OPINION OF THE COURT FCC V. FOX TELEVISION STATIONS, INC. 556 U. S. ____ (2009) SUPREME COURT OF THE UNITED STATES NO. 07-582 FEDERAL COMMUNICATIONS COMMISSION, et al.,
PETITIONERS v. FOX TELEVISION STATIONS, INC.,
et al.

															on writ of certiorari to the united states court of
appeals for the second circuit

															[April 28, 2009]

															   Justice Scalia delivered the
opinion of the Court, except as to Part III–E.

															   Federal law prohibits the
broadcasting of “any … indecent … language,” 18 U. S. C.
§1464, which includes expletives referring to sexual or excretory
activity or organs, see FCC v. Pacifica
Foundation , 438
U. S. 726 (1978). This case concerns the adequacy of the
Federal Communications Commission’s explanation of its decision
that this sometimes forbids the broadcasting of indecent expletives
even when the offensive words are not repeated.

															I. Statutory and Regulatory Background

															   The Communications Act of 1934,
48 Stat. 1064, 47 U. S. C. §151 et seq. (2000 ed. and
Supp. V), established a system of limited-term broadcast licenses
subject to various “conditions” designed “to maintain the control
of the United States over all the channels of radio transmission,”
§301 (2000 ed.). Twenty-seven years ago we said that “[a] licensed
broadcaster is granted the free and exclusive use of a limited and
valuable part of the public domain; when he accepts that franchise
it is burdened by enforceable public obligations.” CBS,
Inc. v. FCC , 453 U. S. 367 , 395
(1981) (internal quotation marks omitted).

															   One of the burdens that licensees
shoulder is the indecency ban—the statutory proscription against
“utter[ing] any obscene, indecent, or profane language by means of
radio communication,” 18 U. S. C. §1464—which Congress has
instructed the Commission to enforce between the hours of 6 a.m.
and 10 p.m. Public Telecommunications Act of 1992, §16(a), 106
Stat. 954, note following 47 U. S. C. §303.[ Footnote 1 ] Congress has given the Commission
various means of enforcing the indecency ban, including civil
fines, see §503(b)(1), and license revocations or the denial of
license renewals, see §§309(k), 312(a)(6).

															   The Commission first invoked the statutory ban
on indecent broadcasts in 1975, declaring a daytime broadcast of
George Carlin’s “Filthy Words” monologue actionably indecent. Pacifica Foundation , 56 F. C. C. 2d 94. At that
time, the Commission announced the definition of indecent speech
that it uses to this day, prohibiting “language that describes, in
terms patently offensive as measured by contemporary community
standards for the broadcast medium, sexual or excretory activities
or organs, at times of the day when there is a reasonable risk that
children may be in the audience.” Id., at 98.

															   In FCC v. Pacifica
Foundation , supra , we upheld the Commission’s order
against statutory and constitutional challenge. We rejected the
broadcasters’ argument that the statutory proscription applied only
to speech appealing to the prurient interest, noting that “the
normal definition of ‘indecent’ merely refers to nonconformance
with accepted standards of morality.” Id., at 740. And we
held that the First Amendment allowed Carlin’s monologue to be
banned in light of the “uniquely pervasive presence” of the medium
and the fact that broadcast programming is “uniquely accessible to
children.” Id., at 748–749.

															   In the ensuing years, the Commission took a
cautious, but gradually expanding, approach to enforcing the
statutory prohibition against indecent broadcasts. Shortly after Pacifica , 438
U. S. 726 , the Commission expressed its “inten[tion] strictly
to observe the narrowness of the Pacifica holding,” which
“relied in part on the repetitive occurrence of the ‘indecent’
words” contained in Carlin’s monologue. In re Application
of WGBH Educ. Foundation, 69 F. C. C. 2d 1250, 1254,
¶10 (1978). When the full Commission next considered its indecency
standard, however, it repudiated the view that its enforcement
power was limited to “deliberate, repetitive use of the seven words
actually contained in the George Carlin monologue.” In re
Pacifica Foundation, Inc. , 2 FCC Rcd. 2698, 2699, ¶12 (1987).
The Commission determined that such a “highly restricted
enforcement standard … was unduly narrow as a matter of law and
inconsistent with [the Commission’s] enforcement responsibilities
under Section 1464.” In re Infinity Broadcasting Corp. of
Pa. , 3 FCC Rcd. 930, ¶5 (1987). The Court of Appeals for the
District of Columbia Circuit upheld this expanded enforcement
standard against constitutional and Administrative Procedure Act
challenge. See Action for Children’s Television v. FCC , 852 F. 2d 1332 (1988) (R. Ginsburg, J.),
superseded in part by Action for Children’s Television v. FCC , 58 F. 3d 654 (1995) (en banc).

															   Although the Commission had expanded its
enforcement beyond the “repetitive use of specific words or
phrases,” it preserved a distinction between literal and nonliteral
(or “expletive”) uses of evocative language. In re
Pacifica Foundation, Inc. , 2 FCC Rcd., at 2699, ¶13. The
Commission explained that each literal “description or depiction of
sexual or excretory functions must be examined in context to
determine whether it is patently offensive,” but that “deliberate
and repetitive use … is a requisite to a finding of indecency” when
a complaint focuses solely on the use of nonliteral expletives. Ibid. Over a decade later, the Commission emphasized
that the “full context” in which particular materials appear is
“critically important,” but that a few “principal” factors guide
the inquiry, such as the “explicitness or graphic nature” of the
material, the extent to which the material “dwells on or repeats”
the offensive material, and the extent to which the material was
presented to “pander,” to “titillate,” or to “shock.” In re Industry Guidance On the Commission’s Case Law
Interpreting 18 U. S. C. §1464 and Enforcement Policies
Regarding Broadcast Indecency , 16 FCC Rcd. 7999, 8002, ¶9,
8003, ¶10 (2001) (emphasis deleted). “No single factor,” the
Commission said, “generally provides the basis for an indecency
finding,” but “where sexual or excretory references have been made
once or have been passing or fleeting in nature, this
characteristic has tended to weigh against a finding of indecency.” Id., at 8003, ¶10, 8008, ¶17.

															   In 2004, the Commission took one step further
by declaring for the first time that a nonliteral (expletive) use
of the F- and S-Words could be actionably indecent, even when the
word is used only once. The first order to this effect dealt with
an NBC broadcast of the Golden Globe Awards, in which the performer
Bono commented, “ ‘This is really, really, f***ing
brilliant.’ ” In re Complaints Against Various
Broadcast Licensees Regarding Their Airing of the “Golden Globe
Awards” Program, 19 FCC Rcd. 4975, 4976, n. 4 (2004) (Golden Globes Order) . Although the Commission had
received numerous complaints directed at the broadcast, its
enforcement bureau had concluded that the material was not indecent
because “Bono did not describe, in context, sexual or excretory
organs or activities and … the utterance was fleeting and
isolated.” Id., at 4975–4976, ¶3. The full Commission
reviewed and reversed the staff ruling.

															   The Commission first declared that Bono’s use
of the 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 determined, moreover, that the
broadcast was “patently offensive” because the F-Word “is one of
the most vulgar, graphic and explicit descriptions of sexual
activity in the English language,” because “[i]ts use invariably
invokes a coarse sexual image,” and because Bono’s use of the word
was entirely “shocking and gratuitous.” Id. , at 4979,
¶9.

															   The Commission observed that categorically
exempting such language from enforcement actions would “likely lead
to more widespread use.” Ibid. Commission action was
necessary to “safeguard the well-being of the nation’s children
from the most objectionable, most offensive language.” Ibid. The order noted that technological advances have
made it far easier to delete (“bleep out”) a “single and gratuitous
use of a vulgar expletive,” without adulterating the content of a
broadcast. Id. , at 4980, ¶11.

															   The order acknowledged that “prior Commission
and staff action have indicated that isolated or fleeting
broadcasts of the ‘F-Word’ … are not indecent or would not be acted
upon.” It explicitly ruled that “any such interpretation is no
longer good law.” Ibid., ¶12. It “clarif[ied] … that the
mere fact that specific words or phrases are not sustained or
repeated does not mandate a finding that material that is otherwise
patently offensive to the broadcast medium is not indecent.” Ibid. Because, however, “existing precedent would have
permitted this broadcast,” the Commission determined that “NBC and
its affiliates necessarily did not have the requisite notice to
justify a penalty.” Id. , at 4981–4982, ¶15.

															II. The Present Case

															   This case concerns utterances in
two live broadcasts aired by Fox Television Stations, Inc., and its
affiliates prior to the Commission’s Golden Globes Order .
The first occurred during the 2002 Billboard Music Awards, when the
singer Cher exclaimed, “I’ve also had critics for the last 40 years
saying that I was on my way out every year. Right. So f*** ‘em.”
Brief for Petitioners 9. The second involved a segment of the 2003
Billboard Music Awards, during the presentation of an award by
Nicole Richie and Paris Hilton, principals in a Fox television
series called “The Simple Life.” Ms. Hilton began their interchange
by reminding Ms. Richie to “watch the bad language,” but Ms. Richie
proceeded to ask the audience, “Why do they even call it ‘The
Simple Life?’ Have you ever tried to get cow s*** out of a Prada
purse? It’s not so f***ing simple.” Id., at 9–10.
Following each of these broadcasts, the Commission received
numerous complaints from parents whose children were exposed to the
language.

															   On March 15, 2006, the Commission
released Notices of Apparent Liability for a number of broadcasts
that the Commission deemed actionably indecent, including the two
described above. In re Complaints Regarding Various
Television Broadcasts Between February 2, 2002 and March 8,
2005, 21 FCC Rcd. 2664 (2006). Multiple parties petitioned the
Court of Appeals for the Second Circuit for judicial review of the
order, asserting a variety of constitutional and statutory
challenges. Since the order had declined to impose sanctions, the
Commission had not previously given the broadcasters an opportunity
to respond to the indecency charges. It therefore requested and
obtained from the Court of Appeals a voluntary remand so that the
parties could air their objections. 489 F. 3d 444, 453 (2007).
The Commission’s order on remand upheld the indecency findings for
the broadcasts described above. See In re Complaints
Regarding Various Television Broadcasts Between February 2, 2002,
and March 8, 2005 , 21 FCC Rcd. 13299 (2006) (Remand
Order) .

															   The order first explained that both broadcasts
fell comfortably within the subject-matter scope of the
Commission’s indecency test because the 2003 broadcast involved a
literal description of excrement and both broadcasts invoked the
“F-Word,” which inherently has a sexual connotation. Id. ,
at 13304, ¶16, 13323, ¶58. The order next determined that the
broadcasts were patently offensive under community standards for
the medium. Both broadcasts, it noted, involved entirely gratuitous
uses of “one of the most vulgar, graphic, and explicit words for
sexual activity in the English language.” Id. , at 13305,
¶17, 13324, ¶59. It found Ms. Richie’s use of the “F-Word” and her
“explicit description of the handling of excrement” to be “vulgar
and shocking,” as well as to constitute “pandering,” after Ms.
Hilton had playfully warned her to “ ‘watch the bad
language.’ ” Id. , at 13305, ¶17. And it found Cher’s
statement patently offensive in part because she metaphorically
suggested a sexual act as a means of expressing hostility to her
critics. Id. , at 13324, ¶60. The order relied upon the
“critically important” context of the utterances, id. , at
13304, ¶15, noting that they were aired during prime-time awards
shows “designed to draw a large nationwide audience that could be
expected to include many children interested in seeing their
favorite music stars,” id. , at 13305, ¶18, 13324, ¶59.
Indeed, approximately 2.5 million minors witnessed each of the
broadcasts. Id. , at 13306, ¶18, 13326, ¶65.

															   The order asserted that both broadcasts under
review would have been actionably indecent under the staff rulings
and Commission dicta in effect prior to the Golden Globes
Order —the 2003 broadcast because it involved a literal
description of excrement, rather than a mere expletive, because it
used more than one offensive word, and because it was planned, 21
FCC Rcd., at 13307, ¶22; and the 2002 broadcast because Cher used
the F-Word not as a mere intensifier, but as a description of the
sexual act to express hostility to her critics, id. , at
13324, ¶60. The order stated, however, that the pre- Golden
Globes regime of immunity for isolated indecent expletives
rested only upon staff rulings and Commission dicta, and that the
Commission itself had never held “that the isolated use of an
expletive … was not indecent or could not be indecent,” 21 FCC
Rcd., at 13307, ¶21. In any event, the order made clear, the Golden Globes Order eliminated any doubt that fleeting
expletives could be actionably indecent, 21 FCC Rcd., at 13308,
¶23, 13325, ¶61, and the Commission disavowed the bureau-level
decisions and its own dicta that had said otherwise, id. ,
at 13306–13307, ¶¶20, 21. Under the new policy, a lack of
repetition “weigh[s] against a finding of indecency,” id. ,
at 13325, ¶61, but is not a safe harbor.

															   The order explained that the Commission’s
prior “strict dichotomy between ‘expletives’ and ‘descriptions or
depictions of sexual or excretory functions’ is artificial and does
not make sense in light of the fact that an ‘expletive’s’ power to
offend derives from its sexual or excretory meaning.” Id. ,
at 13308, ¶23. In the Commission’s view, “granting an automatic
exemption for ‘isolated or fleeting’ expletives unfairly forces
viewers (including children)” to take “ ‘the first
blow’ ” and would allow broadcasters “to air expletives at all
hours of a day so long as they did so one at a time.” Id. ,
at 13309, ¶25. Although the Commission determined that Fox
encouraged the offensive language by using suggestive scripting in
the 2003 broadcast, and unreasonably failed to take adequate
precautions in both broadcasts, id. , at 13311–13314,
¶¶31–37, the order again declined to impose any forfeiture or other
sanction for either of the broadcasts, id. , at 13321, ¶53,
13326, ¶66.

															   Fox returned to the Second Circuit for review
of the Remand Order , and various intervenors including
CBS, NBC, and ABC joined the action. The Court of Appeals reversed
the agency’s orders, finding the Commission’s reasoning inadequate
under the Administrative Procedure Act. 489 F. 3d 444. The
majority was “skeptical that the Commission [could] provide a
reasoned explanation for its ‘fleeting expletive’ regime that would
pass constitutional muster,” but it declined to reach the
constitutional question. Id., at 462. Judge Leval
dissented, id., at 467. We granted certiorari, 552 U. S.
___ (2008).

