FEDERAL COMMUNICATIONS COMMISSION et al. v. FOX TELEVISION STATIONS, INC., et al.

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502 OCTOBER TERM, 2008
Syllabus
FEDERAL COMMUNICATIONS COMMISSION et al. v.
FOX TELEVISION STATIONS, INC., et al.
certiorari to the united states court of appeals for
the second circuit
No. 07–582. Argued November 4, 2008—Decided April 28, 2009
Federal law bans the broadcasting of “any . . . indecent . . . language,” 18
U. S. C. § 1464, which includes references to sexual or excretory activity
or organs, see FCC v. Pacifica Foundation, 438 U. S. 726. 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 Adminis
trative 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. 513–522.
(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. Automo
bile Ins. Co., 463 U. S. 29, 43. 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

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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, and may sometimes need to account for prior factfinding
or certain reliance interests created by a prior policy, it need not demon
strate 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. 513–516.
(b) Under these standards, the FCC’s new policy and its order find
ing the broadcasts at issue actionably indecent were neither arbitrary
nor capricious. First, the FCC forthrightly acknowledged that its re
cent 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 ap
proach would likely lead to more widespread use, and in light of techno
logical 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 arbi
trarily punishing parties without notice of their actions’ potential conse
quences. Pp. 517–518.
(c) None of the Second Circuit’s grounds for finding the FCC’s ac
tion arbitrary and capricious is valid. First, the FCC did not need em
pirical 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 broad
casts 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 exple
tives would lead to their increased use merits deference and makes en
tire sense. Pp. 518–521.
(d) Fox’s additional arguments are not tenable grounds for affirm
ance. Fox misconstrues the agency’s orders when it argues that the

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Syllabus
new policy is a presumption of indecency for certain words. It reads
more into Pacifica than is there by arguing that the FCC failed ade
quately 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 ap
proach. Pp. 521–522.
2. Absent a lower court opinion on the matter, this Court declines to
address the FCC orders’ constitutionality. P. 529.
Scalia, J., announced the judgment of the Court and delivered the opin
ion 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,
post, p. 530. Kennedy, J., filed an opinion concurring in part and concur
ring in the judgment, post, p. 535. Stevens, J., post, p. 539, and Gins
burg, J., post, p. 544, filed dissenting opinions. Breyer, J., filed a dis
senting opinion, in which Stevens, Souter, and Ginsburg, JJ., joined,
post, p. 546.
Former Solicitor General Garre argued the cause for peti
tioners. With him on the briefs were former Solicitor Gen
eral Clement, Assistant Attorney General Katsas, Eric D.
Miller, Thomas M. Bondy, Anne Murphy, Matthew B.
Berry, Joseph R. Palmore, Jacob M. Lewis, and Nandan M.
Joshi.
Carter G. Phillips argued the cause for respondents.
With him on the brief for respondent Fox Television Sta
tions, Inc., were R. Clark Wadlow, Jennifer Tatel, David S.
Petron, and Quin M. Sorenson. Miguel A. Estrada, An
drew S. Tulumello, Matthew D. McGill, Richard Cotton,
Susan Weiner, Robert Corn-Revere, Jonathan H. Anschell,
Susanna M. Lowy, and Seth P. Waxman filed a brief for
respondent NBC Universal, Inc., et al. Andrew Jay
Schwartzman and Parul Desai filed a brief for respondent
Center for Creative Voices in Media, Inc.*
*Briefs of amici curiae urging reversal were filed for the Alliance De
fense Fund et al. by Benjamin W. Bull and Glen Lavy; for the American
Center for Law and Justice et al. by Jay Alan Sekulow, Stuart J. Roth,

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Opinion of the Court
Justice Scalia delivered the opinion of the Court, except
as to Part III–E.
Federal law prohibits the broadcasting of “any . . . inde
cent . . . language,” 18 U. S. C. § 1464, which includes exple
tives 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 Com
mission’s explanation of its decision that this sometimes for
bids 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
Colby M. May, John Tuskey, and Shannon D. Woodruff; for the Center
for Constitutional Jurisprudence by John C. Eastman, David L. Llewel
lyn, Jr., and Edwin Meese III; for the Decency Enforcement Center for
Television by Thomas B. North; for Morality in Media, Inc., by Robin S.
Whitehead; for National Religious Broadcasters by Craig L. Parshall, Jo
seph C. Chautin III, Elise M. Stubbe, and Mark A. Balkin; and for the
Parents Television Council by Robert R. Sparks, Jr.
Briefs of amici curiae urging affirmance were filed for the ABC Televi
sion Affiliates Association by Wade H. Hargrove, Mark J. Prak, and David
Kushner; for the American Civil Liberties Union et al. by Marjorie Heins,
Steven R. Shapiro, and Christopher A. Hansen; for the California Broad
casters Association et al. by Kathleen M. Sullivan and Gregg P. Skall; for
the Center for Democracy & Technology et al. by John B. Morris, Jr., and
Sophia S. Cope; for Former FCC Commissioners and Officials by Timothy
K. Lewis, Carl A. Solano, and Nancy Winkelman, and by Henry Geller,
Newton N. Minow, and Glen O. Robinson, all pro se; for the National
Association of Broadcasters et al. by Paul M. Smith, Marsha J. MacBride,
Jane E. Mago, and Jerianne Timmerman; for Public Broadcasters by
Robert A. Long, Jr., Jonathan D. Blake, and Jonathan L. Marcus; for
Time Warner Inc. by Christopher Landau; and for the Thomas Jefferson
Center for the Protection of Free Expression et al. by Robert M. O’Neil
and J. Joshua Wheeler.
Briefs of amici curiae were filed for the American Academy of Pediat
rics et al. by Angela J. Campbell, James N. Horwood, and Tillman L. Lay;
and for Free Press et al. by Marvin Ammori.

