Federal Communications Commission v. Fox Television Stations, Inc.

(Slip Opinion) OCTOBER TERM, 2008 1

Syllabus

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

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

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

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

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

SUPREME COURT OF THE UNITED STATES

Syllabus

FEDERAL COMMUNICATIONS COMMISSION ET AL. v.

FOX TELEVISION STATIONS, INC., ET AL.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE SECOND CIRCUIT

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

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

18 U. S. C. §1464, which includes references to sexual or excretory ac

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

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

nications Commission (FCC) took a cautious, but gradually

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

the FCC’s Golden Globes Order declared for the first time that an ex

pletive (nonliteral) use of the F-Word or the S-Word could be actiona

bly indecent, even when the word is used only once.

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

ing two live broadcasts aired by Fox Television Stations, Inc. In its

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

that the Golden Globes Order eliminated any doubt that fleeting ex

pletives could be actionable; declared that under the new policy, a

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

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

one involved a literal description of excrement and both invoked the

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

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

the constitutionality of the FCC’s action but finding the FCC’s rea

soning inadequate under the Administrative Procedure Act (APA).

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

489 F. 3d 444, reversed and remanded.

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

III–E, concluding:

1. The FCC’s orders are neither “arbitrary” nor “capricious” within

2 FCC v. FOX TELEVISION STATIONS, INC.

Syllabus

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

(a) Under the APA standard, an agency must “examine the rele

vant data and articulate a satisfactory explanation for its action.”

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

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

judgment, the Second Circuit relied in part on its precedent inter

preting the APA and State Farm to require a more substantial expla

nation for agency action that changes prior policy. There is, however,

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

agency change be subjected to more searching review. Although an

agency must ordinarily display awareness that it is changing posi

tion, see United States v. Nixon, 418 U. S. 683, 696, and may some

times need to account for prior factfinding or certain reliance inter

ests created by a prior policy, it need not demonstrate to a court’s

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

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

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

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

indicates. Pp. 9–12.

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

finding the broadcasts at issue actionably indecent were neither arbi

trary nor capricious. First, the FCC forthrightly acknowledged that

its recent actions have broken new ground, taking account of incon

sistent prior FCC and staff actions, and explicitly disavowing them as

no longer good law. The agency’s reasons for expanding its enforce

ment activity, moreover, were entirely rational. Even when used as

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

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

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

context-based approach. Because the FCC’s prior safe-harbor-for

single-words approach would likely lead to more widespread use, and

in light of technological advances reducing the costs of bleeping of

fending words, it was rational for the agency to step away from its old

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

argument that it is arbitrarily punishing parties without notice of

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

(c) None of the Second Circuit’s grounds for finding the FCC’s ac

tion arbitrary and capricious is valid. First, the FCC did not need

empirical evidence proving that fleeting expletives constitute harmful

“first blows” to children; it suffices to know that children mimic be

havior they observe. Second, the court of appeals’ finding that fidel

ity to the FCC’s “first blow” theory would require a categorical ban on

all broadcasts of expletives is not responsive to the actual policy un

der review since the FCC has always evaluated the patent offensive

Cite as: 556 U. S. ____ (2009) 3

Syllabus

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

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

egregious cases does not invalidate its regulation of the broadcasts

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

fleeting expletives would lead to their increased use merits deference

and makes entire sense. Pp. 15–18.

(d) Fox’s additional arguments are not tenable grounds for affir

mance. Fox misconstrues the agency’s orders when it argues that

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

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

failed adequately to explain how this regulation is consistent with

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

“context” is a smokescreen for a standardless regime of unbridled dis

cretion ignores the fact that the opinion in Pacifica endorsed a con

text-based approach. Pp. 18–19.

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

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

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

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

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

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

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

opinion. KENNEDY, J., filed an opinion concurring in part and concur

ring in the judgment. STEVENS, J., and GINSBURG, J., filed dissenting

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

SOUTER, and GINSBURG, JJ., joined.

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

Opinion of the Court

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

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

notify the Reporter of Decisions, Supreme Court of the United States, Wash­

ington, D. C. 20543, of any typographical or other formal errors, in order

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

SUPREME COURT OF THE UNITED STATES

_________________

No. 07–582

_________________

FEDERAL COMMUNICATIONS COMMISSION, ET AL.,

PETITIONERS v. FOX TELEVISION STATIONS,

INC., ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE SECOND CIRCUIT

[April 28, 2009]

JUSTICE SCALIA delivered the opinion of the Court,

except as to Part III–E.

Federal law prohibits the broadcasting of “any . . . inde­

cent . . . language,” 18 U. S. C. §1464, which includes

expletives referring to sexual or excretory activity or

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

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

Communications Commission’s explanation of its decision

that this sometimes forbids the broadcasting of indecent

expletives even when the offensive words are not repeated.

I. Statutory and Regulatory Background

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

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

system of limited-term broadcast licenses subject to vari­

ous “conditions” designed “to maintain the control of the

United States over all the channels of radio transmission,”

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

licensed broadcaster is granted the free and exclusive use

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

he accepts that franchise it is burdened by enforceable

2 FCC v. FOX TELEVISION STATIONS, INC.

Opinion of the Court

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

(1981) (internal quotation marks omitted).

One of the burdens that licensees shoulder is the inde­

cency ban—the statutory proscription against “utter[ing]

any obscene, indecent, or profane language by means of

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

has instructed the Commission to enforce between the

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

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

U. S. C. §303.1 Congress has given the Commission vari­

ous means of enforcing the indecency ban, including civil

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

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

The Commission first invoked the statutory ban on

indecent broadcasts in 1975, declaring a daytime broad­

cast of George Carlin’s “Filthy Words” monologue

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

94. At that time, the Commission announced the defini­

tion of indecent speech that it uses to this day, prohibiting

“language that describes, in terms patently offensive as

measured by contemporary community standards for the

broadcast medium, sexual or excretory activities or or­

gans, at times of the day when there is a reasonable risk

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

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

Commission’s order against statutory and constitutional

challenge. We rejected the broadcasters’ argument that

——————

1 The statutory prohibition applicable to commercial radio and televi­

sion stations extends by its terms from 6 a.m. to 12 midnight. The

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

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

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

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

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

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

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

(1995) (en banc), cert. denied, 516 U. S. 1043 (1996).

Cite as: 556 U. S. ____ (2009) 3

Opinion of the Court

the statutory proscription applied only to speech appealing

to the prurient interest, noting that “the normal definition

of ‘indecent’ merely refers to nonconformance with ac­

cepted standards of morality.” Id., at 740. And we held

that the First Amendment allowed Carlin’s monologue to

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

the medium and the fact that broadcast programming is

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

In the ensuing years, the Commission took a cautious,

but gradually expanding, approach to enforcing the statu­

tory prohibition against indecent broadcasts. Shortly after

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

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

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

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

monologue. In re Application of WGBH Educ. Foundation,

69 F. C. C. 2d 1250, 1254, ¶10 (1978). When the full Com­

mission next considered its indecency standard, however,

it repudiated the view that its enforcement power was

limited to “deliberate, repetitive use of the seven words

actually contained in the George Carlin monologue.” In re

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

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

restricted enforcement standard . . . was unduly narrow as

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

enforcement responsibilities under Section 1464.” In re

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

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

Circuit upheld this expanded enforcement standard

against constitutional and Administrative Procedure Act

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

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

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

(1995) (en banc).

Although the Commission had expanded its enforcement

beyond the “repetitive use of specific words or phrases,” it

4 FCC v. FOX TELEVISION STATIONS, INC.

Opinion of the Court

preserved a distinction between literal and nonliteral (or

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

Foundation, Inc., 2 FCC Rcd., at 2699, ¶13. The Commis­

sion explained that each literal “description or depiction of

sexual or excretory functions must be examined in context

to determine whether it is patently offensive,” but that

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

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

nonliteral expletives. Ibid.

Over a decade later, the Commission emphasized that

the “full context” in which particular materials appear is

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

guide the inquiry, such as the “explicitness or graphic

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

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

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

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

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

and Enforcement Policies Regarding Broadcast Indecency,

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

deleted). “No single factor,” the Commission said, “gener­

ally provides the basis for an indecency finding,” but

“where sexual or excretory references have been made

once or have been passing or fleeting in nature, this char­

acteristic has tended to weigh against a finding of inde­

cency.” Id., at 8003, ¶10, 8008, ¶17.

In 2004, the Commission took one step further by de­

claring for the first time that a nonliteral (expletive) use of

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

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

effect dealt with an NBC broadcast of the Golden Globe

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

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

Against Various Broadcast Licensees Regarding Their

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

Rcd. 4975, 4976, n. 4 (2004) (Golden Globes Order). Al­

Cite as: 556 U. S. ____ (2009) 5

Opinion of the Court

though the Commission had received numerous com­

plaints directed at the broadcast, its enforcement bureau

had concluded that the material was not indecent because

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

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

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

reviewed and reversed the staff ruling.

The Commission first declared that Bono’s use of the F-

Word fell within its indecency definition, even though the

word was used as an intensifier rather than a literal

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

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

connotation.” Id., at 4978, ¶8. The Commission deter­

mined, moreover, that the broadcast was “patently offen­

sive” because the F-Word “is one of the most vulgar,

graphic and explicit descriptions of sexual activity in the

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

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

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

The Commission observed that categorically exempting

such language from enforcement actions would “likely lead

to more widespread use.” Ibid. Commission action was

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

children from the most objectionable, most offensive lan­

guage.” Ibid. The order noted that technological advances

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

gratuitous use of a vulgar expletive,” without adulterating

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

The order acknowledged that “prior Commission and

staff action have indicated that isolated or fleeting broad­

casts of the ‘F-Word’ . . . are not indecent or would not be

acted upon.” It explicitly ruled that “any such interpreta­

tion is no longer good law.” Ibid., ¶12. It “clarif[ied] . . .

that the mere fact that specific words or phrases are not

sustained or repeated does not mandate a finding that

material that is otherwise patently offensive to the broad­

6 FCC v. FOX TELEVISION STATIONS, INC.

Opinion of the Court

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

“existing precedent would have permitted this broadcast,”

the Commission determined that “NBC and its affiliates

necessarily did not have the requisite notice to justify a

penalty.” Id., at 4981–4982, ¶15.

II. The Present Case

This case concerns utterances in two live broadcasts

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

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

occurred during the 2002 Billboard Music Awards, when

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

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

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

involved a segment of the 2003 Billboard Music Awards,

during the presentation of an award by Nicole Richie and

Paris Hilton, principals in a Fox television series called

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

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

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

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

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

Id., at 9–10. Following each of these broadcasts, the Com­

mission received numerous complaints from parents

whose children were exposed to the language.

On March 15, 2006, the Commission released Notices of

Apparent Liability for a number of broadcasts that the

Commission deemed actionably indecent, including the

two described above. In re Complaints Regarding Various

Television Broadcasts Between February 2, 2002 and

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

petitioned the Court of Appeals for the Second Circuit for

judicial review of the order, asserting a variety of constitu­

tional and statutory challenges. Since the order had

declined to impose sanctions, the Commission had not

previously given the broadcasters an opportunity to re­

Cite as: 556 U. S. ____ (2009) 7

Opinion of the Court

spond to the indecency charges. It therefore requested

and obtained from the Court of Appeals a voluntary re­

mand so that the parties could air their objections. 489

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

upheld the indecency findings for the broadcasts described

above. See In re Complaints Regarding Various Television

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

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

The order first explained that both broadcasts fell com­

fortably within the subject-matter scope of the Commis­

sion’s indecency test because the 2003 broadcast involved

a literal description of excrement and both broadcasts

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

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

next determined that the broadcasts were patently offen­

sive under community standards for the medium. Both

broadcasts, it noted, involved entirely gratuitous uses of

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

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

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

and her “explicit description of the handling of excrement”

to be “vulgar and shocking,” as well as to constitute “pan­

dering,” after Ms. Hilton had playfully warned her to

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

found Cher’s statement patently offensive in part because

she metaphorically suggested a sexual act as a means of

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

order relied upon the “critically important” context of the

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

during prime-time awards shows “designed to draw a

large nationwide audience that could be expected to in­

clude many children interested in seeing their favorite

music stars,” id., at 13305, ¶18, 13324, ¶59. Indeed, ap­

proximately 2.5 million minors witnessed each of the

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

The order asserted that both broadcasts under review

8 FCC v. FOX TELEVISION STATIONS, INC.

Opinion of the Court

would have been actionably indecent under the staff rul­

ings and Commission dicta in effect prior to the Golden

Globes Order—the 2003 broadcast because it involved a

literal description of excrement, rather than a mere exple­

tive, because it used more than one offensive word, and

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

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

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

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

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

of immunity for isolated indecent expletives rested only

upon staff rulings and Commission dicta, and that the

Commission itself had never held “that the isolated use of

an expletive . . . was not indecent or could not be inde­

cent,” 21 FCC Rcd., at 13307, ¶21. In any event, the order

made clear, the Golden Globes Order eliminated any doubt

that fleeting expletives could be actionably indecent, 21

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

disavowed the bureau-level decisions and its own dicta

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

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

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

not a safe harbor.