															III. Analysis

															A. Governing Principles

															   The Administrative Procedure Act,
5 U. S. C. §551 et seq. , which sets forth the full
extent of judicial authority to review executive agency action for
procedural correctness, see Vermont Yankee Nuclear Power
Corp. v. Natural Resources Defense Council, Inc. , 435 U. S. 519 ,
545–549 (1978), permits (insofar as relevant here) the setting
aside of agency action that is “arbitrary” or “capricious,” 5 U.
S. C. §706(2)(A). Under what we have called this “narrow”
standard of review, we insist that an agency “examine the relevant
data and articulate a satisfactory explanation for its action.” Motor Vehicle Mfrs. Assn. of United States, Inc. v. State Farm Mut. Automobile Ins. Co. , 463 U. S. 29 , 43 (1983).
We have made clear, however, that “a court is not to substitute its
judgment for that of the agency,” ibid., and should
“uphold a decision of less than ideal clarity if the agency’s path
may reasonably be discerned,” Bowman Transp., Inc. v. Arkansas-Best Freight System, Inc. , 419 U. S. 281 , 286
(1974).

															   In overturning the Commission’s
judgment, the Court of Appeals here relied in part on Circuit
precedent requiring a more substantial explanation for agency
action that changes prior policy. The Second Circuit has
interpreted the Administrative Procedure Act and our opinion in State Farm as requiring agencies to make clear “ ‘why
the original reasons for adopting the [displaced] rule or policy
are no longer dispositive’ ” as well as “ ‘why the new
rule effectuates the statute as well as or better than the old
rule.’ ” 489 F. 3d, at 456–457 (quoting New York
Council, Assn. of Civilian Technicians v. FLRA , 757
F. 2d 502, 508 (CA2 1985); emphasis deleted). The Court of
Appeals for the District of Columbia Circuit has similarly
indicated that a court’s standard of review is “heightened
somewhat” when an agency reverses course. NAACP v. FCC , 682 F. 2d 993, 998 (1982).

															   We find no basis in the Administrative
Procedure Act or in our opinions for a requirement that all agency
change be subjected to more searching review. The Act mentions no
such heightened standard. And our opinion in State Farm neither held nor implied that every agency action representing a
policy change must be justified by reasons more substantial than
those required to adopt a policy in the first instance. That case,
which involved the rescission of a prior regulation, said only that
such action requires “a reasoned analysis for the change beyond
that which may be required when an agency does not act in
the first instance.” 463 U. S., at 42 (emphasis added).[ Footnote 2 ] Treating failures to act
and rescissions of prior action differently for purposes of the
standard of review makes good sense, and has basis in the text of
the statute, which likewise treats the two separately. It instructs
a reviewing court to “compel agency action unlawfully withheld or
unreasonably delayed,” 5 U. S. C. §706(1), and to “hold
unlawful and set aside agency action, findings, and conclusions
found to be [among other things] … arbitrary [or] capricious,”
§706(2)(A). The statute makes no distinction, however, between
initial agency action and subsequent agency action undoing or
revising that action.

															   To be sure, the requirement that an agency
provide reasoned explanation for its action would ordinarily demand
that it display awareness that it is changing position. An
agency may not, for example, depart from a prior policy sub
silentio or simply disregard rules that are still on the
books. See United States v. Nixon , 418 U. S. 683 , 696
(1974). And of course the agency must show that there are good
reasons for the new policy. But it need not demonstrate to a
court’s satisfaction that the reasons for the new policy are better than the reasons for the old one; it suffices that
the new policy is permissible under the statute, that there are
good reasons for it, and that the agency believes it to be
better, which the conscious change of course adequately indicates.
This means that the agency need not always provide a more detailed
justification than what would suffice for a new policy created on a
blank slate. Sometimes it must—when, for example, its new policy
rests upon factual findings that contradict those which underlay
its prior policy; or when its prior policy has engendered serious
reliance interests that must be taken into account. Smiley v. Citibank (South Dakota), N. A. , 517 U. S. 735 , 742
(1996). It would be arbitrary or capricious to ignore such matters.
In such cases it is not that further justification is demanded by
the mere fact of policy change; but that a reasoned explanation is
needed for disregarding facts and circumstances that underlay or
were engendered by the prior policy.

															   In this appeal from the Second Circuit’s
setting aside of Commission action for failure to comply with a
procedural requirement of the Administrative Procedure Act, the
broadcasters’ arguments have repeatedly referred to the First
Amendment. If they mean to invite us to apply a more stringent
arbitrary-and-capricious review to agency actions that implicate
constitutional liberties, we reject the invitation. The so-called
canon of constitutional avoidance is an interpretive tool,
counseling that ambiguous statutory language be construed to avoid
serious constitutional doubts. See Edward J. DeBartolo
Corp. v. Florida Gulf Coast Building & Constr. Trades
Council , 485 U.
S. 568 , 575 (1988). We know of no precedent for applying it to
limit the scope of authorized executive action. In the same section
authorizing courts to set aside “arbitrary [or] capricious” agency
action, the Administrative Procedure Act separately provides for
setting aside agency action that is “unlawful,” 5 U. S. C.
§706(2)(A), which of course includes unconstitutional action. We
think that is the only context in which constitutionality bears
upon judicial review of authorized agency action. If the
Commission’s action here was not arbitrary or capricious in the
ordinary sense, it satisfies the Administrative Procedure Act’s
“arbitrary [or] capricious” standard; its lawfulness under the
Constitution is a separate question to be addressed in a
constitutional challenge.[ Footnote
3 ]

															B. Application to This Case

															   Judged under the above described
standards, the Commission’s new enforcement policy and its order
finding the broadcasts actionably indecent were neither arbitrary
nor capricious. First, the Commission forthrightly acknowledged
that its recent actions have broken new ground, taking account of
inconsistent “prior Commission and staff action” and explicitly
disavowing them as “no longer good law.” Golden Globes
Order, 19 FCC Rcd., at 4980, ¶12. To be sure, the
(superfluous) explanation in its Remand Order of why the
Cher broadcast would even have violated its earlier policy may not
be entirely convincing. But that unnecessary detour is irrelevant.
There is no doubt that the Commission knew it was making a change.
That is why it declined to assess penalties; and it relied on the Golden Globes Order as removing any lingering doubt. Remand Order , 21 FCC Rcd., at 13308, ¶23, 13325, ¶61.

															   Moreover, the agency’s reasons
for expanding the scope of its enforcement activity were entirely
rational. It was certainly reasonable to determine that it made no
sense to distinguish between literal and nonliteral uses of
offensive words, requiring repetitive use to render only the latter
indecent. As the Commission said with regard to expletive use of
the F-Word, “the word’s power to insult and offend derives from its
sexual meaning.” Id. , at 13323, ¶58. And the Commission’s
decision to look at the patent offensiveness of even isolated uses
of sexual and excretory words fits with the context-based approach
we sanctioned in Pacifica , 438 U. S., at 750. Even
isolated utterances can be made in “pander[ing,] … vulgar and
shocking” manners, Remand Order , 21 FCC Rcd., at 13305,
¶17, and can constitute harmful “ ‘first blow[s]’ ” to
children, id. , at 13309, ¶25. It is surely rational (if
not inescapable) to believe that a safe harbor for single words
would “likely lead to more widespread use of the offensive
language,” Golden Globes Order, supra, at 4979, ¶9.

															   When confronting other requests for per
se rules governing its enforcement of the indecency
prohibition, the Commission has declined to create safe harbors for
particular types of broadcasts. See In re Pacifica
Foundation, Inc. , 2 FCC Rcd., at 2699, ¶12 (repudiating the
view that the Commission’s enforcement power was limited to
“deliberate, repetitive use of the seven words actually contained
in the George Carlin monologue”); In re Infinity
Broadcasting Corp. of Pa. , 3 FCC Rcd., at 932, ¶17
(“reject[ing] an approach that would hold that if a work has merit,
it is per se not indecent”). The Commission could
rationally decide it needed to step away from its old regime where
nonrepetitive use of an expletive was per se nonactionable
because that was “at odds with the Commission’s overall enforcement
policy.” Remand Order , supra, at 13308, ¶23.