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limited-term broadcast licenses subject to various “condi
tions” designed “to maintain the control of the United States
over all the channels of radio transmission,” § 301 (2000 ed.).
Almost 28 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 ob
scene, indecent, or profane language by means of radio com
munication,” 18 U. S. C. § 1464—which Congress has in
structed 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 Con
gress 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 inde
cent broadcasts in 1975, declaring a daytime broadcast of
George Carlin’s “Filthy Words” monologue actionably inde
cent. In re Citizen’s Complaint Against Pacifica Founda
tion Station WBAI (FM), 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,
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 inde
cent 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 be
tween the hours of 10:00 p.m. and midnight.” Action for Children’s Tele
vision v. FCC, 58 F. 3d 654, 669 (1995) (en banc), cert. denied, 516 U. S.
1043 (1996).

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in terms patently offensive as measured by contemporary
community standards for the broadcast medium, sexual or
excretory activities and organs, at times of the day when
there is a reasonable risk that children may be in the audi
ence.” 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 acces
sible 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 Pa
cifica, 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 repudi
ated the view that its enforcement power was limited to
“deliberate, repetitive use of the seven words actually con
tained 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 en
forcement standard . . . was unduly narrow as a matter of
law and inconsistent with [the Commission’s] enforcement re
sponsibilities under Section 1464.” In re Infinity Broad
casting Corp. of Pa., 3 FCC Rcd. 930, ¶ 5 (1987). The Court
of Appeals for the District of Columbia Circuit upheld this

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expanded enforcement standard against constitutional and
Administrative Procedure Act challenge. See Action for
Children’s Television v. FCC, 852 F. 2d 1332 (1988) (R. Gins
burg, J.), superseded in part by Action for Children’s Televi
sion 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 “ex
pletive”) uses of evocative language. In re Pacifica Foun
dation, 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 deter
mine 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 ex
pletives. Ibid.
Over a decade later, the Commission emphasized that the
“full context” in which particular materials appear is “criti
cally 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 re
peats” the offensive material, and the extent to which the
material was presented to “pander,” to “titillate,” or to
“shock.” In re Industry Guidance on Commission’s Case
Law Interpreting 18 U. S. C. § 1464 and Enforcement Poli
cies 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 declar
ing 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

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with an NBC broadcast of the Golden Globe Awards, in
which the performer Bono commented, “ ‘[T]his is really,
really, f ***ing brilliant.’ ” In re Complaints Against Vari
ous Broadcast Licensees Regarding Their Airing of “Golden
Globe Awards” Program, 19 FCC Rcd. 4975, 4976, n. 4 (2004)
(Golden Globes Order). Although the Commission had re
ceived numerous complaints directed at the broadcast, its en
forcement 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 Com
mission 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 descrip
tor. “[G]iven the core meaning of the ‘F-Word,’ ” it said,
“any use of that word . . . inherently has a sexual conno
tation.” Id., at 4978, ¶ 8. The Commission determined,
moreover, that the broadcast was “patently offensive” be
cause the F-Word “is one of the most vulgar, graphic and
explicit descriptions of sexual activity in the English lan
guage,” 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 chil
dren 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 gratu
itous 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 [has] indicated that isolated or fleeting broadcasts of
the ‘F-Word’ . . . are not indecent or would not be acted

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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 de
termined 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. Follow
ing each of these broadcasts, the Commission received nu
merous complaints from parents whose children were ex
posed 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 Feb. 2, 2002 and Mar. 8, 2005,
21 FCC Rcd. 2664 (2006). Multiple parties petitioned the
Court of Appeals for the Second Circuit for judicial review of

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the order, asserting a variety of constitutional and statutory
challenges. Since the order had declined to impose sanc
tions, the Commission had not previously given the broad
casters an opportunity to respond to the indecency charges.
It therefore requested and obtained from the Court of Ap
peals 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 broad
casts described above. See In re Complaints Regarding
Various Television Broadcasts Between Feb. 2, 2002, and
Mar. 8, 2005, 21 FCC Rcd. 13299 (2006) (Remand Order).
The order first explained that both broadcasts fell comfort
ably within the subject-matter scope of the Commission’s in
decency 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, in
volved 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 descrip
tion of the handling of excrement” to be “vulgar and shock
ing,” 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, not
ing 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,

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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 de
scription 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 inde
cent expletives rested only upon staff rulings and Commis
sion 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 action
ably indecent, 21 FCC Rcd., at 13308, ¶ 23, 13325, ¶ 61, and
the Commission disavowed the bureau-level decisions and its
own dicta that had said otherwise, id., at 13306–13307, ¶¶ 20,
21. Under the new policy, a lack of repetition “weigh[s]
against a finding of indecency,” id., at 13325, ¶ 61, but is not
a safe harbor.
The order explained that the Commission’s prior “strict
dichotomy between ‘expletives’ and ‘descriptions or depic
tions of sexual or excretory functions’ is artificial and does
not make sense in light of the fact that an ‘expletive’s’ power
to offend derives from its sexual or excretory meaning.”
Id., at 13308, ¶ 23. In the Commission’s view, “granting an
automatic exemption for ‘isolated or fleeting’ expletives un
fairly 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

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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 for
feiture or other sanction for either of the broadcasts, id., at
13321, ¶ 53, 13326, ¶ 66.
Fox returned to the Second Circuit for review of the Re
mand 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 inad
equate under the Administrative Procedure Act. 489 F. 3d
444. The majority was “skeptical that the Commission
[could] provide a reasoned explanation for its ‘fleeting exple
tive’ 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. 1255 (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 Ver
mont Yankee Nuclear Power Corp. v. Natural Resources De
fense 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

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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 Admin
istrative 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 dis
positive’ ” as well as “ ‘why the new rule effectuates the stat
ute as well as or better than the old rule.’ ” 489 F. 3d, at
456–457 (quoting New York Council, Assn. of Civilian Tech
nicians 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 re
view 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 represent
ing a policy change must be justified by reasons more sub
stantial than those required to adopt a policy in the first in
stance. 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).2 Treating failures to act and
2 Justice Breyer’s contention that State Farm did anything more,
post, at 549–552 (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 explana
tion for a change, “so that the reviewing court may understand the basis

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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 sub
sequent agency action undoing or revising that action.
To be sure, the requirement that an agency provide rea
soned 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 pol
icy is permissible under the statute, that there are good rea
sons 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 de
tailed justification than what would suffice for a new policy
created on a blank slate. Sometimes it must—when, for ex
ample, its new policy rests upon factual findings that contra
dict 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
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 author
ity 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.

