcasters have a s ubstantial interest in regulatory stability; the threat of crippling fi nancial pen

alties l ooms large over these entiti es. Se e pos t , at 10–14. The FCC’s shifting and impermissibly vague indecency

——————

2 J US TI CE S CALIA erroneous l y concludes t h a ttr eatingthe FCC’ s r u lemakin gau th o r ityas anex er c i se of legi s l at iv e powerwould so meh o w be

unco n stitution a l. See ante , at 2 1 (citing Bowsher v. Sy nar , 478 U. S. 714, 72 6 (1 98 6)). Bu t th at is th e n a tu r eof r u lemakin g : Ru les pr omu l

gated by agencies (independent or no t) ca rry t h e fo rce o f la w precis ely because they are exercises of such legislative authority. This may offend J US TI C E S CALIA’ s theor yof the “unitar yEx ec utive,” ante , at 22 , but it doe s no t offend the C o nstitution. I n deed, “the Fr amer s v e sted ‘All legisla t ive Powers’ in the Congress, Art. I, §1, just as in Article II they vested the ‘exe cutive Power’ inthe President, Art. II, §1. Those provisions do not purport t olimit th e au thority of either re cipient of powerto deleg a te author ityt oother s .” Wh itman v. Ame r i can Tr uck i n g Ass n s. , In c. , 531 U. S. 457, 489 (2 001) (S T EVENS , J., con c ur ringin par t

a n d conc ur rin gin j u d g ment).4 FCC v. FOX TELEVI SION S TATIONS, IN C.

S TEVENS , J., di s s e nting policy only imperils these broadcasters and muddles the regulatory l andscape. It th erefore mak e s emi n ent sense to require the Commission to justif y why i t s prio r policy is no longer sound before allowing it to change course. 3T h e FCC’s con gressional c harter, 47 U. S. C. §151 et seq. , the Administra tive Procedure Act, 5 U. S. C. §706(2)(A) (2006 ed.) (instructing courts to “hold unlawful and set aside .

. . arbitrar y[o r] cap r icious” agencya ction), and the rule of law all favor stability over administrative whi m

. II The Court commits a second criti cal error b yassuming that Pacifi caendorsed a constru c t ion of the term “indecent,” as used in 18 U. S. C. §1464, that would include any expletive that has a sexual orexcretor yori gin. Neith e r the opinion of the Court, nor Just i ce Powell’s concurring opinion, adopted such a far-reachi ng interp retation. Ou r holding wa s narrow in two criti cal respect s

. First, we concluded, over the dissent of four Justices, that the statu

tory term “i ndecent” was not limit ed 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. Secon d , we upheld the FCC’s adjudicatio nthat a 12-minut e, expletive-filled monologue

——————

3 It appear s th at J US TI CE S CALIA has come to the view th at isol ated statements bymembers of a congre ssional ov er sigh t sub c ommittee ar e sufficient evidence of Con gress’ in ten t

. S ee ante , at 20, n

. 4. Delv in g into the detail s of how vario u s lawm akers “grilled” the full sla t e of FCC Commi ssion er s, J US TI CE S CALIA c o nc lu des, qu ite r e mar k ably , th at th is

encou n t e r “ m a de clea r [Congres s ’ ] wis h es for s t rict er enforcem e nt” a n d “would seem an adequ a te explanation of [the FCC’s] change of position.” Ante , a t21. Putting to the side the question whether co ngre ssional outrage is the kind of evid enc esuffi c i ent to ex plain the Commis

sion’s decisionto adop t a th inly-r ea s o ned a n d uncons t itutiona l policy, J US TI CE S CALIA’s treatment of these pro c eedings as evidencing the intent of Cong res s would make even the most ardent student of legislative his t ory b l us h.5 Cite as: 55 6 U

. S. ____ (2009)

S TEVENS , J., di s s e ntingby satiric humorist George Carlin was indecent “as broadcast.” Id ., at 735. We did not decide whether an isolated expletive could qualif y as indecent. Id. , at 750; id. , a t 760–761 (Powell, J., concurring inpart and concurring i n judgment). And we certainly did not hold th at any word with a sexual or scatological origin, however used, was indecent. The narrow treatment of the term “indecent” i n Pacifi ca defined the outer boundaries of the enforce ment polici e s adopted by the FCC in the ensuing years. The Commission origin ally explained that“un d er the legal standards set forth in Pacifica , deliberate and repetitive use [ o f 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 th is case, it should not be forgotten that Pacifica permit ted the Commission to regulate only thos e words that describe sex or excrement. See 438 U. S., at 743 (plurality opinion) (“[T]he Co mmission’s definitionof indecency will deter only the broadcasting of patently offensive refer ence sto excretory a n d sexual organs and activities” (emphasis added)). The FCC minimizes the strength of this limit ation by now claiming that any use of the words at issue in this case, in any context and in any form, necess aril y describes sex or excrement. See In re Complai n ts Rega rd

ing Va rious Televi sion Broadc as ts Be tweenFebru a ry 2, 2002 and March 8, 2 005, 21 FCC Rcd. 132 99, 13308, ¶23 (2006) (Remand Ord e r) (“[A]n y s trict dichot omy between expletives and descriptions or depictions of sexual or excretoryfu nctions is artificial anddoes not make sense in light of the fact that an explet ive’s power to off e nd derive s from its sexual or excretory mea n ing” (internal quotation marks omit ted)). The customs of speech refute this clai m: There is a critical distinction between theuseof anexple

tive to desc ribe a sexual or excret o ry functio nand the u s e6 FCC v. FOX TELEVI SION S TATIONS, IN C.

S TEVENS , J., di s s e nting of such a word for an e n tirely different pur p ose, such as t o express an emotion. One rests at the core of indecen c y; the other stands miles apart. As any golfer who ha s watched hi s partner shank a short approach knows, itwould be absurd to accept the suggestion that the resultant four-letter word u ttered on the golf course describes

sex or excre ment and is therefore indecent. But that is the absurdity the FCC has embraced in its new approachto indecency. 4 See In re Co mplaints Agains t Va rious Broad

cas tLic e nse es Rega rdin g Thei r Airi ng of the “ G olden 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 sometimesr e tain their sexual or excretor yme aning, ther e are surely countless ins t ances in which they are used ina manner unrelated to th eir origin. These words may not b e polite, but that does not mean the yare neces s arily “indecent” under §1464. By improperly equating the two, the Commission has adopted an interpretation of “indecenc y” that bears no resemblance to wha t Pacificacontemplated. 5 Most distressingly, the Commission appears to be entirely unaware of this fact, see Remand Order, 21 FCC Rcd., at 13308 (erroneously ref e rencing 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 leas t, thatwhile the FCC patrol s the airwaves forwor d s tha thav eaten u ous r e lation ship with sexorex c r e ment,

com m e rcia l s broa dca s tduring prim e-t i me hours f r eq uen t ly a s k viewer s whether the y too are battlin g erectiledys f unction or a r ehaving tro ub l e going t ot h eb a t hroom

.