The order explained that the Commission’s prior “strict

dichotomy between ‘expletives’ and ‘descriptions or depic­

tions of sexual or excretory functions’ is artificial and does

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

power to offend derives from its sexual or excretory mean­

ing.” Id., at 13308, ¶23. In the Commission’s view,

“granting an automatic exemption for ‘isolated or fleeting’

expletives unfairly forces viewers (including children)” to

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

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

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

determined that Fox encouraged the offensive language by

using suggestive scripting in the 2003 broadcast, and

Cite as: 556 U. S. ____ (2009) 9

Opinion of the Court

unreasonably failed to take adequate precautions in both

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

declined to impose any forfeiture or other sanction for

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

Fox returned to the Second Circuit for review of the

Remand Order, and various intervenors including CBS,

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

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

reasoning inadequate under the Administrative Procedure

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

Commission [could] provide a reasoned explanation for its

‘fleeting expletive’ regime that would pass constitutional

muster,” but it declined to reach the constitutional ques­

tion. Id., at 462. Judge Leval dissented, id., at 467. We

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

III. Analysis

A. Governing Principles

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

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

review executive agency action for procedural correctness,

see Vermont Yankee Nuclear Power Corp. v. Natural Re

sources Defense Council, Inc., 435 U. S. 519, 545–549

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

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

U. S. C. §706(2)(A). Under what we have called this “nar­

row” standard of review, we insist that an agency “exam­

ine the relevant data and articulate a satisfactory expla­

nation for its action.” Motor Vehicle Mfrs. Assn. of United

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

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

court is not to substitute its judgment for that of the

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

ideal clarity if the agency’s path may reasonably be dis­

cerned,” Bowman Transp., Inc. v. Arkansas-Best Freight

System, Inc., 419 U. S. 281, 286 (1974).

10 FCC v. FOX TELEVISION STATIONS, INC.

Opinion of the Court

In overturning the Commission’s judgment, the Court of

Appeals here relied in part on Circuit precedent requiring

a more substantial explanation for agency action that

changes prior policy. The Second Circuit has interpreted

the Administrative Procedure Act and our opinion in State

Farm as requiring agencies to make clear “ ‘why the origi­

nal reasons for adopting the [displaced] rule or policy are

no longer dispositive’ ” as well as “ ‘why the new rule effec­

tuates the statute as well as or better than the old rule.’ ”

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

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

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

District of Columbia Circuit has similarly indicated that a

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

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

998 (1982).

We find no basis in the Administrative Procedure Act or

in our opinions for a requirement that all agency change

be subjected to more searching review. The Act mentions

no such heightened standard. And our opinion in State

Farm neither held nor implied that every agency action

representing a policy change must be justified by reasons

more substantial than those required to adopt a policy in

the first instance. That case, which involved the rescis­

sion of a prior regulation, said only that such action re­

quires “a reasoned analysis for the change beyond that

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

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

——————

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

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

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

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

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

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

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

plurality made this statement in the context of requiring the agency to

Cite as: 556 U. S. ____ (2009) 11

Opinion of the Court

ing failures to act and rescissions of prior action differ­

ently for purposes of the standard of review makes good

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

likewise treats the two separately. It instructs a review­

ing court to “compel agency action unlawfully withheld or

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

unlawful and set aside agency action, findings, and con­

clusions found to be [among other things] . . . arbitrary [or]

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

however, between initial agency action and subsequent

agency action undoing or revising that action.

To be sure, the requirement that an agency provide

reasoned explanation for its action would ordinarily de­

mand that it display awareness that it is changing posi­

tion. An agency may not, for example, depart from a prior

policy sub silentio or simply disregard rules that are still

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

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

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

demonstrate to a court’s satisfaction that the reasons for

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

it suffices that the new policy is permissible under the

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

agency believes it to be better, which the conscious change

of course adequately indicates. This means that the

agency need not always provide a more detailed justifica­

tion than what would suffice for a new policy created on a

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

new policy rests upon factual findings that contradict

those which underlay its prior policy; or when its prior

——————

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

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

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

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

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

agency’s change. Nor did our opinion in State Farm.

12 FCC v. FOX TELEVISION STATIONS, INC.

Opinion of the Court

policy has engendered serious reliance interests that must

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

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

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

that further justification is demanded by the mere fact of

policy change; but that a reasoned explanation is needed

for disregarding facts and circumstances that underlay or

were engendered by the prior policy.

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

Commission action for failure to comply with a procedural

requirement of the Administrative Procedure Act, the

broadcasters’ arguments have repeatedly referred to the

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

more stringent arbitrary-and-capricious review to agency

actions that implicate constitutional liberties, we reject

the invitation. The so-called canon of constitutional

avoidance is an interpretive tool, counseling that ambigu­

ous statutory language be construed to avoid serious

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

Florida Gulf Coast Building & Constr. Trades Council,

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

applying it to limit the scope of authorized executive ac­

tion. In the same section authorizing courts to set aside

“arbitrary [or] capricious” agency action, the Administra­

tive Procedure Act separately provides for setting aside

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

which of course includes unconstitutional action. We

think that is the only context in which constitutionality

bears upon judicial review of authorized agency action. If

the Commission’s action here was not arbitrary or capri­

cious in the ordinary sense, it satisfies the Administrative

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

lawfulness under the Constitution is a separate question

to be addressed in a constitutional challenge.3

——————

3 JUSTICE BREYER claims that “[t]he Court has often applied [the doc­

Cite as: 556 U. S. ____ (2009) 13

Opinion of the Court

B. Application to This Case

Judged under the above described standards, the Com­

mission’s new enforcement policy and its order finding the

broadcasts actionably indecent were neither arbitrary nor

capricious. First, the Commission forthrightly acknowl­

edged that its recent actions have broken new ground,

taking account of inconsistent “prior Commission and staff

action” and explicitly disavowing them as “no longer good

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

be sure, the (superfluous) explanation in its Remand

Order of why the Cher broadcast would even have violated

its earlier policy may not be entirely convincing. But that

unnecessary detour is irrelevant. There is no doubt that

the Commission knew it was making a change. That is

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

Golden Globes Order as removing any lingering doubt.

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

Moreover, the agency’s reasons for expanding the scope

of its enforcement activity were entirely rational. It was

certainly reasonable to determine that it made no sense to

——————

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

a plausible but constitutionally suspect interpretation of a statute.”

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

because, applying the doctrine of constitutional avoidance to the am­

biguous statute under which the agency acted, the Court found the

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

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

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

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

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

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

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

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

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

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

disposition would be entirely unrelated to the doctrine of constitutional

avoidance, and would better be termed the doctrine of judicial arm­

twisting or appellate review by the wagged finger.

14 FCC v. FOX TELEVISION STATIONS, INC.

Opinion of the Court

distinguish between literal and nonliteral uses of offensive

words, requiring repetitive use to render only the latter

indecent. As the Commission said with regard to expletive

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

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

the Commission’s decision to look at the patent offensive­

ness of even isolated uses of sexual and excretory words

fits with the context-based approach we sanctioned in

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

be made in “pander[ing,] . . . vulgar and shocking” man­

ners, Remand Order, 21 FCC Rcd., at 13305, ¶17, and can

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

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

believe that a safe harbor for single words would “likely

lead to more widespread use of the offensive language,”

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

When confronting other requests for per se rules govern­

ing its enforcement of the indecency prohibition, the

Commission has declined to create safe harbors for par­

ticular types of broadcasts. See In re Pacifica Foundation,

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

the Commission’s enforcement power was limited to “de­

liberate, repetitive use of the seven words actually con­

tained in the George Carlin monologue”); In re Infinity

Broadcasting Corp. of Pa., 3 FCC Rcd., at 932, ¶17 (“re­

ject[ing] an approach that would hold that if a work has

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

rationally decide it needed to step away from its old re­

gime where nonrepetitive use of an expletive was per se

nonactionable because that was “at odds with the Com­

mission’s overall enforcement policy.” Remand Order,

supra, at 13308, ¶23.

The fact that technological advances have made it easier

for broadcasters to bleep out offending words further

supports the Commission’s stepped-up enforcement policy.

Golden Globes Order, supra, at 4980, ¶11. And the

Cite as: 556 U. S. ____ (2009) 15

Opinion of the Court

agency’s decision not to impose any forfeiture or other

sanction precludes any argument that it is arbitrarily

punishing parties without notice of the potential conse­

quences of their action.

C. The Court of Appeals’ Reasoning

The Court of Appeals found the Commission’s action

arbitrary and capricious on three grounds. First, the court

criticized the Commission for failing to explain why it had

not previously banned fleeting expletives as “harmful ‘first

blow[s].’ ” 489 F. 3d, at 458. In the majority’s view, with­

out “evidence that suggests a fleeting expletive is harmful

[and] . . . serious enough to warrant government regula­

tion,” the agency could not regulate more broadly. Id., at

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

prior stance does not alone prevent it from changing its

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

the Commission, but Congress that has proscribed “any

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

There are some propositions for which scant empirical

evidence can be marshaled, and the harmful effect of

broadcast profanity on children is one of them. One can­

not demand a multiyear controlled study, in which some

children are intentionally exposed to indecent broadcasts

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

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

agency action under the Administrative Procedure Act

because of failure to adduce empirical data that can read­

ily be obtained. See, e.g., State Farm, 463 U. S., at 46–56

(addressing the costs and benefits of mandatory passive

restraints for automobiles). It is something else to insist

upon obtaining the unobtainable. Here it suffices to know

that children mimic the behavior they observe—or at least

the behavior that is presented to them as normal and

appropriate. Programming replete with one-word inde­

cent expletives will tend to produce children who use (at

16 FCC v. FOX TELEVISION STATIONS, INC.

Opinion of the Court

least) one-word indecent expletives. Congress has made

the determination that indecent material is harmful to

children, and has left enforcement of the ban to the Com­

mission. If enforcement had to be supported by empirical

data, the ban would effectively be a nullity.

The Commission had adduced no quantifiable measure

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

nonetheless held that the “government’s interest in the

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

otherwise protected expression.” 438 U. S., at 749 (quot­

ing Ginsberg v. New York, 390 U. S. 629, 640, 639 (1968)).

If the Constitution itself demands of agencies no more

scientifically certain criteria to comply with the First

Amendment, neither does the Administrative Procedure

Act to comply with the requirement of reasoned decision­

making.

The court’s second objection is that fidelity to the

agency’s “first blow” theory of harm would require a cate­

gorical ban on all broadcasts of expletives; the Commis­

sion’s failure to go to this extreme thus undermined the

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

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

actual policy under review—the decision to include pat­

ently offensive fleeting expletives within the definition of

indecency. The Commission’s prior enforcement practice,

unchallenged here, already drew distinctions between the

offensiveness of particular words based upon the context

in which they appeared. Any complaint about the Com­

mission’s failure to ban only some fleeting expletives is

better directed at the agency’s context-based system gen­

erally rather than its inclusion of isolated expletives.

More fundamentally, however, the agency’s decision to

consider the patent offensiveness of isolated expletives on

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

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

we have explained, “would not be likely to command the

Cite as: 556 U. S. ____ (2009) 17

Opinion of the Court

attention of many children who are both old enough to

understand and young enough to be adversely affected.”

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

support the Commission’s finding that a broadcast of the

film Saving Private Ryan was not indecent—a finding to

which the broadcasters point as supposed evidence of the

Commission’s inconsistency. The frightening suspense

and the graphic violence in the movie could well dissuade

the most vulnerable from watching and would put parents

on notice of potentially objectionable material. See In re

Complaints Against Various Television Licensees Regard

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

sion Network’s Presentation of the Film “Saving Private

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

the broadcast was not “intended as family entertain­

ment”). The agency’s decision to retain some discretion

does not render arbitrary or capricious its regulation of

the deliberate and shocking uses of offensive language at

the award shows under review—shows that were expected

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

Finally, the Court of Appeals found unconvincing the

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

exemption for fleeting expletives would lead to increased

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

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

judgment (which merits deference) makes entire sense. To

predict that complete immunity for fleeting expletives,

ardently desired by broadcasters, will lead to a substantial

increase in fleeting expletives seems to us an exercise in

logic rather than clairvoyance. The Court of Appeals was

perhaps correct that the Commission’s prior policy had not

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

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

permissive policy had been confirmed (save in dicta) only

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

demonstrated, it did produce more expletives than the

18 FCC v. FOX TELEVISION STATIONS, INC.

Opinion of the Court

Commission (which has the first call in this matter)

deemed in conformity with the statute.

