Fed. Commc'ns Comm'n v. Fox Television Stations, Inc.

Decision Date28 April 2009
Docket NumberNo. 07–582.,07–582.
CitationFed. Commc'ns Comm'n v. Fox Television Stations, Inc., 129 S.Ct. 1800, 173 L.Ed.2d 738, 556 U.S. 502, 77 USLW 4337 (2009)
PartiesFEDERAL COMMUNICATIONS COMMISSION, et al., Petitioners, v. FOX TELEVISION STATIONS, INC., et al.
CourtU.S. Supreme Court

OPINION TEXT STARTS HERE

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, seeFCC 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.

Justice SCALIA delivered the opinion of the Court, except as to Part III–E, concluding:

1.The FCC's orders are neither “arbitrary” nor “capricious” within the meaning 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 Farmto require a more substantial explanation for agency action that changes prior policy.There is, however, no basis in the Act or this Court's opinions for a requirement that all agency change be subjected to more searching review.Although an agency must ordinarily display awareness that it is changing position, seeUnited 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 new policy is a presumption of indecency for certain words.It reads more into Pacifica than is there by arguing that the FCC failed adequately to explain how this regulation is consistent with that case.And Fox's argument that the FCC's repeated appeal to “context” is a smokescreen for a standardless regime of unbridled 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.

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.

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 RespondentsNBC Universal, Inc. and NBC Telemundo License Company.

Jonathan H. Anschell, Los Angeles, CA, Susanna M. Lowy, New York, NY, Robert Corn-Revere, Davis Wright Tremaine LLP, Washington, D.C., for RespondentCBS Broadcasting Inc.

John W. Zucker, New York, NY, Seth P. Waxman, Wilmer Cutler Pickering Hale and Dorr LLP, Washington, D.C., for RespondentABC, 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 RespondentFox 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.

Justice SCALIAdelivered 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, seeFCC 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.

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, 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. § 303.1Congress 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...

Get this document and AI-powered insights with a free trial of vLex and Vincent AI

Get Started for Free

Start Your 3-day Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant

  • Access comprehensive legal content with no limitations across vLex's unparalleled global legal database

  • Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength

  • Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities

  • Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting

vLex

Start Your 3-day Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant

  • Access comprehensive legal content with no limitations across vLex's unparalleled global legal database

  • Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength

  • Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities

  • Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting

vLex

Start Your 3-day Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant

  • Access comprehensive legal content with no limitations across vLex's unparalleled global legal database

  • Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength

  • Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities

  • Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting

vLex

Start Your 3-day Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant

  • Access comprehensive legal content with no limitations across vLex's unparalleled global legal database

  • Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength

  • Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities

  • Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting

vLex

Start Your 3-day Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant

  • Access comprehensive legal content with no limitations across vLex's unparalleled global legal database

  • Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength

  • Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities

  • Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting

vLex

Start Your 3-day Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant

  • Access comprehensive legal content with no limitations across vLex's unparalleled global legal database

  • Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength

  • Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities

  • Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting

vLex
86 cases
  • Amalgamated Transit Union v. United States Dep't of Labor
    • United States
    • U.S. District Court — Eastern District of California
    • 28 Diciembre 2022
    ...S.Ct. 814. Rather, it must "uphold a decision of less than ideal clarity if the agency's path may reasonably be discerned." Fox, 556 U.S. at 513-14, 129 S.Ct. 1800 (quoting Bowman Transp. Inc. v. Arkansas-Best Freight Sys., Inc., 419 U.S. 281, 286, 95 S.Ct. 438, 42 L.Ed.2d 447 In addition, ......
  • United States v. Dávila-Reyes
    • United States
    • U.S. Court of Appeals — First Circuit
    • 5 Octubre 2023
    ...... '[w]e will not rewrite a law to conform it to constitutional requirements'" (first quoting FCC v. Fox Television Stations, Inc., 556 U.S. 502, 516, 129 S.Ct. 1800, 173 L.Ed.2d 738 (2009), and then quoting United States v. Stevens, 559 U.S. 460, 481, 130 S.Ct. 1577, 176 L.Ed.2d 435 (2010......
  • Florida v. United States
    • United States
    • U.S. District Court — Northern District of Florida
    • 8 Marzo 2023
    ...77 L.Ed.2d 443 (1983) (Rehnquist, C.J., concurring in part and dissenting in part); see also FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515, 129 S.Ct. 1800, 173 L.Ed.2d 738 (2009) (explaining that an agency "need not demonstrate to a court's satisfaction that the reasons for the ne......
  • Ohio v. Becerra
    • United States
    • U.S. Court of Appeals — Sixth Circuit
    • 30 Noviembre 2023
    ...between "initial agency action and subsequent agency action undoing or revising that action." FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515, 129 S.Ct. 1800, 173 L.Ed.2d 738 (2009). The Court made this point in Rust itself. Rust, 500 U.S. at 186, 111 S.Ct. 1759 ("This Court has rej......
  • Get Started for Free
4 firm's commentaries
  • Five Ways the Biden Administration Could Rescind or Reverse the Trump Administration’s Regulatory Actions
    • United States
    • JD Supra United States
    • 4 Diciembre 2020
    ...those rules in court and request stays until they could be amended or repealed. Courts retain discretion to 4FCC v. Fox TV Stations, Inc., 556 U.S. 502, 515 (2009). 5Id. 6 140 S. Ct. 1891, 1913 (2020). 7Id. 8 139 S. Ct. 2551, 2575 (2019). 9Id. at 2575-2576.5 FOLEYHOAG.COMFive Ways the Biden......
  • Climate Change Litigation on the Horizon with Trump Environmental Overhaul
    • United States
    • JD Supra United States
    • 22 Julio 2020
    ...the new administration will likely attempt to repeal or significantly revise the rule. Under FCC v. Fox Television Stations, Inc., 556 U.S. 502 (2009), “[an agency] need not demonstrate to a court’s satisfaction that the reasons for the new policy are better than the reasons for the old one......
  • Federal Court: NLRB Correct That Successor Employer Must Bargain With Existing Union Under Labor Law
    • United States
    • JD Supra United States
    • 27 Abril 2017
    ...be a consideration before entering into purchase or merger agreements. Philip Rosen Howard Bloom Steven Goodman FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515 [2009].) The Court held the Board’s decision in UGL did this. It pointed out that the UGL Board had examined the history of......
  • After A Decade, What Is Settled About Dodd-Frank?
    • United States
    • Mondaq United States
    • 27 Octubre 2020
    ...Cable & Telecommunications Assn. v. Brand X Internet Services, 545 U. S. 967, 981-982 (2005). 9 FCC v. Fox Television Stations, Inc., 556 U. S. 502, 515 10 Id. 11 Id. at 515-516 ("In such cases it is not that further justification is demanded by the mere fact of policy change; but that ......
19 books & journal articles
  • Regulated Industries
    • United States
    • ABA Antitrust Library Antitrust Law Developments (Ninth Edition) - Volume II
    • 2 Febrero 2022
    ...Order, supra note 211, at 8673. 216. See Qwest Corp., 689 F.3d at 1228-29. 217. Id. at 1231 (citing FCC v. Fox Television Stations, 556 U.S. 502, 513 (2009)). 218. Business Data Services in an Internet Protocol Environment, 32 FCC Rcd. 3459 (2017). 219. Id. at 3462. 220. Id. at 3499-3502. 2......
  • Shaping Immigration Policy Through Federal Courts
    • United States
    • Full Court Press AILA Law Journal No. 6-1, April 2024
    • Invalid date
    ...has left this question open. See Patel v. Garland, 142 S. Ct. 11614, 1626-27 (2022).13. See, e.g., FCC v. Fox Television Stations, Inc., 556 U.S. 502, 513 (2009).14. Franklin v. Massachusetts, 505 U.S. 788, 796 (1992).15. Michigan v. EPA, 576 U.S. 743, 750 (2015).16. 5 U.S.C. § 706(2)(A).17......
  • Honesty in Reason: How Department of Commerce v. New York Began to Tackle the Problem of Regulatory Dishonesty
    • United States
    • Georgetown Law Journal No. 110-3, March 2022
    • 1 Marzo 2022
    ...in the long run deter valuable experimentation.”); see also Brief for the Petitioners at 21–22, FCC v. Fox Television Stations, Inc., 556 U.S. 502 (2009) (No. 07-582), 2008 WL 2308909, at *21–22 (“[A]n agency also may alter its policy for the simple reason that, in its judgment, the ‘prior ......
  • Promoting 'Inclusive Communities': A Modified Approach to Disparate Impact Under the Fair Housing Act
    • United States
    • Louisiana Law Review No. 75-1, October 2014
    • 1 Octubre 2014
    ...evidence” standard. See generally id. 118. Ricci , 557 U.S. at 594 (Scalia, J., concurring). 119. F.C.C. v. Fox Television Stations, Inc., 556 U.S. 502, 516 (2009) (“The so-called canon of constitutional avoidance is an interpretive tool, counseling that ambiguous statutory language be cons......
  • Get Started for Free