															   The fact that technological advances have made
it easier for broadcasters to bleep out offending words further
supports the Commission’s stepped-up enforcement policy. Golden
Globes Order, supra, at 4980, ¶11. And the
agency’s decision not to impose any forfeiture or other sanction
precludes any argument that it is arbitrarily punishing parties
without notice of the potential consequences of their
action. C. The Court of Appeals’
Reasoning The Court of
Appeals found the Commission’s action arbitrary and capricious on
three grounds. First, the court criticized the Commission for
failing to explain why it had not previously banned fleeting
expletives as “harmful ‘first blow[s].’ ” 489 F. 3d, at
458. In the majority’s view, without “evidence that suggests a
fleeting expletive is harmful [and] … serious enough to warrant
government regulation,” the agency could not regulate more broadly. Id., at 461. As explained above, the fact that an agency
had a prior stance does not alone prevent it from changing its view
or create a higher hurdle for doing so. And it is not the
Commission, but Congress that has proscribed “any … indecent …
language.” 18 U. S. C. §1464. There are some
propositions for which scant empirical evidence can be marshaled,
and the harmful effect of broadcast profanity on children is one of
them. One cannot demand a multiyear controlled study, in which some
children are intentionally exposed to indecent broadcasts (and
insulated from all other indecency), and others are shielded from
all indecency. It is one thing to set aside agency action under the
Administrative Procedure Act because of failure to adduce empirical
data that can readily be obtained. See, e.g., State Farm ,
463 U. S., at 46–56 (addressing the costs and benefits of mandatory
passive restraints for automobiles). It is something else to insist
upon obtaining the unobtainable. Here it suffices to know that
children mimic the behavior they observe—or at least the behavior
that is presented to them as normal and appropriate. Programming
replete with one-word indecent expletives will tend to produce
children who use (at least) one-word indecent expletives. Congress
has made the determination that indecent material is harmful to
children, and has left enforcement of the ban to the Commission. If
enforcement had to be supported by empirical data, the ban would
effectively be a nullity. The Commission had adduced no
quantifiable measure of the harm caused by the language in Pacifica , and we nonetheless held that the “government’s
interest in the ‘well-being of its youth’ … justified the
regulation of otherwise protected expression.” 438 U. S., at 749
(quoting Ginsberg v. New York , 390 U. S. 629 , 640, 639
(1968)). If the Constitution itself demands of agencies no more
scientifically certain criteria to comply with the First Amendment,
neither does the Administrative Procedure Act to comply with the
requirement of reasoned decisionmaking. The court’s second objection
is that fidelity to the agency’s “first blow” theory of harm would
require a categorical ban on all broadcasts of expletives;
the Commission’s failure to go to this extreme thus undermined the
coherence of its rationale. 489 F. 3d, at 458–459. This
objection, however, is not responsive to the Commission’s actual
policy under review—the decision to include patently offensive
fleeting expletives within the definition of indecency. The
Commission’s prior enforcement practice, unchallenged here, already
drew distinctions between the offensiveness of particular words
based upon the context in which they appeared. Any complaint about
the Commission’s failure to ban only some fleeting expletives is
better directed at the agency’s context-based system generally
rather than its inclusion of isolated expletives. More fundamentally, however,
the agency’s decision to consider the patent offensiveness of
isolated expletives on a case-by-case basis is not arbitrary or
capricious. “Even a prime-time recitation of Geoffrey Chaucer’s
Miller’s Tale,” we have explained, “would not be likely to command
the attention of many children who are both old enough to
understand and young enough to be adversely affected.” Pacifica , supra , at 750, n. 29. The same
rationale could support the Commission’s finding that a broadcast
of the film Saving Private Ryan was not indecent—a finding to which
the broadcasters point as supposed evidence of the Commission’s
inconsistency. The frightening suspense and the graphic violence in
the movie could well dissuade the most vulnerable from watching and
would put parents on notice of potentially objectionable material.
See In re Complaints Against Various Television Licensees
Regarding Their Broadcast on Nov. 11, 2004 of the ABC Television
Network’s Presentation of the Film “Saving Private Ryan,” 20
FCC Rcd. 4507, 4513, ¶15 (2005) (noting that the broadcast was not
“intended as family entertainment”). The agency’s decision to
retain some discretion does not render arbitrary or capricious its
regulation of the deliberate and shocking uses of offensive
language at the award shows under review—shows that were expected
to (and did) draw the attention of millions of children. Finally, the Court of Appeals
found unconvincing the agency’s prediction (without any evidence)
that a per se exemption for fleeting expletives would lead
to increased use of expletives one at a time. 489 F. 3d, at
460. But even in the absence of evidence, the agency’s predictive
judgment (which merits deference) makes entire sense. To predict
that complete immunity for fleeting expletives, ardently desired by
broadcasters, will lead to a substantial increase in fleeting
expletives seems to us an exercise in logic rather than
clairvoyance. The Court of Appeals was perhaps correct that the
Commission’s prior policy had not yet caused broadcasters to
“barrag[e] the airwaves with expletives,” ibid. That may
have been because its prior permissive policy had been confirmed
(save in dicta) only at the staff level. In any event, as the Golden Globes order demonstrated, it did produce more
expletives than the Commission (which has the first call in this
matter) deemed in conformity with the statute. D. Respondents’
Arguments Respondents press
some arguments that the court did not adopt. They claim that the
Commission failed to acknowledge its change in enforcement policy.
That contention is not tenable in light of the Golden Globes
Order ’s specific declaration that its prior rulings were no
longer good law, 19 FCC Rcd., at 4980, ¶12, and the Remand
Order ’s disavowal of those staff rulings and Commission dicta
as “seriously flawed,” 21 FCC Rcd., at 13308, ¶23. The broadcasters
also try to recharacterize the nature of the Commission’s shift,
contending that the old policy was not actually a per se rule against liability for isolated expletives and that the new
policy is a presumption of indecency for certain words. This
description of the prior agency policy conflicts with the
broadcasters’ own prior position in this case. See, e.g. ,
Brief in Opposition for Respondent Fox Television Stations, Inc.,
et al. 4 (“For almost 30 years following Pacifica, the FCC did not
consider fleeting, isolated or inadvertent expletives to be
indecent”). And we find no basis for the contention that the
Commission has now adopted a presumption of indecency; its repeated
reliance on context refutes this claim. The broadcasters
also make much of the fact that the Commission has gone beyond the
scope of authority approved in Pacifica , which it once
regarded as the farthest extent of its power. But we have never
held that Pacifica represented the outer limits of
permissible regulation, so that fleeting expletives may
not be forbidden. To the contrary, we explicitly left for
another day whether “an occasional expletive” in “a telecast of an
Elizabethan comedy” could be prohibited. 438 U. S., at 748. By
using the narrowness of Pacifica ’s holding to require
empirical evidence of harm before the Commission regulates more
broadly, the broadcasters attempt to turn the sword of Pacifica , which allowed some regulation of
broadcast indecency, into an administrative-law shield preventing
any regulation beyond what Pacifica sanctioned. Nothing
prohibits federal agencies from moving in an incremental manner.
Cf. National Cable & Telecommunications Assn. v. Brand X Internet Services , 545 U. S. 967 , 1002
(2005). Finally, the broadcasters
claim that the Commission’s repeated appeal to “context” is simply
a smokescreen for a standardless regime of unbridled discretion.
But we have previously approved Commission regulation based “on a
nuisance rationale under which context is all-important,” Pacifica , supra, at 750, and we find no basis in
the Administrative Procedure Act for mandating anything
different. E. The Dissents’
Arguments Justice Breyer
purports to “begin with applicable law,” post , at 1, but
in fact begins by stacking the deck. He claims that the FCC’s
status as an “independent” agency sheltered from political
oversight requires courts to be “all the more” vigilant in ensuring
“that major policy decisions be based upon articulable reasons.” Post , at 1, 2. Not so. The independent agencies are
sheltered not from politics but from the President, and it has
often been observed that their freedom from presidential oversight
(and protection) has simply been replaced by increased subservience
to congressional direction. See, e.g. , In re
Sealed Case , 838 F. 2d 476, 507–508 (CADC) (Silberman,
J.), rev’d sub nom. Morrison v. Olson , 487 U. S. 654 (1988); Kagan, Presidential Administration, 114 Harv. L. Rev.
2245, 2271, n. 93 (2001); Calabresi & Prakash, The
President’s Power to Execute the Laws, 104 Yale L. J. 541, 583
(1994); Easterbrook, The State of Madison’s Vision of the State: A
Public Choice Perspective, 107 Harv. L. Rev. 1328, 1341
(1994). Indeed, the precise policy change at issue here was spurred
by significant political pressure from Congress.[ Footnote 4 ] Justice Stevens
apparently recognizes this political control by Congress, and
indeed sees it as the manifestation of a principal-agency
relationship. In his judgment, the FCC is “better viewed as an
agent of Congress” than as part of the Executive. Post, at
3 (dissenting opinion). He nonetheless argues that this is a good
reason for requiring the FCC to explain “why its prior policy is no
longer sound before allowing it to change course.” Post, at 4. Leaving aside the unconstitutionality of a scheme giving the
power to enforce laws to agents of Congress, see Bowsher v. Synar , 478 U. S. 714 , 726
(1986), it seems to us that Justice Stevens’ conclusion does not
follow from his premise. If the FCC is indeed an agent of Congress,
it would seem an adequate explanation of its change of position
that Congress made clear its wishes for stricter enforcement, see
n. 4, supra.[ Footnote
5 ] The Administrative Procedure Act, after all, does not
apply to Congress and its agencies.[ Footnote 6 ] Regardless, it is assuredly
not “applicable law” that rulemaking by independent regulatory
agencies is subject to heightened scrutiny. The Administrative
Procedure Act, which provides judicial review, makes no distinction
between independent and other agencies, neither in its definition
of agency, 5 U. S. C. §701(b)(1), nor in the standards for
reviewing agency action, §706. Nor does any case of ours express or
reflect the “heightened scrutiny” Justice Breyer and Justice
Stevens would impose. Indeed, it is hard to imagine any closer
scrutiny than that we have given to the Environmental Protection
Agency, which is not an independent agency. See Massachusetts v. EPA , 549 U. S. 497 , 533–535
(2007); Whitman v. American Trucking Assns.,
Inc. , 531 U. S.
457 , 481–486 (2001). There is no reason to magnify the
separation-of-powers dilemma posed by the Headless Fourth Branch,
see Freytag v. Commissioner , 501 U. S. 868 , 921
(1991) (Scalia, J., concurring in part and concurring in judgment),
by letting Article III judges—like jackals stealing the lion’s
kill—expropriate some of the power that Congress has wrested from
the unitary Executive. Justice Breyer and Justice
Stevens rely upon two supposed omissions in the FCC’s analysis that
they believe preclude a finding that the agency did not act
arbitrarily. Neither of these omissions could undermine the
coherence of the rationale the agency gave, but the dissenters’
evaluation of each is flawed in its own right. First, both claim that the
Commission failed adequately to explain its consideration of the
constitutional issues inherent in its regulation, post , at
7–11 (opinion of Breyer, J.); post, at 4–7 (opinion
of Stevens, J.). We are unaware that we have ever before
reversed an executive agency, not for violating our cases, but for
failure to discuss them adequately. But leave that aside. According
to Justice Breyer, the agency said “next to nothing about the
relation between the change it made in its prior ‘fleeting
expletive’ policy and the First-Amendment-related need to avoid
‘censorship,’ ” post , at 7–8. The Remand
Order does, however, devote four full pages of small-type,
single-spaced text (over 1,300 words not counting the footnotes) to
explaining why the Commission believes that its
indecency-enforcement regime (which includes its change in policy)
is consistent with the First Amendment—and therefore not censorship
as the term is understood. More specifically, Justice Breyer faults
the FCC for “not explain[ing] why the agency changed its mind about
the line that Pacifica draws or its policy’s relation to
that line,” post , at 10. But in fact (and as the
Commission explained) this Court’s holding in Pacifica, 438
U. S. 726 , drew no constitutional line; to the contrary, it
expressly declined to express any view on the constitutionality of
prohibiting isolated indecency. Justice Breyer and Justice Stevens
evidently believe that when an agency has obtained this Court’s
determination that a less restrictive rule is constitutional, its
successors acquire some special burden to explain why a more
restrictive rule is not un constitutional. We know of no
such principle.[ Footnote
7 ] Second, Justice Breyer looks
over the vast field of particular factual scenarios unaddressed by
the FCC’s 35-page Remand Order and finds one that is
fatal: the plight of the small local broadcaster who cannot afford
the new technology that enables the screening of live broadcasts
for indecent utterances. Cf. post, at 11–16. The
Commission has failed to address the fate of this unfortunate, who
will, he believes, be subject to sanction. We doubt, to begin with, that
small-town broadcasters run a heightened risk of liability for
indecent utterances. In programming that they originate, their
down-home local guests probably employ vulgarity less than big-city
folks; and small-town stations generally cannot afford or cannot
attract foul-mouthed glitteratae from Hollywood. Their main
exposure with regard to self-originated programming is live
coverage of news and public affairs. But the Remand Order went out of its way to note that the case at hand did not involve
“breaking news coverage,” and that “it may be inequitable to hold a
licensee responsible for airing offensive speech during live
coverage of a public event,” 21 FCC Rcd., at 13311, ¶33. As for the
programming that small stations receive on a network “feed”: This will be cleansed by the expensive technology small
stations (by Justice Breyer’s hypothesis) cannot afford. But never mind the detail of
whether small broadcasters are uniquely subject to a great risk of
punishment for fleeting expletives. The fundamental fallacy of
Justice Breyer’s small-broadcaster gloomyscenario is its
demonstrably false assumption that the Remand Order makes
no provision for the avoidance of unfairness—that the
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. Thus, the fact
that the agency believed that Fox (a large broadcaster that used
suggestive scripting and a deficient delay system to air a
prime-time awards show aimed at millions of children) “fail[ed] to
exercise ‘reasonable judgment, responsibility and
sensitivity,’ ” id. , at 13311, ¶33, and n. 91
(quoting Pacifica Foundation, Inc. , 2 FCC Rcd., at 2700,
¶18), says little about how the Commission would treat smaller
broadcasters who cannot afford screening equipment. Indeed, that
they would not be punished for failing to purchase equipment they
cannot afford is positively suggested by the Remand
Order’ s statement that “[h]olding Fox responsible for airing
indecent material in this case does not … impose undue burdens on
broadcasters.” 21 FCC Rcd., at 13313, ¶36. There was, in sum, no need for
the Commission to compose a special treatise on local
broadcasters.[ Footnote 8 ] And
Justice Breyer can safely defer his concern for those yeomen of the
airwaves until we have before us a case that involves
one. IV. Constitutionality The Second
Circuit did not definitively rule on the constitutionality of the
Commission’s orders, but respondents nonetheless ask us to decide
their validity under the First Amendment. This Court, however, is
one of final review, “not of first view.” Cutter v. Wilkinson , 544 U. S. 709 , 718, n. 7
(2005). It is conceivable that the Commission’s orders may cause
some broadcasters to avoid certain language that is beyond the
Commission’s reach under the Constitution. Whether that is so, and,
if so, whether it is unconstitutional, will be determined soon
enough, perhaps in this very case. Meanwhile, any chilled
references to excretory and sexual material “surely lie at the
periphery of First Amendment concern,” Pacifica, 438 U.
S., at 743 (plurality opinion of Stevens, J.). We see no reason to
abandon our usual procedures in a rush to judgment without a lower
court opinion. We decline to address the constitutional questions
at this time. *  *  * The Second
Circuit believed that children today “likely hear this language far
more often from other sources than they did in the 1970’s when the
Commission first began sanctioning indecent speech,” and that this
cuts against more stringent regulation of broadcasts. 489
F. 3d, at 461. Assuming the premise is true (for this point
the Second Circuit did not demand empirical evidence) the
conclusion does not necessarily follow. The Commission could
reasonably conclude that the pervasiveness of foul language, and
the coarsening of public entertainment in other media such as
cable, justify more stringent regulation of broadcast programs so
as to give conscientious parents a relatively safe haven for their
children. In the end, the Second Circuit and the broadcasters
quibble with the Commission’s policy choices and not with the
explanation it has given. We decline to “substitute [our] judgment
for that of the agency,” State Farm , 463 U. S., at 43, and
we find the Commission’s orders neither arbitrary nor
capricious. The judgment of
the United States Court of Appeals for the Second Circuit is
reversed, and the case is remanded for further proceedings
consistent with this opinion. It is so ordered. Footnote
1 The statutory prohibition
applicable to commercial radio and television stations extends by
its terms from 6 a.m. to 12 midnight. The Court of Appeals for the
District of Columbia Circuit held, however, that because “Congress
and the Commission [had] backed away from the consequences of their
own reasoning,” by allowing some public broadcasters to air
indecent speech after 10 p.m., the court was forced “to hold that
the section is unconstitutional insofar as it bars the broadcasting
of indecent speech between the hours of 10:00 p.m. and midnight.” Action for Children’s Television v. FCC , 58
F. 3d 654, 669 (1995) (en banc), cert. denied, 516 U. S. 1043 (1996). Footnote
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 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 . Footnote
3 Justice Breyer claims that
“[t]he Court has often applied [the doctrine of constitutional
avoidance] where an agency’s regulation relies on a plausible but
constitutionally suspect interpretation of a statute.” Post , at 21. The cases he cites, however, set aside an
agency regulation because, applying the doctrine of constitutional
avoidance to the ambiguous statute under which the agency acted, the Court found the agency’s interpretation of the statute
erroneous. See Solid Waste Agency of Northern Cook Cty. v. Army Corps of Engineers , 531 U. S. 159 , 174
(2001); NLRB v. Catholic Bishop of Chicago , 440 U. S. 490 ,
507 (1979). But Justice Breyer does not urge that we issue
such a holding, evidently agreeing that we should limit our review
to what the Court of Appeals decided, see Part IV, infra —which included only the adequacy of the Commission’s
rulemaking procedure, and not the statutory question. Rather,
Justice Breyer seeks a “remand [that] would do no more than ask the
agency to reconsider its policy decision in light of”
constitutional concerns. Post , at 21. That strange and
novel disposition would be entirely unrelated to the doctrine of
constitutional avoidance, and would better be termed the doctrine
of judicial arm-twisting or appellate review by the wagged
finger. Footnote
4 A Subcommittee of the FCC’s
House oversight Committee held hearings on the FCC’s broadcast
indecency enforcement on January 28, 2004. “Can You Say That on
TV?”: An Examination of the FCC’s Enforcement with respect to
Broadcast Indecency, Hearing before the Subcommittee on
Telecommunications and the Internet of the House Committee on
Energy and Commerce, 108th Cong., 2d Sess. Members of the
Subcommittee specifically “called on the full Commission to reverse
[the staff ruling in the Golden Globes case]” because they
perceived a “feeling amongst many Americans that some broadcasters
are engaged in a race to the bottom, pushing the decency envelope
to distinguish themselves in the increasingly crowded entertainment
field.” Id. , at 2 (statement of Rep. Upton); see also, e.g. , id. , at 17 (statement of Rep. Terry), 19
(statement of Rep. Pitts). They repeatedly expressed disapproval of
the FCC’s enforcement policies, see, e.g. , id. ,
at 3 (statement of Rep. Upton) (“At some point we have to ask the
FCC: How much is enough? When will it revoke a license?”); id., at 4 (statement of Rep. Markey) (“Today’s hearing
will allow us to explore the FCC’s lackluster enforcement record
with respect to these violations”). About two weeks later, on
February 11, 2004, the same Subcommittee held hearings on a bill
increasing the fines for indecency violations. Hearings on
H. R 3717 before the Subcommittee on Telecommunications and
the Internet of the House Committee on Energy and Commerce, 108th
Cong., 2d Sess. All five Commissioners were present and were
grilled about enforcement shortcomings. See, e.g. , id. , at 124 (statement of Rep. Terry) (“Chairman Powell, …
it seems like common sense that if we had … more frequent
enforcement instead of a few examples of fines … that would be a
deterrent in itself”); id., at 7 (statement of Rep.
Dingell) (“I see that apparently … there is no enforcement of
regulations at the FCC”). Certain statements, moreover, indicate
that the political pressure applied by Congress had its desired
effect. See ibid. (“I think our committee’s work has
gotten the attention of FCC Chairman Powell and the Bush
Administration. And I’m happy to see the FCC now being brought to a
state of apparent alert on these matters”); see also id., at 124 (statement of Michael Copps, FCC Commissioner) (noting
“positive” change in other Commissioners’ willingness to step up
enforcement in light of proposed congressional action). A version
of the bill ultimately became law as the Broadcast Decency
Enforcement Act of 2005, 120 Stat. 491. The FCC adopted the change
that is the subject of this litigation on March 3, 2004, about
three weeks after this second hearing. See Golden Globes
Order , 19 FCC Rcd. 4975. Footnote
5 Justice Stevens accuses us of
equating statements made in a congressional hearing with the intent
of Congress. Post , at 4, n. 3. In this opinion, we do not.
The intent of the full Congress (or at least a majority of each
House) is thought relevant to the interpretation of statutes, since
they must be passed by the entire Congress. See U. S. Const.,
Art. I, §7. It is quite irrelevant, however, to the
extrastatutory influence Congress exerts over agencies of the
Executive Branch, which is exerted by the congressional committees
responsible for oversight and appropriations with respect to the
relevant agency. That is a major reason why committee assignments
are important, and committee chairmanships powerful. Surely Justice
Stevens knows this. Footnote
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 Congress v. Boorstin , 751 F. 2d 1405, 1416, n. 15 (CADC 1985)
(holding that the Library of Congress is not an “agency” under the
Act). Footnote
7 Justice Stevens criticizes us
for “assuming that Pacifica endorsed” the enforcement at
issue here. Post , at 4. We do nothing of the sort. We rely
on the fact that certain aspects of the agency’s decision mirror
the context-based approach Pacifica approved, supra , at 14, but that goes to our holding on
administrative law, and says nothing about
constitutionality . Justice Stevens also argues that
heightened deference should be due the FCC’s prior policy because
the “FCC’s initial views … reflect the views of the Congress that
delegated the Commission authority to flesh out details not fully
defined in the enacting statute.” Post, at 3. We do not
believe that the dead hand of a departed Congressional oversight
Committee should constrain the discretion that the text of a
statute confers—but the point is in any event irrelevant in this
appeal, which concerns not whether the agency has exceeded its
statutory mandate but whether the reasons for its actions are
adequate. Footnote
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. OPINION OF KENNEDY, J. FCC V. FOX TELEVISION STATIONS, INC. 556 U. S. ____ (2009) SUPREME COURT OF THE UNITED STATES NO. 07-582 FEDERAL COMMUNICATIONS COMMISSION, et al.,
PETITIONERS v. FOX TELEVISION STATIONS, INC.,
et al.

															on writ of certiorari to the united states court of
appeals for the second circuit

															[April 28, 2009]

															   Justice Kennedy, concurring in
part and concurring in the judgment.

															   I join Parts I, II, III–A through
III–D, and IV of the opinion of the Court and agree that the
judgment must be reversed. This separate writing is to underscore
certain background principles for the conclusion that an agency’s
decision to change course may be arbitrary and capricious if the
agency sets a new course that reverses an earlier determination but
does not provide a reasoned explanation for doing so. In those
circumstances I agree with the dissenting opinion of Justice Breyer
that the agency must explain why “it now reject[s] the
considerations that led it to adopt that initial policy.” Post , at 5.

															   The question whether a change in policy
requires an agency to provide a more-reasoned explanation than when
the original policy was first announced is not susceptible, in my
view, to an answer that applies in all cases. There may be
instances when it becomes apparent to an agency that the reasons
for a longstanding policy have been altered by discoveries in
science, advances in technology, or by any of the other forces at
work in a dynamic society. If an agency seeks to respond to new
circumstances by modifying its earlier policy, the agency may have
a substantial body of data and experience that can shape and inform
the new rule. In other cases the altered circumstances may be so
new that the agency must make predictive judgments that are as
difficult now as when the agency’s earlier policy was first
announced. Reliance interests in the prior policy may also have
weight in the analysis.

															   The question in each case is whether the
agency’s reasons for the change, when viewed in light of the data
available to it, and when informed by the experience and expertise
of the agency, suffice to demonstrate that the new policy rests
upon principles that are rational, neutral, and in accord with the
agency’s proper understanding of its authority. That showing may be
required if the agency is to demonstrate that its action is not
“arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law.” 5 U. S. C. §706(2)(A). And, of course,
the agency action must not be “in excess of statutory jurisdiction,
authority, or limitations, or short of statutory right.”
§706(2)(C).

															   These requirements stem from the
administrative agency’s unique constitutional position. The
dynamics of the three branches of Government are well understood as
a general matter. But the role and position of the agency, and the
exact locus of its powers, present questions that are delicate,
subtle, and complex. The Federal Government could not perform its
duties in a responsible and effective way without administrative
agencies. Yet the amorphous character of the administrative agency
in the constitutional system escapes simple explanation.

															   If agencies were permitted unbridled
discretion, their actions might violate important constitutional
principles of separation of powers and checks and balances. To that
end the Constitution requires that Congress’ delegation of
lawmaking power to an agency must be “specific and detailed.” Mistretta v. United States , 488 U. S. 361 , 374
(1989). Congress must “clearly delineat[e] the general policy” an
agency is to achieve and must specify the “boundaries of [the]
delegated authority.” Id. , at 372–373. Congress must
“ ‘lay down by legislative act an intelligible
principle,’ ” and the agency must follow it. Id. , at
372 (quoting J. W. Hampton, Jr., & Co. v. United
States , 276 U.
S. 394 , 409 (1928)).

															   Congress passed the Administrative Procedure
Act (APA) to ensure that agencies follow constraints even as they
exercise their powers. One of these constraints is the duty of
agencies to find and formulate policies that can be justified by
neutral principles and a reasoned explanation. To achieve that end,
Congress confined agencies’ discretion and subjected their
decisions to judicial review. See R. Stewart & C. Sunstein,
Public Programs and Private Rights, 95 Harv. L. Rev. 1193,
1248 (1982) (the APA was a “working compromise, in which broad
delegations of discretion were tolerated as long as they were
checked by extensive procedural safeguards”). If an agency takes
action not based on neutral and rational principles, the APA grants
federal courts power to set aside the agency’s action as
“arbitrary” or “capricious.” 5 U. S. C. §706(2)(A); Citizens to Preserve Overton Park, Inc. v. Volpe , 401 U. S. 402 ,
416 (1971). For these reasons, agencies under the APA are subject
to a “searching and careful” review by the courts. Ibid. Where there is a policy change the record may
be much more developed because the agency based its prior policy on
factual findings. In that instance, an agency’s decision to change
course may be arbitrary and capricious if the agency ignores or
countermands its earlier factual findings without reasoned
explanation for doing so. An agency cannot simply disregard
contrary or inconvenient factual determinations that it made in the
past, any more than it can ignore inconvenient facts when it writes
on a blank slate.

															   This is the principle followed in the Court’s
opinion in Motor Vehicle Mfrs. Assn. of United States,
Inc. v. State Farm Mut. Automobile Ins. Co., 463 U. S. 29 (1983).
There, Congress directed the agency to issue regulations that would
“ ‘meet the need for motor vehicle safety.’ ” Id. , at 33. The agency promulgated a regulation requiring
cars to have passive-restraint systems—either airbags or automatic
seatbelts. Id. , at 37. The agency based this regulation on
its factual finding that these systems save lives. Id. , at
35.

															   Following a change in Presidential
administration, however, the agency reversed course and rescinded
the regulation. In doing so, the agency did not address its prior
finding that airbags save lives. Id. , at 47–48. Indeed,
“[n]ot one sentence” of the agency’s “rulemaking statement” in
support of rescinding the regulation discussed the benefits of
airbags. Id. , at 48. This Court found the agency’s
rescission arbitrary and capricious because the agency did not
address its prior factual findings. See id. , at 49–51.

															   The present case does not raise the concerns
addressed in State Farm . Rather than base its prior policy
on its knowledge of the broadcast industry and its audience, the
FCC instead based its policy on what it considered to be our
holding in FCC v. Pacifica Foundation , 438 U. S. 726 (1978).
See In re Application of WGBH Educ. Foundation, 69
F. C. C. 2d 1250, 1254, ¶10 (1978) (“We intend strictly
to observe the narrowness of the Pacifica holding”). The
FCC did not base its prior policy on factual findings.

															   The FCC’s Remand Order explains that the
agency has changed its reading of Pacifica . The reasons
the agency announces for this change are not so precise, detailed,
or elaborate as to be a model for agency explanation. But, as the
opinion for the Court well explains, the FCC’s reasons for its
action were the sort of reasons an agency may consider and act
upon. The Court’s careful and complete analysis—both with respect
to the procedural history of the FCC’s indecency policies, and the
reasons the agency has given to support them—is quite sufficient to
sustain the FCC’s change of course against respondents’ claim that
the agency acted in an arbitrary or capricious fashion.

															   The holding of the Court of Appeals turned on
its conclusion that the agency’s explanation for its change of
policy was insufficient, and that is the only question presented
here. I agree with the Court that as this case comes to us from the
Court of Appeals we must reserve judgment on the question whether
the agency’s action is consistent with the guarantees of the
Constitution. THOMAS, J., CONCURRING FCC V. FOX TELEVISION STATIONS, INC. 556 U. S. ____ (2009) SUPREME COURT OF THE UNITED STATES NO. 07-582 FEDERAL COMMUNICATIONS COMMISSION, et al.,
PETITIONERS v. FOX TELEVISION STATIONS, INC.,
et al.

															on writ of certiorari to the united states court of
appeals for the second circuit

															[April 28, 2009]

															   Justice Thomas, concurring.

															   I join the Court’s opinion,
which, as a matter of administrative law, correctly upholds the
Federal Communications Commission’s (FCC) policy with respect to
indecent broadcast speech under the Administrative Procedure Act. I
write separately, however, to note the questionable viability of
the two precedents that support the FCC’s assertion of
constitutional authority to regulate the programming at issue in
this case. See Red Lion Broadcasting Co. v. FCC , 395 U. S. 367 (1969); FCC v. Pacifica Foundation , 438 U. S. 726 (1978). Red
Lion and Pacifica were unconvincing when they were
issued, and the passage of time has only increased doubt regarding
their continued validity. “The text of the First Amendment makes no
distinctions among print, broadcast, and cable media, but we have
done so” in these cases. Denver Area Ed. Telecommunications
Consortium, Inc. v. FCC , 518 U. S. 727 , 812
(1996) (Thomas, J., concurring in judgment in part and dissenting
in part).

															   In Red Lion , this Court upheld the
so-called “fairness doctrine,” a Government requirement “that
discussion of public issues be presented on broadcast stations, and
that each side of those issues must be given fair coverage.” 395 U.
S., at 369, 400–401. The decision relied heavily on the scarcity of
available broadcast frequencies. According to the Court, because
broadcast spectrum was so scarce, it “could be regulated and
rationalized only by the Government. Without government control,
the medium would be of little use because of the cacophony of
competing voices, none of which could be clearly and predictably
heard.” Id. , at 376 . To this end, the Court
concluded that the Government should be “permitted to put
restraints on licensees in favor of others whose views should be
expressed on this unique medium.” Id. , at 390; see also id. , at 389 (concluding that “as far as the First
Amendment is concerned those who are licensed stand no better than
those to whom licenses are refused”). Applying this principle, the
Court held that “[i]t does not violate the First Amendment to treat
licensees given the privilege of using scarce radio frequencies as
proxies for the entire community, obligated to give suitable time
and attention to matters of great public concern.” Id., at
394. Red Lion specifically declined to
answer whether the First Amendment authorized the Government’s
“refusal to permit the broadcaster to carry a particular program or
to publish his own views[,] … [or] government censorship of a
particular program,” id. , at 396. But then in Pacifica , this Court rejected a challenge to the FCC’s
authority to impose sanctions on the broadcast of indecent
material. See 438 U. S., at 729–730, 750–751; id ., at 742
(plurality opinion), relying on Red Lion , the Court noted
that “broadcasting … has received the most limited First Amendment
protection.” 438 U. S., at 748. The Court also emphasized the
“uniquely pervasive presence” of the broadcast media in Americans’
lives and the fact that broadcast programming was “uniquely
accessible to children.” Id., at 748–749.

															   This deep intrusion into the First Amendment
rights of broadcasters, which the Court has justified based only on
the nature of the medium, is problematic on two levels. First,
instead of looking to first principles to evaluate the
constitutional question, the Court relied on a set of transitory
facts, e.g. , the “scarcity of radio frequencies,” Red
Lion, supra , at 390, to determine the applicable First
Amendment standard. But the original meaning of the Constitution
cannot turn on modern necessity: “Constitutional rights are
enshrined with the scope they were understood to have when the
people adopted them, whether or not future legislatures or (yes)
even future judges think that scope too broad.” District of
Columbia v. Heller , 554 U. S. ___, ___ (2008) (slip
op., at 63). In breaching this principle, Red Lion adopted, and Pacifica reaffirmed, a legal rule that lacks
any textual basis in the Constitution. Denver Area, supra ,
at 813 (Thomas, J., concurring in judgment in part and dissenting
in part) (“First Amendment distinctions between media [have been]
dubious from their infancy”). Indeed, the logical weakness of Red Lion and Pacifica has been apparent for some
time: “It is certainly true that broadcast frequencies are scarce
but it is unclear why that fact justifies content regulation of
broadcasting in a way that would be intolerable if applied to the
editorial process of the print media.” Telecommunications
Research & Action Center v. FCC, 801 F. 2d
501, 508 (CADC 1986) (Bork, J.).

