federal communications commission et al fox television stations et argued november decided april federal law bans broadcasting indecent language includes references sexual excretory activity organs see fcc pacifica foundation first defined prohibited speech federal communications commission fcc took cautious gradually expanding approach enforcing statutory prohibition fcc golden globes order declared first time expletive nonliteral use actionably indecent even word used case concerns isolated utterances two live broadcasts aired fox television stations inc order upholding indecency findings fcc inter alia stated golden globes order eliminated doubt fleeting expletives actionable declared new policy lack repetition weighs finding indecency safe harbor held broadcasts met new test one involved literal description excrement invoked order impose sanctions either broadcast second circuit set aside agency action declining address constitutionality fcc action finding fcc reasoning inadequate administrative procedure act apa held judgment reversed case remanded reversed remanded justice scalia delivered opinion except part concluding fcc orders neither arbitrary capricious within meaning apa pp apa standard agency must examine relevant data articulate satisfactory explanation action motor vehicle mfrs assn state farm mut automobile ins overturning fcc judgment second circuit relied part precedent interpreting apa state farm require substantial explanation agency action changes prior policy however basis act opinions requirement agency change subjected searching review although agency must ordinarily display awareness changing position see nixon may sometimes need account prior factfinding certain reliance interests created prior policy need demonstrate satisfaction reasons new policy better reasons old one suffices new policy permissible statute good reasons agency believes better conscious change adequately indicates pp standards fcc new policy order finding broadcasts issue actionably indecent neither arbitrary capricious first fcc forthrightly acknowledged recent actions broken new ground taking account inconsistent prior fcc staff actions explicitly disavowing longer good law agency reasons expanding enforcement activity moreover entirely rational even used expletive power insult offend derives sexual meaning decision look patent offensiveness even isolated uses sexual excretory words fits pacifica approach fcc prior approach likely lead widespread use light technological advances reducing costs bleeping offending words rational agency step away old regime fcc decision impose sanctions precludes argument arbitrarily punishing parties without notice actions potential consequences pp none second circuit grounds finding fcc action arbitrary capricious valid first fcc need empirical evidence proving fleeting expletives constitute harmful first blows children suffices know children mimic behavior observe second appeals finding fidelity fcc first blow theory require categorical ban broadcasts expletives responsive actual policy review since fcc always evaluated patent offensiveness words statements relation context broadcast fcc decision retain discretion less egregious cases invalidate regulation broadcasts review third fcc prediction per se exemption fleeting expletives lead increased use merits deference makes entire sense pp fox additional arguments tenable grounds affirmance fox misconstrues agency orders argues new policy presumption indecency certain words reads pacifica arguing fcc failed adequately explain regulation consistent case fox argument fcc repeated appeal context smokescreen standardless regime unbridled discretion ignores fact opinion pacifica endorsed approach pp absent lower opinion matter declines address fcc orders constitutionality scalia announced judgment delivered opinion respect parts ii iv roberts kennedy thomas alito joined opinion respect part roberts thomas alito joined thomas filed concurring opinion kennedy filed opinion concurring part concurring judgment stevens ginsburg filed dissenting opinions breyer filed dissenting opinion stevens souter ginsburg joined federal communications commission et petitioners fox television stations et al writ certiorari appeals second circuit april justice scalia delivered opinion except part federal law prohibits broadcasting indecent language includes expletives referring sexual excretory activity organs see fcc pacifica foundation case concerns adequacy federal communications commission explanation decision sometimes forbids broadcasting indecent expletives even offensive words repeated statutory regulatory background communications act stat et seq ed supp established system broadcast licenses subject various conditions designed maintain control channels radio transmission years ago said licensed broadcaster granted free exclusive use limited valuable part public domain accepts franchise burdened enforceable public obligations cbs fcc internal quotation marks omitted one burdens licensees shoulder indecency ban statutory proscription utter ing obscene indecent profane language means radio communication congress instructed commission enforce hours public telecommunications act stat note following congress given commission various means enforcing indecency ban including civil fines see license revocations denial license renewals see commission first invoked statutory ban indecent broadcasts declaring daytime broadcast george carlin filthy words monologue actionably indecent pacifica foundation time commission announced definition indecent speech uses day prohibiting language describes terms patently offensive measured contemporary community standards broadcast medium sexual excretory activities organs times day reasonable risk children may audience fcc pacifica foundation supra upheld commission order statutory constitutional challenge rejected broadcasters argument statutory proscription applied speech appealing prurient interest noting normal definition merely refers nonconformance accepted standards morality held first amendment allowed carlin monologue banned light uniquely pervasive presence medium fact broadcast programming uniquely accessible children ensuing years commission took cautious gradually expanding approach enforcing statutory prohibition indecent broadcasts shortly pacifica commission expressed inten tion strictly observe narrowness pacifica holding relied part repetitive occurrence words contained carlin monologue application wgbh educ foundation full commission next considered indecency standard however repudiated view enforcement power limited deliberate repetitive use seven words actually contained george carlin monologue pacifica foundation fcc rcd commission determined highly restricted enforcement standard unduly narrow matter law inconsistent commission enforcement responsibilities section infinity broadcasting fcc rcd appeals district columbia circuit upheld expanded enforcement standard constitutional administrative procedure act challenge see action children television fcc ginsburg superseded part action children television fcc en banc although commission expanded enforcement beyond repetitive use specific words phrases preserved distinction literal nonliteral expletive uses evocative language pacifica foundation fcc commission explained literal description depiction sexual excretory functions must examined context determine whether patently offensive deliberate repetitive use requisite finding indecency complaint focuses solely use nonliteral expletives ibid decade later commission emphasized full context particular materials appear critically important principal factors guide inquiry explicitness graphic nature material extent material dwells repeats offensive material extent material presented pander titillate shock industry guidance commission case law interpreting enforcement policies regarding broadcast indecency fcc rcd emphasis deleted single factor commission said generally provides basis indecency finding sexual excretory references made passing fleeting nature characteristic tended weigh finding indecency commission took one step declaring first time nonliteral expletive use actionably indecent even word used first order effect dealt nbc broadcast golden globe awards performer bono commented really really brilliant complaints various broadcast licensees regarding airing golden globe awards program fcc rcd golden globes order although commission received numerous complaints directed broadcast enforcement bureau concluded material indecent bono describe context sexual excretory organs activities utterance fleeting isolated full commission reviewed reversed staff ruling commission first declared bono use fell within indecency