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516 FCC v. FOX TELEVISION STATIONS, INC.
Opinion of the Court
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 broad
casters’ 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 invita
tion. The so-called canon of constitutional avoidance is an
interpretive tool, counseling that ambiguous statutory lan
guage be construed to avoid serious constitutional doubts.
See Edward J. DeBartolo Corp. v. Florida Gulf Coast Build
ing & 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 authoriz
ing courts to set aside “arbitrary [or] capricious” agency ac
tion, 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 Proce
dure Act’s “arbitrary [or] capricious” standard; its lawfulness
under the Constitution is a separate question to be addressed
in a constitutional challenge.3
3 Justice Breyer claims that “[t]he Court has often applied [the doc
trine of constitutional avoidance] where an agency’s regulation relies on a
plausible but constitutionally suspect interpretation of a statute.” Post,
at 566. The cases he cites, however, set aside an agency regulation be
cause, applying the doctrine of constitutional avoidance to the ambiguous
statute under which the agency acted, the Court found the agency’s inter
pretation 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

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Opinion of the Court
B. Application to This Case
Judged under the above described standards, the Commis
sion’s new enforcement policy and its order finding the
broadcasts actionably indecent were neither arbitrary nor
capricious. First, the Commission forthrightly acknowl
edged that its recent actions have broken new ground, taking
account of inconsistent “prior Commission and staff action”
and explicitly disavowing them as “no longer good law.”
Golden Globes Order, 19 FCC Rcd., at 4980, ¶ 12. To be
sure, the (superfluous) explanation in its Remand Order of
why the Cher broadcast would even have violated its earlier
policy may not be entirely convincing. But that unneces
sary detour is irrelevant. There is no doubt that the Com
mission knew it was making a change. That is why it de
clined 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 in
decent. 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
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 566. 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.

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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 harm
ful “ ‘first blow[s]’ ” to children, id., at 13309, ¶ 25. It is
surely rational (if not inescapable) to believe that a safe har
bor for single words would “likely lead to more widespread
use of the offensive language,” Golden Globes Order, supra,
at 4979, ¶ 9.
When confronting other requests for per se rules govern
ing its enforcement of the indecency prohibition, the Com
mission 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 Com
mission’s enforcement power was limited to “deliberate, re
petitive 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 ap
proach 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 pol
icy.” Remand Order, supra, at 13308, ¶ 23.
The fact that technological advances have made it easier
for broadcasters to bleep out offending words further sup
ports 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 pre
cludes 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 ar
bitrary 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

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blow[s].’ ” 489 F. 3d, at 458. In the majority’s view, with
out “evidence that suggests a fleeting expletive is harmful
[and] . . . serious enough to warrant government 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 Com
mission, but Congress that has proscribed “any . . . inde
cent . . . language.” 18 U. S. C. § 1464.
There are some propositions for which scant empirical evi
dence 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 inten
tionally exposed to indecent broadcasts (and insulated from
all other indecency), and others are shielded from all inde
cency. 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 chil
dren who use (at least) one-word indecent expletives. Con
gress 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 none
theless 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 Constitu

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520 FCC v. FOX TELEVISION STATIONS, INC.
Opinion of the Court
tion 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 re
quirement 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 re
view—the decision to include patently offensive fleeting
expletives within the definition of indecency. The Commis
sion’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 con
sider 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 under
stand and young enough to be adversely affected.” Pa
cifica, supra, at 750, n. 29. The same rationale could sup
port 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 Com
mission’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 ABC Television Network’s

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Opinion of the Court
Presentation of 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 capri
cious 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 mil
lions of children.
Finally, the Court of Appeals found unconvincing the
agency’s prediction (without any evidence) that a per se ex
emption 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 de
sired 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 cor
rect 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 pol
icy 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 acknowl
edge its change in enforcement policy. That contention is
not tenable in light of the Golden Globes Order’s specific dec
laration 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,

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Opinion of the Court
contending that the old policy was not actually a per se rule
against liability for isolated expletives and that the new pol
icy 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 exple
tives to be indecent”). And we find no basis for the conten
tion 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 Com
mission 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 ex
plicitly left for another day whether “an occasional expletive”
in “a telecast of an Elizabethan comedy” could be prohibited.
438 U. S., at 748–750. By using the narrowness of Pacifica’s
holding to require empirical evidence of harm before the
Commission regulates more broadly, the broadcasters at
tempt to turn the sword of Pacifica, which allowed some
regulation of broadcast indecency, into an administrative-law
shield preventing any regulation beyond what Pacifica sanc
tioned. Nothing prohibits federal agencies from moving in
an incremental manner. Cf. National Cable & Telecommu
nications Assn. v. Brand X Internet Services, 545 U. S. 967,
1002 (2005).
Finally, the broadcasters claim that the Commission’s re
peated appeal to “context” is simply a smokescreen for a
standardless regime of unbridled discretion. But we have
previously approved Commission regulation based “on a nui
sance rationale under which context is all-important,” Pa
cifica, supra, at 750, and we find no basis in the Administra
tive Procedure Act for mandating anything different.