5 While J US TI CE T HOMASand I disagree about the continued wisdom of Pacifica , see ante , p. 1 (c oncu rrin gopinion), t h e cha n ges in t e chn o logy and the availab ility of broadcast spe c trum he identifies certa i nly

couns el ares t ra ined a pproach t oindecenc y regu la t i on, nott h e wildly expansive path the FCC has chosen.7 Cite as: 55 6 U

. S. ____ (2009)

S TEVENS , J., di s s e nting FCC has fa iled to dem o nstrate an awareness that it has ventured fa r beyond Pacifica ’s reading of §1464, its policy choice must be declared arbitrary and set aside as unla w
ful. See Ci tizens to Pr eser ve Ove r t on Park, I n c. v. Volpe, 401 U. S. 402, 416 (1971).
III For these reasons and those stated in J USTIC E B REYE R ’s dissenting opinion, I would affirm the judgment of the Court of Ap peals._________________

_________________ Cite as: 55 6 U

. S. ____ (2009) 1

G IN SB U R G , J., dis s e nting 

## SUPREME CO URT O FTHE UNI TED STATES

No. 07–5 82

FEDERAL COMMU NI CATIONS COMMISSION, ET AL ., PETITIONERS v. F O XTELEVISION STATI O NS, INC., ET AL

. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEAL S FOR THE SECO ND CIRCUIT [Apr il 28, 20 0 9 ]
J USTICE G IN S B UR G , dissenting. The mainspring of this case is a Government r e striction on spok en words. Thi s appeal, I recognize, arises under the Administrative Procedure Act.* J USTIC E B RE YE R ’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 Fo undation , 4 38 U. S. 72 6 (1978), I agree, exem

plified “arbitrary” and“capriciou s ” decisionmaking. I write separ a tely only to note that there is no way to hide the long sh adow 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 radiobroadcast of comedian George Carlin’s 12-minute “Filthy Words” mono

-

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* TheS e cond Circuit , pres e n t e d wit hboth c o nstitutional and st atu

tor ychalleng es, v a c a ted the r e mand orde r on APA grounds. Theco urt therefore “refrain[ed] from d e ciding” the “constitutiona l questions.” 489 F. 3d 444, 46 2 (200 7) (qu o tin g Lyng v. Northw estIn dian Cem e t e r y Protective Assn. , 485 U. S. 439, 44 5 (1 98 8)). Th e m a j o r i ty , h o wev e r, sta t ed and ex plained whyit was “skept i c al” tha tthe Commi ss ion’ s polic yc o u l d “pass c o n s ti tu tio n al mu ster .” 489 F. 3d, at 4 62.2 FCC v. FOX TELEVI SION S TATIONS, IN C.

G IN SB U R G , J., dis s e nting logue. Ibi d

. Carlin satirized the “original” seven dirty words and repeated th em relentlessly in a variety of collo

quialisms. The monologue was aired as part o f a program on contemporary attitu des toward the use of language. In

re Citizen ’ s Complain t Again s t Pacifica Fou ndation Sta

tion WBAI (FM) , 56 F. C. C. 2d 94, 95 (1975). In rejecting the First Amendment challenge, the Court “emphasize[d] the narrowness of [its] holding.” Pacifica, 438 U. S., at 750. See al so ante , a t 1 (S TE VEN S , J., dissenting). In this regard, the majoritys tressed tha tthe Carlin monologue deliberately repeated the dirty words “ove r and over again.” 43 8 U. S., at 729, 751–7 55 (Appendix). Justice Powell, concurring, de scribed Carlin’s speechas “verbal shocktreatment.” Id. , at 757 (concurring i npart and concurring i njudgment). In contrast, the unscripted fleeting expletives at issue here are neither deliberate nor relentlessly repetitive. No r does the Co mmission’s policy home in on expressions us ed to describe sexual or excretor yactivities or organs. Spon

taneous utterances used simply to convey an emotion or intensify a statement fall within the order’s c o mpass. Cf. Cohenv. California , 4 03 U. S. 15, 26 (1971) (“[W]ords are often chosen as much for their e m otive as t h eir cognitive force. We c annot sanction the view that the Constitution, while solicitous of the cognitive content of individual speech, has little or no regard fo r that emo t ive function which, pra c tically speaking, may o f ten be the more impor

tant element of the overall messa ge sought to be commu

nicated.”); Denver A rea Ed. Telecommunications Consor

tium, Inc. v. FCC, 518 U. S. 727, 805 (1996) ( K ENN E DY , J., concurring in part, concurringin judgment in part, an d dissenting in part) (a word ca teg o rized as indecent “ofte n is inseparable from the ideas andviewpoints conveyed, or separable only with loss of truth or expressive power”). The Pacificadecision, however it might far eon reas

sessment, s ee ante , at 6 (T HOMAS , J., concurring), wa sCite as: 55 6 U

. S. ____ (2009) 3

G IN SB U R G , J., dis s e nting tightly cabined, and for good reason. In dissent, Justice Brennan observed that the Government should take ca re before enjo ining the broadcast of words o rexpressions spoken by many “in our land of cultural pl uralism.” 438 U. S., at 775. That comment, fitting in the 1 970’s, is ev en more potent today. If the re served constituti onal question reaches this Court, see ante , at 26 (majority opinion), we should be mindful that word s unpalatable to some may be “commonplace” for others, “the stuff of everyday conve r sa

tions.” 438 U. S., at 77 6 (Brennan, J., dissenting)._________________

_________________ 1 Cite as: 55 6 U

. S. ____ (2009)

B REYER , J., diss enting 

## SUPREME CO URT O FTHE UNI TED STATES

No. 07–5 82

FEDERAL COMMU NI CATIONS COMMISSION, ET AL ., PETITIONERS v. F O XTELEVISION STATI O NS, INC., ET AL

. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEAL S FOR THE SECO ND CIRCUIT [Apr il 28, 20 0 9 ]
J USTICE B RE YE R , with whom J UST I CE S TE VEN S , J U S TI CE S OUTER , an d J USTIC E G INSBURGjoin, dissent ing. In my view, the Federal Commun ications Commission failed adequately to e x plain why it chan ged its indecency policy from a policy permitting a si ngle “fleeting use” of an expletive, to a policy that made no such exception. Its explanation fails to discuss tw o critical factors, at least one of whic h directly u n derlay its original policy decision. Its explan ation instead discussed severalfactors well known to it the first time around, which b ythemselves provide no significant justification for a changeof policy. Consequent ly, the FCC decision is “arbitrar y , capricious, an abuse of discretion.” 5 U. S. C. §706(2)(A); Motor Vehi

cle Mf rs. A ssn. of Uni t ed States, I n c. v. Sta t e Farm Mut. Automobile Ins. Co. , 463 U. S. 29, 41–43 (1983); Citizens to Pres erv e Ov erton Park, Inc. v. Volpe, 401 U. S. 402, 420 – 421 (1971)

. And I would affirm th e Second Ci rcuit’s similar determination.
I I begin with applicable law. That law grants those in charge of independen t administrative agencies broa d authority t odetermine relevant policy. Bu t it does n o t permit them to make policy choices for purely political2 FCC v. FOX TELEVI SION S TATIONS, IN C.