D. Respondents’ Arguments

Respondents press some arguments that the court did

not adopt. They claim that the Commission failed to

acknowledge its change in enforcement policy. That con­

tention is not tenable in light of the Golden Globes Order’s

specific declaration that its prior rulings were no longer

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

Order’s disavowal of those staff rulings and Commission

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

The broadcasters also try to recharacterize the nature of

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

not actually a per se rule against liability for isolated

expletives and that the new policy is a presumption of

indecency for certain words. This description of the prior

agency policy conflicts with the broadcasters’ own prior

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

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

almost 30 years following Pacifica, the FCC did not con­

sider fleeting, isolated or inadvertent expletives to be

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

the Commission has now adopted a presumption of inde­

cency; its repeated reliance on context refutes this claim.

The broadcasters also make much of the fact that the

Commission has gone beyond the scope of authority ap­

proved in Pacifica, which it once regarded as the farthest

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

represented the outer limits of permissible regulation, so

that fleeting expletives may not be forbidden. To the

contrary, we explicitly left for another day whether “an

occasional expletive” in “a telecast of an Elizabethan

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

the narrowness of Pacifica’s holding to require empirical

evidence of harm before the Commission regulates more

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

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Opinion of SCALIA, J.

broadly, the broadcasters attempt to turn the sword of

Pacifica, which allowed some regulation of broadcast

indecency, into an administrative-law shield preventing

any regulation beyond what Pacifica sanctioned. Nothing

prohibits federal agencies from moving in an incremental

manner. Cf. National Cable & Telecommunications Assn.

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

Finally, the broadcasters claim that the Commission’s

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

standardless regime of unbridled discretion. But we have

previously approved Commission regulation based “on a

nuisance rationale under which context is all-important,”

Pacifica, supra, at 750, and we find no basis in the Admin­

istrative Procedure Act for mandating anything different.

E. The Dissents’ Arguments

JUSTICE BREYER purports to “begin with applicable law,”

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

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

sheltered from political oversight requires courts to be “all

the more” vigilant in ensuring “that major policy decisions

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

The independent agencies are sheltered not from politics

but from the President, and it has often been observed

that their freedom from presidential oversight (and protec­

tion) has simply been replaced by increased subservience

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

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

Morrison v. Olson, 487 U. S. 654 (1988); Kagan, Presiden­

tial Administration, 114 Harv. L. Rev. 2245, 2271, n. 93

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

Execute the Laws, 104 Yale L. J. 541, 583 (1994); Easter­

brook, The State of Madison’s Vision of the State: A Public

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

Indeed, the precise policy change at issue here was

20 FCC v. FOX TELEVISION STATIONS, INC.

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Opinion of SCALIA, J.

spurred by significant political pressure from Congress.4

——————

4A Subcommittee of the FCC’s House oversight Committee held hear­

ings on the FCC’s broadcast indecency enforcement on January 28,

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

Enforcement with respect to Broadcast Indecency, Hearing before the

Subcommittee on Telecommunications and the Internet of the House

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

of the Subcommittee specifically “called on the full Commission to

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

perceived a “feeling amongst many Americans that some broadcasters

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

distinguish themselves in the increasingly crowded entertainment

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

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

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

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

How much is enough? When will it revoke a license?”); id., at 4 (state­

ment of Rep. Markey) (“Today’s hearing will allow us to explore the

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

About two weeks later, on February 11, 2004, the same Subcommit­

tee held hearings on a bill increasing the fines for indecency violations.

Hearings on H. R 3717 before the Subcommittee on Telecommunica­

tions and the Internet of the House Committee on Energy and Com­

merce, 108th Cong., 2d Sess. All five Commissioners were present and

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

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

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

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

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

enforcement of regulations at the FCC”). Certain statements, more­

over, indicate that the political pressure applied by Congress had its

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

attention of FCC Chairman Powell and the Bush Administration. And

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

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

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

willingness to step up enforcement in light of proposed congressional

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

Decency Enforcement Act of 2005, 120 Stat. 491.

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

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

Golden Globes Order, 19 FCC Rcd. 4975.

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

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Opinion of SCALIA, J.

JUSTICE STEVENS apparently recognizes this political

control by Congress, and indeed sees it as the manifesta­

tion of a principal-agency relationship. In his judgment,

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

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

He nonetheless argues that this is a good reason for re­

quiring the FCC to explain “why its prior policy is no

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

4. Leaving aside the unconstitutionality of a scheme

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

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

that JUSTICE STEVENS’ conclusion does not follow from his

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

would seem an adequate explanation of its change of

position that Congress made clear its wishes for stricter

enforcement, see n. 4, supra.5 The Administrative Proce­

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

agencies.6

——————

5 JUSTICE STEVENS accuses us of equating statements made in a con­

gressional hearing with the intent of Congress. Post, at 4, n. 3. In this

opinion, we do not. The intent of the full Congress (or at least a major­

ity of each House) is thought relevant to the interpretation of statutes,

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

Art. I, §7. It is quite irrelevant, however, to the extrastatutory influ­

ence Congress exerts over agencies of the Executive Branch, which is

exerted by the congressional committees responsible for oversight and

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

reason why committee assignments are important, and committee

chairmanships powerful. Surely JUSTICE STEVENS knows this.

6 The Administrative Procedure Act defines “agency” to mean “each

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

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

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

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

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

F. 3d 1446, 1449 (1994); see also Ethnic Employees of Library of Con

gress v. Boorstin, 751 F. 2d 1405, 1416, n. 15 (CADC 1985) (holding

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

22 FCC v. FOX TELEVISION STATIONS, INC.

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Opinion of SCALIA, J.

Regardless, it is assuredly not “applicable law” that

rulemaking by independent regulatory agencies is subject

to heightened scrutiny. The Administrative Procedure

Act, which provides judicial review, makes no distinction

between independent and other agencies, neither in its

definition of agency, 5 U. S. C. §701(b)(1), nor in the stan­

dards for reviewing agency action, §706. Nor does any

case of ours express or reflect the “heightened scrutiny”

JUSTICE BREYER and JUSTICE STEVENS would impose.

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

we have given to the Environmental Protection Agency,

which is not an independent agency. See Massachusetts v.

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

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

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

dilemma posed by the Headless Fourth Branch, see Frey

tag v. Commissioner, 501 U. S. 868, 921 (1991) (SCALIA, J.,

concurring in part and concurring in judgment), by letting

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

expropriate some of the power that Congress has wrested

from the unitary Executive.

JUSTICE BREYER and JUSTICE STEVENS rely upon two

supposed omissions in the FCC’s analysis that they believe

preclude a finding that the agency did not act arbitrarily.

Neither of these omissions could undermine the coherence

of the rationale the agency gave, but the dissenters’

evaluation of each is flawed in its own right.

First, both claim that the Commission failed adequately

to explain its consideration of the constitutional issues

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

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

unaware that we have ever before reversed an executive

agency, not for violating our cases, but for failure to dis­

cuss them adequately. But leave that aside. According to

JUSTICE BREYER, the agency said “next to nothing about

the relation between the change it made in its prior ‘fleet­

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

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Opinion of SCALIA, J.

ing expletive’ policy and the First-Amendment-related

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

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

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

footnotes) to explaining why the Commission believes that

its indecency-enforcement regime (which includes its

change in policy) is consistent with the First Amend­

ment—and therefore not censorship as the term is under­

stood. More specifically, JUSTICE BREYER faults the FCC

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

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

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

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

drew no constitutional line; to the contrary, it expressly

declined to express any view on the constitutionality of

prohibiting isolated indecency. JUSTICE BREYER and

JUSTICE STEVENS evidently believe that when an agency

has obtained this Court’s determination that a less restric­

tive rule is constitutional, its successors acquire some

special burden to explain why a more restrictive rule is

not unconstitutional. We know of no such principle.7

Second, JUSTICE BREYER looks over the vast field of

——————

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

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

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

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

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

constitutionality. JUSTICE STEVENS also argues that heightened defer­

ence should be due the FCC’s prior policy because the “FCC’s initial

views . . . reflect the views of the Congress that delegated the Commis­

sion authority to flesh out details not fully defined in the enacting

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

Congressional oversight Committee should constrain the discretion that

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

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

statutory mandate but whether the reasons for its actions are ade­

quate.

24 FCC v. FOX TELEVISION STATIONS, INC.

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Opinion of SCALIA, J.

particular factual scenarios unaddressed by the FCC’s 35­

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

of the small local broadcaster who cannot afford the new

technology that enables the screening of live broadcasts

for indecent utterances. Cf. post, at 11–16. The Commis­

sion has failed to address the fate of this unfortunate, who

will, he believes, be subject to sanction.

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

run a heightened risk of liability for indecent utterances.

In programming that they originate, their down-home

local guests probably employ vulgarity less than big-city

folks; and small-town stations generally cannot afford or

cannot attract foul-mouthed glitteratae from Hollywood.

Their main exposure with regard to self-originated pro­

gramming is live coverage of news and public affairs. But

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

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

and that “it may be inequitable to hold a licensee respon­

sible for airing offensive speech during live coverage of a

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

programming that small stations receive on a network

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

small stations (by JUSTICE BREYER’s hypothesis) cannot

afford.

But never mind the detail of whether small broadcasters

are uniquely subject to a great risk of punishment for

fleeting expletives. The fundamental fallacy of JUSTICE

BREYER’s small-broadcaster gloomyscenario is its demon­

strably false assumption that the Remand Order makes no

provision for the avoidance of unfairness—that the single­

utterance prohibition will be invoked uniformly, in all

situations. The Remand Order made very clear that this

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

remedy is appropriate” the Commission would consider

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

human error in using delay equipment,” id., at 13313, ¶35.

Cite as: 556 U. S. ____ (2009) 25

Opinion of the Court

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

broadcaster that used suggestive scripting and a deficient

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

millions of children) “fail[ed] to exercise ‘reasonable judg­

ment, responsibility and sensitivity,’ ” id., at 13311, ¶33,

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

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

treat smaller broadcasters who cannot afford screening

equipment. Indeed, that they would not be punished for

failing to purchase equipment they cannot afford is posi­

tively suggested by the Remand Order’s statement that

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

this case does not . . . impose undue burdens on broadcast­

ers.” 21 FCC Rcd., at 13313, ¶36.

There was, in sum, no need for the Commission to com­

pose a special treatise on local broadcasters.8 And

JUSTICE BREYER can safely defer his concern for those

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

involves one.

IV. Constitutionality

The Second Circuit did not definitively rule on the con­

stitutionality of the Commission’s orders, but respondents

nonetheless ask us to decide their validity under the First

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

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

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

may cause some broadcasters to avoid certain language

that is beyond the Commission’s reach under the Consti­

——————

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

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

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

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

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

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

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

Yankee, 435 U. S., at 545–549.

26 FCC v. FOX TELEVISION STATIONS, INC.

Opinion of the Court

tution. Whether that is so, and, if so, whether it is uncon­

stitutional, will be determined soon enough, perhaps in

this very case. Meanwhile, any chilled references to excre­

tory and sexual material “surely lie at the periphery of

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

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

abandon our usual procedures in a rush to judgment

without a lower court opinion. We decline to address the

constitutional questions at this time.

* * *

The Second Circuit believed that children today “likely

hear this language far more often from other sources than

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

sanctioning indecent speech,” and that this cuts against

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

Assuming the premise is true (for this point the Second

Circuit did not demand empirical evidence) the conclusion

does not necessarily follow. The Commission could rea­

sonably conclude that the pervasiveness of foul language,

and the coarsening of public entertainment in other media

such as cable, justify more stringent regulation of broad­

cast programs so as to give conscientious parents a rela­

tively safe haven for their children. In the end, the Second

Circuit and the broadcasters quibble with the Commis­

sion’s policy choices and not with the explanation it has

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

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

Commission’s orders neither arbitrary nor capricious.

The judgment of the United States Court of Appeals for

the Second Circuit is reversed, and the case is remanded

for further proceedings consistent with this opinion.

It is so ordered.

