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
Party NameFEDERAL COMMUNICATIONS COMMISSION, et al., Petitioners, v. FOX TELEVISION STATIONS, INC., et al.
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

FEDERAL COMMUNICATIONS COMMISSION, et al., Petitioners,

v.

FOX TELEVISION STATIONS, INC., et al.

No. 07-582.

United States Supreme Court

April 28, 2009

Argued November 4, 2008

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

[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).

Held:

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.

OPINION

Page 505

SCALIA, JUSTICE

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...

To continue reading

Request your trial
233 practice notes
  • Nondiscrimination in Health and Health Education Programs or Activities, Delegation of Authority
    • United States
    • Centers For Medicare And Medicaid Services
    • Invalid date
    ...--------------------------------------------------------------------------- \17\ See 84 FR 27850; F.C.C. v. Fox Television Stations, Inc., 556 U.S. 502, 514-15 Comment: Some commenters expressed concern that the updated Section 1557 regulations will have unintended consequences and costs fo......
  • Waste Prevention, Production Subject to Royalties, and Resource Conservation; Delay and Suspension of Certain Requirements
    • United States
    • Federal Register December 08, 2017
    • December 8, 2017
    ...not follow proper procedures to make the substantive revision to the 2016 final rule prescribed in FCC v. Fox Television Stations, Inc. 556 U.S. 502, 514-16 (2009). The BLM disagrees with the commenters' characterization of the legal standard for amending regulations. As stated above, the B......
  • Equal Participation of Faith-Based Organizations in the Federal Agencies' Programs and Activities
    • United States
    • Agency For International Development,Education Department,Justice Department,Labor Department
    • Invalid date
    ...the existing provision, Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2125-26 (2017); FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515 (2009), and clearly justifies the reversal. The commenter described a presumption against changes lacking support in the rulemaking record, Moto......
  • Security Bars and Processing
    • United States
    • Executive Office For Immigration Review
    • Invalid date
    ...743, 750 (2015), quoting Allentown Mack Sales & Service, Inc. v. NLRB, 522 U.S. 359 (1998). \123\ FCC v. Fox Television Stations, Inc., 556 U.S. 502, 513 \124\ Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971). \125\ Sacora, 628 F.3d at 1068. \126\ Id. at 1069. \127......
  • Request a trial to view additional results
4 cases
  • MV Transportation, Inc., (2019)
    • United States
    • September 10, 2019
    ...Fitters Local 669, supra, 600 F.2d at 921–923.62 Encino Motor Cars, supra, 136 S.Ct. at 2120, quoting FC C v. Fox Television Stations, 556 U.S. 502, 515 (2009). The majority touches on these interests only in deciding that the “contract coverage” standard should be retroactively applied—a s......
  • The Boeing Company, (2017)
    • United States
    • December 14, 2017
    ...v. NLRB, 525 U.S. 813 (1998); see also Communications Workers v. Beck, 487 U.S. 735 (1988). 24 FCC v. Fox Television Stations, Inc., 556 U.S. 502, 516 (2009).25 Motor Vehicle Manufacturers Assn. v. State Farm Mutual Auto-mobile Insurance Co., 463 U.S. 29, 43 THE BOEING COMPANY 35ted to do s......
  • Caesars Entertainment Corporation d/lb/a Rio All-Suites Hotel and Casino, (2018)
    • United States
    • August 1, 2018
    ...of “significant problems and intractable challenges” created by that decision. See generally FCC v. Fox Television Stations, Inc., 556 U.S. 502 (2009) (holding that an agency “need not demonstrate . . . that the reasons for the new policy are better than the reasons for the old one; it suff......
  • Caesars Entertainment Corporation d/b/a Rio All-Suites Hotel and Casino, (2019)
    • United States
    • December 16, 2019
    ...2017), quoting Manhattan Ctr. Studios, Inc. v. NLRB, 452 F.3d 813, 816 (D.C. Cir. 2006). See also FCC v. Fox Television Sta-tions, Inc., 556 U.S. 502, 515 (2009) (“[T]he requirement that an agen-cy provide a reasoned explanation for its action … demand[s] that it display awareness that it i......
42 firm's commentaries
  • Petition For Writ of Certiorari
    • United States
    • JD Supra United States
    • March 20, 2014
    ...Fox Television Stations, Inc., 132 S. Ct. 2307 (2012) .......................................... 21 FCC v. Fox Television Stations, Inc., 556 U.S. 502 (2009) .................................. 17, 19, 21 FCC v. League of Women Voters of Cal., 468 U.S. 364 (1984) ..................................
  • FCC, Fox, And That Other F-Word
    • United States
    • Mondaq United States
    • October 9, 2012