B REYER , J., diss enting reasons nor to rest them primarily upon unexplained policy preferences. Federal Communications Commissi oners have fixed terms of office; they are not directly responsible to the voters; and they enjoy an independence ex

pressly designed to insulate them, to a degree, from “ ‘th e exercise of political ov ersight.’ ” Freyta g

v. Commissio n er , 501 U. S. 868, 916 (19 91) (S CALIA , J., concurring in par t and concurring in judgment); see also Morrisonv. Olso n , 487 U. S. 654, 691, n. 30 (1988). That insulation helps t o secure important gov e rnmental objectives, such as the constitutionally related objecti ve of maintainin g broadcast regulation that does n o t bend too r e adily befor ethe political winds. But that agency ’s comparative freedom from ballot-box control makes it all the more important tha t courts revi ew its deci sionma king to assure compliance with applicable provisi o ns of the law—including law requiring tha tmajor policy decisions be based upon articu

lable reas ons. The statuto ry provision applicable here is th e Administrative Procedure Act’s (APA) pr ohibition of agency action that is “arbitrary, capri c ious, [or] a nabuse of di scretion,” 5 U. S. C. §706(2)(A). This legal requirement helps assur e agency decisionmakin gbased upon more than the pe rsonal preferences of the decisionmakers. Courts hav e applied the provision sparingly, granting agencies broa d policymaki n g leeway. But they h ave also made clear tha t agency disc retion is not “ ‘unbounded.’ ” Burli n gton Tru c k Lines, Inc. v. Uni t ed S t ates , 371 U. S. 156, 16 7–168 (1962). In so holding, American courts have followed a venerable legal tradit i on, stretching back atleast to the days of Sir Edwa rd Coke and the draining of the English fens. S e e Rooke’s Ca se , 77 Eng. Rep. 209, 210, 5 Co ke Rep. 99 b, 100a (C. P. 1598) (Coke, J.) (memb e rs of sewercommission with authority to act accordin g “ t o their discretio[n]” are nonetheles s “limited and bound with the rule of reason and law .

. . and [cannot act] according to their wills and3 Cite as: 55 6 U

. S. ____ (2009)

B REYER , J., diss enting private affe ctions” (quoted in Jaffe , Judicial Review: Constitutional and Jurisdictional Fact, 70 Harv. L. Rev. 953, 954 (1957))). The law ha s also recognized that it is not s omuch a particular s e t of substantive commands but ra ther it is a proces s , a process of learning th ro ugh reasoned argument, that is the antithesis of the “arbitrary.” This means agen

cies must follow a “logical and rational” decisionmaking “process.” Allentown Mack Sale s& Servic e, Inc. v. NLRB , 522 U. S. 359, 374 (19 98). Ana g ency’s policy decisions must reflect the reasoned exe rcise of expert ju dgment. Se e Burling t on Tru c k Li nes, su pra , at 167 (decision mu s t reflect basis on which agency“exe rcised its expert discre

tion”); see a l so Humphrey’s Exe c utor v. United States
, 2 95 U. S. 602, 624 (1935) (independent agencies “exercise .

. . trained judgment .

. . ‘informed by experience’ ”). And, as this Court has speci f ied, in determining whether an agency’s po licy choice was “a rbitr a ry,” a revi ewing cour t“must consider whether the decision was based on a consideration of the relev ant facto rs and wheth e r there ha s been a clear error of judgment.” Over ton Pa rk, supra , a t 416. Moreover, an agency m u st act cons istently. The agency must follow its own rules. Arizon a Grocery Co. v. Atch i

son, T. & S. F. R. Co. , 2 84 U. S. 370, 389–390 (1932). An d when an agency seeks to change those rules, it must focus on the fac tof change and explain the ba sis for tha t change. See, e.g., National Cable & Telecom m unication s Assn. v. B r and X Inte rnet Se rvic es , 545 U. S. 967, 98 1 (2005) (“ Un explained i n consistency is” a“rea s on for holding an interpretation to be an arbitrar yand capricious change from agency practice” (em p hasis added)). To explain a change requires more than setting forth reasons why the ne w policy is a go od one. It also requires the agency to answer the question , “Why did you change ? ” And a rational answer to this ques t ion typically requires a4 FCC v. FOX TELEVI SION S TATIONS, IN C.

B REYER , J., diss enting more complete explanation than would prove satisfactory were change itself not at issue. An (imaginary) adminis

trator expl aining why he chose a policy that requires driving on the right-side, rather than the lef t -side, of the road might say, “Well, one side seemed as good as the other, so I flipped a coin.” But ev en assuming the rationality of tha texplanation for an i n itialchoice, that explanation is n o t at all rational if off e red to explain why the administrat o r change d driving pra ctice, from right-side t o left-side, 25 years later. In State F a rm , a unanimous Court applied these commonsense requirements to an a g ency decis i on that rescinded an earlier agency policy. The Court wrote that an agency mus tprovide a nexplanation for the agency’s “rev o

cation” of a prior action that is more thorough than the explanation necessary when it does not act in the first instance. The Court defined “revocation,” not simply as

resc inding an earlier policy, cf. ant e , at 10–11, but as “a

reve rsal of t h e age n cy’ sfor m er vie w sas to the proper course.” State Farm
, 463 U. S., at 41 (emphasis added). See also Verizon Communication s Inc. v. FCC, 535 U. S. 467, 502, n. 20 (2002) (portion of Court’s opinion joined b y S CALI A , K E NNEDY , and T HOMAS , JJ.) (noting Sta t e F a rm “may be read as prescribing more searching judicial re

view” when“an agency [is] ‘changing its course’ as to the interpretati on of a statute”); Tho m as Jefferson Univ. v. Shalala , 51 2 U. S. 504, 524, n. 3 (1994) (T HOMAS , J., dis

senting) (similar). At the same time, th e Court described the need for explanation in terms th at apply, not simply to pure resci s

sions of earlier rules, b u t rather to changes of policy as i t more broadly defined them. But see ante , at 10–11. It said that the law required an explanation for such a change because the ea rlier policy, representing a “ ‘settl ed course of behavior[,] embodies the agency’s informed judgment that, by pursuing that course, it will carry out5 Cite as: 55 6 U

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B REYER , J., diss enting the policies

. . . b e st if the settled rule is adhered to.’ ” Sta t e Fa rm , supra , at 41–42. T hus, the a g ency must explain whyit has come to the conclusion that it should now change direction. Why does it now reject the considerations th at led it to adopt that initial policy? What ha s changed in the world that offers justification for the change? What other good reasons are there f o r departing from the earlier policy? Contrar yto the majority’s chara c t e rization of this dissent, it would not (and Sta t e Fa rm does not) require a

“ heigh t enedstand a rd” of review. Ante , at 10 (emphasis added). Rather, the la w requires application of the same standa rd of review to different circumsta n ces, namely circumstan ces charact e rized by t h e fact that change is at issue. It requires the agency to focus upon the fact of change wh ere change is relevant, just as i tmust focus upon any other relevant circum s tance. It requires the agency here to focus up on the reasons that led the agenc y to adopt the initial policy, and to explain why itnow comes to a new judgment. I recognize that some ti mes the ultimate explanation for a change may have to be, “We now weigh the relevant considerations differently.” Bu t a tother times, an agency can and should say more. Where, f o r example, the agency rested its previous policy on particular factual findings,

see ante , a t3–5 (K EN NEDY , J., concurring i npart and concurring in judgmen t); or where an agency rested its prior policy on its view of the governing law, see infra , at 7–11; or w h ere an ag ency rest ed its previous policy on, say, a special need to c oordinate with another agency, one would normally expect the agency to focus upon those earlier vie w s of fact, of law, or o f policy and explain why they are no longer controlling. Regardless, to say that the agency here must answer the question “why ch ange” is not to require the agency to provide a justification that is

“ better thanthe reasons for the old [policy].” Ante , at 11

.6 FCC v. FOX TELEVI SION S TATIONS, IN C.

B REYER , J., diss enting It is only to recognize t h e obvious fact tha t cha n ge is sometimes (notalways) a relevant background feature that sometimes (not always ) requires focus (upon prior justifi

cations) and explanation lest the adoption of the new policy (in that circums tance) be “arbitrary, capricious, an abuse of dis cretion.” That is certainly how courts of appeals, the courts that review agency decisions, have always treate dthe matter in practice. See, e. g. , Pennsylvania Federation of Sports

men’s Club s, Inc. v. Kempthorne , 497 F. 3d 337, 351 (CA3 2007); Yale-New Hav e n Hosp . v. Leavi t t , 470 F. 3d 71, 7 9 (CA2 2006); Citizens Awar enes s Network, Inc . v. United Sta t es , 391 F. 3d 338, 3 52 (CA1 2004). But see NAACP v. FCC, 682 F. 2d 993, 99 8 (CADC 19 82) (using word “heigh tened”). Th e majority’s holding co uld in this respect significantly change judicial review in practice, and not in a healthy dir e ction. Bu t see, ante , at 1–5 (K ENNEDY , J., concurring in part and concurringin judgment). After all, if it is alwayslegally sufficient for the agenc yto replyt o the question “why cha n ge?” with the answer “we prefer the new policy” (even when the agency has n o t considere d the major factors that led it to adopt its old policy), then whybotheraskingth e agencyt ofocus on the fac to f change? More to the p o int, why would the la w exempt this and no other aspect of an agency decision from “arbitrar y , capricious” review? Where does, and why would, the APA grant a g encies the freedom to change major policies on the basis of noth ing more than politica lconsiderations or even personal whim? Avoiding th e application of any heighten ed standard of review, the Court in State F a rm re cognized that the APA’s “nonarbitra ry” requirement affords agenci es generous leeway when they set p o licy. 463 U. S., at 42. But it als o recognized that this leeway is not absolute. The Court described its boundaries by then listing considerations that help determine whether an explanation is adequate.7 Cite as: 55 6 U

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B REYER , J., diss enting Mirroring and elaborating upon its statement in Overton Park, 401 U. S. 402
, the Court said that a reviewing cour t should take into account whetherthe agencyhad “relied on factors which Con gress has not intended i tto consider, entirely failed to consider an important a s pect of the problem, offered an explanation for its decision that run scounter to the evidence before the agency, or is so implausible that itcould not b eascribed to a differen c e in view or the product of agency expertise.” Sta t e F a rm, supra , a t43; see als oOverton Pa rk, supra , at 41 6.
II We here m u st apply the general standards s e t forth in Sta t e Fa rm and Over ton Park to an agency decision that changes a 25-year-old “fleetin g e x pletive” policy from (1) the old policy that would normally permit broadcasters t o transmit a single, fleet ing use of an expletive to (2) a ne w policy that would thre aten broadcasters wi th large fin e s for transmitting even a single us e (including its use by a member of the public) of such an expletive, alone with nothing more. The question is whether that decision satisfies th e minima lstandards necessary to assure areviewing court that such a change of policy is not “arbitrary, capri c ious, [or] an abuse of discretion,” 5 U. S. C. §706(2)(A), particularly as set f o rth in, e.g. , Sta t e Fa rm andOver ton Park, supra , at 2–7

. The deci sion, in my view, does not satisfy those standa r ds. Consider the requirem e nt that an agency at least minimally “consider .

. . important asp e ct[s] of th e problem.” Sta t e Farm
, supr a , at 43. The FCC failed to satisfy th is requirement, for it failed to consider two crit i cally important aspect s of the problem t hat u n derlay its initial policy judgment (one of which directly, the other of which indirectly). First, the FC C said nex tto nothing about th e relation bet w een the change it made in its p r ior “fleetin g expletive” policy and the First-Amendment-related need to8 FCC v. FOX TELEVI SION S TATIONS, IN C.