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

THOMAS, J., concurring

SUPREME COURT OF THE UNITED STATES

_________________

No. 07–582

_________________

FEDERAL COMMUNICATIONS COMMISSION, ET AL.,

PETITIONERS v. FOX TELEVISION STATIONS,

INC., ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE SECOND CIRCUIT

[April 28, 2009]

JUSTICE THOMAS, concurring.

I join the Court’s opinion, which, as a matter of adminis

trative law, correctly upholds the Federal Communica

tions Commission’s (FCC) policy with respect to indecent

broadcast speech under the Administrative Procedure Act.

I write separately, however, to note the questionable

viability of the two precedents that support the FCC’s

assertion of constitutional authority to regulate the pro

gramming at issue in this case. See Red Lion Broadcast

ing Co. v. FCC, 395 U. S. 367 (1969); FCC v. Pacifica

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

were unconvincing when they were issued, and the pas

sage of time has only increased doubt regarding their

continued validity. “The text of the First Amendment

makes no distinctions among print, broadcast, and cable

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

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

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

in part and dissenting in part).

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

doctrine,” a Government requirement “that discussion of

public issues be presented on broadcast stations, and that

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

U. S., at 369, 400–401. The decision relied heavily on the

2 FCC v. FOX TELEVISION STATIONS, INC.

THOMAS, J., concurring

scarcity of available broadcast frequencies. According to

the Court, because broadcast spectrum was so scarce, it

“could be regulated and rationalized only by the Govern

ment. Without government control, the medium would be

of little use because of the cacophony of competing voices,

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

at 376. To this end, the Court concluded that the Gov

ernment should be “permitted to put restraints on licen

sees in favor of others whose views should be expressed on

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

(concluding that “as far as the First Amendment is con

cerned those who are licensed stand no better than those

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

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

Amendment to treat licensees given the privilege of using

scarce radio frequencies as proxies for the entire commu

nity, obligated to give suitable time and attention to mat

ters of great public concern.” Id., at 394.

Red Lion specifically declined to answer whether the

First Amendment authorized the Government’s “refusal to

permit the broadcaster to carry a particular program or to

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

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

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

impose sanctions on the broadcast of indecent material.

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

opinion), relying on Red Lion, the Court noted that “broad

casting . . . has received the most limited First Amend

ment protection.” 438 U. S., at 748. The Court also em

phasized the “uniquely pervasive presence” of the

broadcast media in Americans’ lives and the fact that

broadcast programming was “uniquely accessible to chil

dren.” Id., at 748–749.

This deep intrusion into the First Amendment rights of

broadcasters, which the Court has justified based only on

the nature of the medium, is problematic on two levels.

Cite as: 556 U. S. ____ (2009) 3

THOMAS, J., concurring

First, instead of looking to first principles to evaluate the

constitutional question, the Court relied on a set of transi

tory facts, e.g., the “scarcity of radio frequencies,” Red

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

Amendment standard. But the original meaning of the

Constitution cannot turn on modern necessity: “Constitu

tional rights are enshrined with the scope they were un

derstood to have when the people adopted them, whether

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

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

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

principle, Red Lion adopted, and Pacifica reaffirmed, a

legal rule that lacks any textual basis in the Constitution.

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

judgment in part and dissenting in part) (“First Amend

ment distinctions between media [have been] dubious from

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

and Pacifica has been apparent for some time: “It is cer

tainly true that broadcast frequencies are scarce but it is

unclear why that fact justifies content regulation of broad

casting in a way that would be intolerable if applied to the

editorial process of the print media.” Telecommunications

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

(CADC 1986) (Bork, J.).

Highlighting the doctrinal incoherence of Red Lion and

Pacifica, the Court has declined to apply the lesser stan

dard of First Amendment scrutiny imposed on broadcast

speech to federal regulation of telephone dial-in services,

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

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

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

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

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

no justification for this apparent dichotomy in First

Amendment jurisprudence. Whatever the merits of

Pacifica when it was issued[,] . . . it makes no sense now.”

4 FCC v. FOX TELEVISION STATIONS, INC.

THOMAS, J., concurring

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

(CADC 1995) (Edwards, C. J., dissenting). The justifica

tions relied on by the Court in Red Lion and Pacifica—

“spectrum scarcity, intrusiveness, and accessibility to

children—neither distinguish broadcast from cable, nor

explain the relaxed application of the principles of the

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

In re Industry Guidance on Commission’s Case Law Inter

preting 18 U. S. C. §1464 and Enforcement Policies Re

garding Broadcast Indecency, 16 FCC Rcd. 7999, 8021,

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

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

television or radio station would likely receive more con

stitutional protection, see Reno [v. American Civil Liberties

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

content broadcast over-the-air”).

Second, even if this Court’s disfavored treatment of

broadcasters under the First Amendment could have been

justified at the time of Red Lion and Pacifica, dramatic

technological advances have eviscerated the factual as

sumptions underlying those decisions. Broadcast spec

trum is significantly less scarce than it was 40 years ago.

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

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

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

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

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

search Paper, J. Berresford, The Scarcity Rationale for

Regulating Traditional Broadcasting: An Idea Whose Time

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

trend should continue with broadcast television’s immi

nent switch from analog to digital transmission, which

will allow the FCC to “stack broadcast channels right

beside one another along the spectrum, and ultimately

utilize significantly less than the 400 MHz of spectrum the

analog system absorbs today.” Consumer Electronics

Cite as: 556 U. S. ____ (2009) 5

THOMAS, J., concurring

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

Moreover, traditional broadcast television and radio are

no longer the “uniquely pervasive” media forms they once

were. For most consumers, traditional broadcast media

programming is now bundled with cable or satellite ser

vices. See App. to Pet. for Cert. 107a. Broadcast and

other video programming is also widely available over the

Internet. See Stelter, Serving Up Television Without the

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

and television broadcasts, Internet access is now often

freely available over the airwaves and can be accessed by

portable computer, cell phones, and other wireless devices.

See May, Charting a New Constitutional Jurisprudence

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

The extant facts that drove this Court to subject broad

casters to unique disfavor under the First Amendment

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

supra, at 8020 (statement of Commissioner Furchtgott-

Roth) (“If rules regulating broadcast content were ever a

justifiable infringement of speech, it was because of the

relative dominance of that medium in the communications

marketplace of the past. As the Commission has long

recognized, the facts underlying this justification are no

longer true” (footnote omitted)).*

These dramatic changes in factual circumstances might

well support a departure from precedent under the pre

vailing approach to stare decisis. See Planned Parenthood

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

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

——————

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

726 (1978), on the ease with which children could be exposed to inde

cent television programming, technology has provided innovative

solutions to assist adults in screening their children from unsuitable

programming—even when that programming appears on broadcast

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

allows targeted blocking of television programs based on content).

6 FCC v. FOX TELEVISION STATIONS, INC.

THOMAS, J., concurring

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

application or justification”); see also American Trucking

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

(O’Connor, J., dissenting) (“Significantly changed circum

stances can make an older rule, defensible when formu

lated, inappropriate . . .”). “In cases involving constitu

tional issues” that turn on a particular set of factual

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

conclusions, feel free to bring its opinions into agreement

with experience and with facts newly ascertained.” Burnet

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

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

to reconsideration of Red Lion and Pacifica in the proper

case.

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

Opinion of KENNEDY, J.

SUPREME COURT OF THE UNITED STATES

_________________

No. 07–582

_________________

FEDERAL COMMUNICATIONS COMMISSION, ET AL.,

PETITIONERS v. FOX TELEVISION STATIONS,

INC., ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE SECOND CIRCUIT

[April 28, 2009]

JUSTICE KENNEDY, concurring in part and concurring in

the judgment.

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

opinion of the Court and agree that the judgment must be

reversed. This separate writing is to underscore certain

background principles for the conclusion that an agency’s

decision to change course may be arbitrary and capricious

if the agency sets a new course that reverses an earlier

determination but does not provide a reasoned explana­

tion for doing so. In those circumstances I agree with the

dissenting opinion of JUSTICE BREYER that the agency

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

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

The question whether a change in policy requires an

agency to provide a more-reasoned explanation than when

the original policy was first announced is not susceptible,

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

may be instances when it becomes apparent to an agency

that the reasons for a longstanding policy have been al­

tered by discoveries in science, advances in technology, or

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

an agency seeks to respond to new circumstances by modi­

fying its earlier policy, the agency may have a substantial

body of data and experience that can shape and inform the

2 FCC v. FOX TELEVISION STATIONS, INC.

Opinion of KENNEDY, J.

new rule. In other cases the altered circumstances may be

so new that the agency must make predictive judgments

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

policy was first announced. Reliance interests in the prior

policy may also have weight in the analysis.

The question in each case is whether the agency’s rea­

sons for the change, when viewed in light of the data

available to it, and when informed by the experience and

expertise of the agency, suffice to demonstrate that the

new policy rests upon principles that are rational, neutral,

and in accord with the agency’s proper understanding of

its authority. That showing may be required if the agency

is to demonstrate that its action is not “arbitrary, capri­

cious, an abuse of discretion, or otherwise not in accor­

dance with law.” 5 U. S. C. §706(2)(A). And, of course, the

agency action must not be “in excess of statutory jurisdic­

tion, authority, or limitations, or short of statutory right.”

§706(2)(C).

These requirements stem from the administrative

agency’s unique constitutional position. The dynamics of

the three branches of Government are well understood as

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

and the exact locus of its powers, present questions that

are delicate, subtle, and complex. The Federal Govern­

ment could not perform its duties in a responsible and

effective way without administrative agencies. Yet the

amorphous character of the administrative agency in the

constitutional system escapes simple explanation.

If agencies were permitted unbridled discretion, their

actions might violate important constitutional principles

of separation of powers and checks and balances. To that

end the Constitution requires that Congress’ delegation of

lawmaking power to an agency must be “specific and

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

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

policy” an agency is to achieve and must specify the

Cite as: 556 U. S. ____ (2009) 3

Opinion of KENNEDY, J.

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

Congress must “ ‘lay down by legislative act an intelligible

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

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

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

Congress passed the Administrative Procedure Act

(APA) to ensure that agencies follow constraints even as

they exercise their powers. One of these constraints is the

duty of agencies to find and formulate policies that can be

justified by neutral principles and a reasoned explanation.

To achieve that end, Congress confined agencies’ discre­

tion and subjected their decisions to judicial review. See

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

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

“working compromise, in which broad delegations of dis­

cretion were tolerated as long as they were checked by

extensive procedural safeguards”). If an agency takes

action not based on neutral and rational principles, the

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

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

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

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

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

courts. Ibid.

Where there is a policy change the record may be much

more developed because the agency based its prior policy

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

to change course may be arbitrary and capricious if the

agency ignores or countermands its earlier factual find­

ings without reasoned explanation for doing so. An agency

cannot simply disregard contrary or inconvenient factual

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

can ignore inconvenient facts when it writes on a blank

slate.

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

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

4 FCC v. FOX TELEVISION STATIONS, INC.

Opinion of KENNEDY, J.

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

There, Congress directed the agency to issue regulations

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

at 33. The agency promulgated a regulation requiring

cars to have passive-restraint systems—either airbags or

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

regulation on its factual finding that these systems save

lives. Id., at 35.

Following a change in Presidential administration,

however, the agency reversed course and rescinded the

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

prior finding that airbags save lives. Id., at 47–48. In­

deed, “[n]ot one sentence” of the agency’s “rulemaking

statement” in support of rescinding the regulation dis­

cussed the benefits of airbags. Id., at 48. This Court

found the agency’s rescission arbitrary and capricious

because the agency did not address its prior factual find­

ings. See id., at 49–51.

The present case does not raise the concerns addressed

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

knowledge of the broadcast industry and its audience, the

FCC instead based its policy on what it considered to be

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

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

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

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

FCC did not base its prior policy on factual findings.

The FCC’s Remand Order explains that the agency has

changed its reading of Pacifica. The reasons the agency

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

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

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

for its action were the sort of reasons an agency may

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

analysis—both with respect to the procedural history of

the FCC’s indecency policies, and the reasons the agency

Cite as: 556 U. S. ____ (2009) 5

Opinion of KENNEDY, J.

has given to support them—is quite sufficient to sustain

the FCC’s change of course against respondents’ claim

that the agency acted in an arbitrary or capricious fashion.

The holding of the Court of Appeals turned on its con­

clusion that the agency’s explanation for its change of

policy was insufficient, and that is the only question pre­

sented here. I agree with the Court that as this case

comes to us from the Court of Appeals we must reserve

judgment on the question whether the agency’s action is

consistent with the guarantees of the Constitution.