definition even though word used intensifier rather literal descriptor iven core meaning said use word inherently sexual connotation commission determined moreover broadcast patently offensive one vulgar graphic explicit descriptions sexual activity english language ts use invariably invokes coarse sexual image bono use word entirely shocking gratuitous commission observed categorically exempting language enforcement actions likely lead widespread use ibid commission action necessary safeguard nation children objectionable offensive language ibid order noted technological advances made far easier delete bleep single gratuitous use vulgar expletive without adulterating content broadcast order acknowledged prior commission staff action indicated isolated fleeting broadcasts indecent acted upon explicitly ruled interpretation longer good law clarif ied mere fact specific words phrases sustained repeated mandate finding material otherwise patently offensive broadcast medium indecent ibid however existing precedent permitted broadcast commission determined nbc affiliates necessarily requisite notice justify penalty ii present case case concerns utterances two live broadcasts aired fox television stations affiliates prior commission golden globes order first occurred billboard music awards singer cher exclaimed also critics last years saying way every year right brief petitioners second involved segment billboard music awards presentation award nicole richie paris hilton principals fox television series called simple life hilton began interchange reminding richie watch bad language richie proceeded ask audience even call simple life ever tried get cow prada purse simple following broadcasts commission received numerous complaints parents whose children exposed language march commission released notices apparent liability number broadcasts commission deemed actionably indecent including two described complaints regarding various television broadcasts february march fcc rcd multiple parties petitioned appeals second circuit judicial review order asserting variety constitutional statutory challenges since order declined impose sanctions commission previously given broadcasters opportunity respond indecency charges therefore requested obtained appeals voluntary remand parties air objections commission order remand upheld indecency findings broadcasts described see complaints regarding various television broadcasts february march fcc rcd remand order order first explained broadcasts fell comfortably within scope commission indecency test broadcast involved literal description excrement broadcasts invoked inherently sexual connotation order next determined broadcasts patently offensive community standards medium broadcasts noted involved entirely gratuitous uses one vulgar graphic explicit words sexual activity english language found richie use explicit description handling excrement vulgar shocking well constitute pandering hilton playfully warned bad language found cher statement patently offensive part metaphorically suggested sexual act means expressing hostility critics order relied upon critically important context utterances noting aired awards shows designed draw large nationwide audience expected include many children interested seeing favorite music stars indeed approximately million minors witnessed broadcasts order asserted broadcasts review actionably indecent staff rulings commission dicta effect prior golden globes order broadcast involved literal description excrement rather mere expletive used one offensive word planned fcc broadcast cher used mere intensifier description sexual act express hostility critics order stated however globes regime immunity isolated indecent expletives rested upon staff rulings commission dicta commission never held isolated use expletive indecent indecent fcc event order made clear golden globes order eliminated doubt fleeting expletives actionably indecent fcc commission disavowed decisions dicta said otherwise new policy lack repetition weigh finding indecency safe harbor order explained commission prior strict dichotomy depictions sexual excretory functions artificial make sense light fact power offend derives sexual excretory meaning commission view granting automatic exemption fleeting expletives unfairly forces viewers including children take first allow broadcasters air expletives hours day long one time although commission determined fox encouraged offensive language using suggestive scripting broadcast unreasonably failed take adequate precautions broadcasts order declined impose forfeiture sanction either broadcasts fox returned second circuit review remand order various intervenors including cbs nbc abc joined action appeals reversed agency orders finding commission reasoning inadequate administrative procedure act majority skeptical commission provide reasoned explanation expletive regime pass constitutional muster declined reach constitutional question judge leval dissented granted certiorari iii analysis governing principles administrative procedure act et sets forth full extent judicial authority review executive agency action procedural correctness see vermont yankee nuclear power natural resources defense council permits insofar relevant setting aside agency action arbitrary capricious called narrow standard review insist agency examine relevant data articulate satisfactory explanation action motor vehicle mfrs assn state farm mut automobile ins made clear however substitute judgment agency uphold decision less ideal clarity agency path may reasonably discerned bowman freight system overturning commission judgment appeals relied part circuit precedent requiring substantial explanation agency action changes prior policy second circuit interpreted administrative procedure act opinion state farm requiring agencies make clear original reasons adopting displaced rule policy longer well new rule effectuates statute well better old rule quoting new york council assn civilian technicians flra emphasis deleted appeals district columbia circuit similarly indicated standard review heightened somewhat agency reverses course naacp fcc find basis administrative procedure act opinions requirement agency change subjected searching review act mentions heightened standard opinion state farm neither held implied every agency action representing policy change must justified reasons substantial required adopt policy first instance case involved rescission prior regulation said action requires reasoned analysis change beyond may required agency act first instance emphasis added treating failures act rescissions prior action differently purposes standard review makes good sense basis text statute likewise treats two separately instructs reviewing compel agency action unlawfully withheld unreasonably delayed hold unlawful set aside agency action findings conclusions found among things arbitrary capricious statute makes distinction however initial agency action subsequent agency action undoing revising action sure requirement agency provide reasoned explanation action ordinarily demand display awareness changing position agency may example depart prior policy sub silentio simply disregard rules still books see nixon course agency must show good reasons new policy need demonstrate satisfaction reasons new policy better reasons old one suffices new policy permissible statute good reasons agency believes better conscious change course adequately indicates means agency need always provide detailed justification suffice new policy created blank slate sometimes must example new policy rests upon factual findings contradict underlay prior policy prior policy engendered serious reliance interests must taken account smiley citibank south dakota arbitrary capricious ignore matters cases justification demanded mere fact policy change reasoned explanation needed disregarding facts circumstances underlay engendered prior policy appeal second circuit setting aside commission action failure comply procedural requirement administrative procedure act broadcasters arguments repeatedly referred first amendment mean invite us apply stringent review agency actions implicate constitutional liberties reject invitation canon constitutional avoidance interpretive tool counseling ambiguous statutory language construed avoid serious constitutional doubts see edward debartolo florida gulf coast building constr trades council know precedent applying limit scope authorized executive action section authorizing courts set aside arbitrary capricious agency action administrative procedure act separately provides setting aside agency action unlawful course includes unconstitutional action think context constitutionality bears upon