B REYER , J., diss enting avoid “cens orship,” a matter as closely related to b r oadcasting reg u lation as is health to that of the environment. The reason that discu ssion of the matter is particularl y important here is tha tthe FCC had explicitly rested its prior policy in large pa rt upon the need to av oid treading too close to the constitutional line. Thirty year s 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 mon o logue that deliberately and repeat edly uttere d the exple t ives here at issue more than 100 times in on e 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 di d not viola t e the First Amendment. But the Court divid e d 5 to 4. And two Members of the majority, Justices Powell and Blackmun, explicitly not e d that th e Court “d oes not speak to cas e s involving the isola t ed use of a po tentially offensive word

. . . as dist inguished from the verbal shoc k treatmen t administered by respondent here.” Id ., at 760–761 (Powell, J., con c urring in part and concurring i njudgment) (emphasis added). This statement by two Members of the majority suggested tha ttheycould reach a different result, finding an FCC prohibitionunconstitutional, were that prohibition aimed at the fleeting or single use of an expletive. The FCC s ubsequently made clear that it thought tha t Justice Powell’s concurrence se t forth a constitutional line that its in decency pol i cy should embody. In 1978, the Commissio nwrote that the First Amendment “severely limit[s]” the Commission’s role in regulating indecency. I t added thatthe Court, in Pacifi ca , had “relied .

. . on th e repetitive occurrence of the ‘indec ent’ wor d s in question.” And it said that, in setting policy, it “intend[ed] strictly t o observe the narrowness of the P a cificaholding.” In re Applicationof WGBH Educ. Fou ndation , 69 F. C. C. 2 d9 Cite as: 55 6 U

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B REYER , J., diss enting 1250, 1254, ¶10. In 1983, the Commission agai n wrote that it understood the Court ’ s decision in Pacifi ca to rest on th e “repetitiv e
occurrence of the ‘ind ecent’ wor d s in question.” An d, again, the Commission explained that its regulation of fleeting or isolated off e nsive words would reflect Justice Powell’s understanding of the Fir s t Amendment’s scope. In re Appli c ation of Pacifica Foundation , 95 F. C. C. 2 d 750, 760, ¶¶17–18. In 1987, the Commission once more explained that its “fleeting ex pletives” policy reflected the Court’s deci sion in Pacifica

. It said that, under its policy , “speech tha tis indecent mustin volve more than an is olated use of an offensive word,” a d ding that “we believe that under the legal standards set forth in Pacifica , deliberate and repetitive us e in apatently offensive manner is a requisite to a finding of indecenc y.” In re Pacifica Foun

dation , 2 FCC Rcd. 26 98, 2699, ¶13 (emphasis added). In another order that sam eyear, the Commission stated th at “the First Amendment dicate[s] a careful and restrain ed approach with regar dto review of matt ers involving broadcast program m ing”; it then explained, citing Pacifica , th at “[s]peechthat is ind e cent mustinvolve more than the is olated use of an offens ive word.” In re Infini t y Broadcasting , 2 FCC Rcd. 2705, 2705, ¶¶6–7 (1987) (em

phasis added). And in2001, in giving the industry guidance, the F CC once ag ain said in respect to i t s regulation of indecent speech that it “m ust both identify a compellin g interest for any regulat i on .

. . and choose the least restrictive means to further t hat interest.” In re Industry Guid

ance On Commission’sCase La w I n ter p re ting 18 U. S. C. §1464 and Enforcem ent Policies Regardin g Broadca s t Indecency , 16 FCC Rcd. 7999, 8000–8001, ¶3–5. The FCC thus repeatedly made clear that i tbased its “fleeting expletive” poli cy upon the need toavoid treading too close to the constit u tional line as set for t h in Justic e Powell’s Pacifica concu rrence. What then did it say, whe n10 FCC v. FOX TELEVI SION S TATIONS, IN C.

B REYER , J., diss enting it changed i t s policy, ab out why it abandoned this Constitution-based reasoning? The FCC devoted “four full pages of small-type, single-spaced text,” ante , at 23 , respondin g to industry arguments that, e.g. , changes in th e nature of the broadca s t industry made all in decency re g u lation, i.e. , 18 U. S. C. §1464, unconstitutional. In doing so it repeat

edly reaffirmed its view that Pacifica remains good la w. In re Complaints Rega r d ing Various Televi sionBroadcas ts Between February 2, 2002, and March, 8, 2008, 21 F CC Rcd. 13299 , 13317–13321, ¶¶42–52 (2006) (Remand Or

der)

. All th e more surprising the nthat, inr e spect to why it abandoned its prio r view about the critical relation between its prior fleeting expletive policy and Justice Powell’s Pacifica concurrence, it says no more than th e following: “[O]urdeci sion is not inconsistent withth e Supreme Court ruling in Pacifi ca

. The Court explicitly left open the issue of whether an oc casional ex pletive coul d be consid

ered indece nt.” In re ComplaintsAgainst V a rious Broa d

cas tLic e nse es Rega rdin g Thei r Airi ng of the “ G olden Globe Awards” Program, 19 FCC Rcd. 4975, 4982, ¶16 (2004) (Golden Globe Order)

. And, (repeating what it alrea d y had said), “[Pacifica] s p ecifically reserved the question of ‘an occasional expletive’ and note d that it a d dressed only the ‘particu lar broadcast’ at issue in that case.” Remand Orde r , sup r a , at 13308–13309, ¶24. These two sentences are not a summary of the FCC’s discussion about why i tabandoned its prior u n derstanding of Pacifica

. T h ey are the discus sion. Thes e 28 words (repeated in two opinions) do no t ack n o w ledge that an entirely different understanding of Pacificau n derlay the FCC’s earlier policy; they do not explain why the agency changed its mind abou tthe line that Pacifica draws or its policy’s relation to that line; and they tell us nothing at al l about what happened to the FCC ’ s earlier determination to search for “compelling inte rests” and “less restrictive11 Cite as: 55 6 U

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B REYER , J., diss enting alternatives.” They do not explain the transformation of what the FCC had long though t a ninsurmountable obstacle into anopen door. The resul tis not si mply Haml e t without the prince, but Hamlet wit ha prince who, in midplay and wi thout explanation, just disappears. I have found one other related reference to Pacifica , b u t that reference occurs in an opinion written b ya dissen ti ng Commissioner. That dissenter said that the FCC had

“ ‘fail[ed] to address the many serious [constitutional]

concerns ra ised’ ” by th e new policy, while adding that the new policy was “not the restrained enforcement policy encouraged by the Supreme Court in Pacifi ca .” Re m a nd Orde r, sup ra, at 13331, 13334. Neither that Commissioner inh i s dissent, nor I inthis dissent, claim tha t agencies m u st always take a ccount of possible constit u
tional issues when they formulate policy. Cf. ante , at 12

. But the FCC work s in the shadow of the First Amendment and its view of the application of that Am endment to “fleeting expletives” directly informed its initial poli cy choice. Un der these c i rcumstanc es, the FC C’s failure to address thi s “aspect” of the problem calls for a remand t o the agency. Over ton Pa rk, 401 U. S.
, at 420–421. Second, the FCC failedto consider the potential impac t of its new policy upon local br oadcasting co verage. Th is “aspect of t h e problem” is parti cu larly impor t ant becaus e the FCC e x plicitly took accountof potential broadcastin g impact. Golden Globe Orde r, su pra , at 4980, ¶11 (“The ease with which broadcasters today can block even fleeting words in a live broadcast is an el ement in o u r decision”). Indeed, insetting forth “bleeping” technology change s (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 th at the new policy would lead broadcasters to reduce cov e rage, say by canceling coverage of public events. Ibid. (“[T]echnological advance s12 FCC v. FOX TELEVI SION S TATIONS, IN C.