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

STEVENS, J., dissenting

SUPREME COURT OF THE UNITED STATES

_________________

No. 07–582

_________________

FEDERAL COMMUNICATIONS COMMISSION, ET AL.,

PETITIONERS v. FOX TELEVISION STATIONS,

INC., ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE SECOND CIRCUIT

[April 28, 2009]

JUSTICE STEVENS, dissenting.

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

important to emphasize two flaws in the Court’s reason­

ing. Apparently assuming that the Federal Communica­

tions Commission’s (FCC or Commission) rulemaking

authority is a species of executive power, the Court es­

pouses the novel proposition that the Commission need

not explain its decision to discard a longstanding rule in

favor of a dramatically different approach to regulation.

See ante, at 10–11. Moreover, the Court incorrectly as­

sumes that our decision in FCC v. Pacifica Foundation,

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

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

broadcast of any expletive that has a sexual or excretory

origin. Pacifica was not so sweeping, and the Commis­

sion’s changed view of its statutory mandate certainly

would have been rejected if presented to the Court at the

time.

I

“The structure of our Government as conceived by the

——————

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

profane language by means of radio communication shall be fined

under this title or imprisoned not more than two years, or both.”

2 FCC v. FOX TELEVISION STATIONS, INC.

STEVENS, J., dissenting

Framers of our Constitution disperses the federal power

among the three branches—the Legislative, the Executive,

and the Judicial—placing both substantive and procedural

limitations on each.” Metropolitan Washington Airports

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

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

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

U. S. 714, 749 (1986) (STEVENS, J., concurring in judg­

ment) (citing cases), a consequence of the fact that the

“great ordinances of the Constitution do not establish and

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

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

Strict lines of authority are particularly elusive when

Congress and the President both exert a measure of con­

trol over an agency. As a landmark decision involving the

Federal Trade Commission (FTC) made clear, however,

when Congress grants rulemaking and adjudicative au­

thority to an expert agency composed of commissioners

selected through a bipartisan procedure and appointed for

fixed terms, it substantially insulates the agency from

executive control. See Humphrey’s Executor v. United

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

With the view that broadcast regulation “should be as

free from political influence or arbitrary control as possi­

ble,” S. Rep. No. 772, 69th Cong., 1st Sess., 2 (1926), Con­

gress established the FCC with the same measure of

independence from the Executive that it had provided the

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

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

regulations are not subject to change at the President’s

will. And when the Commission fashions rules that gov­

ern the airwaves, it exercises legislative power delegated

to it by Congress. See Whitman v. American Trucking

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

concurring in part and concurring in judgment); Bowsher,

478 U. S., at 752 (opinion of STEVENS, J.). Consequently,

Cite as: 556 U. S. ____ (2009) 3

STEVENS, J., dissenting

the FCC “cannot in any proper sense be characterized as

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

an agent of Congress established “to carry into effect

legislative policies embodied in the statute in accordance

with the legislative standard therein prescribed, and to

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

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

The FCC, like all agencies, may revise its regulations

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

circumstances warrant. But the FCC is constrained by its

congressional mandate. There should be a strong pre­

sumption that the FCC’s initial views, reflecting the in­

formed judgment of independent commissioners with

expertise in the regulated area, also reflect the views of

the Congress that delegated the Commission authority to

flesh out details not fully defined in the enacting statute.

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

in effect for decades and have not proved unworkable in

the intervening years. As JUSTICE BREYER’s opinion

explains, broadcasters have a substantial interest in

regulatory stability; the threat of crippling financial pen­

alties looms large over these entities. See post, at 10–14.

The FCC’s shifting and impermissibly vague indecency

——————

2 JUSTICE SCALIA erroneously concludes that treating the FCC’s rule­

making authority as an exercise of legislative power would somehow be

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

714, 726 (1986)). But that is the nature of rulemaking: Rules promul­

gated by agencies (independent or not) carry the force of law precisely

because they are exercises of such legislative authority. This may

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

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

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

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

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

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

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

and concurring in judgment).

4 FCC v. FOX TELEVISION STATIONS, INC.

STEVENS, J., dissenting

policy only imperils these broadcasters and muddles the

regulatory landscape. It therefore makes eminent sense to

require the Commission to justify why its prior policy is no

longer sound before allowing it to change course.3 The

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

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

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

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

law all favor stability over administrative whim.

II

The Court commits a second critical error by assuming

that Pacifica endorsed a construction of the term “inde­

cent,” as used in 18 U. S. C. §1464, that would include any

expletive that has a sexual or excretory origin. Neither

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

opinion, adopted such a far-reaching interpretation. Our

holding was narrow in two critical respects. First, we

concluded, over the dissent of four Justices, that the statu­

tory term “indecent” was not limited to material that had

prurient appeal and instead included material that was in

“nonconformance with accepted standards of morality.”

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

adjudication that a 12-minute, expletive-filled monologue

——————

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

statements by members of a congressional oversight subcommittee are

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

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

Commissioners, JUSTICE SCALIA concludes, quite remarkably, that this

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

“would seem an adequate explanation of [the FCC’s] change of posi­

tion.” Ante, at 21. Putting to the side the question whether congres­

sional outrage is the kind of evidence sufficient to explain the Commis­

sion’s decision to adopt a thinly-reasoned and unconstitutional policy,

JUSTICE SCALIA’s treatment of these proceedings as evidencing the

intent of Congress would make even the most ardent student of legisla­

tive history blush.

Cite as: 556 U. S. ____ (2009) 5

STEVENS, J., dissenting

by satiric humorist George Carlin was indecent “as broad­

cast.” Id., at 735. We did not decide whether an isolated

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

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

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

with a sexual or scatological origin, however used, was

indecent.

The narrow treatment of the term “indecent” in Pacifica

defined the outer boundaries of the enforcement policies

adopted by the FCC in the ensuing years. The Commis­

sion originally explained that “under the legal standards

set forth in Pacifica, deliberate and repetitive use [of

expletives] in a patently offensive manner is a requisite to

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

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

issue has received the most attention in this case, it

should not be forgotten that Pacifica permitted the Com­

mission to regulate only those words that describe sex or

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

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

only the broadcasting of patently offensive references to

excretory and sexual organs and activities” (emphasis

added)). The FCC minimizes the strength of this limita­

tion by now claiming that any use of the words at issue in

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

describes sex or excrement. See In re Complaints Regard

ing Various Television Broadcasts Between February 2,

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

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

expletives and descriptions or depictions of sexual or

excretory functions is artificial and does not make sense in

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

from its sexual or excretory meaning” (internal quotation

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

There is a critical distinction between the use of an exple­

tive to describe a sexual or excretory function and the use

6 FCC v. FOX TELEVISION STATIONS, INC.

STEVENS, J., dissenting

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

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

the other stands miles apart. As any golfer who has

watched his partner shank a short approach knows, it

would be absurd to accept the suggestion that the resul­

tant four-letter word uttered on the golf course describes

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

absurdity the FCC has embraced in its new approach to

indecency.4 See In re Complaints Against Various Broad

cast Licensees Regarding Their Airing of the “Golden Globe

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

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

emphasize happiness “invariably invokes a coarse sexual

image”).

Even if the words that concern the Court in this case

sometimes retain their sexual or excretory meaning, there

are surely countless instances in which they are used in a

manner unrelated to their origin. These words may not be

polite, but that does not mean they are necessarily “inde­

cent” under §1464. By improperly equating the two, the

Commission has adopted an interpretation of “indecency”

that bears no resemblance to what Pacifica contemplated.5

Most distressingly, the Commission appears to be entirely

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

13308 (erroneously referencing Pacifica in support of its

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

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

——————

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

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

commercials broadcast during prime-time hours frequently ask viewers

whether they too are battling erectile dysfunction or are having trouble

going to the bathroom.

5 While JUSTICE THOMAS and I disagree about the continued wisdom

of Pacifica, see ante, p. 1 (concurring opinion), the changes in technol­

ogy and the availability of broadcast spectrum he identifies certainly

counsel a restrained approach to indecency regulation, not the wildly

expansive path the FCC has chosen.

Cite as: 556 U. S. ____ (2009) 7

STEVENS, J., dissenting

FCC has failed to demonstrate an awareness that it has

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

choice must be declared arbitrary and set aside as unlaw­

ful. See Citizens to Preserve Overton Park, Inc. v. Volpe,

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

III

For these reasons and those stated in JUSTICE BREYER’s

dissenting opinion, I would affirm the judgment of the

Court of Appeals.

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

GINSBURG, J., dissenting

SUPREME COURT OF THE UNITED STATES

_________________

No. 07–582

_________________

FEDERAL COMMUNICATIONS COMMISSION, ET AL.,

PETITIONERS v. FOX TELEVISION STATIONS,

INC., ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE SECOND CIRCUIT

[April 28, 2009]

JUSTICE GINSBURG, dissenting.

The mainspring of this case is a Government restriction

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

the Administrative Procedure Act.* JUSTICE BREYER’s

dissenting opinion, which I join, cogently describes the

infirmities of the Federal Communications Commission’s

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

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

Pacifica Foundation, 438 U. S. 726 (1978), I agree, exem

plified “arbitrary” and “capricious” decisionmaking. I

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

the long shadow the First Amendment casts over what the

Commission has done. Today’s decision does nothing to

diminish that shadow.

More than 30 years ago, a sharply divided Court allowed

the FCC to sanction a midafternoon radio broadcast of

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

——————

* The Second Circuit, presented with both constitutional and statu

tory challenges, vacated the remand order on APA grounds. The court

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

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

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

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

policy could “pass constitutional muster.” 489 F. 3d, at 462.

2 FCC v. FOX TELEVISION STATIONS, INC.

GINSBURG, J., dissenting

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

words and repeated them relentlessly in a variety of collo

quialisms. The monologue was aired as part of a program

on contemporary attitudes toward the use of language. In

re Citizen’s Complaint Against Pacifica Foundation Sta

tion WBAI (FM), 56 F. C. C. 2d 94, 95 (1975). In rejecting

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

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

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

regard, the majority stressed that the Carlin monologue

deliberately repeated the dirty words “over and over

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

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

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

concurring in judgment).

In contrast, the unscripted fleeting expletives at issue

here are neither deliberate nor relentlessly repetitive. Nor

does the Commission’s policy home in on expressions used

to describe sexual or excretory activities or organs. Spon

taneous utterances used simply to convey an emotion or

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

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

often chosen as much for their emotive as their cognitive

force. We cannot sanction the view that the Constitution,

while solicitous of the cognitive content of individual

speech, has little or no regard for that emotive function

which, practically speaking, may often be the more impor

tant element of the overall message sought to be commu

nicated.”); Denver Area Ed. Telecommunications Consor

tium, Inc. v. FCC, 518 U. S. 727, 805 (1996) (KENNEDY, J.,

concurring in part, concurring in judgment in part, and

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

is inseparable from the ideas and viewpoints conveyed, or

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

The Pacifica decision, however it might fare on reas

sessment, see ante, at 6 (THOMAS, J., concurring), was

Cite as: 556 U. S. ____ (2009) 3

GINSBURG, J., dissenting

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

Brennan observed that the Government should take care

before enjoining the broadcast of words or expressions

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

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

more potent today. If the reserved constitutional question

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

should be mindful that words unpalatable to some may be

“commonplace” for others, “the stuff of everyday conversa

tions.” 438 U. S., at 776 (Brennan, J., dissenting).

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

BREYER, J., dissenting

SUPREME COURT OF THE UNITED STATES

_________________

No. 07–582

_________________

FEDERAL COMMUNICATIONS COMMISSION, ET AL.,

PETITIONERS v. FOX TELEVISION STATIONS,

INC., ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE SECOND CIRCUIT

[April 28, 2009]

JUSTICE BREYER, with whom JUSTICE STEVENS, JUSTICE

SOUTER, and JUSTICE GINSBURG join, dissenting.

In my view, the Federal Communications Commission

failed adequately to explain why it changed its indecency

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

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

explanation fails to discuss two critical factors, at least

one of which directly underlay its original policy decision.

Its explanation instead discussed several factors well

known to it the first time around, which by themselves

provide no significant justification for a change of policy.

Consequently, the FCC decision is “arbitrary, capricious,

an abuse of discretion.” 5 U. S. C. §706(2)(A); Motor Vehi

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

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

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

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

lar determination.