judicial review authorized agency action commission action arbitrary capricious ordinary sense satisfies administrative procedure act arbitrary capricious standard lawfulness constitution separate question addressed constitutional application case judged described standards commission new enforcement policy order finding broadcasts actionably indecent neither arbitrary capricious first commission forthrightly acknowledged recent actions broken new ground taking account inconsistent prior commission staff action explicitly disavowing longer good law golden globes order fcc sure superfluous explanation remand order cher broadcast even violated earlier policy may entirely convincing unnecessary detour irrelevant doubt commission knew making change declined assess penalties relied golden globes order removing lingering doubt remand order fcc moreover agency reasons expanding scope enforcement activity entirely rational certainly reasonable determine made sense distinguish literal nonliteral uses offensive words requiring repetitive use render latter indecent commission said regard expletive use word power insult offend derives sexual meaning commission decision look patent offensiveness even isolated uses sexual excretory words fits approach sanctioned pacifica even isolated utterances made pander ing vulgar shocking manners remand order fcc constitute harmful blow children surely rational inescapable believe safe harbor single words likely lead widespread use offensive language golden globes order supra confronting requests per se rules governing enforcement indecency prohibition commission declined create safe harbors particular types broadcasts see pacifica foundation fcc repudiating view commission enforcement power limited deliberate repetitive use seven words actually contained george carlin monologue infinity broadcasting fcc reject ing approach hold work merit per se indecent commission rationally decide needed step away old regime nonrepetitive use expletive per se nonactionable odds commission overall enforcement policy remand order supra fact technological advances made easier broadcasters bleep offending words supports commission enforcement policy golden globes order supra agency decision impose forfeiture sanction precludes argument arbitrarily punishing parties without notice potential consequences action appeals reasoning appeals found commission action arbitrary capricious three grounds first criticized commission failing explain previously banned fleeting expletives harmful blow majority view without evidence suggests fleeting expletive harmful serious enough warrant government regulation agency regulate broadly explained fact agency prior stance alone prevent changing view create higher hurdle commission congress proscribed indecent language propositions scant empirical evidence marshaled harmful effect broadcast profanity children one one demand multiyear controlled study children intentionally exposed indecent broadcasts insulated indecency others shielded indecency one thing set aside agency action administrative procedure act failure adduce empirical data readily obtained see state farm addressing costs benefits mandatory passive restraints automobiles something else insist upon obtaining unobtainable suffices know children mimic behavior observe least behavior presented normal appropriate programming replete indecent expletives tend produce children use least indecent expletives congress made determination indecent material harmful children left enforcement ban commission enforcement supported empirical data ban effectively nullity commission adduced quantifiable measure harm caused language pacifica nonetheless held government interest youth justified regulation otherwise protected expression quoting ginsberg new york constitution demands agencies scientifically certain criteria comply first amendment neither administrative procedure act comply requirement reasoned decisionmaking second objection fidelity agency first blow theory harm require categorical ban broadcasts expletives commission failure go extreme thus undermined coherence rationale objection however responsive commission actual policy review decision include patently offensive fleeting expletives within definition indecency commission prior enforcement practice unchallenged already drew distinctions offensiveness particular words based upon context appeared complaint commission failure ban fleeting expletives better directed agency system generally rather inclusion isolated expletives fundamentally however agency decision consider patent offensiveness isolated expletives basis arbitrary capricious even recitation geoffrey chaucer miller tale explained likely command attention many children old enough understand young enough adversely affected pacifica supra rationale support commission finding broadcast film saving private ryan indecent finding broadcasters point supposed evidence commission inconsistency frightening suspense graphic violence movie well dissuade vulnerable watching put parents notice potentially objectionable material see complaints various television licensees regarding broadcast abc television network presentation film saving private ryan fcc rcd noting broadcast intended family entertainment agency decision retain discretion render arbitrary capricious regulation deliberate shocking uses offensive language award shows review shows expected draw attention millions children finally appeals found unconvincing agency prediction without evidence per se exemption fleeting expletives lead increased use expletives one time even absence evidence agency predictive judgment merits deference makes entire sense predict complete immunity fleeting expletives ardently desired broadcasters lead substantial increase fleeting expletives seems us exercise logic rather clairvoyance appeals perhaps correct commission prior policy yet caused broadcasters barrag airwaves expletives ibid may prior permissive policy confirmed save dicta staff level event golden globes order demonstrated produce expletives commission first call matter deemed conformity statute respondents arguments respondents press arguments adopt claim commission failed acknowledge change enforcement policy contention tenable light golden globes order specific declaration prior rulings longer good law fcc remand order disavowal staff rulings commission dicta seriously flawed fcc broadcasters also try recharacterize nature commission shift contending old policy actually per se rule liability isolated expletives new policy presumption indecency certain words description prior agency policy conflicts broadcasters prior position case see brief opposition respondent fox television stations et al almost years following pacifica fcc consider fleeting isolated inadvertent expletives indecent find basis contention commission adopted presumption indecency repeated reliance context refutes claim broadcasters also make much fact commission gone beyond scope authority approved pacifica regarded farthest extent power never held pacifica represented outer limits permissible regulation fleeting expletives may forbidden contrary explicitly left another day whether occasional expletive telecast elizabethan comedy prohibited using narrowness pacifica holding require empirical evidence harm commission regulates broadly broadcasters attempt turn sword pacifica allowed regulation broadcast indecency shield preventing regulation beyond pacifica sanctioned nothing prohibits federal agencies moving incremental manner cf national cable telecommunications assn brand internet services finally broadcasters claim commission repeated appeal context simply smokescreen standardless regime unbridled discretion previously approved commission regulation based nuisance rationale context pacifica supra find basis administrative procedure act mandating anything different dissents arguments justice breyer purports begin applicable law post fact begins stacking deck claims fcc status independent agency sheltered political oversight requires courts vigilant ensuring major policy decisions based upon articulable reasons post independent agencies sheltered politics president often observed freedom presidential oversight protection simply replaced increased subservience congressional direction see sealed case cadc silberman rev sub nom morrison olson kagan presidential administration harv rev calabresi prakash president power execute laws yale easterbrook state madison vision state public choice perspective harv rev indeed precise policy change issue spurred significant political pressure justice stevens apparently recognizes political control congress indeed sees manifestation relationship judgment fcc better viewed agent