    ...Television Stations, Inc., 132 S. Ct. 2307 (2012) (No. 10-1293) (Jan. 10, 2012) ("Fox II Tr."). 4 FCC v. Fox Television Stations, Inc., 556 U.S. 502, 505–06 (2009) ("Fox I") (quoting 47 U.S.C. § 301 (2000 5 Public Telecommunications Act of 1992, §16(a), 106 Stat. 954, note following 47 U.S.......
  • FCC v Fox: The Supreme Court Finds Fleeting Indecency Standards Unconstitutionally Vague But Avoids First Amendment Issue
    • United States
    • Mondaq United States
    • June 27, 2012
    ...of sexual or excretory words fits with the content-based approach [approved] . . . in Pacifica." FCC v. Fox Televisions Stations, Inc., 556 U.S. 502, 517 (2009). Notably, the Court refused to reconsider the "less rigorous standard of [constitutional] scrutiny it provided for the regulation ......
  • Supreme Court Docket Report - June 27, 2011
    • United States
    • Mondaq United States
    • June 29, 2011
    ...Circuit for that court's determination whether the FCC's indecency standard was unconstitutional. FCC v. Fox Television Stations, Inc., 129 S. Ct. 1800 (2009). On remand, the Second Circuit found that it was, holding that the agency's contextual-indecency policy was not only unconstitutiona......
  • Request a trial to view additional results
127 books & journal articles
  • Constraining certiorari using administrative law principles.
    • United States
    • University of Pennsylvania Law Review Vol. 160 Nbr. 1, December 2011
    • December 1, 2011
    ...a Place for Politics in Arbitrary and Capricious Review, 119 YALE L.J. 2, 35-37 (2009); see also FCC v. Fox Television Stations, Inc., 129 S. Ct. 1800, 1815 (2009) ("[I]ndependent agencies are sheltered not from politics but from the President, and it has often been observed that their free......
  • The Claims of Official Reason: Administrative Guidance on Social Inclusion.
    • United States
    • Yale Law Journal Vol. 128 Nbr. 8, July 2019
    • July 1, 2019
    ...in Part IV, infra. (59.) Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2126 (2016) (quoting FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515 (2009)); see infra Part (60.) See, e.g., Encino Motorcars, 136 S. Ct. at 2126 ("In explaining its changed position, an agency must also be......
  • ADMINISTRATIVE DISSENTS.
    • United States
    • William and Mary Law Review Vol. 59 Nbr. 2, November 2017
    • November 1, 2017
    ...of two dissenting Commissioners and noting that they were "plainly correct"). (239.) See, e.g., FCC v. Fox Television Stations, Inc., 556 U.S. 502, 556 (2009) (Breyer, J., dissenting) (citing a dissenting Commissioner's reference to the case underlying the policy that the FCC abandoned in t......
  • Case summaries.
    • United States
    • Environmental Law Vol. 45 Nbr. 3, June 2015
    • June 22, 2015
    ...Vill. of Kake v. U.S. Dep't of Agile., 746 F.3d 970, 974 (9th Cir. 2014) (citing Fed. Commc'ns Comm'n v. Fox Television Stations, 556 U.S. 502, 515-16 (2009)). (134) Id. at 978 (quoting Fox Television Stations, 556 U.S. at 515) (alterations in original). (135) Fox Television Stations, 556 U......
  • Request a trial to view additional results
60 provisions
  • Independent Contractor Status Under the Fair Labor Standards Act
    • United States
    • Labor Department,Wage And Hour Division
    • Invalid date
    ...that ‘‘[n]othing prohibits Federal agencies from moving in an incremental manner’’ (quoting FCC v. Fox Television Stations, Inc., 556 U.S. 502, 522 (2009)); City of Las Vegas v. Lujan, 891 F.2d 927,935 (D.C. Cir. 1989) (noting that ‘‘agencies have great discretion to treat a problem partial......
  • The Safer Affordable Fuel-Efficient (SAFE) Vehicles Rule for Model Years 2021-2026 Passenger Cars and Light Trucks
    • United States
    • National Highway Traffic Safety Administration
    • Invalid date
    ...circumstances so warrant.\27\ --------------------------------------------------------------------------- \27\ See FCC v. Fox Television, 556 U.S. 502 The NPRM proposed to maintain the CAFE and CO2 standards applicable in MY 2020 for MYs 2021-2026, and took comment on a wide range of altern......
  • Transmission Planning and Cost Allocation by Transmission Owning and Operating Public Utilities
    • United States
    • Federal Register May 31, 2012
    • May 31, 2012
    ...Regs. 31,048, at P 30, 180-81(1997)). \891\ Sacramento Municipal Utility District at 3 (citing FCC v. Fox Television Stations, Inc., 129 S. Ct. 1800, 1811 (2009); Greater Boston Television Corp. v. FCC, 444 F.2d 841, 952 (D.C. Cir. 1970), cert. denied, 403 U.S. 923 759. Bonneville Power fur......
  • Definition of “Waters of the United States”-Recodification of Preexisting Rule
    • United States
    • Federal Register July 12, 2018
    • July 12, 2018
    ...on changes in circumstance, or changes in statutory interpretation or policy judgments. See, e.g., FCC v. Fox Television Stations, Inc., 556 U.S. 502, 514-15 (2009); Ctr. for Sci. in Pub. Interest v. Dep't of Treasury, 797 F.2d 995, 998-99 & n.1 (D.C. Cir. 1986). The agencies' interpret......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT