FCC v. Fox Television Stations, Inc.

PETITIONER:No. 07-582 Title: Federal Communications Commission, et al.
RESPONDENT:Fox Television Stations, Inc., et al.
LOCATION: MGM Grand Garden Arena

DOCKET NO.: 07-582
DECIDED BY: Roberts Court (2006-2009)
LOWER COURT: United States Court of Appeals for the Second Circuit

CITATION: 556 US (2009)
GRANTED: Mar 17, 2008
ARGUED: Nov 04, 2008
DECIDED: Apr 28, 2009

Carter G. Phillips – argued the cause for the respondents
Gregory G. Garre – Solicitor General, argued the cause for the petitioners

Facts of the case

In 2002 and 2003, Fox Television Stations broadcast the Billboard Music Awards, an annual program honoring top-selling musicians. During the broadcasts, one musician used an explicative in his acceptance speech, and a presenter used two expletives. The Federal Communications Commission (FCC), although it had previously taken the position that such fleeting and isolated expletives did not violate its indecency regime, issued notices of liability to Fox for broadcasting the profane language. The FCC argued that previous decisions referring to “fleeting” expletives were merely staff letters and dicta and did not accurately represent its position on the matter. Fox appealed the FCC sanctions to the U.S. Court of Appeals for the Second Circuit.

The Second Circuit held that the FCC’s liability order was “arbitrary and capricious” under the governing Administrative Procedure Act because the FCC had completely reversed its position on fleeting expletives without giving a proper justification. The Second Circuit also failed to find any evidence that the expletives were harmful.


Is the FCC’s order imposing liability on Fox Television Stations for fleeting expletives spoken during two nationally broadcast awards ceremonies “arbitrary and capricious” under the Administrative Procedure Act, based on the FCC’s previous acceptance of similar expletives?

Media for FCC v. Fox Television Stations, Inc.

Audio Transcription for Oral Argument – November 04, 2008 in FCC v. Fox Television Stations, Inc.

Audio Transcription for Opinion Announcement – April 28, 2009 in FCC v. Fox Television Stations, Inc.

John G. Roberts, Jr.:

Justice Scalia has our announcement this morning in case 07-582, FCC versus Fox Television.

Antonin Scalia:

This case is here on writ of certiorari to the United States Court of Appeals for the Second Circuit.

The respondents, Fox Television Stations, Inc. and interveners such as ABC, NBC and CBS are broadcasters who, along with their affiliates, have received licenses from the Federal Communications Commission to use parts of the electromagnetic spectrum to distribute their programs.

When these broadcasters accepted their licenses, they became subject to certain statutory obligations designed to protect the public’s interest in the use of its airwaves.

One of the burdens that licensees shoulder is a statutory ban against “authoring any indecent language by means of radio communication.”

Congress has given the FCC the power to enforce this proscription through various means, and the FCC has defined the term indecent to refer to “language that describes in terms patently offensive as measured by contemporary community standards for the broadcast media, sexual or excretory activities or organs at times of the day when there is a reasonable risk that children may be in the audience.”

Having first defined the prohibited speech in 1975, the FCC took a cautious but gradually expanding approach to enforcing the prohibition.

In 2004, the FCC’s Golden Globes Order declared for the first time that a non-literal, that is expletive use of, what we will call 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 of the Billboard Music Awards aired by Fox.

Each of which was viewed by about 2.5 million minors.

In the first broadcast and will blip it out here as the broadcasters can do.

In the first broadcast, the entertainer 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 them.”

The second involved presentation of an award by Nicole Richie and Parris Hilton who were principals in a Fox Television series called, The Simple Life.

Ms. Hilton began their exchange and this was scripted.

By reminding Ms. Richie to “watch the bad language,” 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 product purse?

It’s not so effing simple.”

The FCC found that both of these broadcasts were actionably indecent but declined to impose any penalties.

Respondents sought review in the Court of Appeals challenging both the adequacy of the agency’s explanation under the Administrative Procedure Act and the constitutionality of the FCC’s enforcement action.

That Court set aside the agency’s action under the Administrative Procedure Act, but declined to reach the constitutional question we granted certiorari.