I

I begin with applicable law. That law grants those in

charge of independent administrative agencies broad

authority to determine relevant policy. But it does not

permit them to make policy choices for purely political

2 FCC v. FOX TELEVISION STATIONS, INC.

BREYER, J., dissenting

reasons nor to rest them primarily upon unexplained

policy preferences. Federal Communications Commission­

ers have fixed terms of office; they are not directly respon­

sible to the voters; and they enjoy an independence ex­

pressly designed to insulate them, to a degree, from “ ‘the

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

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

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

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

secure important governmental objectives, such as the

constitutionally related objective of maintaining broadcast

regulation that does not bend too readily before the politi­

cal winds. But that agency’s comparative freedom from

ballot-box control makes it all the more important that

courts review its decisionmaking to assure compliance

with applicable provisions of the law—including law re­

quiring that major policy decisions be based upon articu­

lable reasons.

The statutory provision applicable here is the Adminis­

trative Procedure Act’s (APA) prohibition of agency action

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

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

agency decisionmaking based upon more than the per­

sonal preferences of the decisionmakers. Courts have

applied the provision sparingly, granting agencies broad

policymaking leeway. But they have also made clear that

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

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

In so holding, American courts have followed a venerable

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

Edward Coke and the draining of the English fens. See

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

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

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

nonetheless “limited and bound with the rule of reason

and law . . . and [cannot act] according to their wills and

Cite as: 556 U. S. ____ (2009) 3

BREYER, J., dissenting

private affections” (quoted in Jaffe, Judicial Review: Con­

stitutional and Jurisdictional Fact, 70 Harv. L. Rev. 953,

954 (1957))).

The law has also recognized that it is not so much a

particular set of substantive commands but rather it is a

process, a process of learning through reasoned argument,

that is the antithesis of the “arbitrary.” This means agen­

cies must follow a “logical and rational” decisionmaking

“process.” Allentown Mack Sales & Service, Inc. v. NLRB,

522 U. S. 359, 374 (1998). An agency’s policy decisions

must reflect the reasoned exercise of expert judgment. See

Burlington Truck Lines, supra, at 167 (decision must

reflect basis on which agency “exercised its expert discre­

tion”); see also Humphrey’s Executor v. United States, 295

U. S. 602, 624 (1935) (independent agencies “exercise . . .

trained judgment . . . ‘informed by experience’ ”). And, as

this Court has specified, in determining whether an

agency’s policy choice was “arbitrary,” a reviewing court

“must consider whether the decision was based on a con­

sideration of the relevant factors and whether there has

been a clear error of judgment.” Overton Park, supra, at

416.

Moreover, an agency must act consistently. The agency

must follow its own rules. Arizona Grocery Co. v. Atchi

son, T. & S. F. R. Co., 284 U. S. 370, 389–390 (1932). And

when an agency seeks to change those rules, it must focus

on the fact of change and explain the basis for that

change. See, e.g., National Cable & Telecommunications

Assn. v. Brand X Internet Services, 545 U. S. 967, 981

(2005) (“Unexplained inconsistency is” a “reason for hold­

ing an interpretation to be an arbitrary and capricious

change from agency practice” (emphasis added)).

To explain a change requires more than setting forth

reasons why the new policy is a good one. It also requires

the agency to answer the question, “Why did you change?”

And a rational answer to this question typically requires a

4 FCC v. FOX TELEVISION STATIONS, INC.

BREYER, J., dissenting

more complete explanation than would prove satisfactory

were change itself not at issue. An (imaginary) adminis­

trator explaining why he chose a policy that requires

driving on the right-side, rather than the left-side, of the

road might say, “Well, one side seemed as good as the

other, so I flipped a coin.” But even assuming the ration­

ality of that explanation for an initial choice, that expla­

nation is not at all rational if offered to explain why the

administrator changed driving practice, from right-side to

left-side, 25 years later.

In State Farm, a unanimous Court applied these com­

monsense requirements to an agency decision that re­

scinded an earlier agency policy. The Court wrote that an

agency must provide an explanation for the agency’s “revo

cation” of a prior action that is more thorough than the

explanation necessary when it does not act in the first

instance. The Court defined “revocation,” not simply as

rescinding an earlier policy, cf. ante, at 10–11, but as “a

reversal of the agency’s former views as to the proper

course.” State Farm, 463 U. S., at 41 (emphasis added).

See also Verizon Communications Inc. v. FCC, 535 U. S.

467, 502, n. 20 (2002) (portion of Court’s opinion joined by

SCALIA, KENNEDY, and THOMAS, JJ.) (noting State Farm

“may be read as prescribing more searching judicial re­

view” when “an agency [is] ‘changing its course’ as to the

interpretation of a statute”); Thomas Jefferson Univ. v.

Shalala, 512 U. S. 504, 524, n. 3 (1994) (THOMAS, J., dis­

senting) (similar).

At the same time, the Court described the need for

explanation in terms that apply, not simply to pure rescis

sions of earlier rules, but rather to changes of policy as it

more broadly defined them. But see ante, at 10–11. It

said that the law required an explanation for such a

change because the earlier policy, representing a “ ‘settled

course of behavior[,] embodies the agency’s informed

judgment that, by pursuing that course, it will carry out

Cite as: 556 U. S. ____ (2009) 5

BREYER, J., dissenting

the policies . . . best if the settled rule is adhered to.’ ”

State Farm, supra, at 41–42. Thus, the agency must

explain why it has come to the conclusion that it should

now change direction. Why does it now reject the consid­

erations that led it to adopt that initial policy? What has

changed in the world that offers justification for the

change? What other good reasons are there for departing

from the earlier policy?

Contrary to the majority’s characterization of this dis­

sent, it would not (and State Farm does not) require a

“heightened standard” of review. Ante, at 10 (emphasis

added). Rather, the law requires application of the same

standard of review to different circumstances, namely

circumstances characterized by the fact that change is at

issue. It requires the agency to focus upon the fact of

change where change is relevant, just as it must focus

upon any other relevant circumstance. It requires the

agency here to focus upon the reasons that led the agency

to adopt the initial policy, and to explain why it now comes

to a new judgment.

I recognize that sometimes the ultimate explanation for

a change may have to be, “We now weigh the relevant

considerations differently.” But at other times, an agency

can and should say more. Where, for example, the agency

rested its previous policy on particular factual findings,

see ante, at 3–5 (KENNEDY, J., concurring in part and

concurring in judgment); or where an agency rested its

prior policy on its view of the governing law, see infra, at

7–11; or where an agency rested its previous policy on,

say, a special need to coordinate with another agency, one

would normally expect the agency to focus upon those

earlier views of fact, of law, or of policy and explain why

they are no longer controlling. Regardless, to say that the

agency here must answer the question “why change” is not

to require the agency to provide a justification that is

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

6 FCC v. FOX TELEVISION STATIONS, INC.

BREYER, J., dissenting

It is only to recognize the obvious fact that change is some­

times (not always) a relevant background feature that

sometimes (not always) requires focus (upon prior justifi­

cations) and explanation lest the adoption of the new

policy (in that circumstance) be “arbitrary, capricious, an

abuse of discretion.”

That is certainly how courts of appeals, the courts that

review agency decisions, have always treated the matter

in practice. See, e.g., Pennsylvania Federation of Sports

men’s Clubs, Inc. v. Kempthorne, 497 F. 3d 337, 351 (CA3

2007); Yale-New Haven Hosp. v. Leavitt, 470 F. 3d 71, 79

(CA2 2006); Citizens Awareness Network, Inc. v. United

States, 391 F. 3d 338, 352 (CA1 2004). But see NAACP v.

FCC, 682 F. 2d 993, 998 (CADC 1982) (using word “height­

ened”). The majority’s holding could in this respect sig­

nificantly change judicial review in practice, and not in a

healthy direction. But see, ante, at 1–5 (KENNEDY, J.,

concurring in part and concurring in judgment). After all,

if it is always legally sufficient for the agency to reply to

the question “why change?” with the answer “we prefer

the new policy” (even when the agency has not considered

the major factors that led it to adopt its old policy), then

why bother asking the agency to focus on the fact of

change? More to the point, why would the law exempt this

and no other aspect of an agency decision from “arbitrary,

capricious” review? Where does, and why would, the APA

grant agencies the freedom to change major policies on the

basis of nothing more than political considerations or even

personal whim?

Avoiding the application of any heightened standard of

review, the Court in State Farm recognized that the APA’s

“nonarbitrary” requirement affords agencies generous

leeway when they set policy. 463 U. S., at 42. But it also

recognized that this leeway is not absolute. The Court

described its boundaries by then listing considerations

that help determine whether an explanation is adequate.

Cite as: 556 U. S. ____ (2009) 7

BREYER, J., dissenting

Mirroring and elaborating upon its statement in Overton

Park, 401 U. S. 402, the Court said that a reviewing court

should take into account whether the agency had “relied

on factors which Congress has not intended it to consider,

entirely failed to consider an important aspect of the

problem, offered an explanation for its decision that runs

counter to the evidence before the agency, or is so implau­

sible that it could not be ascribed to a difference in view or

the product of agency expertise.” State Farm, supra, at 43;

see also Overton Park, supra, at 416.

II

We here must apply the general standards set forth in

State Farm and Overton Park to an agency decision that

changes a 25-year-old “fleeting expletive” policy from (1)

the old policy that would normally permit broadcasters to

transmit a single, fleeting use of an expletive to (2) a new

policy that would threaten broadcasters with large fines

for transmitting even a single use (including its use by a

member of the public) of such an expletive, alone with

nothing more. The question is whether that decision

satisfies the minimal standards necessary to assure a

reviewing court that such a change of policy is not “arbi­

trary, capricious, [or] an abuse of discretion,” 5 U. S. C.

§706(2)(A), particularly as set forth in, e.g., State Farm

and Overton Park, supra, at 2–7. The decision, in my

view, does not satisfy those standards.

Consider the requirement that an agency at least mini­

mally “consider . . . important aspect[s] of the problem.”

State Farm, supra, at 43. The FCC failed to satisfy this

requirement, for it failed to consider two critically impor­

tant aspects of the problem that underlay its initial policy

judgment (one of which directly, the other of which indi­

rectly). First, the FCC said next to nothing about the

relation between the change it made in its prior “fleeting

expletive” policy and the First-Amendment-related need to

8 FCC v. FOX TELEVISION STATIONS, INC.

BREYER, J., dissenting

avoid “censorship,” a matter as closely related to broad­

casting regulation as is health to that of the environment.

The reason that discussion of the matter is particularly

important here is that the FCC had explicitly rested its

prior policy in large part upon the need to avoid treading

too close to the constitutional line.

Thirty years ago, the Court considered the location of

that constitutional line. In FCC v. Pacifica Foundation,

438 U. S. 726 (1978), the Court reviewed an FCC decision

forbidding the broadcast of a monologue that deliberately

and repeatedly uttered the expletives here at issue more

than 100 times in one hour at a time of day when children

were likely to hear the broadcast. Id., at 739. The Court

held that the FCC’s prohibition did not violate the First

Amendment. But the Court divided 5 to 4. And two Mem­

bers of the majority, Justices Powell and Blackmun, ex­

plicitly noted that the Court “does not speak to cases

involving the isolated use of a potentially offensive word

. . . as distinguished from the verbal shock treatment

administered by respondent here.” Id., at 760–761 (Pow­

ell, J., concurring in part and concurring in judgment)

(emphasis added). This statement by two Members of the

majority suggested that they could reach a different re­

sult, finding an FCC prohibition unconstitutional, were

that prohibition aimed at the fleeting or single use of an

expletive.

The FCC subsequently made clear that it thought that

Justice Powell’s concurrence set forth a constitutional line

that its indecency policy should embody. In 1978, the

Commission wrote that the First Amendment “severely

limit[s]” the Commission’s role in regulating indecency. It

added that the Court, in Pacifica, had “relied . . . on the

repetitive occurrence of the ‘indecent’ words in question.”

And it said that, in setting policy, it “intend[ed] strictly to

observe the narrowness of the Pacifica holding.” In re

Application of WGBH Educ. Foundation, 69 F. C. C. 2d

Cite as: 556 U. S. ____ (2009) 9

BREYER, J., dissenting

1250, 1254, ¶10.

In 1983, the Commission again wrote that it understood

the Court’s decision in Pacifica to rest on the “repetitive

occurrence of the ‘indecent’ words in question.” And,

again, the Commission explained that its regulation of

fleeting or isolated offensive words would reflect Justice

Powell’s understanding of the First Amendment’s scope.