congress part executive post dissenting opinion nonetheless argues good reason requiring fcc explain prior policy longer sound allowing change course post leaving aside unconstitutionality scheme giving power enforce laws agents congress see bowsher synar seems us justice stevens conclusion follow premise fcc indeed agent congress seem adequate explanation change position congress made clear wishes stricter enforcement see administrative procedure act apply congress regardless assuredly applicable law rulemaking independent regulatory agencies subject heightened scrutiny administrative procedure act provides judicial review makes distinction independent agencies neither definition agency standards reviewing agency action case express reflect heightened scrutiny justice breyer justice stevens impose indeed hard imagine closer scrutiny given environmental protection agency independent agency see massachusetts epa whitman american trucking reason magnify dilemma posed headless fourth branch see freytag commissioner scalia concurring part concurring judgment letting article iii judges like jackals stealing lion kill expropriate power congress wrested unitary executive justice breyer justice stevens rely upon two supposed omissions fcc analysis believe preclude finding agency act arbitrarily neither omissions undermine coherence rationale agency gave dissenters evaluation flawed right first claim commission failed adequately explain consideration constitutional issues inherent regulation post opinion breyer post opinion stevens unaware ever reversed executive agency violating cases failure discuss adequately leave aside according justice breyer agency said next nothing relation change made prior expletive policy need avoid post remand order however devote four full pages text words counting footnotes explaining commission believes regime includes change policy consistent first amendment therefore censorship term understood specifically justice breyer faults fcc explain ing agency changed mind line pacifica draws policy relation line post fact commission explained holding pacifica drew constitutional line contrary expressly declined express view constitutionality prohibiting isolated indecency justice breyer justice stevens evidently believe agency obtained determination less restrictive rule constitutional successors acquire special burden explain restrictive rule unconstitutional know second justice breyer looks vast field particular factual scenarios unaddressed fcc remand order finds one fatal plight small local broadcaster afford new technology enables screening live broadcasts indecent utterances cf post commission failed address fate unfortunate believes subject sanction doubt begin broadcasters run heightened risk liability indecent utterances programming originate local guests probably employ vulgarity less folks stations generally afford attract glitteratae hollywood main exposure regard programming live coverage news public affairs remand order went way note case hand involve breaking news coverage may inequitable hold licensee responsible airing offensive speech live coverage public event fcc programming small stations receive network feed cleansed expensive technology small stations justice breyer hypothesis afford never mind detail whether small broadcasters uniquely subject great risk punishment fleeting expletives fundamental fallacy justice breyer gloomyscenario demonstrably false assumption remand order makes provision avoidance unfairness prohibition invoked uniformly situations remand order made clear case said determining remedy appropriate commission consider facts individual case possibility human error using delay equipment thus fact agency believed fox large broadcaster used suggestive scripting deficient delay system air awards show aimed millions children fail ed exercise judgment responsibility sensitivity quoting pacifica foundation fcc says little commission treat smaller broadcasters afford screening equipment indeed punished failing purchase equipment afford positively suggested remand order statement olding fox responsible airing indecent material case impose undue burdens broadcasters fcc sum need commission compose special treatise local justice breyer safely defer concern yeomen airwaves us case involves one iv constitutionality second circuit definitively rule constitutionality commission orders respondents nonetheless ask us decide validity first amendment however one final review first view cutter wilkinson conceivable commission orders may cause broadcasters avoid certain language beyond commission reach constitution whether whether unconstitutional determined soon enough perhaps case meanwhile chilled references excretory sexual material surely lie periphery first amendment concern pacifica plurality opinion stevens see reason abandon usual procedures rush judgment without lower opinion decline address constitutional questions time second circuit believed children today likely hear language far often sources commission first began sanctioning indecent speech cuts stringent regulation broadcasts assuming premise true point second circuit demand empirical evidence conclusion necessarily follow commission reasonably conclude pervasiveness foul language coarsening public entertainment media cable justify stringent regulation broadcast programs give conscientious parents relatively safe children end second circuit broadcasters quibble commission policy choices explanation given decline substitute judgment agency state farm find commission orders neither arbitrary capricious judgment appeals second circuit reversed case remanded proceedings consistent opinion ordered federal communications commission et petitioners fox television stations et al writ certiorari appeals second circuit april justice thomas concurring join opinion matter administrative law correctly upholds federal communications commission fcc policy respect indecent broadcast speech administrative procedure act write separately however note questionable viability two precedents support fcc assertion constitutional authority regulate programming issue case see red lion broadcasting fcc fcc pacifica foundation red lion pacifica unconvincing issued passage time increased doubt regarding continued validity text first amendment makes distinctions among print broadcast cable media done cases denver area ed telecommunications consortium fcc thomas concurring judgment part dissenting part red lion upheld fairness doctrine government requirement discussion public issues presented broadcast stations side issues must given fair coverage decision relied heavily scarcity available broadcast frequencies according broadcast spectrum scarce regulated rationalized government without government control medium little use cacophony competing voices none clearly predictably heard end concluded government permitted put restraints licensees favor others whose views expressed unique medium see also concluding far first amendment concerned licensed stand better licenses refused applying principle held violate first amendment treat licensees given privilege using scarce radio frequencies proxies entire community obligated give suitable time attention matters great public concern red lion specifically declined answer whether first amendment authorized government refusal permit broadcaster carry particular program publish views government censorship particular program pacifica rejected challenge fcc authority impose sanctions broadcast indecent material see plurality opinion relying red lion noted broadcasting received limited first amendment protection also emphasized uniquely pervasive presence broadcast media americans lives fact broadcast programming uniquely accessible children deep intrusion first amendment rights broadcasters justified based nature medium problematic two levels first instead looking first principles evaluate constitutional question relied set transitory facts scarcity radio frequencies red lion supra determine applicable first amendment standard original meaning constitution turn modern necessity constitutional rights enshrined scope understood people adopted whether future legislatures yes even future judges think scope broad district columbia heller slip breaching principle red lion adopted pacifica reaffirmed legal rule lacks textual basis constitution denver area supra thomas concurring judgment part dissenting part first amendment distinctions media dubious infancy indeed logical weakness red lion pacifica apparent time certainly true broadcast frequencies scarce unclear fact justifies content regulation broadcasting way intolerable applied editorial process print media telecommunications research action center fcc cadc bork