															   Highlighting the doctrinal incoherence of Red Lion and Pacifica , the Court has declined to
apply the lesser standard of First Amendment scrutiny imposed on
broadcast speech to federal regulation of telephone dial-in
services, see Sable Communications of Cal., Inc. v. FCC , 492 U.
S. 115 , 127–128 (1989), cable television programming, see Turner Broadcasting System, Inc. v. FCC , 512 U. S. 622 , 637
(1994), and the Internet, see Reno v. American Civil
Liberties Union , 521 U. S. 844 , 867–868 (1997). “There
is no justification for this apparent dichotomy in First Amendment
jurisprudence. Whatever the merits of Pacifica when it was
issued[,] … it makes no sense now.” Action for Children’s
Television v. FCC , 58 F. 3d 654, 673 (CADC 1995)
(Edwards, C. J., dissenting). The justifications relied on by
the Court in Red Lion and Pacifica —“spectrum
scarcity, intrusiveness, and accessibility to children—neither
distinguish broadcast from cable, nor explain the relaxed
application of the principles of the First Amendment to broadcast.”
58 F. 3d, at 673; see also In re Industry
Guidance on Commission’s Case Law Interpreting 18 U.
S. C. § 1464 and Enforcement Policies Regarding
Broadcast Indecency , 16 FCC Rcd. 7999, 8021, n. 11 (2001)
(statement of Commissioner Furchtgott-Roth) (“It is ironic that
streaming video or audio content from a television or radio station
would likely receive more constitutional protection, see Reno [v. American Civil Liberties Union , 521 U. S. 844 (1997)], than would the
same exact content broadcast over-the-air”).

															   Second, even if this Court’s disfavored
treatment of broadcasters under the First Amendment could have been
justified at the time of Red Lion and Pacifica ,
dramatic technological advances have eviscerated the factual
assumptions underlying those decisions. Broadcast spectrum is
significantly less scarce than it was 40 years ago. See Brief for
Respondents NBC Universal et al. 37–38 (hereinafter NBC
Brief). As NBC notes, the number of over-the-air broadcast stations
grew from 7,411 in 1969, when Red Lion was issued, to
15,273 by the end of 2004. See NBC Brief 38; see also FCC Media
Bureau Staff Research Paper, J. Berresford, The Scarcity Rationale
for Regulating Traditional Broadcasting: An Idea Whose Time Has
Passed 12–13 (Mar. 2005) (No. 2005–2). And the trend should
continue with broadcast television’s imminent switch from analog to
digital transmission, which will allow the FCC to “stack broadcast
channels right beside one another along the spectrum, and
ultimately utilize significantly less than the 400 MHz of spectrum
the analog system absorbs today.” Consumer Electronics
Assn. v. FCC , 347 F. 3d 291, 294 (CADC
2003).

															   Moreover, traditional broadcast television and
radio are no longer the “uniquely pervasive” media forms they once
were. For most consumers, traditional broadcast media programming
is now bundled with cable or satellite services. See App. to Pet.
for Cert. 107a. Broadcast and other video programming is also
widely available over the Internet. See Stelter, Serving Up
Television Without the TV Set, N. Y. Times, Mar. 10, 2008, p.
C1. And like radio and television broadcasts, Internet access is
now often freely available over the airwaves and can be accessed by
portable computer, cell phones, and other wireless devices. See
May, Charting a New Constitutional Jurisprudence for the Digital
Age, 3 Charleston L. Rev. 373, 375 (2009). The extant facts
that drove this Court to subject broadcasters to unique disfavor
under the First Amendment simply do not exist today. See In
re Industry Guidance, supra , at 8020 (statement of
Commissioner 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 prevailing approach to stare decisis . See Planned
Parenthood of Southeastern Pa. v. Casey , 505 U. S. 833 , 855
(1992) (asking “whether facts have so changed, or come to be seen
so differently, as to have robbed the old rule of significant
application or justification”); see also American Trucking
Assns., Inc. v. Scheiner , 483 U. S. 266 , 302
(1987) (O’Connor, J., dissenting) (“Significantly changed
circumstances can make an older rule, defensible when formulated,
inappropriate …”). “In cases involving constitutional issues”
that turn on a particular set of factual assumptions, “this Court
must, in order to reach sound conclusions, feel free to bring its
opinions into agreement with experience and with facts newly
ascertained.” Burnet v. Coronado Oil & Gas
Co. , 285 U. S.
393 , 412 (1932) (Brandeis, J., dissenting). For all these
reasons, I am open to reconsideration of Red Lion and Pacifica in the proper case.

															 With respect to reliance by FCC v. Pacifica Foundation , 438 U. S. 726 (1978), on the ease with
which children could be exposed to indecent television programming,
technology has provided innovative solutions to assist adults in
screening their children from unsuitable programming—even when that
programming appears on broadcast channels. See NBC Brief 43–47
(discussing V-chip technology, which allows targeted blocking of
television programs based on content). STEVENS, J., DISSENTING FCC V. FOX TELEVISION STATIONS, INC. 556 U. S. ____ (2009) SUPREME COURT OF THE UNITED STATES NO. 07-582 FEDERAL COMMUNICATIONS COMMISSION, et al.,
PETITIONERS v. FOX TELEVISION STATIONS, INC.,
et al.

															on writ of certiorari to the united states court of
appeals for the second circuit

															[April 28, 2009]

															   Justice Stevens, dissenting.

															   While I join Justice Breyer’s
cogent dissent, I think it important to emphasize two flaws in the
Court’s reasoning. Apparently assuming that the Federal
Communications Commission’s (FCC or Commission) rulemaking
authority is a species of executive power, the Court espouses the
novel proposition that the Commission need not explain its decision
to discard a longstanding rule in favor of a dramatically different
approach to regulation. See ante , at 10–11. Moreover, the
Court incorrectly assumes that our decision in FCC v. Pacifica Foundation , 438 U. S. 726 (1978), decided that the
word “indecent,” as used in 18 U. S. C. §1464,[ Footnote 1 ] permits the FCC to punish the
broadcast of any expletive that has a sexual or excretory
origin. Pacifica was not so sweeping, and the Commission’s
changed view of its statutory mandate certainly would have been
rejected if presented to the Court at the time.

															I

															   “The structure of our Government
as conceived by the Framers of our Constitution disperses the
federal power among the three branches—the Legislative, the
Executive, and the Judicial—placing both substantive and procedural
limitations on each.” Metropolitan Washington Airports
Authority v. Citizens for Abatement of Aircraft Noise,
Inc. , 501 U. S.
252 , 272 (1991). The distinction among the branches is not
always sharp, see Bowsher v. Synar , 478 U. S. 714 , 749 (1986) (Stevens,
J., concurring in judgment) (citing cases), a consequence of the
fact that the “great ordinances of the Constitution do not
establish and divide fields of black and white,” Springer v. Philippine Islands , 277 U. S. 189 , 209
(1928) (Holmes, J., dissenting). Strict lines of authority are
particularly elusive when Congress and the President both exert a
measure of control over an agency. As a landmark decision involving
the Federal Trade Commission (FTC) made clear, however, when
Congress grants rulemaking and adjudicative authority to an expert
agency composed of commissioners selected through a bipartisan
procedure and appointed for fixed terms, it substantially insulates
the agency from executive control. See Humphrey’s Executor v. United States , 295 U. S. 602 , 623–628
(1935).

															   With the view that broadcast
regulation “should be as free from political influence or arbitrary
control as possible,” S. Rep. No. 772, 69th Cong., 1st Sess.,
2 (1926), Congress established the FCC with the same measure of
independence from the Executive that it had provided the FTC. Just
as the FCC’s commissioners do not serve at the will of the
President, see 47 U. S. C. §154(c) (2000 ed.), its regulations
are not subject to change at the President’s will. And when the
Commission fashions rules that govern the airwaves, it exercises
legislative power delegated to it by Congress. See Whitman v. American Trucking Assns., Inc ., 531 U. S. 457 , 489–490 (2001)
(Stevens, J., concurring in part and concurring in judgment); Bowsher , 478 U. S., at 752 (opinion of Stevens, J.).
Consequently, 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.[ Footnote 2 ]

															   The FCC, like all agencies, may revise its
regulations from time to time, just as Congress amends its statutes
as circumstances warrant. But the FCC is constrained by its
congressional mandate. There should be a strong presumption that
the FCC’s initial views, reflecting the informed judgment of
independent commissioners with expertise in the regulated area,
also reflect the views of the Congress that delegated the
Commission authority to flesh out details not fully defined in the
enacting statute. The rules adopted after Pacifica , 438 U. S. 726 , have been in effect for
decades and have not proved unworkable in the intervening years. As
Justice Breyer’s opinion explains, broadcasters have a substantial
interest in regulatory stability; the threat of crippling financial
penalties looms large over these entities. See post , at
10–14. The FCC’s shifting and impermissibly vague indecency 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.[ Footnote 3 ] The FCC’s congressional charter, 47 U.
S. C. §151 et seq. , the Administrative Procedure Act,
5 U. S. C. §706(2)(A) (2006 ed.) (instructing courts to “hold
unlawful and set aside … arbitrary [or] capricious” agency action),
and the rule of law all favor stability over administrative
whim.

															II

															   The Court commits a second
critical error by assuming that Pacifica endorsed a
construction of the term “indecent,” as used in 18 U. S. C.
§1464, that would include any expletive that has a sexual or
excretory origin. Neither the opinion of the Court, nor Justice
Powell’s concurring opinion, adopted such a far-reaching
interpretation. Our holding was narrow in two critical respects.
First, we concluded, over the dissent of four Justices, that the
statutory term “indecent” was not limited to material that had
prurient appeal and instead included material that was in
“nonconformance with accepted standards of morality.” Pacifica, 438 U. S., at 740. Second, we upheld the FCC’s
adjudication that a 12-minute, expletive-filled monologue by
satiric humorist George Carlin was indecent “as broadcast.” Id ., at 735. We did not decide whether an isolated expletive could qualify as indecent. Id. , at 750; id. , at 760–761 (Powell, J.,
concurring in part and concurring in judgment). And we certainly
did not hold that any word with a sexual or scatological origin,
however used, was indecent.

															   The narrow treatment of the term
“indecent” in Pacifica defined the outer boundaries of the
enforcement policies adopted by the FCC in the ensuing years. The
Commission originally explained that “under the legal standards set
forth in Pacifica , deliberate and repetitive use [of
expletives] in a patently offensive manner is a requisite to a
finding of indecency.” In re Pacifica Foundation , 2 FCC
Rcd. 2698, 2699, ¶13 (1987). While the “repetitive use” issue has
received the most attention in this case, it should not be
forgotten that Pacifica permitted the Commission to
regulate only those words that describe sex or excrement. See 438
U. S., at 743 (plurality opinion) (“[T]he Commission’s definition
of indecency will deter only the broadcasting of patently offensive references to excretory and sexual organs and activities”
(emphasis added)). The FCC minimizes the strength of this
limitation by now claiming that any use of the words at issue in
this case, in any context and in any form, necessarily describes sex or excrement. See In re Complaints Regarding
Various Television Broadcasts Between February 2, 2002 and March 8,
2005 , 21 FCC Rcd. 13299, 13308, ¶23 (2006) (Remand
Order) (“[A]ny strict dichotomy between expletives and
descriptions or depictions of sexual or excretory functions is
artificial and does not make sense in light of the fact that an
expletive’s power to offend derives from its sexual or excretory
meaning” (internal quotation marks omitted)). The customs of speech
refute this claim: There is a critical distinction between the use
of an expletive to describe a sexual or excretory function and the
use of such a word for an entirely different purpose, such as to
express an emotion. One rests at the core of indecency; the other
stands miles apart. As any golfer who has watched his partner shank
a short approach knows, it would be absurd to accept the suggestion
that the resultant four-letter word uttered on the golf course
describes sex or excrement and is therefore indecent. But that is
the absurdity the FCC has embraced in its new approach to
indecency.[ Footnote 4 ] See In re Complaints Against Various Broadcast Licensees
Regarding Their Airing of the “Golden Globe Awards” Program, 19 FCC Rcd. 4975, 4978–4979, ¶¶8–9 (2004) (declaring that even the
use of an expletive to emphasize happiness “invariably invokes a
coarse sexual image”).

															   Even if the words that concern the Court in
this case sometimes retain their sexual or excretory
meaning, there are surely countless instances in which they are
used in a manner unrelated to their origin. These words may not be
polite, but that does not mean they are necessarily “indecent”
under §1464. By improperly equating the two, the Commission has
adopted an interpretation of “indecency” that bears no resemblance
to what Pacifica contemplated.[ Footnote 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 FCC has failed to demonstrate an awareness that it has
ventured far beyond Pacifica ’s reading of §1464, its
policy choice must be declared arbitrary and set aside as unlawful.
See Citizens to Preserve Overton Park, Inc. v. Volpe, 401
U. S. 402 , 416 (1971).

															III

															   For these reasons and those
stated in Justice Breyer’s dissenting opinion, I would affirm the
judgment of the Court of Appeals. Footnote 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.” Footnote 2 Justice Scalia erroneously concludes that
treating the FCC’s rulemaking authority as an exercise of
legislative power would somehow be unconstitutional. See ante , at 21 (citing Bowsher v. Synar , 478 U. S. 714 , 726 (1986)). But that
is the nature of rulemaking: Rules promulgated by agencies
(independent or not) carry the force of law precisely because they
are exercises of such legislative authority. This may offend
Justice Scalia’s theory of the “unitary Executive,” ante ,
at 22, but it does not offend the Constitution. Indeed, “the
Framers vested ‘All legislative Powers’ in the Congress,
Art. I, §1, just as in Article II they vested the ‘executive
Power’ in the President, Art. II, §1. Those provisions do not
purport to limit the authority of either recipient of power to
delegate authority to others.” Whitman v. American
Trucking Assns., Inc. , 531 U. S. 457 , 489 (2001) (Stevens,
J., concurring in part and concurring in judgment). Footnote 3 It appears that Justice Scalia has come to
the view that isolated statements by members of a congressional
oversight subcommittee are sufficient evidence of Congress’ intent.
See ante , at 20, n. 4. Delving into the details of
how various lawmakers “grilled” the full slate of FCC
Commissioners, Justice Scalia concludes, quite remarkably, that
this encounter “made clear [Congress’] wishes for stricter
enforcement” and “would seem an adequate explanation of [the FCC’s]
change of position.” Ante , at 21. Putting to the side the
question whether congressional outrage is the kind of evidence
sufficient to explain the Commission’s decision to adopt a
thinly-reasoned and unconstitutional policy, Justice Scalia’s
treatment of these proceedings as evidencing the intent of Congress
would make even the most ardent student of legislative history
blush. Footnote 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. Footnote 5 While Justice Thomas and I disagree about the
continued wisdom of Pacifica , see ante , p. 1
(concurring opinion), the changes in technology and the
availability of broadcast spectrum he identifies certainly counsel
a restrained approach to indecency regulation, not the wildly
expansive path the FCC has chosen. BREYER, J., DISSENTING FCC V. FOX TELEVISION STATIONS, INC. 556 U. S. ____ (2009) SUPREME COURT OF THE UNITED STATES NO. 07-582 FEDERAL COMMUNICATIONS COMMISSION, et al.,
PETITIONERS v. FOX TELEVISION STATIONS, INC.,
et al.

															on writ of certiorari to the united states court of
appeals for the second circuit

															[April 28, 2009]

															   Justice Breyer, with whom Justice
Stevens, Justice Souter, and Justice Ginsburg join, dissenting.