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Opinion of Scalia, J.
E. The Dissents’ Arguments
Justice Breyer purports to “begin with applicable law,”
post, at 547, 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.” Ibid. Not so. The in
dependent agencies are sheltered not from politics but from
the President, and it has often been observed that their free
dom from Presidential oversight (and protection) has simply
been replaced by increased subservience to congressional di
rection. 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.4
4 A Subcommittee of the FCC’s House Oversight Committee held hear
ings on the FCC’s broadcast indecency enforcement on January 28, 2004.
“Can You Say That on TV?”: An Examination of the FCC’s Enforcement
with Respect to Broadcast Indecency, Hearing before the Subcommittee
on Telecommunications and the Internet of the House Committee on En
ergy and Commerce, 108th Cong., 2d Sess. Members of the Subcommit
tee 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 TV broadcasters are engaged in a race to the
bottom, pushing the decency envelope in order 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 (state
ment 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

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Opinion of Scalia, J.
Justice Stevens apparently recognizes this political con
trol 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 540 (dissenting opinion). He none
theless argues that this is a good reason for requiring the
FCC to explain “why its prior policy is no longer sound be
fore allowing it to change course.” Post, at 541. 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 Ste
vens’ conclusion does not follow from his premise. If the
FCC is indeed an agent of Congress, it would seem an ade
quate explanation of its change of position that Congress
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. Hear
ings 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 only 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.

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made clear its wishes for stricter enforcement, see n. 4,
supra.5 The Administrative Procedure Act, after all, does
not apply to Congress and its agencies.6
Regardless, it is assuredly not “applicable law” that rule
making 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 review
ing 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 imag
ine any closer scrutiny than that we have given to the Envi
ronmental 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
5 Justice Stevens accuses us of equating statements made in a con
gressional hearing with the intent of Congress. Post, at 541–542, 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 stat
utes, 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 appropria
tions with respect to the relevant agency. That is a major reason why
committee assignments are important, and committee chairmanships pow
erful. Surely Justice Stevens knows this.
6 The Administrative Procedure Act defines “agency” to mean “each au
thority 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).

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Branch, see Freytag v. Commissioner, 501 U. S. 868, 921
(1991) (Scalia, J., concurring in part and concurring in judg
ment), 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 553–556 (opinion of Breyer, J.);
post, at 542–546 (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 ‘cen
sorship,’ ” post, at 553. 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 re
gime (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 556. 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 ex
pressly declined to express any view on the constitutionality
of prohibiting isolated indecency. Justice Breyer and
Justice Stevens evidently believe that when an agency has

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obtained this Court’s determination that a less restrictive
rule is constitutional, its successors acquire some special bur
den to explain why a more restrictive rule is not unconstitu
tional. We know of no such principle.7
Second, Justice Breyer looks over the vast field of par
ticular 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 technol
ogy that enables the screening of live broadcasts for indecent
utterances. Cf. post, at 556–561. 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
7 Justice Stevens criticizes us for “assuming that Pacifica endorsed”
the enforcement at issue here. Post, at 542. 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 517–518, but that
goes to our holding on administrative law, and says nothing about consti
tutionality. 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 541.
We do not believe that the dead hand of a departed congressional oversight
Committee should constrain the discretion that the text of a statute con
fers—but the point is in any event irrelevant in this appeal, which con
cerns not whether the agency has exceeded its statutory mandate but
whether the reasons for its actions are adequate.

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528 FCC v. FOX TELEVISION STATIONS, INC.
Opinion of Scalia, J.
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 gloomy scenario is its demon
strably false assumption that the Remand Order makes no
provision for the avoidance of unfairness—that the single
utterance prohibition will be invoked uniformly, in all situa
tions. 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.8 And Justice
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 562. Even assuming the premise,

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Opinion of the Court
Breyer can safely defer his concern for those yeomen of the
airwaves until we have before us a case that involves one.
IV. Constitutionality
The Second Circuit did not definitively rule on the con
stitutionality of the Commission’s orders, but respondents
nonetheless ask us to decide their validity under the First
Amendment. This Court, however, is one of final review,
“not of first view.” Cutter v. Wilkinson, 544 U. S. 709, 718,
n. 7 (2005). It is conceivable that the Commission’s orders
may cause some broadcasters to avoid certain language that
is beyond the Commission’s reach under the 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 Ste
vens, J.). We see no reason to abandon our usual proce
dures 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 1970s when the Commission first began sanc
tioning indecent speech,” and that this cuts against more
stringent regulation of broadcasts. 489 F. 3d, at 461. As
suming 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 con
clude that the pervasiveness of foul language, and the coars
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 Nuclear
Power Corp. v. Natural Resources Defense Council, Inc., 435 U. S. 519,
545–549 (1978).

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530 FCC v. FOX TELEVISION STATIONS, INC.
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ening 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.
Justice Thomas, concurring.
I join the Court’s opinion, which, as a matter of administra
tive law, correctly upholds the Federal Communications
Commission’s (FCC) policy with respect to indecent broad
cast speech under the Administrative Procedure Act.
I write separately, however, to note the questionable viabil
ity 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, broad
cast, 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 doc
trine,” 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

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531 Cite as: 556 U. S. 502 (2009)
Thomas, J., concurring
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 regu
lated and rationalized only by the Government. Without
government control, the medium would be of little use be
cause 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”). Apply
ing 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 particu
lar program,” id., at 396. But then in Pacifica, this Court
rejected a challenge to the FCC’s authority to impose sanc
tions 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 constitu

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532 FCC v. FOX TELEVISION STATIONS, INC.
Thomas, J., concurring
tional 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. 570, 634– 635 (2008). In
breaching this principle, Red Lion adopted, and Pacifica re
affirmed, a legal rule that lacks any textual basis in the Con
stitution. Denver Area, supra, at 813 (Thomas, J., concur
ring 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 broad
casting in a way that would be intolerable if applied to the
editorial process of the print media.” Telecommunications
Research & Action Center v. FCC, 801 F. 2d 501, 508 (CADC
1986) (Bork, J.).
Highlighting the doctrinal incoherence of Red Lion and
Pacifica, the Court has declined to apply the lesser 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 Broadcast
ing 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., dissent
ing). The justifications relied on by the Court in Red Lion