highlighting doctrinal incoherence red lion pacifica declined apply lesser standard first amendment scrutiny imposed broadcast speech federal regulation telephone services see sable communications fcc cable television programming see turner broadcasting system fcc internet see reno american civil liberties union justification apparent dichotomy first amendment jurisprudence whatever merits pacifica issued makes sense action children television fcc cadc edwards dissenting justifications relied red lion pacifica spectrum scarcity intrusiveness accessibility children neither distinguish broadcast cable explain relaxed application principles first amendment broadcast see also industry guidance commission case law interpreting enforcement policies regarding broadcast indecency fcc rcd statement commissioner ironic streaming video audio content television radio station likely receive constitutional protection see reno american civil liberties union exact content broadcast second even disfavored treatment broadcasters first amendment justified time red lion pacifica dramatic technological advances eviscerated factual assumptions underlying decisions broadcast spectrum significantly less scarce years ago see brief respondents nbc universal et al hereinafter nbc brief nbc notes number broadcast stations grew red lion issued end see nbc brief see also fcc media bureau staff research paper berresford scarcity rationale regulating traditional broadcasting idea whose time passed mar trend continue broadcast television imminent switch analog digital transmission allow fcc stack broadcast channels right beside one another along spectrum ultimately utilize significantly less mhz spectrum analog system absorbs today consumer electronics assn fcc cadc moreover traditional broadcast television radio longer uniquely pervasive media forms consumers traditional broadcast media programming bundled cable satellite services see app pet cert broadcast video programming also widely available internet see stelter serving television without tv set times mar like radio television broadcasts internet access often freely available airwaves accessed portable computer cell phones wireless devices see may charting new constitutional jurisprudence digital age charleston rev extant facts drove subject broadcasters unique disfavor first amendment simply exist today see industry guidance supra statement commissioner rules regulating broadcast content ever justifiable infringement speech relative dominance medium communications marketplace past commission long recognized facts underlying justification longer true omitted dramatic changes factual circumstances might well support departure precedent prevailing approach stare decisis see planned parenthood southeastern casey asking whether facts changed come seen differently robbed old rule significant application justification see also american trucking scheiner dissenting significantly changed circumstances make older rule defensible formulated inappropriate cases involving constitutional issues turn particular set factual assumptions must order reach sound conclusions feel free bring opinions agreement experience facts newly ascertained burnet coronado oil gas brandeis dissenting reasons open reconsideration red lion pacifica proper case federal communications commission et petitioners fox television stations et al writ certiorari appeals second circuit april justice kennedy concurring part concurring judgment join parts ii iv opinion agree judgment must reversed separate writing underscore certain background principles conclusion agency decision change course may arbitrary capricious agency sets new course reverses earlier determination provide reasoned explanation circumstances agree dissenting opinion justice breyer agency must explain reject considerations led adopt initial policy post question whether change policy requires agency provide explanation original policy first announced susceptible view answer applies cases may instances becomes apparent agency reasons longstanding policy altered discoveries science advances technology forces work dynamic society agency seeks respond new circumstances modifying earlier policy agency may substantial body data experience shape inform new rule cases altered circumstances may new agency must make predictive judgments difficult agency earlier policy first announced reliance interests prior policy may also weight analysis question case whether agency reasons change viewed light data available informed experience expertise agency suffice demonstrate new policy rests upon principles rational neutral accord agency proper understanding authority showing may required agency demonstrate action arbitrary capricious abuse discretion otherwise accordance law course agency action must excess statutory jurisdiction authority limitations short statutory right requirements stem administrative agency unique constitutional position dynamics three branches government well understood general matter role position agency exact locus powers present questions delicate subtle complex federal government perform duties responsible effective way without administrative agencies yet amorphous character administrative agency constitutional system escapes simple explanation agencies permitted unbridled discretion actions might violate important constitutional principles separation powers checks balances end constitution requires congress delegation lawmaking power agency must specific detailed mistretta congress must clearly delineat general policy agency achieve must specify boundaries delegated authority congress must legislative act intelligible principle agency must follow quoting hampton congress passed administrative procedure act apa ensure agencies follow constraints even exercise powers one constraints duty agencies find formulate policies justified neutral principles reasoned explanation achieve end congress confined agencies discretion subjected decisions judicial review see stewart sunstein public programs private rights harv rev apa working compromise broad delegations discretion tolerated long checked extensive procedural safeguards agency takes action based neutral rational principles apa grants federal courts power set aside agency action arbitrary capricious citizens preserve overton park volpe reasons agencies apa subject searching careful review courts ibid policy change record may much developed agency based prior policy factual findings instance agency decision change course may arbitrary capricious agency ignores countermands earlier factual findings without reasoned explanation agency simply disregard contrary inconvenient factual determinations made past ignore inconvenient facts writes blank slate principle followed opinion motor vehicle mfrs assn state farm mut automobile ins congress directed agency issue regulations need motor vehicle safety agency promulgated regulation requiring cars systems either airbags automatic seatbelts agency based regulation factual finding systems save lives following change presidential administration however agency reversed course rescinded regulation agency address prior finding airbags save lives indeed ot one sentence agency rulemaking statement support rescinding regulation discussed benefits airbags found agency rescission arbitrary capricious agency address prior factual findings see present case raise concerns addressed state farm rather base prior policy knowledge broadcast industry audience fcc instead based policy considered holding fcc pacifica foundation see application wgbh educ foundation intend strictly observe narrowness pacifica holding fcc base prior policy factual findings fcc remand order explains agency changed reading pacifica reasons agency announces change precise detailed elaborate model agency explanation opinion well explains fcc reasons action sort reasons agency may consider act upon careful complete analysis respect procedural history fcc indecency policies reasons agency given support quite sufficient sustain fcc change course respondents claim agency acted arbitrary capricious fashion holding appeals turned conclusion agency explanation change policy insufficient question presented agree case comes us appeals must reserve judgment question whether agency action consistent guarantees constitution federal communications commission et petitioners fox television stations et al writ certiorari appeals second circuit april justice stevens dissenting join justice breyer cogent dissent think important emphasize two flaws reasoning apparently assuming federal communications commission fcc commission rulemaking authority species executive power espouses novel proposition commission need explain decision discard longstanding