															   In my view, the Federal
Communications Commission failed adequately to explain why it changed its indecency policy from a policy permitting a
single “fleeting use” of an expletive, to a policy that made no
such exception. Its explanation fails to discuss two critical
factors, at least one of which directly underlay its original
policy decision. Its explanation instead discussed several factors
well known to it the first time around, which by themselves provide
no significant justification for a change of policy.
Consequently, the FCC decision is “arbitrary, capricious, an abuse
of discretion.” 5 U. S. C. §706(2)(A); Motor Vehicle Mfrs.
Assn. of United States, Inc. v. State Farm Mut. Automobile
Ins. Co. , 463 U.
S. 29 , 41–43 (1983); Citizens to Preserve Overton Park,
Inc. v. Volpe, 401 U. S. 402 , 420–421
(1971) . And I would affirm the Second Circuit’s similar
determination.

															I

															   I begin with applicable law. That
law grants those in charge of independent administrative agencies
broad authority to determine relevant policy. But it does not
permit them to make policy choices for purely political reasons nor
to rest them primarily upon unexplained policy preferences. Federal
Communications Commissioners have fixed terms of office; they are
not directly responsible to the voters; and they enjoy an
independence expressly designed to insulate them, to a degree, from
“ ‘the exercise of political oversight.’ ” Freytag v. Commissioner , 501 U. S. 868 , 916
(1991) (Scalia, J., concurring in part and concurring in judgment);
see also Morrison v. Olson , 487 U. S. 654 , 691, n.
30 (1988). That insulation helps to secure important governmental
objectives, such as the constitutionally related objective of
maintaining broadcast regulation that does not bend too readily
before the political winds. But that agency’s comparative freedom
from ballot-box control makes it all the more important that courts
review its decisionmaking to assure compliance with applicable
provisions of the law—including law requiring that major policy
decisions be based upon articulable reasons.

															   The statutory provision
applicable here is the Administrative Procedure Act’s (APA)
prohibition of agency action that is “arbitrary, capricious, [or]
an abuse of discretion,” 5 U. S. C. §706(2)(A). This legal
requirement helps assure agency decisionmaking based upon more than
the personal preferences of the decisionmakers. Courts have applied
the provision sparingly, granting agencies broad policymaking
leeway. But they have also made clear that agency discretion is not
“ ‘unbounded.’ ” Burlington Truck Lines, Inc. v. United States , 371 U. S. 156 , 167–168
(1962). In so holding, American courts have followed a venerable
legal tradition, stretching back at least to the days of Sir Edward
Coke and the draining of the English fens. See Rooke’s
Case , 77 Eng. Rep. 209, 210, 5 Coke Rep. 99b, 100a (C. P.
1598) (Coke, J.) (members of sewer commission with authority to act
according “to their discretio[n]” are nonetheless “limited and
bound with the rule of reason and law … and [cannot act] according
to their wills and private affections” (quoted in Jaffe, Judicial
Review: Constitutional and Jurisdictional Fact, 70 Harv.
L. Rev. 953, 954 (1957))).

															   The law has also recognized that it is not so
much a particular set of substantive commands but rather it is a process , a process of learning through reasoned argument,
that is the antithesis of the “arbitrary.” This means agencies must
follow a “logical and rational” decisionmaking “process.” Allentown Mack Sales & Service, Inc. v. NLRB , 522 U. S. 359 ,
374 (1998). An agency’s policy decisions must reflect the reasoned
exercise of expert judgment. See Burlington Truck Lines,
supra , at 167 (decision must reflect basis on which agency
“exercised its expert discretion”); see also Humphrey’s
Executor v. United States , 295 U. S. 602 , 624
(1935) (independent agencies “exercise … trained judgment …
‘informed by experience’ ”). And, as this Court has specified,
in determining whether an agency’s policy choice was “arbitrary,” a
reviewing court “must consider whether the decision was based on a
consideration of the relevant factors and whether there has been a
clear error of judgment.” Overton Park, supra , at 416.

															   Moreover, an agency must act consistently. The
agency must follow its own rules. Arizona Grocery Co. v. Atchison, T. & S. F. R. Co. , 284 U. S. 370 ,
389–390 (1932). And when an agency seeks to change those rules, it
must focus on the fact of change and explain the basis for that
change. See, e.g., National Cable &
Telecommunications Assn. v. Brand X Internet
Services , 545
U. S. 967 , 981 (2005) (“ Unexplained inconsistency is”
a “reason for holding an interpretation to be an arbitrary and
capricious change from agency practice” (emphasis added)).

															   To explain a change requires more than setting
forth reasons why the new policy is a good one. It also requires
the agency to answer the question, “Why did you change?” And a
rational answer to this question typically requires a more complete
explanation than would prove satisfactory were change itself not at
issue. An (imaginary) administrator explaining why he chose a
policy that requires driving on the right-side, rather than the
left-side, of the road might say, “Well, one side seemed as good as
the other, so I flipped a coin.” But even assuming the rationality
of that explanation for an initial choice, that
explanation is not at all rational if offered to explain why the
administrator changed driving practice, from right-side to
left-side, 25 years later.

															   In State Farm , a unanimous Court
applied these commonsense requirements to an agency decision that
rescinded an earlier agency policy. The Court wrote that an agency
must provide an explanation for the agency’s “revocation” of a prior action that is more thorough than the explanation
necessary when it does not act in the first instance. The Court
defined “revocation,” not simply as rescinding an earlier
policy, cf. ante , at 10–11, but as “a reversal of the agency’s former views as to the proper course.” State Farm , 463 U. S., at 41 (emphasis added). See also Verizon Communications Inc. v. FCC , 535 U. S. 467 , 502, n.
20 (2002) (portion of Court’s opinion joined by Scalia, Kennedy,
and Thomas, JJ.) (noting State Farm “may be read as
prescribing more searching judicial review” when “an agency [is]
‘changing its course’ as to the interpretation of a statute”); Thomas Jefferson Univ. v. Shalala , 512 U. S. 504 , 524, n. 3
(1994) (Thomas, J., dissenting) (similar).

															   At the same time, the Court described the need
for explanation in terms that apply, not simply to pure rescissions of earlier rules, but rather to changes of
policy as it more broadly defined them. But see ante , at
10–11. It said that the law required an explanation for such a change because the earlier policy, representing a
“ ‘settled course of behavior[,] embodies the agency’s
informed judgment that, by pursuing that course, it will carry out
the policies … best if the settled rule is adhered to.’ ” State Farm, supra , at 41–42. Thus, the agency must explain why it has come to the conclusion that it should now
change direction. Why does it now reject the considerations that
led it to adopt that initial policy? What has changed in the world
that offers justification for the change? What other good reasons
are there for departing from the earlier policy?

															   Contrary to the majority’s characterization of
this dissent, it would not (and State Farm does not)
require a “ heightened standard” of review. Ante ,
at 10 (emphasis added). Rather, the law requires application of the same standard of review to different circumstances, namely
circumstances characterized by the fact that change is at
issue. It requires the agency to focus upon the fact of change
where change is relevant, just as it must focus upon any other
relevant circumstance. It requires the agency here to focus upon
the reasons that led the agency to adopt the initial policy, and to
explain why it now comes to a new judgment.

															   I recognize that sometimes the
ultimate explanation for a change may have to be, “We now weigh the
relevant considerations differently.” But at other times, an agency
can and should say more. Where, for example, the agency rested its
previous policy on particular factual findings, see ante ,
at 3–5 (Kennedy, J., concurring in part and concurring in
judgment); or where an agency rested its prior policy on its view
of the governing law, see infra , at 7–11; or where an
agency rested its previous policy on, say, a special need to
coordinate with another agency, one would normally expect the
agency to focus upon those earlier views of fact, of law, or of
policy and explain why they are no longer controlling. Regardless,
to say that the agency here must answer the question “why change”
is not to require the agency to provide a justification that is
“ better than the reasons for the old [policy].” Ante , at 11. It is only to recognize the obvious fact that change is sometimes (not always) a relevant background
feature that sometimes (not always) requires focus (upon prior
justifications) and explanation lest the adoption of the new policy
(in that circumstance) be “arbitrary, capricious, an abuse of
discretion.”

															   That is certainly how courts of appeals, the
courts that review agency decisions, have always treated the matter
in practice. See, e.g. , Pennsylvania Federation of
Sportsmen’s Clubs, Inc. v. Kempthorne , 497 F. 3d
337, 351 (CA3 2007); Yale-New Haven Hosp . v. Leavitt , 470 F. 3d 71, 79 (CA2 2006); Citizens
Awareness Network, Inc . v. United States , 391 F. 3d
338, 352 (CA1 2004). But see NAACP v. FCC , 682 F.
2d 993, 998 (CADC 1982) (using word “heightened”). The majority’s
holding could in this respect significantly change judicial review
in practice, and not in a healthy direction. But see, ante , at 1–5 (Kennedy, J., concurring in part and
concurring in judgment). After all, if it is always legally sufficient for the agency to reply to the question “why
change?” with the answer “we prefer the new policy” (even when the
agency has not considered the major factors that led it to
adopt its old policy), then why bother asking the agency to focus
on the fact of change? More to the point, why would the
law exempt this and no other aspect of an agency decision from
“arbitrary, capricious” review? Where does, and why would, the APA
grant agencies the freedom to change major policies on the basis of
nothing more than political considerations or even personal
whim?

															   Avoiding the application of any heightened standard of review, the Court in State
Farm recognized that the APA’s “nonarbitrary” requirement
affords agencies generous leeway when they set policy. 463 U. S.,
at 42. But it also recognized that this leeway is not absolute. The
Court described its boundaries by then listing considerations that
help determine whether an explanation is adequate. Mirroring and
elaborating upon its statement in Overton Park, 401 U. S. 402 , the Court said
that a reviewing court should take into account whether the agency
had “relied on factors which Congress has not intended it to
consider, entirely failed to consider an important aspect of the
problem, offered an explanation for its decision that runs counter
to the evidence before the agency, or is so implausible that it
could not be ascribed to a difference in view or the product of
agency expertise.” State Farm, supra , at 43; see also Overton Park, supra , at 416.

															II

															   We here must apply the general
standards set forth in State Farm and Overton
Park to an agency decision that changes a 25-year-old
“fleeting expletive” policy from (1) the old policy that would
normally permit broadcasters to transmit a single, fleeting use of
an expletive to (2) a new policy that would threaten broadcasters
with large fines for transmitting even a single use (including its
use by a member of the public) of such an expletive, alone with
nothing more. The question is whether that decision satisfies the
minimal standards necessary to assure a reviewing court that such a
change of policy is not “arbitrary, capricious, [or] an abuse of
discretion,” 5 U. S. C. §706(2)(A), particularly as set forth
in, e.g. , State Farm and Overton Park,
supra , at 2–7 . The decision, in my view, does not
satisfy those standards.

															   Consider the requirement that an
agency at least minimally “consider … important aspect[s] of the
problem.” State Farm, supra , at 43. The FCC failed to
satisfy this requirement, for it failed to consider two critically
important aspects of the problem that underlay its initial policy
judgment (one of which directly, the other of which indirectly).
First, the FCC said next to nothing about the relation between the
change it made in its prior “fleeting expletive” policy and the
First-Amendment-related need to avoid “censorship,” a matter as
closely related to broadcasting regulation as is health to that of
the environment. The reason that discussion of the matter is
particularly important here is that the FCC had explicitly rested its prior policy in large part upon the need to avoid
treading too close to the constitutional line.

															   Thirty years ago, the Court considered the
location of that constitutional line. In FCC v. Pacifica Foundation , 438 U. S. 726 (1978),
the Court reviewed an FCC decision forbidding the broadcast of a
monologue that deliberately and repeatedly uttered the expletives
here at issue more than 100 times in one hour at a time of day when
children were likely to hear the broadcast. Id ., at 739.
The Court held that the FCC’s prohibition did not violate the First
Amendment. But the Court divided 5 to 4. And two Members of the
majority, Justices Powell and Blackmun, explicitly noted that the
Court “does not speak to cases involving the isolated use of a potentially offensive word … as distinguished from the verbal
shock treatment administered by respondent here.” Id ., at
760–761 (Powell, J., concurring in part and concurring in judgment)
(emphasis added). This statement by two Members of the majority
suggested that they could reach a different result, finding an FCC
prohibition unconstitutional, were that prohibition aimed at the
fleeting or single use of an expletive.

															   The FCC subsequently made clear that it
thought that Justice Powell’s concurrence set forth a
constitutional line that its indecency policy should embody. In
1978, the Commission wrote that the First Amendment “severely
limit[s]” the Commission’s role in regulating indecency. It added
that the Court, in Pacifica , had “relied … on the
repetitive occurrence of the ‘indecent’ words in question.” And it
said that, in setting policy, it “intend[ed] strictly to observe
the narrowness of the Pacifica holding.” In re
Application of WGBH Educ. Foundation , 69 F. C. C. 2d
1250, 1254, ¶10.

