556 U.S. 502 (2009), 07-582, Federal Communications Commission v. Fox Television Stations, Inc.

Docket Nº07-582.
Citation556 U.S. 502, 129 S.Ct. 1800, 173 L.Ed.2d 738, 77 U.S.L.W. 4337
Case DateApril 28, 2009
CourtUnited States Supreme Court

Page 502

556 U.S. 502 (2009)

129 S.Ct. 1800, 173 L.Ed.2d 738, 77 U.S.L.W. 4337




No. 07-582.

United States Supreme Court

April 28, 2009

Argued November 4, 2008


[129 S.Ct. 1801] [129 S.Ct. 1802] [129 S.Ct. 1803] Syllabus [*]

Federal law bans the broadcasting of "any . . . indecent . . . language," 18 U.S.C. §1464, which includes references to sexual or excretory activity or organs, see FCC v. Pacifica Foundation, 438 U.S. 726, 98 S.Ct. 3026, 57 L.Ed.2d 1073. Having first defined the prohibited speech in 1975, the Federal Communications Commission (FCC) took a cautious, but gradually expanding, approach to enforcing the statutory prohibition. In 2004, the FCC's Golden Globes Order declared for the first time that an expletive (nonliteral) use of the F-Word or the S-Word could be actionably indecent, even when the word is used only once.

This case concerns isolated utterances of the F- and S-Words during two live broadcasts aired by Fox Television Stations, Inc. In its order upholding the indecency findings, the FCC, inter alia, stated that the Golden Globes Order eliminated any doubt that fleeting expletives could be actionable; declared that under the new policy, a lack of repetition weighs against a finding of indecency, but is not a safe harbor; and held that both broadcasts met the new test because one involved a literal description of excrement and both invoked the F-Word. The order did not impose sanctions for either broadcast. The Second Circuit set aside the agency action, declining to address the constitutionality of the FCC's action but finding the FCC's reasoning inadequate under the Administrative Procedure Act (APA).


The judgment is reversed, and the case is remanded.

489 F.3d 444, reversed and remanded.

1. The FCC's orders are neither "arbitrary" nor "capricious" within the meaning [129 S.Ct. 1804] of the APA, 5 U.S.C. §706(2)(A). Pp. 1809-1815. (a) Under the APA standard, an agency must "examine the relevant data and articulate a satisfactory explanation for its action." Motor Vehicle Mfrs. Assn. of United States, Inc. v. State Farm Mut. Automobile Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443. In overturning the FCC's judgment, the Second Circuit relied in part on its precedent interpreting the APA and State Farm to require a more substantial explanation for agency action that changes prior policy. There is, however, no basis in the Act or this

Page 503

Court's opinions for a requirement that all agency change be subjected to more searching review. Although an agency must ordinarily display awareness that it is changing position, see United States v. Nixon, 418 U.S. 683, 696, 94 S.Ct. 3090, 41 L.Ed.2d 1039, and may sometimes need to account for prior factfinding or certain reliance interests created by a prior policy, it need not demonstrate to a court's satisfaction that the reasons for the new policy are better than the reasons for the old one. It suffices that the new policy is permissible under the statute, that there are good reasons for it, and that the agency believes it to be better, which the conscious change adequately indicates. Pp. 1809 -1812.

(b) Under these standards, the FCC's new policy and its order finding the broadcasts at issue actionably indecent were neither arbitrary nor capricious. First, the FCC forthrightly acknowledged that its recent actions have broken new ground, taking account of inconsistent prior FCC and staff actions, and explicitly disavowing them as no longer good law. The agency's reasons for expanding its enforcement activity, moreover, were entirely rational. Even when used as an expletive, the F-Word's power to insult and offend derives from its sexual meaning. And the decision to look at the patent offensiveness of even isolated uses of sexual and excretory words fits with Pacifica's context-based approach. Because the FCC's prior safe-harbor-for-single-words approach would likely lead to more widespread use, and in light of technological advances reducing the costs of bleeping offending words, it was rational for the agency to step away from its old regime. The FCC's decision not to impose sanctions precludes any argument that it is arbitrarily punishing parties without notice of their actions' potential consequences. Pp. 1812 -1813.