rule favor dramatically different approach regulation see ante moreover incorrectly assumes decision fcc pacifica foundation decided word indecent used permits fcc punish broadcast expletive sexual excretory origin pacifica sweeping commission changed view statutory mandate certainly rejected presented time structure government conceived framers constitution disperses federal power among three branches legislative executive judicial placing substantive procedural limitations metropolitan washington airports authority citizens abatement aircraft noise distinction among branches always sharp see bowsher synar stevens concurring judgment citing cases consequence fact great ordinances constitution establish divide fields black white springer philippine islands holmes dissenting strict lines authority particularly elusive congress president exert measure control agency landmark decision involving federal trade commission ftc made clear however congress grants rulemaking adjudicative authority expert agency composed commissioners selected bipartisan procedure appointed fixed terms substantially insulates agency executive control see humphrey executor view broadcast regulation free political influence arbitrary control possible congress established fcc measure independence executive provided ftc fcc commissioners serve president see ed regulations subject change president commission fashions rules govern airwaves exercises legislative power delegated congress see whitman american trucking stevens concurring part concurring judgment bowsher opinion stevens consequently fcc proper sense characterized arm eye executive better viewed agent congress established carry effect legislative policies embodied statute accordance legislative standard therein prescribed perform specified duties legislative aid humphrey executor fcc like agencies may revise regulations time time congress amends statutes circumstances warrant fcc constrained congressional mandate strong presumption fcc initial views reflecting informed judgment independent commissioners expertise regulated area also reflect views congress delegated commission authority flesh details fully defined enacting statute rules adopted pacifica effect decades proved unworkable intervening years justice breyer opinion explains broadcasters substantial interest regulatory stability threat crippling financial penalties looms large entities see post fcc shifting impermissibly vague indecency policy imperils broadcasters muddles regulatory landscape therefore makes eminent sense require commission justify prior policy longer sound allowing change fcc congressional charter et administrative procedure act ed instructing courts hold unlawful set aside arbitrary capricious agency action rule law favor stability administrative whim ii commits second critical error assuming pacifica endorsed construction term indecent used include expletive sexual excretory origin neither opinion justice powell concurring opinion adopted interpretation holding narrow two critical respects first concluded dissent four justices statutory term indecent limited material prurient appeal instead included material nonconformance accepted standards morality pacifica second upheld fcc adjudication monologue satiric humorist george carlin indecent broadcast decide whether isolated expletive qualify indecent powell concurring part concurring judgment certainly hold word sexual scatological origin however used indecent narrow treatment term indecent pacifica defined outer boundaries enforcement policies adopted fcc ensuing years commission originally explained legal standards set forth pacifica deliberate repetitive use expletives patently offensive manner requisite finding indecency pacifica foundation fcc rcd repetitive use issue received attention case forgotten pacifica permitted commission regulate words describe sex excrement see plurality opinion commission definition indecency deter broadcasting patently offensive references excretory sexual organs activities emphasis added fcc minimizes strength limitation claiming use words issue case context form necessarily describes sex excrement see complaints regarding various television broadcasts february march fcc rcd remand order ny strict dichotomy expletives descriptions depictions sexual excretory functions artificial make sense light fact expletive power offend derives sexual excretory meaning internal quotation marks omitted customs speech refute claim critical distinction use expletive describe sexual excretory function use word entirely different purpose express emotion one rests core indecency stands miles apart golfer watched partner shank short approach knows absurd accept suggestion resultant word uttered golf course describes sex excrement therefore indecent absurdity fcc embraced new approach see complaints various broadcast licensees regarding airing golden globe awards program fcc rcd declaring even use expletive emphasize happiness invariably invokes coarse sexual image even words concern case sometimes retain sexual excretory meaning surely countless instances used manner unrelated origin words may polite mean necessarily indecent improperly equating two commission adopted interpretation indecency bears resemblance pacifica distressingly commission appears entirely unaware fact see remand order fcc erroneously referencing pacifica support new policy today majority seems untroubled significant oversight see ante fcc failed demonstrate awareness ventured far beyond pacifica reading policy choice must declared arbitrary set aside unlawful see citizens preserve overton park volpe iii reasons stated justice breyer dissenting opinion affirm judgment appeals federal communications commission et petitioners fox television stations et al writ certiorari appeals second circuit april justice ginsburg dissenting mainspring case government restriction spoken words appeal recognize arises administrative procedure act justice breyer dissenting opinion join cogently describes infirmities federal communications commission fcc commission policy switch act commission bold stride beyond bounds fcc pacifica foundation agree exemplified arbitrary capricious decisionmaking write separately note way hide long shadow first amendment casts commission done today decision nothing diminish shadow years ago sharply divided allowed fcc sanction midafternoon radio broadcast comedian george carlin filthy words monologue ibid carlin satirized original seven dirty words repeated relentlessly variety colloquialisms monologue aired part program contemporary attitudes toward use language citizen complaint pacifica foundation station wbai fm rejecting first amendment challenge emphasize narrowness holding pacifica see also ante stevens dissenting regard majority stressed carlin monologue deliberately repeated dirty words appendix justice powell concurring described carlin speech verbal shock treatment concurring part concurring judgment contrast unscripted fleeting expletives issue neither deliberate relentlessly repetitive commission policy home expressions used describe sexual excretory activities organs spontaneous utterances used simply convey emotion intensify statement fall within order compass cf cohen california ords often chosen much emotive cognitive force sanction view constitution solicitous cognitive content individual speech little regard emotive function practically speaking may often important element overall message sought communicated denver area ed telecommunications consortium fcc kennedy concurring part concurring judgment part dissenting part word categorized indecent often inseparable ideas viewpoints conveyed separable loss truth expressive power pacifica decision however might fare reassessment see ante thomas concurring tightly cabined good reason dissent justice brennan observed government take care enjoining broadcast words expressions spoken many land cultural pluralism comment fitting even potent today reserved constitutional question reaches see ante majority opinion mindful words unpalatable may commonplace others stuff everyday conversations brennan dissenting federal communications commission et petitioners fox television stations et al writ certiorari appeals second circuit april justice breyer justice stevens justice souter justice ginsburg join dissenting view federal communications commission failed adequately explain changed indecency policy policy permitting single fleeting use expletive policy made exception explanation fails discuss two critical factors least one directly underlay original policy decision explanation instead discussed several factors well known first time around provide significant justification change policy consequently fcc decision