															   In 1983, the Commission again wrote that it
understood the Court’s decision in Pacifica to rest on the
“repetitive occurrence of the ‘indecent’ words in question.” And,
again, the Commission explained that its regulation of fleeting or
isolated offensive words would reflect Justice Powell’s
understanding of the First Amendment’s scope. In re Application
of Pacifica Foundation , 95 F. C. C. 2d 750, 760,
¶¶17–18.     In 1987, the Commission once more
explained that its “fleeting expletives” policy reflected the
Court’s decision in Pacifica . It said that, under its
policy, “speech that is indecent must involve more than an
isolated use of an offensive word,” adding that “we believe that
under the legal standards set forth in Pacifica ,
deliberate and repetitive use in a patently offensive manner is a
requisite to a finding of indecency.” In re Pacifica
Foundation , 2 FCC Rcd. 2698, 2699, ¶13 (emphasis added). In
another order that same year, the Commission stated that “the First
Amendment dicate[s] a careful and restrained approach with regard
to review of matters involving broadcast programming”; it then
explained, citing Pacifica , that “[s]peech that is
indecent must involve more than the isolated use of an
offensive word.” In re Infinity Broadcasting , 2 FCC Rcd.
2705, 2705, ¶¶6–7 (1987) (emphasis added). And in 2001, in giving
the industry guidance, the FCC once again said in respect to its
regulation of indecent speech that it “must both identify a
compelling interest for any regulation … and choose the least
restrictive means to further that interest.” In re
Industry Guidance On Commission’s Case Law Interpreting 18 U.
S. C. §1464 and Enforcement Policies Regarding Broadcast
Indecency , 16 FCC Rcd. 7999, 8000–8001, ¶3–5.

															   The FCC thus repeatedly made clear that it
based its “fleeting expletive” policy upon the need to avoid
treading too close to the constitutional line as set forth in
Justice Powell’s Pacifica concurrence. What then did it
say, when it changed its policy, about why it abandoned
this Constitution-based reasoning? The FCC devoted “four full pages
of small-type, single-spaced text,” ante , at 23,
responding to industry arguments that, e.g. , changes in
the nature of the broadcast industry made all indecency
regulation, i.e. , 18 U. S. C. §1464,
unconstitutional. In doing so it repeatedly reaffirmed its
view that Pacifica remains good law. In re
Complaints Regarding Various Television Broadcasts Between February
2, 2002, and March, 8, 2008, 21 FCC Rcd. 13299, 13317–13321,
¶¶42–52 (2006) (Remand Order) . All the more surprising
then that, in respect to why it abandoned its prior view
about the critical relation between its prior fleeting expletive
policy and Justice Powell’s Pacifica concurrence, it says
no more than the following:

															   “[O]ur decision is not inconsistent with the
Supreme Court ruling in Pacifica . The Court explicitly
left open the issue of whether an occasional expletive could be
considered indecent.” In re Complaints Against Various
Broadcast Licensees Regarding Their Airing of the “Golden Globe
Awards” Program, 19 FCC Rcd. 4975, 4982, ¶16 (2004) (Golden Globe Order) . And, (repeating what it already had
said), “ [Pacifica] specifically reserved the question of
‘an occasional expletive’ and noted that it addressed only the
‘particular broadcast’ at issue in that case.” Remand
Order , supra , at 13308–13309, ¶24.

															   These two sentences are not a summary of the
FCC’s discussion about why it abandoned its prior understanding of Pacifica . They are the discussion. These 28 words
(repeated in two opinions) do not acknowledge that an entirely
different understanding of Pacifica underlay the FCC’s
earlier policy; they do not explain why the agency changed its mind
about the line that Pacifica draws or its policy’s
relation to that line; and they tell us nothing at all about what
happened to the FCC’s earlier determination to search for
“compelling interests” and “less restrictive alternatives.” They do
not explain the transformation of what the FCC had long thought an
insurmountable obstacle into an open door. The result is not simply Hamlet without the prince, but Hamlet with a
prince who, in 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
Commissioner in his dissent, nor I in this dissent, claim that
agencies must always take account of possible constitutional issues
when they formulate policy. Cf. ante , at 12. But the FCC
works in the shadow of the First Amendment and its view of the
application of that Amendment to “fleeting expletives” directly
informed its initial policy choice. Under these circumstances, the
FCC’s failure to address this “aspect” of the problem calls for a
remand to the agency. Overton Park, 401 U. S. , at
420–421.

															   Second, the FCC failed to consider the
potential impact of its new policy upon local broadcasting
coverage. This “aspect of the problem” is particularly important
because the FCC explicitly took account of potential broadcasting
impact. Golden Globe Order, supra , at 4980, ¶11 (“The ease
with which broadcasters today can block even fleeting words in a
live broadcast is an element in our decision”). Indeed, in setting
forth “bleeping” technology changes (presumably lowering bleeping
costs) as justifying the policy change, it implicitly reasoned that
lower costs, making it easier for broadcasters to install bleeping
equipment, made it less likely that the new policy would lead
broadcasters to reduce coverage, say by canceling coverage of
public events. Ibid. (“[T]echnological advances have made
it possible … to prevent the broadcast of a single offending word
or action without blocking or disproportionately disrupting the
message of the speaker or performer”).

															   What then did the FCC say about the likelihood
that smaller independent broadcasters, including many public
service broadcasters, still would not be able to afford “bleeping”
technology and, as a consequence, would reduce local coverage,
indeed cancel coverage, of many public events? It said nothing at
all.

															   The FCC cannot claim that local coverage lacks
special importance. To the contrary, “the concept of localism has
been a cornerstone of broadcast regulation for decades.” In re
Broadcast Localism , 23 FCC Rcd. 1324, 1326, 1327, ¶¶3, 5
(2008). That policy seeks to provide “viewers and listeners …
access to locally responsive programming including, but not limited
to, local news and public affairs matter” and to ensure “diversity
in what is seen and heard over the airwaves.” That policy has long
favored local broadcasting, both as a means to increase coverage of
local events and, insofar as it increases the number of broadcast
voices, as an end in itself. See, e.g. , In re
Reexamination of Comparative Standards for Noncommercial Educ.
Applicants , 15 FCC Rcd. 7386, 7399, ¶29 (2000) (adopting a
system for selecting applicants for broadcast channels that “would
foster our goal of broadcast diversity by enabling the local public
to be served by differing … licensees”); In re 2002 Biennial
Regulatory Review , 18 FCC Rcd. 13620, 13644, ¶¶77, 79 (2003)
(“We remain firmly committed to the policy of promoting localism
among broadcast outlets. … A … measure of localism is the quantity
and quality of local news and public affairs programming”).

															   Neither can the FCC now claim that the impact
of its new policy on local broadcasting is insignificant and
obviously so. Broadcasters tell us, as they told the FCC, the
contrary. See Brief for Former FCC Commissioners as Amici
Curiae 17–19; App. 235–237; Joint Comments of Fox Television
Stations, Inc. et al., In re Remand of Section III.B
of the Commission’s March 15, 2006 Omnibus Order Resolving Numerous
Broadcast Television Indecency Complaints 14–15,
http://www.fcc.gov/DA06–1739/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 operation, place that technology beyond the financial reach
of many smaller independent local stations. See id. , at 14
(“The significant equipment and personnel costs associated with
installing, maintaining, and operating delay equipment sufficient
to cover all live news, sports, and entertainment programs could
conceivably exceed the net profits of a small local station for an
entire year”); id ., at App. XI. And they ask what the FCC
thinks will happen when a small local station without bleeping
equipment wants to cover, say a local city council meeting, a high
school football game, a dance contest at community center, or a
Fourth of July parade.

															   Relevant literature supports the broadcasters’
financial claims. See, e.g. , Ho, Taking No Chances, Austin
American-Statesman, June 18, 2006, p. J1; Dotinga, Dirty-Word
Filters Prove Costly, Wired.com, July 9, 2004, http://www.
wired.com/entertainment/music/news/2004/07/64127; Stations, Cable
Networks Finding Indecency Rules Expensive, Public Broadcasting
Report, Aug. 4, 2006. It also indicates that the networks with
which some small stations are affiliated are not liable for the
stations’ local transmissions (unless the networks own them). Ho, supra , at J1; Public Stations Fear Indecency Fine Jump
Means Premium Hikes, Public Broadcasting Report, July 7, 2006. The
result is that smaller stations, fearing “fleeting expletive” fines
of up to $325,000, may simply cut back on their coverage. See
Romano, Reporting Live. Very Carefully, Broadcasting & Cable,
July 4, 2005, p. 8; see also ibid . (“Afraid to take
chances” of getting fined under the FCC’s new policy, “local
broadcasters are responding by altering—or halting altogether—the
one asset that makes local stations so valuable to their
communities: live TV”); Daneman, WRUR Drops Its Live Radio
Programs, Rochester Democrat and Chronicle, May 27, 2004, p. 1B
(reporting that a local broadcast station ceased broadcasting all
local live programming altogether in response to the Commission’s
policy change). And there are many such smaller stations. See, e.g. , Corporation for Public Broadcasting, Frequently
Asked Questions, available at http://
www.cpb.org/aboutpb/faq/stations.html (noting there are over 350
local public television stations and nearly 700 local public radio
stations that receive support from the Corporation for Public
Broadcasting).

															   As one local station manager told the FCC,

															“[t]o lessen the risk posed by the new legal
framework … I have directed [the station’s] news staff that [our
station] may no longer provide live, direct-to-air coverage” of
“live events where crowds are present … unless they affect matters
of public safety or convenience. Thus, news coverage by [my
station] of live events where crowds are present essentially will
be limited to civil emergencies.” App. 236–237 (declaration of
Dennis Fisher).

															   What did the FCC say in response
to this claim? What did it say about the likely impact of the new
policy on the coverage that its new policy is most likely to
affect, coverage of local live events—city council
meetings, local sports events, community arts productions, and the
like? It said nothing at all.

															   The plurality acknowledges that the Commission
entirely failed to discuss this aspect of the regulatory problem.
But it sees “no need” for discussion in light of its, i.e. , the plurality’s, own “doubt[s]” that “small-town
broadcasters run a heightened risk of liability for indecent
utterances” as a result of the change of policy. Ante , at
24–25. The plurality's “doubt[s]” rest upon its views (1) that
vulgar expression is less prevalent (at least among broadcast
guests) in smaller towns, ante , at 24; (2) that the
greatest risk the new policy poses for “small-town broadcasters”
arises when they broadcast local “news and public affairs,” ibid ., and (3) that the Remand Order says “little
about how the Commission would treat smaller broadcasters who
cannot afford screening equipment,” while also pointing out that
the new policy “ ‘does not … impose undue burdens on
broadcasters’ ” and emphasizing that the case before it did
not involve “ ‘breaking news.’ ” Ante , at
24–25.

															   As to the first point, about the prevalence of
vulgarity in small towns, I confess ignorance. But I do know that
there are independent stations in many large and medium sized
cities. See Television & Cable Factbook, Directory of
Television Stations in Operation 2008. As to the second point, I
too believe that coverage of local public events, if not news, lies
at the heart of the problem.

															   I cannot agree with the plurality, however,
about the critical third point, namely that the new policy
obviously provides smaller independent broadcasters with adequate
assurance that they will not be fined. The new policy removes the
“fleeting expletive” exception, an exception that assured smaller
independent stations that they would not be fined should someone
swear at a public event. In its place, it puts a policy that places
all broadcasters at risk when they broadcast fleeting expletives,
including expletives uttered at public events. The Remand
Order says that there “is no outright news exemption from
our indecency rules. ” 21 FCC Rcd., at 13327, ¶71 (emphasis
added). The best it can provide by way of assurance is to say that
“it may be inequitable to hold a licensee responsible for
airing offensive speech during live coverage of a public event under some circumstances .” Id ., at 13311, ¶33
(emphasis added). It does list those circumstances as including the
“possibility of human error in using delay equipment.” Id ., at 13313, ¶35. But it says nothing about a
station’s inability to afford delay equipment (a matter
that in individual cases could itself prove debatable). All the FCC
had to do was to consider this matter and either grant an
exemption or explain why it did not grant an exemption. But it did
not. And the result is a rule that may well chill coverage—the kind
of consequence that the law has considered important for decades,
to which the broadcasters pointed in their arguments before the
FCC, and which the FCC nowhere discusses. See, e.g. , Dombrowski v. Pfister , 380 U. S. 479 , 494
(1965) (“So long as the statute remains available to the State the
threat of prosecutions of protected expression is a real and
substantial one. Even the prospect of ultimate failure of such
prosecutions by no means dispels their chilling effect on protected
expression”); see also Ashcroft v. Free Speech
Coalition , 535
U. S. 234 , 244 (2002); Gibson v. Florida
Legislative Investigation Comm. , 372 U. S. 539 , 556–557
(1963); Wieman v. Updegraff , 344 U. S. 183 , 195
(1952) (Frankfurter, J., concurring).

															   Had the FCC used traditional administrative
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 is
important, the significance of the issues clear, the failures near
complete—should lead us to the same conclusion. The agency’s
failure to discuss these two “important aspect[s] of the problem”
means that the resulting decision is “ ‘arbitrary, capricious,
an abuse of discretion’ ” requiring us to remand the matter to
the agency. State Farm, 463 U. S., at 43; Overton
Park, 401 U. S., at 416.

															III

															   The three reasons the FCC did set
forth in support of its change of policy cannot make up for the
failures I have discussed. Consider each of them. First, as I have
pointed out, the FCC based its decision in part upon the fact that
“bleeping/delay systems” technology has advanced. I have already
set forth my reasons for believing that that fact, without more,
cannot provide a sufficient justification for its policy change. Supra, at 11–16.

															   Second, the FCC says that the
expletives here in question always invoke a coarse excretory or
sexual image; hence it makes no sense to distinguish between
whether one uses the relevant terms as an expletive or as a literal
description. The problem with this answer is that it does not help
to justify the change in policy. The FCC was aware of the
coarseness of the “image” the first time around. See, e.g. , Remand Order, 21 FCC Rcd., at 13308, ¶23
(asserting that FCC has always understood the words as coarse and
indecent). And it explained the first time around why it
nonetheless distinguished between their literal use and their use
as fleeting expletives. See, e.g. , In re Application
of WGBH Educ. Foundation, 69 F. C. C. 2d , at 1254–1255, ¶¶10–11 (discussing First Amendment considerations
and related need to avoid reduced broadcast coverage). Simply to
announce that the words, whether used descriptively or as
expletives, call forth similar “images” is not to address those
reasons.