B REYER , J., diss enting have made it possible

. . . to prevent the broadcast of a single offen d ing word o raction without block i ng or disproportionately disrupting the mes s age of th e speak e r or performer”)

. What then did the FCC say about the lik el ihood that smaller independent broadcasters , including many public service bro a dcasters, still woul d 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 claimthat local coverage lacks special importance. To the co ntrary, “the concept of localism has been a cornerstone of broadcast regulation for decades.” In re B roadcas t Locali s m , 23 FCC Rcd. 1324, 1326, 1327, ¶¶3, 5 (2008). That policy seeks to provide “viewers and listeners .

. . access to locally responsive programmi n g including, but not limited to, local news and public affairs matter” an d to ensure “diversityin whatis seen and hear d over the airwaves.” That policy has long f avored 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 its e lf. See, e.g

. , In reReexamination of Compara t iv e Stand a rds for Nonco m mercial Educ. Appli

cants , 15 FCC Rcd. 7 386, 7399, ¶29 (2000) (adopting a system for selecting applicant s for broadcast channels that “would foster our goal of broadcast diversity by enablin g the local public to be served by differing .

. . licensees”); In re 2002 Biennial Regulatory Review , 18 FCC Rcd. 13620, 13644, ¶¶77, 79 (2003 ) (“We rem a in firmly committed to the policy of promoting localism a m ong broadcast outlets.

. . . A .

. . measure of localism is the quantity and quality of local new s and public affairs programming”). Neither can the FCC now claim that the impact of its new policy on local broadcasting i s insignificant and ob viously so. Broadcaste rs tell us , as they told the FCC, the contrar y

. See Brief f o r Former FCC Commissioners as13 Cite as: 55 6 U

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B REYER , J., diss enting Amici Curi ae17–19; App. 235–2 37; Joint Comments of Fox Televis i on Stations, Inc. et al., In re Remand of Sec

tion III.B of the Commission’s March 15, 2006 Omnibus Orde r Resol v ing Numero us Broadc ast Televi si on Indecency Complaints14–15, http://www.fcc.gov/ DA0 6–1739/join tnetworks.p df (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 bl eeping/dela y systems, up to $100,00 0 for installation and annual oper ation, place that techno logy beyond the finan cial reach of many smaller indepen d ent local s t ations. See id. , at 14(“The significant equipment and personnel costs associated with installing, maintainin g, and ope r ating delay equipment sufficient to cover all live news, sports, and entertainment progra ms could co nceivably exceed the n e t 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 sm all local station without bleeping equipment wants to c o ver, say alocal city council meeting, a high school fo otball game, a dance contest at community center, or a Fourth of July parade. Relevant literature supports the b r oadcasters’ financial claims. See, e.g. , Ho, Taking No Chances, Austin American-States man, June 18, 2006, p. J1; Dotinga, Dirty-Wo r d 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, PublicBroadcasting Report, Aug. 4, 2006. It a l so indicates that the networks with which som esmall stations are affiliated are not liabl e for the stations’ local transmissions (unless th e networks own them). Ho, supra , at J1; Public Stations Fear Indecency Fine Jump Means Premium Hikes, Public Broadcasti ng Report, July 7, 2006. The result i s that smaller stations, fearing “fleeting expletive” fines of up to $325,000, may simply cut b a ck on their coverage. S ee Romano, Reporti ng Live. Very Carefully,14FCC v. FOX TELEVI SION S TATIONS, IN C.

B REYER , J., diss enting
Broadcastin g& Cable, July 4, 20 05, p. 8; see alsoibid

. (“Afraid to take chan ces” of gettin gfined und er the FC C’s new policy, “local broadcasters a r e responding by altering—or hal ting altogether—the one asset that makes local stations so valuable to their communities : live TV”); Daneman, WRUR Dro p s Its Live Radio Programs, Rochester Democrat and Chronicle, May 27, 2004, p. 1B (reporting that a local broadcast station ceased broa dcasting all local live programmi ng altogether in response to th e 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 televisionst ations andnearly 70 0 local public radio stations that receive support from the Corporation for Public Broadcastin g). As one local station manager told the FCC, “[t]o lessen the risk pos e d by the n e w legal fra m ework

. . . I h ave directed [th estation’s] news staff that [ourstation] may no longer provide live, direct-to-air coverage” of “live events where crowds are present .

. . unless theyaffect matt ers of public safety or convenience. Thus, news coverage by [my station] of live events where crowds are present essential l y will be limited to civil emergencies.” App. 236–237 (declaration of Dennis Fisher).
What did t h e FCC sayin response to this claim? Wha t did it say about the lik ely impact of the new policy on the coverage that its new policy is most likely to affect, cove rage of local live events—city council meetings, local sports events, community arts production s, and the like? It said nothing at all. The plurality ack n owledges 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. ,15 Cite as: 55 6 U

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B REYER , J., diss enting the plurality’s, own “doubt[s]” that “small-town broadcast

ers run a heightened risk of liability for i n decent utterances” as a result of the change of policy. Ante , at 24–2 5. The plurality's “doubt[s]” rest u p on its vie w s (1) tha t vulgar expressionis le ss prevalen t (at least a m ong broadcast guests ) in smaller towns, ant e , at 24; (2) that the greatest ris kthe new policy poses for “small-town broa dcasters” arises when they broadcast local “news and publi c affairs,” ibid ., and (3) that the Remand Ord e r says “littl e about how the Commis s ion would treat smaller broadcasters who cannot afford screening equipment,” while als o pointing out that the new policy“ ‘does not .

. . impose undue burdens on broadcasters’ ” and emphasizing that the case before it did not involve “ ‘breaking n e ws.’ ” Ante , at 24–25. As to the fir s t point, about the prevalence of vulgarity i n small towns, I confess ignorance. But I do kn ow that the r e are indepen d ent stations in many large and medium siz e d cities. Se e Televis i o n& CableFactbook , Directory of Television Stations in Operation 2008. As to the second point, I too believe that covera ge of local pub lic events, if not news, li es at the he art of the problem. I cannot a gree with the plurality, however, about the critical thir d point, na mely that t h e new policy obviously provides smaller independent broadcasters with adequate assurance that they will not be f i ned. The new policy removes the “fleeting expletiv e” exception, an exception that assured smaller in dependent stations that they would not be f i ne d should s o meoneswear at a pub lic event. I n its place, it puts a pol i cy that pl aces all broadcasters a t riskwhen they broadcast fleetin g expletives, including expletives uttered at public events. The Re mand Order says that there “is no outright n e ws exem ption from our indecencyr u les. ” 21 FCC Rcd., a t13327, ¶7 1 (emphasis added). The best it can provide bywa y of as surance is to say that “it may be in equitable to hold a licen see respons i

­16 FCC v. FOX TELEVI SION S TATIONS, IN C.