arbitrary capricious abuse discretion motor vehicle mfrs assn state farm mut automobile ins citizens preserve overton park volpe affirm second circuit similar determination begin applicable law law grants charge independent administrative agencies broad authority determine relevant policy permit make policy choices purely political reasons rest primarily upon unexplained policy preferences federal communications commissioners fixed terms office directly responsible voters enjoy independence expressly designed insulate degree exercise political oversight freytag commissioner scalia concurring part concurring judgment see also morrison olson insulation helps secure important governmental objectives constitutionally related objective maintaining broadcast regulation bend readily political winds agency comparative freedom control makes important courts review decisionmaking assure compliance applicable provisions law including law requiring major policy decisions based upon articulable reasons statutory provision applicable administrative procedure act apa prohibition agency action arbitrary capricious abuse discretion legal requirement helps assure agency decisionmaking based upon personal preferences decisionmakers courts applied provision sparingly granting agencies broad policymaking leeway also made clear agency discretion burlington truck lines holding american courts followed venerable legal tradition stretching back least days sir edward coke draining english fens see rooke case eng coke coke members sewer commission authority act according discretio nonetheless limited bound rule reason law act according wills private affections quoted jaffe judicial review constitutional jurisdictional fact harv rev law also recognized much particular set substantive commands rather process process learning reasoned argument antithesis arbitrary means agencies must follow logical rational decisionmaking process allentown mack sales service nlrb agency policy decisions must reflect reasoned exercise expert judgment see burlington truck lines supra decision must reflect basis agency exercised expert discretion see also humphrey executor independent agencies exercise trained judgment specified determining whether agency policy choice arbitrary reviewing must consider whether decision based consideration relevant factors whether clear error judgment overton park supra moreover agency must act consistently agency must follow rules arizona grocery atchison agency seeks change rules must focus fact change explain basis change see national cable telecommunications assn brand internet services unexplained inconsistency reason holding interpretation arbitrary capricious change agency practice emphasis added explain change requires setting forth reasons new policy good one also requires agency answer question change rational answer question typically requires complete explanation prove satisfactory change issue imaginary administrator explaining chose policy requires driving rather road might say well one side seemed good flipped coin even assuming rationality explanation initial choice explanation rational offered explain administrator changed driving practice years later state farm unanimous applied commonsense requirements agency decision rescinded earlier agency policy wrote agency must provide explanation agency revocation prior action thorough explanation necessary act first instance defined revocation simply rescinding earlier policy cf ante reversal agency former views proper course state farm emphasis added see also verizon communications fcc portion opinion joined scalia kennedy thomas jj noting state farm may read prescribing searching judicial review agency course interpretation statute thomas jefferson univ shalala thomas dissenting similar time described need explanation terms apply simply pure rescissions earlier rules rather changes policy broadly defined see ante said law required explanation change earlier policy representing course behavior embodies agency informed judgment pursuing course carry policies best settled rule adhered state farm supra thus agency must explain come conclusion change direction reject considerations led adopt initial policy changed world offers justification change good reasons departing earlier policy contrary majority characterization dissent state farm require heightened standard review ante emphasis added rather law requires application standard review different circumstances namely circumstances characterized fact change issue requires agency focus upon fact change change relevant must focus upon relevant circumstance requires agency focus upon reasons led agency adopt initial policy explain comes new judgment recognize sometimes ultimate explanation change may weigh relevant considerations differently times agency say example agency rested previous policy particular factual findings see ante kennedy concurring part concurring judgment agency rested prior policy view governing law see infra agency rested previous policy say special need coordinate another agency one normally expect agency focus upon earlier views fact law policy explain longer controlling regardless say agency must answer question change require agency provide justification better reasons old policy ante recognize obvious fact change sometimes always relevant background feature sometimes always requires focus upon prior justifications explanation lest adoption new policy circumstance arbitrary capricious abuse discretion certainly courts appeals courts review agency decisions always treated matter practice see pennsylvania federation sportsmen clubs kempthorne hosp leavitt citizens awareness network see naacp fcc cadc using word heightened majority holding respect significantly change judicial review practice healthy direction see ante kennedy concurring part concurring judgment always legally sufficient agency reply question change answer prefer new policy even agency considered major factors led adopt old policy bother asking agency focus fact change point law exempt aspect agency decision arbitrary capricious review apa grant agencies freedom change major policies basis nothing political considerations even personal whim avoiding application heightened standard review state farm recognized apa nonarbitrary requirement affords agencies generous leeway set policy also recognized leeway absolute described boundaries listing considerations help determine whether explanation adequate mirroring elaborating upon statement overton park said reviewing take account whether agency relied factors congress intended consider entirely failed consider important aspect problem offered explanation decision runs counter evidence agency implausible ascribed difference view product agency expertise state farm supra see also overton park supra ii must apply general standards set forth state farm overton park agency decision changes fleeting expletive policy old policy normally permit broadcasters transmit single fleeting use expletive new policy threaten broadcasters large fines transmitting even single use including use member public expletive alone nothing question whether decision satisfies minimal standards necessary assure reviewing change policy arbitrary capricious abuse discretion particularly set forth state farm overton park supra decision view satisfy standards consider requirement agency least minimally consider important aspect problem state farm supra fcc failed satisfy requirement failed consider two critically important aspects problem underlay initial policy judgment one directly indirectly first fcc said next nothing relation change made prior fleeting expletive policy need avoid censorship matter closely related broadcasting regulation health environment reason discussion matter particularly important fcc explicitly rested prior policy large part upon need avoid treading close constitutional line thirty years ago considered location constitutional line fcc pacifica foundation reviewed fcc decision forbidding broadcast monologue deliberately repeatedly uttered expletives issue times one hour time day children likely hear broadcast held fcc prohibition violate first amendment divided two members majority justices powell blackmun explicitly noted speak cases involving isolated use potentially offensive word distinguished verbal shock treatment administered respondent powell concurring part concurring judgment emphasis added statement two members majority suggested reach different result finding fcc prohibition unconstitutional prohibition aimed fleeting single use expletive fcc subsequently made clear thought justice powell concurrence set forth constitutional line indecency policy embody commission wrote first amendment severely