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Thomas, J., concurring
and Pacifica—“spectrum scarcity, intrusiveness, and accessi
bility to children—neither distinguish broadcast from cable,
nor explain the relaxed application of the principles of the
First Amendment to broadcast.” 58 F. 3d, at 673; see also
In re Industry Guidance on Commission’s Case Law Inter
preting 18 U. S. C. § 1464 and Enforcement Policies Regard
ing 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 pro
tection, see Reno [v. American Civil Liberties Union, 521
U. S. 844 (1997)], than would the same exact content broad
cast over-the-air”).
Second, even if this Court’s disfavored treatment of broad
casters under the First Amendment could have been justified
at the time of Red Lion and Pacifica, dramatic technological
advances have eviscerated the factual assumptions underly
ing those decisions. Broadcast spectrum is significantly less
scarce than it was 40 years ago. See Brief for Respondent
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 37–38; see also FCC
Media Bureau Staff Research Paper, J. Berresford, The Scar
city 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 sig
nificantly less than the 400 MHz of spectrum the analog sys
tem 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 program

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534 FCC v. FOX TELEVISION STATIONS, INC.
Thomas, J., concurring
ming is now bundled with cable or satellite services. See
App. to Pet. for Cert. 106a–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 Com
missioner 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 com
munications 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 prevail
ing 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 differ
ently, 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
*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 televi
sion 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).

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Opinion of Kennedy, J.
cases involving constitutional issues” that turn on a particu
lar 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 ascer
tained.” 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.
Justice Kennedy, concurring in part and concurring in
the judgment.
I join Parts I, II, III–A through III–D, and IV of the opin
ion of the Court and agree that the judgment must be re
versed. This separate writing is to underscore certain
background principles for the conclusion that an agency’s de
cision to change course may be arbitrary and capricious if
the agency sets a new course that reverses an earlier deter
mination but does not provide a reasoned explanation for
doing so. In those circumstances I agree with the dissent
ing 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 550.
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 ear
lier 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 dif
ficult now as when the agency’s earlier policy was first an

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536 FCC v. FOX TELEVISION STATIONS, INC.
Opinion of Kennedy, J.
nounced. 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 dis
cretion, 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 es
capes simple explanation.
If agencies were permitted unbridled discretion, their ac
tions might violate important constitutional principles of
separation of powers and checks and balances. To that end
the Constitution requires that Congress’ delegation of law
making power to an agency must be “specific and detailed.”
Mistretta v. United States, 488 U. S. 361, 374 (1989). Con
gress 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.

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537 Cite as: 556 U. S. 502 (2009)
Opinion of Kennedy, J.
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 exer
cise their powers. One of these constraints is the duty of
agencies to find and formulate policies that can be justi
fied by neutral principles and a reasoned explanation. To
achieve that end, Congress confined agencies’ discretion and
subjected their decisions to judicial review. See Stewart &
Sunstein, Public Programs and Private Rights, 95 Harv.
L. Rev. 1193, 1248 (1982) (the APA was a “working compro
mise, in which broad delegations of discretion were tolerated
as long as they were checked by extensive procedural safe
guards”). 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 care
ful” 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 inconve
nient 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 seat

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538 FCC v. FOX TELEVISION STATIONS, INC.
Opinion of Kennedy, J.
belts. 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, how
ever, the agency reversed course and rescinded the regula
tion. 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 rescis
sion 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 knowl
edge of the broadcast industry and its audience, the FCC
instead based its policy on what it considered to be our hold
ing 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 an
nounces for this change are not so precise, detailed, or elabo
rate 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 conclu
sion 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

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Stevens, J., dissenting
Court of Appeals we must reserve judgment on the question
whether the agency’s action is consistent with the guaran
tees of the Constitution.
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 514–515.
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. § 1464,1 per
mits the FCC to punish the broadcast of any expletive that
has a sexual or excretory origin. Pacifica was not so sweep
ing, and the Commission’s changed view of its statutory man
date 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
1 Section 1464 provides: “Whoever utters any obscene, indecent, or pro
fane language by means of radio communication shall be fined under this
title or imprisoned not more than two years, or both.”

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540 FCC v. FOX TELEVISION STATIONS, INC.
Stevens, J., dissenting
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 land
mark decision involving the Federal Trade Commission
(FTC) made clear, however, when Congress grants rule
making and adjudicative authority to an expert agency com
posed of commissioners selected through a bipartisan proce
dure and appointed for fixed terms, it substantially insulates
the agency from executive control. See Humphrey’s Execu
tor 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 con
curring 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 es
tablished “to carry into effect legislative policies embodied
in the statute in accordance with the legislative standard
therein prescribed, and to perform other specified duties as
a legislative . . . aid.” Humphrey’s Executor, 295 U. S., at
628.2
2 Justice Scalia erroneously concludes that treating the FCC’s rule
making authority as an exercise of legislative power would somehow be
unconstitutional. See ante, at 524 (citing Bowsher v. Synar, 478 U. S. 714,

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Stevens, J., dissenting
The FCC, like all agencies, may revise its regulations from
time to time, just as Congress amends its statutes as circum
stances warrant. But the FCC is constrained by its con
gressional mandate. There should be a strong presumption
that the FCC’s initial views, reflecting the informed judg
ment 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 556–561. The FCC’s shifting and impermissibly
vague indecency policy only imperils these broadcasters and
muddles the regulatory landscape. It therefore makes emi
nent sense to require the Commission to justify why its prior
policy is no longer sound before allowing it to change course.3
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 526, 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 au
thority to others.” Whitman v. American Trucking Assns., Inc., 531
U. S. 457, 489 (2001) (Stevens, J., concurring in part and concurring in
judgment).
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 523–524, n. 4. Delv
ing into the details of how various lawmakers “grilled” the full slate of
FCC Commissioners, Justice Scalia concludes, quite remarkably, that
this encounter “made clear [Congress’] wishes for stricter enforcement”
and “would seem an adequate explanation of [the FCC’s] change of posi

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542 FCC v. FOX TELEVISION STATIONS, INC.
Stevens, J., dissenting
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 opin
ion 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 “in
decent” 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
tion.” Ante, at 524–525. Putting to the side the question whether con
gressional outrage is the kind of evidence sufficient to explain the Commis
sion’s decision to adopt a thinly reasoned and unconstitutional policy,
Justice Scalia’s treatment of these proceedings as evidencing the intent
of Congress would make even the most ardent student of legislative his
tory blush.