B REYER , J., diss enting ble for airing offensive speech d u ring live coverage of a public event under so me circumstances .” Id ., at 13311, ¶33 (emphasis added). It does listthose circumstances as including the “possibility of human error in using delay equipment.” Id ., at 13 313, ¶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 ha d 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 consequ e nce that the law has considered important f o r decades, to which the broadcaster s pointed in thei r arguments bef o re the FCC, and which the FCC nowhere discusses. See, e.g. , Do m
browskiv. Pfister , 380 U. S. 479, 494 (1965) (“So long a s the statute remains available to the State the threat of prosecutions of protected expr ession is a real and substantial one. Even the prospect of ultimate failure of suc h prosecutions by no means dispels their chilli ng effect on protected expression”); seealso Ashcroftv. Free Sp ee c h Coalition
, 535 U. S. 234, 244 (2002); Gibs onv. Flori da Legi slati v e Investi gatio n Comm. , 372 U. S. 5 39, 556–557 (1963); Wie m anv. Up degra f f

, 34 4 U. S. 183 , 195 (1952) (Frankfu rte r, J., concur ring).Had the FCC used traditional administrative noticeand-comment procedures, 5 U. S. C. §553, th e two failures I have just discussed would clearly requir ea court to vacate the resulting agency decis i on. See ACLU v. FCC
, 823 F. 2d 1 554, 1581 ( CADC 1987) (“Notice and comment rulemak i ng procedures obligate the FCC to re spond to all significant comments, for the opportunity to comment is meaningles s unless th e agency responds to significa n t points raised by the public” (emphasis added; internal quotation marks omit ted)). Here the agencydid not make new policy through the medium of notice and comment proceedings. But the same failures here—where the policy17 Cite as: 55 6 U

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B REYER , J., diss entingis important, the significance of the issues clear, the failures near complete—should lead us to the same conclusion. The a g ency’s failure to discuss these two “important aspect[s] of the problem” means that the resulting decision is “ ‘arbitrary, capriciou s , an abuse of discretion’ ” requirin g us to remand the mat t er to the agency. S t a t e Fa rm, 46 3 U. S., at 43; Over ton Pa rk, 401 U. S., at 416.
III The three reasons the FCC did setforth in support of its change of policy cann ot make up for the failures I have discussed. Consider ea ch of them. First, as I have pointe d out, the FCC based its decision in part upon the fact tha t “bleeping/delay systems” technology has adva nced. I have already set forth m yreasons for believing that that fa ct, 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 th e 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 alwa ys understo o d the words as coarse and indecent). An d itexplained th e first time around wh y it nonetheless distinguished between their literal use and their use as fleeting expletives. See, e.g. , In re Application of WGBH Edu c . Fo undation, 69 F. C. C. 2 d
, at 1254–1255, ¶¶10–11 (discussing First Amendmentconsiderations and related need to avoid reduced broadcast covera ge). Simply to announce that the words, whether used descriptively oras expletives, call forth similar “images” is not to address those reasons. Third, the FCC said that “perhaps” its “most impor­18FCC v. FOX TELEVI SION S TATIONS, IN C.

B REYER , J., diss enting tan[t]” justi f ication for the new pol i cy lay int h e fact tha t its new “contextual” approach to fleeting expletives is better and more “[c]onsistent wit h” the agen cy’s “gener al approach to indecency” than was its previous “cate

gorica[l]” a p proach, which offered broadcas ters virtua l immunity for the broa dcast of flee ting expletives. Remand Orde r , su pr a , at 13308 , ¶23. This justification, however, offers no su pport for th e change without an understanding of why, i.e. , in wha t way, the F CC conside r ed the new approach b e tter or m o re consistent with t h e agency’s general approach. The Solicitor General sets forth one way in which the new policy might be m o re consis tent withstatutory policy. The indecency sta t ute 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 expl etives, eve nonce, can constitute such a n u isance. The Solicitor Ge neral adds that the sta t utory word “any” indicates that Congress did not intend a safe-harbor for a fleeting use of that language. Brief for Petitioners 24–25. Th e fatal flawin this argument, however, lies in the fact tha tthe Solicit or 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, n o t on the basi s of thoseit might have given. SEC v. Ch e n ery Corp. , 332 U. S. 194, 196–197 (1947); State Farm, sup r a , at 50. And the FCC did not ma ke this claim. Hence, we cannot take it into a ccount and need not evaluate its merits. In fact, the FCC found that the new policywa s better i n part because, in its view, the new policy better protect s children against what it described as “ ‘the first blow’ ” of broadcast i n decency that results from the “ ‘pervasive’ ” nature of broadcast m e dia. It wrote that its former poli cy of “grantin g an automatic exemption for ‘isolated or fleeting’ expleti v es unfairly forces viewers (inclu ding children)19 Cite as: 55 6 U

. S. ____ (2009)

B REYER , J., diss enting to take ‘the first blow.’ ” Remand Order, supra , at 13309, ¶25. The difficulty with thi s argument , however, is that it does not explain the change. Th e FCC has long used thetheory of the “first blow” to justify its regulation of broadcast indece ncy. See, e. g. , In r eEnf o rcemen t of Prohibition s Against Broadcast Ind ecency in 1 8 U. S. C. §1464, 5 FCC Rcd. 5297, 5302, ¶¶34–35 (1990). Yet the FCC has als o long follow e d its original “fl eetin g expletives” policy. No r was the F C C ever una ware of the fact to whic h the major

ity points, namely tha tchildren’s surroundi n gs influence their behavior. See, e.g

. , In re Enforcemen t of Prohibitions Against Broadcast Ind ecency in 1 8 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 p o ints to no empirical (or other) evidence to demonstrate that it previo usly understated the importance of avoiding the “first bl ow.” Like the m a jority, I do not believe that an age n cy must a l ways conduct full empirical stud ies of such matters. An t e , a t15– 16. But th e FCC could have referred to, andexplained, relevant empirical studies that suggest the contrary. One review of the empirical evidence, for exam ple, reports that “[i] t i s doubtful th at childrenunder the age of 12 understan d sexual language and innuendo; th erefore it is unlikely tha t vulgarities have any n e gative effect.” Ka ye & Sapolsky
, Watch Your Mouth! An Analysis of Profanity Uttered b y Children onPrime-Time Televis i on , 2004 Mas s Communication & Soc’y 429, 43 3 (Vol. 7) (citing two studies). The Commission need not have accept ed this conclusion. But its failure t odiscuss this or any other such evidence, whil e providing no empirical evidence at all that favors its pos i

tion, must weaken the logical force of its conclusion. See Sta t e F a rm , 463 U. S.
, at 43 (explaining that an agency’s failure to “examine the relev ant data” is a factor in determining whether the dec i sion is “arbitrary”).20 FCC v. FOX TELEVI SION S TATIONS, IN C.