(c) None of the Second Circuit's grounds for finding the FCC's action arbitrary and capricious is valid. First, the FCC did not need empirical evidence proving that fleeting expletives constitute harmful "first blows" to children; it suffices to know that children mimic behavior they observe. Second, the court of appeals' finding that fidelity to the FCC's "first blow" theory would require a categorical ban on all broadcasts of expletives is not responsive to the actual policy under review since the FCC has always evaluated the patent offensiveness of words and statements in relation to the context in which they were broadcast. The FCC's decision to retain some discretion in less egregious cases does not invalidate its regulation of the broadcasts under review. Third, the FCC's prediction that a per se exemption for fleeting expletives would lead to their increased use merits deference and makes entire sense. Pp. 1813- 1815. (d) Fox's additional arguments are not tenable grounds for affirmance. Fox misconstrues the agency's orders when it argues that that the

Page 504

new policy is a presumption of indecency for certain words. It reads more into Pacifica than is there by arguing that the FCC failed adequately to explain how this regulation is consistent [129 S.Ct. 1805] with that case. And Fox's argument that the FCC's repeated appeal to "context" is a smokescreen for a standardless regime of unbridled discretion ignores the fact that the opinion in Pacifica endorsed a context-based approach. Pp. 1814 - 1815.

2. Absent a lower court opinion on the matter, this Court declines to address the FCC orders' constitutionality. P. 1819.

Gregory G. Garre, Washington, DC, for Petitioners.

Carter Phillips, for Respondents. Richard Cotton, Susan Weiner, New York, NY, Miguel A. Estrada, Andrew S. Tulumello, Matthew D. McGill, Gibson, Dunn & Crutcher LLP, Washington, D.C., for Respondents NBC Universal, Inc. and NBC Telemundo License Company.

Jonathan H. Anschell, Los Angeles, CA, Susanna M. Lowy, New York, NY, for Respondent CBS Broadcasting Inc.

Robert Corn-Revere, Davis Wright Tremaine LLP, Washington, D.C., John W. Zucker, New York, NY, Seth P. Waxman, Wilmer Cutler Pickering Hale and Dorr LLP, Washington, D.C., for Respondent ABC, Inc.

Ellen S. Agress, New York, NY, Maureen A. O'Connell, Washington, DC, Carter G. Phillips, R. Clark Wadlow, James P. Young, Jennifer Tatel, David S. Petron, Quin M. Sorenson, Sidley Austin LLP, Washington, D.C., for Respondent Fox Television Stations, Inc.

Andrew Jay Schwartzman, Parul Desai, Jonathan Rintels, Washington, DC, for Center for Creative Voices in Media, Inc.

Matthew B. Berry, General Counsel, Joseph R. Palmore, Deputy General Counsel, Jacob M. Lewis, Associate General Counsel, Nandan M. Joshi, Washington, D.C., Paul D. Clement, Solicitor General, Gregory G. Katsas, Acting Assistant Attorney General, Gregory G. Garre, Deputy Solicitor General, Eric D. Miller, Assistant to the Solicitor General, Thomas M. Bondy, Anne Murphy, Washington D.C., for Petitioner.

SCALIA, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, III— A through III-D, and IV, in which ROBERTS, C. J., and KENNEDY, THOMAS, and ALITO, JJ., joined, and an opinion with respect to Part III-E, in which ROBERTS, C.J., and THOMAS and ALITO, JJ., joined. THOMAS, J., filed a concurring opinion. KENNEDY, J., filed an opinion concurring in part and concurring in the judgment. STEVENS, J., and GINSBURG, J., filed dissenting opinions. BREYER, J., filed a dissenting opinion, in which STEVENS, SOUTER, and GINSBURG, JJ., joined.

Justice SCALIA delivered the opinion of the Court, except as to Part III-E.


Page 505


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, 98 S.Ct. 3026, 57 L.Ed.2d 1073 (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.

[129 S.Ct. 1806]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

Page 506

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, 101 S.Ct. 2813, 69 L.Ed.2d 706 (1981) (internal quotation marks omitted).

One of the burdens that licensees shoulder is the indecency ban—the statutory proscription against "utter[ing] any obscene, indecent, or profane language by means of radio communication," 18 U.S.C. §1464—which Congress has instructed the Commission to enforce between the hours of 6 a.m. and 10 p.m. Public Telecommunications Act of 1992, § 16(a), 106 Stat. 954, note following 47 U.S.C. §303.1 Congress has given the Commission various means of enforcing the indecency ban, including civil fines, see...

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