In re Application of Pacifica Foundation, 95 F. C. C. 2d

750, 760, ¶¶17–18. In 1987, the Commission once more

explained that its “fleeting expletives” policy reflected the

Court’s decision in Pacifica. It said that, under its policy,

“speech that is indecent must involve more than an iso­

lated use of an offensive word,” adding that “we believe

that under the legal standards set forth in Pacifica, delib­

erate and repetitive use in a patently offensive manner is

a requisite to a finding of indecency.” In re Pacifica Foun

dation, 2 FCC Rcd. 2698, 2699, ¶13 (emphasis added). In

another order that same year, the Commission stated that

“the First Amendment dicate[s] a careful and restrained

approach with regard to review of matters involving

broadcast programming”; it then explained, citing

Pacifica, that “[s]peech that is indecent must involve more

than the isolated use of an offensive word.” In re Infinity

Broadcasting, 2 FCC Rcd. 2705, 2705, ¶¶6–7 (1987) (em­

phasis added). And in 2001, in giving the industry guid­

ance, the FCC once again said in respect to its regulation

of indecent speech that it “must both identify a compelling

interest for any regulation . . . and choose the least restric­

tive means to further that interest.” In re Industry Guid

ance On Commission’s Case Law Interpreting 18 U. S. C.

§1464 and Enforcement Policies Regarding Broadcast

Indecency, 16 FCC Rcd. 7999, 8000–8001, ¶3–5.

The FCC thus repeatedly made clear that it based its

“fleeting expletive” policy upon the need to avoid treading

too close to the constitutional line as set forth in Justice

Powell’s Pacifica concurrence. What then did it say, when

10 FCC v. FOX TELEVISION STATIONS, INC.

BREYER, J., dissenting

it changed its policy, about why it abandoned this Consti­

tution-based reasoning? The FCC devoted “four full pages

of small-type, single-spaced text,” ante, at 23, responding

to industry arguments that, e.g., changes in the nature of

the broadcast industry made all indecency regulation, i.e.,

18 U. S. C. §1464, unconstitutional. In doing so it repeat­

edly reaffirmed its view that Pacifica remains good law.

In re Complaints Regarding Various Television Broadcasts

Between February 2, 2002, and March, 8, 2008, 21 FCC

Rcd. 13299, 13317–13321, ¶¶42–52 (2006) (Remand Or

der). All the more surprising then that, in respect to why

it abandoned its prior view about the critical relation

between its prior fleeting expletive policy and Justice

Powell’s Pacifica concurrence, it says no more than the

following:

“[O]ur decision is not inconsistent with the Supreme

Court ruling in Pacifica. The Court explicitly left open the

issue of whether an occasional expletive could be consid­

ered indecent.” In re Complaints Against Various Broad

cast Licensees Regarding Their Airing of the “Golden Globe

Awards” Program, 19 FCC Rcd. 4975, 4982, ¶16 (2004)

(Golden Globe Order). And, (repeating what it already

had said), “[Pacifica] specifically reserved the question of

‘an occasional expletive’ and noted that it addressed only

the ‘particular broadcast’ at issue in that case.” Remand

Order, supra, at 13308–13309, ¶24.

These two sentences are not a summary of the FCC’s

discussion about why it abandoned its prior understanding

of Pacifica. They are the discussion. These 28 words

(repeated in two opinions) do not acknowledge that an

entirely different understanding of Pacifica underlay the

FCC’s earlier policy; they do not explain why the agency

changed its mind about the line that Pacifica draws or its

policy’s relation to that line; and they tell us nothing at all

about what happened to the FCC’s earlier determination

to search for “compelling interests” and “less restrictive

Cite as: 556 U. S. ____ (2009) 11

BREYER, J., dissenting

alternatives.” They do not explain the transformation of

what the FCC had long thought an insurmountable obsta­

cle into an open door. The result is not simply Hamlet

without the prince, but Hamlet with a prince who, in mid­

play and without explanation, just disappears.

I have found one other related reference to Pacifica, but

that reference occurs in an opinion written by a dissenting

Commissioner. That dissenter said that the FCC had

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

concerns raised’ ” by the new policy, while adding that the

new policy was “not the restrained enforcement policy

encouraged by the Supreme Court in Pacifica.” Remand

Order, supra, at 13331, 13334. Neither that Commis­

sioner in his dissent, nor I in this dissent, claim that

agencies must always take account of possible constitu­

tional issues when they formulate policy. Cf. ante, at 12.

But the FCC works in the shadow of the First Amendment

and its view of the application of that Amendment to

“fleeting expletives” directly informed its initial policy

choice. Under these circumstances, the FCC’s failure to

address this “aspect” of the problem calls for a remand to

the agency. Overton Park, 401 U. S., at 420–421.

Second, the FCC failed to consider the potential impact

of its new policy upon local broadcasting coverage. This

“aspect of the problem” is particularly important because

the FCC explicitly took account of potential broadcasting

impact. Golden Globe Order, supra, at 4980, ¶11 (“The

ease with which broadcasters today can block even fleeting

words in a live broadcast is an element in our decision”).

Indeed, in setting forth “bleeping” technology changes

(presumably lowering bleeping costs) as justifying the

policy change, it implicitly reasoned that lower costs,

making it easier for broadcasters to install bleeping

equipment, made it less likely that the new policy would

lead broadcasters to reduce coverage, say by canceling

coverage of public events. Ibid. (“[T]echnological advances

12 FCC v. FOX TELEVISION STATIONS, INC.

BREYER, J., dissenting

have made it possible . . . to prevent the broadcast of a

single offending word or action without blocking or dispro­

portionately disrupting the message of the speaker or

performer”).

What then did the FCC say about the likelihood that

smaller independent broadcasters, including many public

service broadcasters, still would not be able to afford

“bleeping” technology and, as a consequence, would reduce

local coverage, indeed cancel coverage, of many public

events? It said nothing at all.

The FCC cannot claim that local coverage lacks special

importance. To the contrary, “the concept of localism has

been a cornerstone of broadcast regulation for decades.”

In re Broadcast Localism, 23 FCC Rcd. 1324, 1326, 1327,

¶¶3, 5 (2008). That policy seeks to provide “viewers and

listeners . . . access to locally responsive programming

including, but not limited to, local news and public affairs

matter” and to ensure “diversity in what is seen and heard

over the airwaves.” That policy has long favored local

broadcasting, both as a means to increase coverage of local

events and, insofar as it increases the number of broadcast

voices, as an end in itself. See, e.g., In re Reexamination of

Comparative Standards for Noncommercial Educ. Appli

cants, 15 FCC Rcd. 7386, 7399, ¶29 (2000) (adopting a

system for selecting applicants for broadcast channels that

“would foster our goal of broadcast diversity by enabling

the local public to be served by differing . . . licensees”); In

re 2002 Biennial Regulatory Review, 18 FCC Rcd. 13620,

13644, ¶¶77, 79 (2003) (“We remain firmly committed to

the policy of promoting localism among broadcast outlets.

. . . A . . . measure of localism is the quantity and quality

of local news and public affairs programming”).

Neither can the FCC now claim that the impact of its

new policy on local broadcasting is insignificant and obvi­

ously so. Broadcasters tell us, as they told the FCC, the

contrary. See Brief for Former FCC Commissioners as

Cite as: 556 U. S. ____ (2009) 13

BREYER, J., dissenting

Amici Curiae 17–19; App. 235–237; Joint Comments of

Fox Television Stations, Inc. et al., In re Remand of Sec

tion III.B of the Commission’s March 15, 2006 Omnibus

Order Resolving Numerous Broadcast Television Indecency

Complaints 14–15, http://www.fcc.gov/DA06–1739/joint­

networks.pdf (all Internet materials as visited Apr. 7,

2009, and available in Clerk of Court’s case file). They

told the FCC, for example, that the costs of bleeping/delay

systems, up to $100,000 for installation and annual opera­

tion, place that technology beyond the financial reach of

many smaller independent local stations. See id., at 14

(“The significant equipment and personnel costs associ­

ated with installing, maintaining, and operating delay

equipment sufficient to cover all live news, sports, and

entertainment programs could conceivably exceed the net

profits of a small local station for an entire year”); id., at

App. XI. And they ask what the FCC thinks will happen

when a small local station without bleeping equipment

wants to cover, say a local city council meeting, a high

school football game, a dance contest at community center,

or a Fourth of July parade.

Relevant literature supports the broadcasters’ financial

claims. See, e.g., Ho, Taking No Chances, Austin Ameri­

can-Statesman, June 18, 2006, p. J1; Dotinga, Dirty-Word

Filters Prove Costly, Wired.com, July 9, 2004, http://www.

wired.com/entertainment/music/news/2004/07/64127; Sta­

tions, Cable Networks Finding Indecency Rules Expen­

sive, Public Broadcasting Report, Aug. 4, 2006. It also

indicates that the networks with which some small sta­

tions are affiliated are not liable for the stations’ local

transmissions (unless the networks own them). Ho, supra,

at J1; Public Stations Fear Indecency Fine Jump Means

Premium Hikes, Public Broadcasting Report, July 7, 2006.

The result is that smaller stations, fearing “fleeting exple­

tive” fines of up to $325,000, may simply cut back on their

coverage. See Romano, Reporting Live. Very Carefully,

14 FCC v. FOX TELEVISION STATIONS, INC.

BREYER, J., dissenting

Broadcasting & Cable, July 4, 2005, p. 8; see also ibid.

(“Afraid to take chances” of getting fined under the FCC’s

new policy, “local broadcasters are responding by alter­

ing—or halting altogether—the one asset that makes local

stations so valuable to their communities: live TV”);

Daneman, WRUR Drops Its Live Radio Programs, Roches­

ter Democrat and Chronicle, May 27, 2004, p. 1B (report­

ing that a local broadcast station ceased broadcasting all

local live programming altogether in response to the

Commission’s policy change). And there are many such

smaller stations. See, e.g., Corporation for Public Broad­

casting, Frequently Asked Questions, available at http://

www.cpb.org/aboutpb/faq/stations.html (noting there are

over 350 local public television stations and nearly 700

local public radio stations that receive support from the

Corporation for Public Broadcasting).

As one local station manager told the FCC,

“[t]o lessen the risk posed by the new legal framework

. . . I have directed [the station’s] news staff that [our

station] may no longer provide live, direct-to-air cov­

erage” of “live events where crowds are present . . .

unless they affect matters of public safety or conven­

ience. Thus, news coverage by [my station] of live

events where crowds are present essentially will be

limited to civil emergencies.” App. 236–237 (declara­

tion of Dennis Fisher).

What did the FCC say in response to this claim? What

did it say about the likely impact of the new policy on the

coverage that its new policy is most likely to affect, cover­

age of local live events—city council meetings, local sports

events, community arts productions, and the like? It said

nothing at all.

The plurality acknowledges that the Commission en­

tirely failed to discuss this aspect of the regulatory prob­

lem. But it sees “no need” for discussion in light of its, i.e.,

Cite as: 556 U. S. ____ (2009) 15

BREYER, J., dissenting

the plurality’s, own “doubt[s]” that “small-town broadcast­

ers run a heightened risk of liability for indecent utter­

ances” as a result of the change of policy. Ante, at 24–25.

The plurality's “doubt[s]” rest upon its views (1) that

vulgar expression is less prevalent (at least among broad­

cast guests) in smaller towns, ante, at 24; (2) that the

greatest risk the new policy poses for “small-town broad­

casters” arises when they broadcast local “news and public

affairs,” ibid., and (3) that the Remand Order says “little

about how the Commission would treat smaller broadcast­

ers who cannot afford screening equipment,” while also

pointing out that the new policy “ ‘does not . . . impose

undue burdens on broadcasters’ ” and emphasizing that

the case before it did not involve “ ‘breaking news.’ ” Ante,

at 24–25.

As to the first point, about the prevalence of vulgarity in

small towns, I confess ignorance. But I do know that there

are independent stations in many large and medium sized

cities. See Television & Cable Factbook, Directory of

Television Stations in Operation 2008. As to the second

point, I too believe that coverage of local public events, if

not news, lies at the heart of the problem.