B REYER , J., diss enting The FCC also f o und the new policy better because it believed th at its prior policy “would as am a tter of logi c permit broadcasters to air expl etives at all hours of a da y so long as they did so one at a time.” Remand Order, 21 FCC Rcd., at 13309, ¶25. This statement, however, rais es an obvious question: Did that happen? The FCC’s initial “fleeting expletives” policy was in effect for 25 years. Ha d broadcasters during th ose 25 years aired a series of expletives “one a ta time?” If so, it should not be difficult to fin d evidence of that fac t

. B u t the F CC refers to none. Indeed, the FCC di d not even claim that a change h a d ta ken pl ace in this res p ect. It sp ok e only of the pure “l ogic” of th e initial poli cy “permitting” such a practice. That logic would have been appa rent to anyone, including the FCC, in 1978 when the FCC set forth its initial polic y. Finally, the FCC made certain sta t ements th at sugges t it did not b e lieve it was changing prior policy in any major way. It referred to that pr ior policy as based on “staf f letters and dicta” andit said that at least one of the instances before it (namely, the Ch er broadcas t) would ha ve been actionably indecent under that prior policy. Id ., at 13306–13307, 13324, ¶ ¶ 20–21, 60. As we all agree, however, in fact the FCC di d change its policy in a major wa y. See ante , at 13. To th e extent that the FCC minimized that fact when considering the change, it did not full y focus on th e fact of ch ange. Andany suchf a ilure would make its decision stillless supportable. S ee National Cable, 545 U. S., at 98 1.
IVWere the question a closer one, the doctrine of constitutional avoidance would nonetheles s lead me to remand the

case. See United S t atesv. Jin Fuey Moy , 2 41 U. S. 394, 401 (1916) (“A statute must be con s trued, if fairly possible, so as to avoid not only the co nclusion that it is unconstitutional but also grave doubtsupon that score” (emphasis21 Cite as: 55 6 U

. S. ____ (2009)

B REYER , J., diss enting added)). T hat doctrin eseeks to avoid unnecessary judici al consideration of cons titutional questions, assumes th at Congress, n oless than the Judici a l Branch, seeks to act within constitutional bounds, and thereby diminishes the friction between the branches that judicial holdings of unconstitutionality might otherwise generate. See Al

mendarez- T orresv. Un ited States
, 523 U. S. 224, 237–238 (1998); see alsoSolid Was t eAgen cy of North ern Cook Ct y.
v. Army Corps of Engin eers , 531 U. S. 159, 172 –173 (2001) ; Edwa rd J. DeB a r t olo Corp. v. Flo r ida Gulf Coast Buildi n g & Constr. Trad es Council , 485 U. S. 568, 575 (1988); Res

cue A r myv. Municipal Court of Los Angeles
, 3 31 U. S. 54 9, 571 (1947); Ashwand e r v. TVA , 297 U. S. 2 88, 345–348 (1936) (Bra ndeis, J., concurring). The doctrine assumes that Congre ss would prefer a less-than-optimal interpreta

tion of its statute to the grave risk of a c o nstitutional holding that would set the statu t e entirely aside. See Almendarez -Torre s , su pra , at 238 (constructi on of statute that avoids invalidation best reflects congressional will); cf. United S t atesv. Booker , 543 U. S. 220, 249, 267 (2005). Unlike the majority, I can find no convincingreason for refusing to apply a similar doctrin ehere. The Court has often applied that doctrine where an agency’s regulation relies on a plausible but consti tut i onally suspect interp r e

tation of a statute. See, e.g. , Solid Was t eAgen cy, supr a , a t 172–174; NLRBv. Ca tholic Bisho p of Chi c ago , 440 U. S. 490, 506–507 (1979). The values the doctrine serves appl y whether th e agency’s decision do es, or does not, rest upon a constitutionally suspect interp retation of a statute. An d a remand h e re would do no more than ask the agency to reconsider its policy de cision inlight of the co ncerns raised in a judicial opinion. Cf. Fullilov ev. Klutznick , 448 U. S. 448, 551 (1980) (S TEVENS , J., dis s enting) (a holding that a congressional action implicating the Equal Protection Clause “wa s not adequ a tely prece d ed by a co nsideration of less drastic alternatives or adequately expl ained by a22 FCC v. FOX TELEVI SION S TATIONS, IN C.

B REYER , J., diss enting statement of legis l ative purpose would be f a r less intrusive than a final determination that the substance of” tha t action was unconstitutional). I would not now foreclose, a s the majority forecloses, our further consider ation of this matter. (Of course, nothing inth e Court’s d e cision today prevents th e Commission from reconsidering its curren t policy in light of potential cons titu tional considerations or for other reasons.)
V In sum, the FCC’s expl anation of its change l e aves out two critical l y importa nt matters underlying its earlier policy, namely Pacifica and local broadcasting coverage. Its explanation rests upon thr ee considerations previously known to t h e agency (“coarseness,” the “first blow,” an d running single expletives all day, one at a tim e ). With one exception, it provides no empirical or otherinformatio n explaining why those considerations, which did not justif y its new policy before, justify it no w. Its discussion of the

one exception (technological advances in b l eeping/delay systems), failing to take acco unt of local broadcast co verage, is seriously incomplete. I need n o t decide whether one or two of these features, standing al one, would require us to remand the cas e

. Here all come together. And taken together they suggest that the FCC’s answe r to the question, “Wh ychange?” is, “We like the new policy better.” This kind of answer, might be perfectly satis f actory were it given by an elected official. But when gi ven by an agency, in respect to a major chan ge of an i m portant policy where much more might be said, it is not sufficient. Sta t e F a rm, 463 U. S., at 41–42

. For these r e asons I would find the FCC ’ s deci sion “arbitrary, capricious, anabuse of discretion,” 5 U. S. C. §706(2)(A), requiring remand of this case to the FCC. An d I would affirm the Second Circu it’s similar determination. With respect, I dissent.