Under the Administrative Procedure Act, the courts may set aside agency action that is arbitrary or capricious.

To comply with this requirement of reasoned decision making, an agency must examine the relevant data and articulate a satisfactory explanation for its action.

In overturning the FCC’s judgment, the Second Circuit relied in part on circuit present interpreting the APA, and our opinion in — in a case called Motor Vehicle Manufacturer’s Association versus State Farm Mutual Automobile Insurance Company, interpreted the APA in that case to require a more substantial explanation for changes at agency policy, then what would be required when the agency writes on blank slate.

We find no basis in the Act or in this Court’s opinion for such a requirement, although an agency must ordinarily display awareness that it is changing its position, and must account for circumstances such as reliance interests that may be different because it had a prior policy.

The agency need not demonstrate to a court’s satisfaction that the reasons for the new policy are better than the reasons for the old one.

It suffices that the new policy is permissible under the statute that they are good reasons for it, and that the agency believes it to be better, which the conscious change adequately indicates.Under these standards, the FCC’s new policy and its order finding the broadcast here are actionably indecent or neither arbitrary nor capricious.

First, the FCC forthrightly acknowledged that its recent actions have broken new ground, taking account of inconsistent prior FCC and staff actions, and explicit disavowing them as no longer good law.

The agency’s reasons for expanding its enforcement activity more over were entirely rational, even when used as an expletive.

Antonin Scalia:

The F word’s power to insult and offend derives from its sexual meaning, and the FCC’s decision to look at the patent offensiveness or even isolated uses of sexual and excretory words fits with the context based approached we sanctioned when we review the agency’s first use of its indecency enforcement power in a case called FCC versus Pacifica Foundation.

Because the FCC’s prior safe harbor for single words would likely lead to more widespread use of offensive words and in light of technological advances reducing the cost of blipping such words out of lie, broadcasts, it was rational for the agency to step away from its old regime.

The FCC’s decision not to impose sanctions moreover precludes any argument that is arbitrarily punishing parties without notice of their action’s potential consequences.

The Second Circuit rested its holding that the agency action was arbitrary and capricious on three grounds, each of which we find fall short.

First, the Second Circuit fall to the FCC for failing to provide evidence proving that fleeing expletives constitute harmful first blows to children prior to adopting its new policy, but this is one of those policy judgments for which empirical evidence is difficult to acquire and cannot be — and cannot be required.

It suffices to know that children mimic behavior they observe.

Second, the Court of Appeals falls to the FCC’s policy because its first blow theory would logically require a categorical band on all broadcasts of expletives.

This criticism however is not responsive to the actual policy under review because the FCC has always reviewed the harmfulness of various statements based on the context in which they were broadcasted.

The FCC’s decision to retain some discretion in lesser gratuitous cases does not invalidate its regulation of the broadcast here under review.

Third, the Second Circuit disagreed with the FCC’s prediction that a per se exemption for fleeting expletives would lead to increased use, but the agency’s judgment on this matter merits deference and in — in any event makes an entire sense.

Respondents’ additional arguments are not tenable grounds for affirmance either.

Fox misconstrued the agency’s orders when it argues that the old policy was not actually a per se rule against liability for isolated expletives, and that the new policy is a presumption of indecency for certain words.

Fox reads more into our prior opinion in Pacifica than is there.

We reject respondent’s invitation to turn the sword of Pacifica, which sanctions some regulation into an administrative law shield that would prevent the FCC from going any further.

And Fox’s argument that the FCC’s repeated appeal to context is actually a plea for unbridled discretion ignores the fact that our opinion in Pacifica specifically endures such a context based approach.

Respondents additionally argue that the FCC’s regulation of their broadcast violates the First Amendment, but that question was not ruled on below and we decline to reach it here in the first instance.

Accordingly, the judgment of the Court of Appeals is reversed and the case is remanded for further proceedings consistent with our opinion.

Justice Thomas has filed a concurring opinion.

Justice Kennedy has filed an opinion concurring in part and concurring in the judgment.

Justices Stevens and Ginsburg have each filed dissenting opinions.

Justice Breyer has filed a dissenting opinion in which Justices Stevens, Souter and Ginsburg have joined.