I cannot agree with the plurality, however, about the

critical third point, namely that the new policy obviously

provides smaller independent broadcasters with adequate

assurance that they will not be fined. The new policy

removes the “fleeting expletive” exception, an exception

that assured smaller independent stations that they would

not be fined should someone swear at a public event. In

its place, it puts a policy that places all broadcasters at

risk when they broadcast fleeting expletives, including

expletives uttered at public events. The Remand Order

says that there “is no outright news exemption from our

indecency rules.” 21 FCC Rcd., at 13327, ¶71 (emphasis

added). The best it can provide by way of assurance is to

say that “it may be inequitable to hold a licensee responsi­

16 FCC v. FOX TELEVISION STATIONS, INC.

BREYER, J., dissenting

ble for airing offensive speech during live coverage of a

public event under some circumstances.” Id., at 13311,

¶33 (emphasis added). It does list those circumstances as

including the “possibility of human error in using delay

equipment.” Id., at 13313, ¶35. But it says nothing about

a station’s inability to afford delay equipment (a matter

that in individual cases could itself prove debatable). All

the FCC had to do was to consider this matter and either

grant an exemption or explain why it did not grant an

exemption. But it did not. And the result is a rule that

may well chill coverage—the kind of consequence that the

law has considered important for decades, to which the

broadcasters pointed in their arguments before the FCC,

and which the FCC nowhere discusses. See, e.g., Dom

browski v. Pfister, 380 U. S. 479, 494 (1965) (“So long as

the statute remains available to the State the threat of

prosecutions of protected expression is a real and substan­

tial one. Even the prospect of ultimate failure of such

prosecutions by no means dispels their chilling effect on

protected expression”); see also Ashcroft v. Free Speech

Coalition, 535 U. S. 234, 244 (2002); Gibson v. Florida

Legislative Investigation Comm., 372 U. S. 539, 556–557

(1963); Wieman v. Updegraff, 344 U. S. 183, 195 (1952)

(Frankfurter, J., concurring).

Had the FCC used traditional administrative notice­

and-comment procedures, 5 U. S. C. §553, the two failures

I have just discussed would clearly require a court to

vacate the resulting agency decision. See ACLU v. FCC,

823 F. 2d 1554, 1581 (CADC 1987) (“Notice and comment

rulemaking procedures obligate the FCC to respond to all

significant comments, for the opportunity to comment is

meaningless unless the agency responds to significant

points raised by the public” (emphasis added; internal

quotation marks omitted)). Here the agency did not make

new policy through the medium of notice and comment

proceedings. But the same failures here—where the policy

Cite as: 556 U. S. ____ (2009) 17

BREYER, J., dissenting

is important, the significance of the issues clear, the fail­

ures near complete—should lead us to the same conclu­

sion. The agency’s failure to discuss these two “important

aspect[s] of the problem” means that the resulting decision

is “ ‘arbitrary, capricious, an abuse of discretion’ ” requiring

us to remand the matter to the agency. State Farm, 463

U. S., at 43; Overton Park, 401 U. S., at 416.

III

The three reasons the FCC did set forth in support of its

change of policy cannot make up for the failures I have

discussed. Consider each of them. First, as I have pointed

out, the FCC based its decision in part upon the fact that

“bleeping/delay systems” technology has advanced. I have

already set forth my reasons for believing that that fact,

without more, cannot provide a sufficient justification for

its policy change. Supra, at 11–16.

Second, the FCC says that the expletives here in ques­

tion always invoke a coarse excretory or sexual image;

hence it makes no sense to distinguish between whether

one uses the relevant terms as an expletive or as a literal

description. The problem with this answer is that it does

not help to justify the change in policy. The FCC was

aware of the coarseness of the “image” the first time

around. See, e.g., Remand Order, 21 FCC Rcd., at 13308,

¶23 (asserting that FCC has always understood the words

as coarse and indecent). And it explained the first time

around why it nonetheless distinguished between their

literal use and their use as fleeting expletives. See, e.g., In

re Application of WGBH Educ. Foundation, 69 F. C. C. 2d,

at 1254–1255, ¶¶10–11 (discussing First Amendment

considerations and related need to avoid reduced broad­

cast coverage). Simply to announce that the words,

whether used descriptively or as expletives, call forth

similar “images” is not to address those reasons.

Third, the FCC said that “perhaps” its “most impor­

18 FCC v. FOX TELEVISION STATIONS, INC.

BREYER, J., dissenting

tan[t]” justification for the new policy lay in the fact that

its new “contextual” approach to fleeting expletives is

better and more “[c]onsistent with” the agency’s “general

approach to indecency” than was its previous “cate­

gorica[l]” approach, which offered broadcasters virtual

immunity for the broadcast of fleeting expletives. Remand

Order, supra, at 13308, ¶23. This justification, however,

offers no support for the change without an understanding

of why, i.e., in what way, the FCC considered the new

approach better or more consistent with the agency’s

general approach.

The Solicitor General sets forth one way in which the

new policy might be more consistent with statutory policy.

The indecency statute prohibits the broadcast of “any . . .

indecent . . . language.” 18 U. S. C. §1464. The very point

of the statute, he says, is to eliminate nuisance; and the

use of expletives, even once, can constitute such a nui­

sance. The Solicitor General adds that the statutory word

“any” indicates that Congress did not intend a safe-harbor

for a fleeting use of that language. Brief for Petitioners

24–25. The fatal flaw in this argument, however, lies in

the fact that the Solicitor General and not the agency has

made it. We must consider the lawfulness of an agency’s

decision on the basis of the reasons the agency gave, not

on the basis of those it might have given. SEC v. Chenery

Corp., 332 U. S. 194, 196–197 (1947); State Farm, supra,

at 50. And the FCC did not make this claim. Hence, we

cannot take it into account and need not evaluate its

merits.

In fact, the FCC found that the new policy was better in

part because, in its view, the new policy better protects

children against what it described as “ ‘the first blow’ ” of

broadcast indecency that results from the “ ‘pervasive’ ”

nature of broadcast media. It wrote that its former policy

of “granting an automatic exemption for ‘isolated or fleet­

ing’ expletives unfairly forces viewers (including children)

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

BREYER, J., dissenting

to take ‘the first blow.’ ” Remand Order, supra, at 13309,

¶25.

The difficulty with this argument, however, is that it

does not explain the change. The FCC has long used the

theory of the “first blow” to justify its regulation of broad­

cast indecency. See, e.g., In re Enforcement of Prohibitions

Against Broadcast Indecency in 18 U. S. C. §1464, 5 FCC

Rcd. 5297, 5302, ¶¶34–35 (1990). Yet the FCC has also

long followed its original “fleeting expletives” policy. Nor

was the FCC ever unaware of the fact to which the major­

ity points, namely that children’s surroundings influence

their behavior. See, e.g., In re Enforcement of Prohibitions

Against Broadcast Indecency in 18 U. S. C. §1464, 8 FCC

Rcd. 704, 706, ¶11 (1993). So, to repeat the question:

What, in respect to the “first blow,” has changed?

The FCC points to no empirical (or other) evidence to

demonstrate that it previously understated the impor­

tance of avoiding the “first blow.” Like the majority, I do

not believe that an agency must always conduct full em­

pirical studies of such matters. Ante, at 15–16. But the

FCC could have referred to, and explained, relevant em­

pirical studies that suggest the contrary. One review of

the empirical evidence, for example, reports that “[i]t is

doubtful that children under the age of 12 understand

sexual language and innuendo; therefore it is unlikely that

vulgarities have any negative effect.” Kaye & Sapolsky,

Watch Your Mouth! An Analysis of Profanity Uttered by

Children on Prime-Time Television, 2004 Mass Communi­

cation & Soc’y 429, 433 (Vol. 7) (citing two studies). The

Commission need not have accepted this conclusion. But

its failure to discuss this or any other such evidence, while

providing no empirical evidence at all that favors its posi­

tion, must weaken the logical force of its conclusion. See

State Farm, 463 U. S., at 43 (explaining that an agency’s

failure to “examine the relevant data” is a factor in deter­

mining whether the decision is “arbitrary”).

20 FCC v. FOX TELEVISION STATIONS, INC.

BREYER, J., dissenting

The FCC also found the new policy better because it

believed that its prior policy “would as a matter of logic

permit broadcasters to air expletives at all hours of a day

so long as they did so one at a time.” Remand Order, 21

FCC Rcd., at 13309, ¶25. This statement, however, raises

an obvious question: Did that happen? The FCC’s initial

“fleeting expletives” policy was in effect for 25 years. Had

broadcasters during those 25 years aired a series of exple­

tives “one at a time?” If so, it should not be difficult to find

evidence of that fact. But the FCC refers to none. Indeed,

the FCC did not even claim that a change had taken place

in this respect. It spoke only of the pure “logic” of the

initial policy “permitting” such a practice. That logic

would have been apparent to anyone, including the FCC,

in 1978 when the FCC set forth its initial policy.

Finally, the FCC made certain statements that suggest

it did not believe it was changing prior policy in any major

way. It referred to that prior policy as based on “staff

letters and dicta” and it said that at least one of the in­

stances before it (namely, the Cher broadcast) would have

been actionably indecent under that prior policy. Id., at

13306–13307, 13324, ¶¶20–21, 60. As we all agree, how­

ever, in fact the FCC did change its policy in a major way.

See ante, at 13. To the extent that the FCC minimized

that fact when considering the change, it did not fully

focus on the fact of change. And any such failure would

make its decision still less supportable. See National

Cable, 545 U. S., at 981.

IV

Were the question a closer one, the doctrine of constitu­

tional avoidance would nonetheless lead me to remand the

case. See United States v. Jin Fuey Moy, 241 U. S. 394,

401 (1916) (“A statute must be construed, if fairly possible,

so as to avoid not only the conclusion that it is unconstitu­

tional but also grave doubts upon that score” (emphasis

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

BREYER, J., dissenting

added)). That doctrine seeks to avoid unnecessary judicial

consideration of constitutional questions, assumes that

Congress, no less than the Judicial Branch, seeks to act

within constitutional bounds, and thereby diminishes the

friction between the branches that judicial holdings of

unconstitutionality might otherwise generate. See Al

mendarez-Torres v. United States, 523 U. S. 224, 237–238

(1998); see also Solid Waste Agency of Northern Cook Cty.

v. Army Corps of Engineers, 531 U. S. 159, 172–173 (2001);

Edward J. DeBartolo Corp. v. Florida Gulf Coast Building

& Constr. Trades Council, 485 U. S. 568, 575 (1988); Res

cue Army v. Municipal Court of Los Angeles, 331 U. S. 549,

571 (1947); Ashwander v. TVA, 297 U. S. 288, 345–348

(1936) (Brandeis, J., concurring). The doctrine assumes

that Congress would prefer a less-than-optimal interpreta­

tion of its statute to the grave risk of a constitutional

holding that would set the statute entirely aside. See

Almendarez-Torres, supra, at 238 (construction of statute

that avoids invalidation best reflects congressional will);

cf. United States v. Booker, 543 U. S. 220, 249, 267 (2005).

Unlike the majority, I can find no convincing reason for

refusing to apply a similar doctrine here. The Court has

often applied that doctrine where an agency’s regulation

relies on a plausible but constitutionally suspect interpre­

tation of a statute. See, e.g., Solid Waste Agency, supra, at

172–174; NLRB v. Catholic Bishop of Chicago, 440 U. S.

490, 506–507 (1979). The values the doctrine serves apply

whether the agency’s decision does, or does not, rest upon

a constitutionally suspect interpretation of a statute. And

a remand here would do no more than ask the agency to

reconsider its policy decision in light of the concerns raised

in a judicial opinion. Cf. Fullilove v. Klutznick, 448 U. S.

448, 551 (1980) (STEVENS, J., dissenting) (a holding that a

congressional action implicating the Equal Protection

Clause “was not adequately preceded by a consideration of

less drastic alternatives or adequately explained by a

22 FCC v. FOX TELEVISION STATIONS, INC.

BREYER, J., dissenting

statement of legislative purpose would be far less intru­

sive than a final determination that the substance of” that

action was unconstitutional). I would not now foreclose, as

the majority forecloses, our further consideration of this

matter. (Of course, nothing in the Court’s decision today

prevents the Commission from reconsidering its current

policy in light of potential constitutional considerations or

for other reasons.)

V

In sum, the FCC’s explanation of its change leaves out

two critically important matters underlying its earlier

policy, namely Pacifica and local broadcasting coverage.

Its explanation rests upon three considerations previously

known to the agency (“coarseness,” the “first blow,” and

running single expletives all day, one at a time). With one

exception, it provides no empirical or other information

explaining why those considerations, which did not justify

its new policy before, justify it now. Its discussion of the

one exception (technological advances in bleeping/delay

systems), failing to take account of local broadcast cover­

age, is seriously incomplete.

I need not decide whether one or two of these features,

standing alone, would require us to remand the case.

Here all come together. And taken together they suggest

that the FCC’s answer to the question, “Why change?” is,

“We like the new policy better.” This kind of answer,

might be perfectly satisfactory were it given by an elected

official. But when given by an agency, in respect to a

major change of an important policy where much more

might be said, it is not sufficient. State Farm, 463 U. S.,

at 41–42.

For these reasons I would find the FCC’s decision “arbi­

trary, capricious, an abuse of discretion,” 5 U. S. C.

§706(2)(A), requiring remand of this case to the FCC. And

I would affirm the Second Circuit’s similar determination.

With respect, I dissent.