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Stevens, J., dissenting
patently offensive manner is a requisite to a finding of inde
cency.” 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 offen
sive 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 de
scribes sex or excrement. See In re Complaints Regarding
Various Television Broadcasts Between Feb. 2, 2002 and
Mar. 8, 2005, 21 FCC Rcd. 13299, 13308, ¶ 23 (2006) (Remand
Order) (“[A]ny strict dichotomy between expletives and de
scriptions 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 excre
tory meaning” (internal quotation marks omitted)). The
customs of speech refute this claim: There is a critical dis
tinction between the use of an expletive to describe a sexual
or excretory function and the use of such a word for an en
tirely 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 ap
proach to indecency.4 See In re Complaints Against Vari
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, com
mercials broadcast during prime-time hours frequently ask viewers
whether they too are battling erectile dysfunction or are having trouble
going to the bathroom.

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544 FCC v. FOX TELEVISION STATIONS, INC.
Ginsburg, J., dissenting
ous 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 exple
tive to emphasize happiness “invariably invokes a coarse sex
ual image”).
Even if the words that concern the Court in this case
sometimes retain their sexual or excretory meaning, there
are surely countless instances in which they are used in a
manner unrelated to their origin. These words may not be
polite, but that does not mean they are necessarily “inde
cent” under § 1464. By improperly equating the two, the
Commission has adopted an interpretation of “indecency”
that bears no resemblance to what Pacifica contemplated.5
Most distressingly, the Commission appears to be entirely
unaware of this fact, see Remand Order, 21 FCC Rcd., at
13308 (erroneously referencing Pacifica in support of its new
policy), and today’s majority seems untroubled by this sig
nificant oversight, see ante, at 508–510, 517–518. 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.
Justice Ginsburg, dissenting.
The mainspring of this case is a Government restriction
on spoken words. This appeal, I recognize, arises under the
5 While Justice Thomas and I disagree about the continued wisdom of
Pacifica, see ante, p. 530 (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.

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Administrative Procedure Act (APA or Act).* Justice
Breyer’s dissenting opinion, which I join, cogently de
scribes the infirmities of the Federal Communications Com
mission’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, exempli
fied “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 Commis
sion 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 come
dian 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 contempo
rary 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 narrow
ness of [its] holding.” Pacifica, 438 U. S., at 750. See also
ante, at 539 (Stevens, J., dissenting). In this regard, the
majority stressed that the Carlin monologue deliberately re
peated the dirty words “over and over again.” 438 U. S., at
729, 751–755 (appendix). Justice Powell, concurring, de
scribed Carlin’s speech as “verbal shock treatment.” Id., at
757 (concurring in part and concurring in judgment).
*The Second Circuit, presented with both constitutional and statutory
challenges, vacated the remand order on APA grounds. The court there
fore “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 ex
plained why it was “skeptical” that the Commission’s policy could “pass
constitutional muster.” 489 F. 3d, at 462.

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546 FCC v. FOX TELEVISION STATIONS, INC.
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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 de
scribe sexual or excretory activities or organs. Spontane
ous 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 can
not 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 mes
sage sought to be communicated.”); Denver Area Ed. Tele
communications Consortium, Inc. v. FCC, 518 U. S. 727, 805
(1996) (Kennedy, J., concurring in part, concurring in judg
ment 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 reassess
ment, see ante, at 535 (Thomas, J., concurring), was tightly
cabined, and for good reason. In dissent, Justice Brennan
observed that the Government should take care before en
joining 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 529 (majority opinion), we should be
mindful that words unpalatable to some may be “common
place” for others, “the stuff of everyday conversations,” 438
U. S., at 776 (Brennan, J., dissenting).
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 pol

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Breyer, J., dissenting
icy from a policy permitting a single “fleeting use” of an ex
pletive, to a policy that made no such exception. Its expla
nation fails to discuss two critical factors, at least one of
which directly underlay its original policy decision. Its ex
planation instead discussed several factors well known to it
the first time around, which by themselves provide no sig
nificant justification for a change of policy. Consequently,
the FCC decision is “arbitrary, capricious, an abuse of discre
tion.” 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 author
ity 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 over
sight.’ ” 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 ob
jectives, such as the constitutionally related objective of
maintaining broadcast regulation that does not bend too
readily before the political winds. But that agency’s com
parative freedom from ballot-box control makes it all the
more important that courts review its decisionmaking to as
sure compliance with applicable provisions of the law—in
cluding law requiring that major policy decisions be based
upon articulable reasons.