															   Third, the FCC said that “perhaps” its “most
importan[t]” justification for the new policy lay in the fact that
its new “contextual” approach to fleeting expletives is better and
more “[c]onsistent with” the agency’s “general approach to
indecency” than was its previous “categorica[l]” approach, which
offered broadcasters virtual immunity for the broadcast of fleeting
expletives. Remand Order , supra , at 13308, ¶23.
This justification, however, offers no support for the change
without an understanding of why, i.e. , in what
way, the FCC considered the new approach better or more
consistent with the agency’s general approach.

															   The Solicitor General sets forth one way in
which the new policy might be more consistent with statutory
policy. The indecency statute prohibits the broadcast of “any …
indecent … language.” 18 U. S. C. §1464. The very point of the
statute, he says, is to eliminate nuisance; and the use of
expletives, even once, can constitute such a nuisance. The
Solicitor General adds that the statutory word “any” indicates that
Congress did not intend a safe-harbor for a fleeting use of that
language. Brief for Petitioners 24–25. The fatal flaw in this
argument, however, lies in the fact that the Solicitor General and
not the agency has made it. We must consider the lawfulness of an
agency’s decision on the basis of the reasons the agency gave, not
on the basis of those it might have given. SEC v. Chenery Corp. , 332 U. S. 194 , 196–197
(1947); State Farm, supra , at 50. And the FCC did not make
this claim. Hence, we cannot take it into account and need not
evaluate its merits.

															   In fact, the FCC found that the new policy was
better in part because, in its view, the new policy better protects
children against what it described as “ ‘the first
blow’ ” of broadcast indecency that results from the
“ ‘pervasive’ ” nature of broadcast media. It wrote that
its former policy of “granting an automatic exemption for ‘isolated
or fleeting’ expletives unfairly forces viewers (including
children) to take ‘the first blow.’ ” Remand Order,
supra , at 13309, ¶25.

															   The difficulty with this argument, however, is
that it does not explain the change. The FCC has long used
the theory of the “first blow” to justify its regulation of
broadcast indecency. See, e.g. , In re Enforcement of
Prohibitions Against Broadcast Indecency in 18 U. S. C.
§1464, 5 FCC Rcd. 5297, 5302, ¶¶34–35 (1990). Yet the FCC has
also long followed its original “fleeting expletives” policy. Nor
was the FCC ever unaware of the fact to which the majority points,
namely that children’s surroundings influence their behavior. See, e.g., In re Enforcement of Prohibitions Against
Broadcast Indecency in 18 U. S. C. §1464 , 8 FCC Rcd. 704,
706, ¶11 (1993). So, to repeat the question: What, in respect to
the “first blow,” has changed?

															   The FCC points to no empirical (or other)
evidence to demonstrate that it previously understated the
importance of avoiding the “first blow.” Like the majority, I do
not believe that an agency must always conduct full empirical
studies of such matters. Ante , at 15–16. But the FCC could
have referred to, and explained, relevant empirical studies that
suggest the contrary. One review of the empirical evidence, for
example, reports that “[i]t is doubtful that children under the age
of 12 understand sexual language and innuendo; therefore it is
unlikely that vulgarities have any negative effect.” Kaye &
Sapolsky, Watch Your Mouth! An Analysis of Profanity Uttered by
Children on Prime-Time Television, 2004 Mass Communication &
Soc’y 429, 433 (Vol. 7) (citing two studies). The Commission need
not have accepted this conclusion. But its failure to discuss this
or any other such evidence, while providing no empirical evidence
at all that favors its position, must weaken the logical force of
its conclusion. See State Farm, 463 U. S. , at 43
(explaining that an agency’s failure to “examine the relevant data”
is a factor in determining whether the decision is
“arbitrary”).

															   The FCC also found the new policy better
because it believed that its prior policy “would as a matter of
logic permit broadcasters to air expletives at all hours of a day
so long as they did so one at a time.” Remand Order, 21
FCC Rcd., at 13309, ¶25. This statement, however, raises an obvious
question: Did that happen? The FCC’s initial “fleeting expletives”
policy was in effect for 25 years. Had broadcasters during those 25
years aired a series of expletives “one at a time?” If so, it
should not be difficult to find evidence of that fact. But the FCC
refers to none. Indeed, the FCC did not even claim that a change
had taken place in this respect. It spoke only of the pure “logic”
of the initial policy “permitting” such a practice. That logic
would have been apparent to anyone, including the FCC, in 1978 when
the FCC set forth its initial policy.

															   Finally, the FCC made certain statements that
suggest it did not believe it was changing prior policy in any
major way. It referred to that prior policy as based on “staff
letters and dicta” and it said that at least one of the instances
before it (namely, the Cher broadcast) would have been actionably
indecent under that prior policy. Id ., at 13306–13307,
13324, ¶¶20–21, 60. As we all agree, however, in fact the FCC did
change its policy in a major way. See ante , at 13. To the
extent that the FCC minimized that fact when considering the
change, it did not fully focus on the fact of change. And any such
failure would make its decision still less supportable. See National Cable, 545 U. S., at 981.

															IV

															   Were the question a closer one,
the doctrine of constitutional avoidance would nonetheless lead me
to remand the case. See United States v. Jin Fuey
Moy , 241 U. S.
394 , 401 (1916) (“A statute must be construed, if fairly
possible, so as to avoid not only the conclusion that it is
unconstitutional but also grave doubts upon that score”
(emphasis added)). That doctrine seeks to avoid unnecessary
judicial consideration of constitutional questions, assumes that
Congress, no less than the Judicial Branch, seeks to act within
constitutional bounds, and thereby diminishes the friction between
the branches that judicial holdings of unconstitutionality might
otherwise generate. See Almendarez-Torres v. United
States , 523 U.
S. 224 , 237–238 (1998); see also Solid Waste Agency of
Northern Cook Cty. v. Army Corps of Engineers , 531 U. S. 159 ,
172–173 (2001); Edward J. DeBartolo Corp. v. Florida
Gulf Coast Building & Constr. Trades Council , 485 U. S. 568 , 575
(1988); Rescue Army v. Municipal Court of Los
Angeles , 331 U.
S. 549 , 571 (1947); Ashwander v. TVA , 297 U. S. 288 ,
345–348 (1936) (Brandeis, J., concurring). The doctrine assumes
that Congress would prefer a less-than-optimal interpretation of
its statute to the grave risk of a constitutional holding that
would set the statute entirely aside. See Almendarez-Torres , supra , at 238 (construction of
statute that avoids invalidation best reflects congressional will);
cf. United States v. Booker , 543 U. S. 220 , 249, 267
(2005).

															   Unlike the majority, I can find
no convincing reason for refusing to apply a similar doctrine here.
The Court has often applied that doctrine where an agency’s
regulation relies on a plausible but constitutionally suspect
interpretation of a statute. See, e.g. , Solid Waste
Agency, supra , at 172–174; NLRB v. Catholic
Bishop of Chicago , 440 U. S. 490 , 506–507
(1979). The values the doctrine serves apply whether the agency’s
decision does, or does not, rest upon a constitutionally suspect
interpretation of a statute. And a remand here would do no more
than ask the agency to reconsider its policy decision in light of
the concerns raised in a judicial opinion. Cf. Fullilove v. Klutznick , 448 U. S. 448 , 551
(1980) (Stevens, J., dissenting) (a holding that a congressional
action implicating the Equal Protection Clause “was not adequately
preceded by a consideration of less drastic alternatives or
adequately explained by a statement of legislative purpose would be
far less intrusive than a final determination that the substance
of” that action was unconstitutional). I would not now foreclose,
as the majority forecloses, our further consideration of this
matter. (Of course, nothing in the Court’s decision today prevents
the Commission from reconsidering its current policy in light of
potential constitutional considerations or for other reasons.)

															V

															   In sum, the FCC’s explanation of
its change leaves out two critically important matters underlying
its earlier policy, namely Pacifica and local broadcasting
coverage. Its explanation rests upon three considerations
previously known to the agency (“coarseness,” the “first blow,” and
running single expletives all day, one at a time). With one
exception, it provides no empirical or other information explaining
why those considerations, which did not justify its new policy
before, justify it now. Its discussion of the one exception
(technological advances in bleeping/delay systems), failing to take
account of local broadcast coverage, is seriously incomplete.

															   I need not decide whether one or
two of these features, standing alone, would require us to remand
the case. Here all come together. And taken together they suggest
that the FCC’s answer to the question, “Why change?” is, “We like
the new policy better.” This kind of answer, might be perfectly
satisfactory were it given by an elected official. But when given
by an agency, in respect to a major change of an important policy
where much more might be said, it is not sufficient. State
Farm, 463 U. S., at 41–42 . For these reasons I would find the FCC’s
decision “arbitrary, capricious, an abuse of discretion,” 5 U.
S. C. §706(2)(A), requiring remand of this case to the FCC.
And I would affirm the Second Circuit’s similar determination.

															   With respect, I dissent. GINSBURG, J., DISSENTING FCC V. FOX TELEVISION STATIONS, INC. 556 U. S. ____ (2009) SUPREME COURT OF THE UNITED STATES NO. 07-582 FEDERAL COMMUNICATIONS COMMISSION, et al.,
PETITIONERS v. FOX TELEVISION STATIONS, INC.,
et al.

															on writ of certiorari to the united states court of
appeals for the second circuit

															[April 28, 2009]

															   Justice Ginsburg, dissenting.

															   The mainspring of this case is a
Government restriction on spoken words. This appeal, I
recognize, arises under the Administrative Procedure Act.* Justice
Breyer’s dissenting opinion, which I join, cogently describes the
infirmities of the Federal Communications Commission’s (FCC or
Commission) policy switch under that Act. The Commission’s bold
stride beyond the bounds of FCC v. Pacifica
Foundation , 438
U. S. 726 (1978), I agree, exemplified “arbitrary” and
“capricious” decisionmaking. I write separately only to note that
there is no way to hide the long shadow the First Amendment casts
over what the Commission has done. Today’s decision does nothing to
diminish that shadow. More than 30 years ago, a sharply
divided Court allowed the FCC to sanction a midafternoon radio
broadcast of comedian George Carlin’s 12-minute “Filthy Words”
monologue. Ibid. Carlin satirized the “original” seven
dirty words and repeated them relentlessly in a variety of
colloquialisms. The monologue was aired as part of a program on
contemporary attitudes toward the use of language. In re
Citizen’s Complaint Against Pacifica Foundation Station WBAI
(FM) , 56 F. C. C. 2d 94, 95 (1975). In rejecting the
First Amendment challenge, the Court “emphasize[d] the narrowness
of [its] holding.” Pacifica, 438 U. S., at 750. See also ante , at 1 (Stevens, J., dissenting). In this regard, the
majority stressed that the Carlin monologue deliberately repeated
the dirty words “over and over again.” 438 U. S., at 729, 751–755
(Appendix). Justice Powell, concurring, described Carlin’s speech
as “verbal shock treatment.” Id. , at 757 (concurring in
part and concurring in judgment). In contrast, the unscripted
fleeting expletives at issue here are neither deliberate nor
relentlessly repetitive. Nor does the Commission’s policy home in
on expressions used to describe sexual or excretory activities or
organs. Spontaneous utterances used simply to convey an emotion or
intensify a statement fall within the order’s compass. Cf. Cohen v. California , 403 U. S. 15 , 26 (1971)
(“[W]ords are often chosen as much for their emotive as their
cognitive force. We cannot sanction the view that the Constitution,
while solicitous of the cognitive content of individual speech, has
little or no regard for that emotive function which, practically
speaking, may often be the more important element of the overall
message sought to be communicated.”); Denver Area Ed.
Telecommunications Consortium, Inc. v. FCC , 518 U. S. 727 , 805
(1996) (Kennedy, J., concurring in part, concurring in judgment in
part, and dissenting in part) (a word categorized as indecent
“often is inseparable from the ideas and viewpoints conveyed, or
separable only with loss of truth or expressive power”). The Pacifica decision, however it might fare on reassessment, see ante ,
at 6 (Thomas, J., concurring), was tightly cabined, and for good
reason. In dissent, Justice Brennan observed that the Government
should take care before enjoining the broadcast of words or
expressions spoken by many “in our land of cultural pluralism.” 438
U. S., at 775. That comment, fitting in the 1970’s, is even more
potent today. If the reserved constitutional question reaches this
Court, see ante , at 26 (majority opinion), we should be
mindful that words unpalatable to some may be “commonplace” for
others, “the stuff of everyday conversations.” 438 U. S., at 776
(Brennan, J., dissenting). * The Second Circuit,
presented with both constitutional and statutory challenges,
vacated the remand order on APA grounds. The court therefore
“refrain[ed] from deciding” the “constitutional questions.” 489
F. 3d 444, 462 (2007) (quoting Lyng v. Northwest
Indian Cemetery Protective Assn. , 485 U. S. 439 , 445
(1988)). The majority, however, stated and explained why it was
“skeptical” that the Commission’s policy could “pass constitutional
muster.” 489 F. 3d, at 462.

Summary: In FCC v. Fox Television Stations, Inc., the Supreme Court considered the Federal Communications Commission's (FCC) policy on "indecent expletives" in broadcast media. The case concerned the FCC's decision that indecent expletives, even when not repeated, could be prohibited under the Communications Act of 1934 and the indecency ban. The Court reviewed the FCC's explanation for its decision and the statutory and regulatory background, including the definition of indecent speech established by the FCC in 1975. The Court noted the narrowness of its previous holding in FCC v. Pacifica Foundation, where it upheld the FCC's order against a daytime broadcast of George Carlin's "Filthy Words" monologue. In the present case, the Court considered unscripted, fleeting expletives that were neither deliberate nor repetitive and expressed skepticism about the constitutionality of the FCC's policy. The Second Circuit vacated the FCC's order on administrative law grounds and refrained from deciding the constitutional questions.