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548 FCC v. FOX TELEVISION STATIONS, INC.
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The statutory provision applicable here is the Adminis
trative Procedure Act’s (APA) prohibition of agency action
that is “arbitrary, capricious, [or] an abuse of discretion,” 5
U. S. C. § 706(2)(A). This legal requirement helps assure
agency decisionmaking based upon more than the personal
preferences of the decisionmakers. Courts have applied the
provision sparingly, granting agencies broad policymaking
leeway. But they have also made clear that agency discre
tion 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 accord
ing “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 partic
ular 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 Burling
ton 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 pol
icy choice was “arbitrary,” a reviewing court “must consider
whether the decision was based on a consideration of the

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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 rea
sons 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 ex
plaining 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 explana
tion for an initial choice, that explanation is not at all ra
tional 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 common
sense 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 nec
essary when it does not act in the first instance. The Court
defined “revocation,” not simply as rescinding an earlier pol
icy, cf. ante, at 514–515, 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

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550 FCC v. FOX TELEVISION STATIONS, INC.
Breyer, J., dissenting
opinion joined by Scalia, Kennedy, and Thomas, JJ.) (not
ing 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., dissent
ing) (similar).
At the same time, the Court described the need for expla
nation 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 514–515. It said
that the law required an explanation for such a change be
cause 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 “height
ened standard” of review. Ante, at 514 (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 consid
erations differently.” But at other times, an agency can and
should say more. Where, for example, the agency rested its

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previous policy on particular factual findings, see ante, at
537–538 (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 553–556; or where
an agency rested its previous policy on, say, a special need
to coordinate with another agency, one would normally ex
pect the agency to focus upon those earlier views of fact, of
law, or of policy and explain why they are no longer control
ling. 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 515 (majority opinion). It is only to
recognize the obvious fact that change is sometimes (not al
ways) a relevant background feature that sometimes (not al
ways) requires focus (upon prior justifications) and explana
tion lest the adoption of the new policy (in that circumstance)
be “arbitrary, capricious, an abuse of discretion.”
That is certainly how courts of appeals, the courts that
review agency decisions, have always treated the matter in
practice. See, e. g., Pennsylvania Federation of Sports
men’s Clubs, Inc. v. Kempthorne, 497 F. 3d 337, 351 (CA3
2007); Yale-New Haven Hosp. v. Leavitt, 470 F. 3d 71, 79
(CA2 2006); Citizens Awareness Network, Inc. v. United
States, 391 F. 3d 338, 352 (CA1 2004). But see NAACP v.
FCC, 682 F. 2d 993, 998 (CADC 1982) (using word “height
ened”). The majority’s holding could in this respect signifi
cantly change judicial review in practice, and not in a healthy
direction. But see ante, at 535–539 (Kennedy, J., concur
ring in part and concurring in judgment). After all, if it is
always legally sufficient for the agency to reply to the ques
tion “why change?” with the answer “we prefer the new pol
icy” (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 as
pect of an agency decision from “arbitrary, capricious” re

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552 FCC v. FOX TELEVISION STATIONS, INC.
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view? 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 re
view, the Court in State Farm recognized that the APA’s
“nonarbitrary” requirement affords agencies generous lee
way when they set policy. 463 U. S., at 42. But it also rec
ognized that this leeway is not absolute. The Court de
scribed its boundaries by then listing considerations that
help determine whether an explanation is adequate. Mir
roring 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 evi
dence 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 trans
mit a single, fleeting use of an expletive to (2) a new policy
that would threaten broadcasters with large fines for trans
mitting 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 548–551 and
this page. The decision, in my view, does not satisfy those
standards.

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Consider the requirement that an agency at least mini
mally “consider . . . important aspect[s] of the problem.”
State Farm, supra, at 43. The FCC failed to satisfy this
requirement, for it failed to consider two critically important
aspects of the problem that underlay its initial policy judg
ment (one of which directly, the other of which indirectly).
First, the FCC said next to nothing about the relation be
tween the change it made in its prior “fleeting expletive”
policy and the First-Amendment-related need to avoid “cen
sorship,” a matter as closely related to broadcasting regula
tion 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 constitu
tional 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 forbid
ding the broadcast of a monologue that deliberately and re
peatedly 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 ma
jority, 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

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that its indecency policy should embody. In 1978, the Com
mission 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 fleet
ing or isolated offensive words would reflect Justice Powell’s
understanding of the First Amendment’s scope. In re Ap
plication 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 deci
sion in Pacifica. It said that, under its policy, “speech that
is indecent must involve more than an isolated use of an of
fensive 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 dic
tate[s] a careful and restrained approach with regard to re
view 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 In
dustry Guidance on Commission’s Case Law Interpreting

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Breyer, J., dissenting
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 tread
ing too close to the constitutional line as set forth in Jus
tice 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 526 (major
ity opinion), 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 Feb. 2, 2002, and Mar. 8,
2005, 21 FCC Rcd. 13299, 13317–13321, ¶¶ 43–52 (2006) (Re
mand 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 Pow
ell’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 inde
cent.” In re Complaints Against Various Broadcast Li
censees 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 oc
casional expletive’ and noted that it addressed only the ‘par
ticular broadcast’ at issue in that case.” Remand Order,
supra, at 13308–13309, ¶ 24.
These two sentences are not a summary of the FCC’s dis
cussion about why it abandoned its prior understanding of
Pacifica. They are the discussion. These 28 words (re
peated in two opinions) do not acknowledge that an entirely
different understanding of Pacifica underlay the FCC’s ear

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556 FCC v. FOX TELEVISION STATIONS, INC.
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lier policy; they do not explain why the agency changed its
mind about the line that Pacifica draws or its policy’s rela
tion 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 midplay and without explana
tion, just disappears.
I have found one other related reference to Pacifica, but
that reference occurs in an opinion written by a dissent
ing Commissioner. That dissenter said that the FCC had
“ ‘fail[ed] to address the many serious [constitutional] con
cerns raised’ ” by the new policy, while adding that the new
policy was “not the restrained enforcement policy encour
aged 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 for
mulate policy. Cf. ante, at 516 (majority opinion). But the
FCC works in the shadow of the First Amendment, and its
view of the application of that Amendment to “fleeting exple
tives” directly informed its initial policy choice. Under
these circumstances, the FCC’s failure to address this “as
pect” 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 “as
pect 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

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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 pre
vent the broadcast of a single offending word or action with
out 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 “bleep
ing” 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 in
cluding, but not limited to, local news and public affairs mat
ter” id., at 1326, ¶ 3, and to ensure “diversity in what is seen
and heard over the airwaves,” ibid. That policy has long
favored local broadcasting, both as a means to increase cov
erage of local events and, insofar as it increases the number
of broadcast voices, as an end in itself. See, e. g., In re Reex
amination 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 com
mitted 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”).

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558 FCC v. FOX TELEVISION STATIONS, INC.
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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 et al. as Amici
Curiae 17–19; App. 235–237; Joint Comments of Fox Televi
sion Stations, Inc., et al., In re Remand of Section III.B
of Commission’s Mar. 15, 2006 Omnibus Order Resolving
Numerous Broadcast Television Indecency Complaints 14–
15, http://www.fcc.gov/DA06–1739/joint-networks.pdf (all In
ternet 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 be
yond the financial reach of many smaller independent local
stations. See id., at 14 (“The significant equipment and per
sonnel costs associated with installing, maintaining, and op
erating delay equipment sufficient to cover all live news,
sports, and entertainment programs could conceivably ex
ceed 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 a community
center, or a Fourth of July parade.
Relevant literature supports the broadcasters’ finan
cial claims. See, e. g., Ho, Taking No Chances, Aus
tin 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 sta
tions are affiliated are not liable for the stations’ local trans
missions (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

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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 alto
gether—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 Pub
lic 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 Cor
poration for Public Broadcasting).
As one local station manager told the FCC:
“To lessen the risk posed by the new legal frame
work . . . 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 conven
ience. Thus, news coverage by [my station] of live
events where crowds are present essentially will be lim
ited 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.

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560 FCC v. FOX TELEVISION STATIONS, INC.
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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 plural
ity’s, own “doubt[s]” that “small-town broadcasters run a
heightened risk of liability for indecent utterances” as a re
sult of the change of policy. Ante, at 527. The plurality’s
“doubt[s]” rest upon its views (1) that vulgar expression is
less prevalent (at least among broadcast guests) in smaller
towns, ibid.; (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 Re
mand 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 “ ‘break
ing news,’ ” ante, at 528, 527.
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 Tele
vision 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 criti
cal third point, namely, that the new policy obviously pro
vides smaller independent broadcasters with adequate assur
ance 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 broad
cast fleeting expletives, including expletives uttered at pub
lic events. The Remand Order says that there “is no out
right news exemption from our indecency rules.” 21 FCC
Rcd., at 13327, ¶ 71 (emphasis added). The best it can pro

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vide by way of assurance is to say that “it may be inequita
ble to hold a licensee responsible for airing offensive speech
during live coverage of a public event under some circum
stances.” 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 conse
quence 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 prosecu
tions 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); Wie
man 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) (per curiam) (“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 pol
icy through the medium of notice-and-comment proceedings.

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562 FCC v. FOX TELEVISION STATIONS, INC.
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But the same failures here—where the policy is important,
the significance of the issues clear, the failures near com
plete—should lead us to the same conclusion. The agency’s
failure to discuss these two “important aspect[s] of the prob
lem” means that the resulting decision is “ ‘arbitrary, capri
cious, 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 dis
cussed. 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 556–561 and this page.
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, supra, at 13308, ¶ 23 (asserting that
FCC has always understood the words as coarse and inde
cent). And it explained the first time around why it none
theless 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.

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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 broad
cast of fleeting expletives. Remand Order, 21 FCC Rcd., 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” indi
cates 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 chil
dren against what it described as “ ‘the first blow’ ” of broad
cast indecency that results from the “ ‘pervasive’ ” nature of
broadcast media. It wrote that its former policy of “grant
ing an automatic exemption for ‘isolated or fleeting’ exple
tives unfairly forces viewers (including children) to take ‘the
first blow.’ ” Remand Order, supra, at 13309, ¶ 25.

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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, 5301–5302, ¶¶ 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 influ
ence their behavior. See, e. g., In re Enforcement of Prohi
bitions Against Broadcast Indecency in 18 U. S. C. § 1464, 8
FCC Rcd. 704, 705–706, ¶ 11 (1993). So, to repeat the ques
tion: What, in respect to the “first blow,” has changed?
The FCC points to no empirical (or other) evidence to dem
onstrate 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 519–520. 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
effects.” 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 con
clusion. See State Farm, supra, 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 be
lieved that its prior policy “would as a matter of logic permit
broadcasters to air expletives at all hours of a day so long as

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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 ex
pletives” 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 re
spect. 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 let
ters and dicta” and it said that at least one of the instances
before it (namely, the Cher broadcast) would have been ac
tionably 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 517 (majority opinion). To the extent that the FCC mini
mized that fact when considering the change, it did not fully
focus on the fact of change. And any such failure would
make its decision still less supportable. See National
Cable, 545 U. S., at 981.
IV
Were the question a closer one, the doctrine of constitu
tional avoidance would nonetheless lead me to remand the
case. See United States v. Jin Fuey Moy, 241 U. S. 394, 401
(1916) (“A statute must be construed, if fairly possible, so as
to avoid not only the conclusion that it is unconstitutional
but also grave doubts upon that score” (emphasis added)).
That doctrine seeks to avoid unnecessary judicial consider
ation of constitutional questions, assumes that Congress, no
less than the Judicial Branch, seeks to act within constitu
tional bounds, and thereby diminishes the friction between

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the branches that judicial holdings of unconstitutionality
might otherwise generate. See Almendarez-Tor res v.
United States, 523 U. S. 224, 237–238 (1998); see also Solid
Waste Agency of Northern Cook Cty. v. Army Corps of En
gineers, 531 U. S. 159, 172–173 (2001); Edward J. DeBartolo
Corp. v. Florida Gul f 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 re
lies 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 constitu
tionally 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 ac
tion implicating the Equal Protection Clause “was not ade
quately preceded by a consideration of less drastic alterna
tives or adequately explained by a statement of legislative
purpose would be far less intrusive than a final determina
tion 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

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the Court’s decision today prevents the Commission from re
considering its current policy in light of potential constitu
tional 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 expla
nation 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 be
fore, 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.