limit commission role regulating indecency added pacifica relied repetitive occurrence words question said setting policy intend ed strictly observe narrowness pacifica holding application wgbh educ foundation commission wrote understood decision pacifica rest repetitive occurrence words question commission explained regulation fleeting isolated offensive words reflect justice powell understanding first amendment scope application pacifica foundation commission explained fleeting expletives policy reflected decision pacifica said policy speech indecent must involve isolated use offensive word adding believe legal standards set forth pacifica deliberate repetitive use patently offensive manner requisite finding indecency pacifica foundation fcc rcd emphasis added another order year commission stated first amendment dicate careful restrained approach regard review matters involving broadcast programming explained citing pacifica peech indecent must involve isolated use offensive word infinity broadcasting fcc rcd emphasis added giving industry guidance fcc said respect regulation indecent speech must identify compelling interest regulation choose least restrictive means interest industry guidance commission case law interpreting enforcement policies regarding broadcast indecency fcc rcd fcc thus repeatedly made clear based fleeting expletive policy upon need avoid treading close constitutional line set forth justice powell pacifica concurrence say changed policy abandoned reasoning fcc devoted four full pages text ante responding industry arguments changes nature broadcast industry made indecency regulation unconstitutional repeatedly reaffirmed view pacifica remains good law complaints regarding various television broadcasts february march fcc rcd remand order surprising respect abandoned prior view critical relation prior fleeting expletive policy justice powell pacifica concurrence says following ur decision inconsistent ruling pacifica explicitly left open issue whether occasional expletive considered indecent complaints various broadcast licensees regarding airing golden globe awards program fcc rcd golden globe order repeating already said pacifica specifically reserved question occasional expletive noted addressed broadcast issue case remand order supra two sentences summary fcc discussion abandoned prior understanding pacifica discussion words repeated two opinions acknowledge entirely different understanding pacifica underlay fcc earlier policy explain agency changed mind line pacifica draws policy relation line tell us nothing happened fcc earlier determination search compelling interests less restrictive alternatives explain transformation fcc long thought insurmountable obstacle open door result simply hamlet without prince hamlet prince without explanation disappears found one related reference pacifica reference occurs opinion written dissenting commissioner dissenter said fcc ed address many serious constitutional concerns new policy adding new policy restrained enforcement policy encouraged pacifica remand order supra neither commissioner dissent dissent claim agencies must always take account possible constitutional issues formulate policy cf ante fcc works shadow first amendment view application amendment fleeting expletives directly informed initial policy choice circumstances fcc failure address aspect problem calls remand agency overton park second fcc failed consider potential impact new policy upon local broadcasting coverage aspect problem particularly important fcc explicitly took account potential broadcasting impact golden globe order supra ease broadcasters today block even fleeting words live broadcast element decision indeed setting forth bleeping technology changes presumably lowering bleeping costs justifying policy change implicitly reasoned lower costs making easier broadcasters install bleeping equipment made less likely new policy lead broadcasters reduce coverage say canceling coverage public events ibid echnological advances made possible prevent broadcast single offending word action without blocking disproportionately disrupting message speaker performer fcc say likelihood smaller independent broadcasters including many public service broadcasters still able afford bleeping technology consequence reduce local coverage indeed cancel coverage many public events said nothing fcc claim local coverage lacks special importance contrary concept localism cornerstone broadcast regulation decades broadcast localism fcc rcd policy seeks provide viewers listeners access locally responsive programming including limited local news public affairs matter ensure diversity seen heard airwaves policy long favored local broadcasting means increase coverage local events insofar increases number broadcast voices end see reexamination comparative standards noncommercial educ applicants fcc rcd adopting system selecting applicants broadcast channels foster goal broadcast diversity enabling local public served differing licensees biennial regulatory review fcc rcd remain firmly committed policy promoting localism among broadcast outlets measure localism quantity quality local news public affairs programming neither fcc claim impact new policy local broadcasting insignificant obviously broadcasters tell us told fcc contrary see brief former fcc commissioners amici curiae app joint comments fox television stations et remand section commission march omnibus order resolving numerous broadcast television indecency complaints http internet materials visited apr available clerk case file told fcc example costs systems installation annual operation place technology beyond financial reach many smaller independent local stations see significant equipment personnel costs associated installing maintaining operating delay equipment sufficient cover live news sports entertainment programs conceivably exceed net profits small local station entire year app xi ask fcc thinks happen small local station without bleeping equipment wants cover say local city council meeting high school football game dance contest community center fourth july parade relevant literature supports broadcasters financial claims see ho taking chances austin june dotinga filters prove costly july http stations cable networks finding indecency rules expensive public broadcasting report also indicates networks small stations affiliated liable stations local transmissions unless networks ho supra public stations fear indecency fine jump means premium hikes public broadcasting report july result smaller stations fearing fleeting expletive fines may simply cut back coverage see romano reporting live carefully broadcasting cable july see also ibid afraid take chances getting fined fcc new policy local broadcasters responding altering halting altogether one asset makes local stations valuable communities live tv daneman wrur drops live radio programs rochester democrat chronicle may reporting local broadcast station ceased broadcasting local live programming altogether response commission policy change many smaller stations see corporation public broadcasting frequently asked questions available http noting local public television stations nearly local public radio stations receive support corporation public broadcasting one local station manager told fcc lessen risk posed new legal framework directed station news staff station may longer provide live coverage live events crowds present unless affect matters public safety convenience thus news coverage station live events crowds present essentially limited civil emergencies app declaration dennis fisher fcc say response claim say likely impact new policy coverage new policy likely affect coverage local live events city council meetings local sports events community arts productions like said nothing plurality acknowledges commission entirely failed discuss aspect regulatory problem sees need discussion light plurality doubt broadcasters run heightened risk liability indecent utterances result change policy ante plurality doubt rest upon views vulgar expression less prevalent least among broadcast guests smaller towns ante greatest risk new policy poses broadcasters arises broadcast local news public affairs remand order says little commission treat smaller broadcasters afford screening equipment also pointing new policy impose undue burdens emphasizing case involve news ante first point prevalence vulgarity small towns confess ignorance know independent stations many large medium sized cities see television cable factbook directory television stations operation second point believe coverage local public events news lies heart problem agree plurality however critical third point namely new policy obviously provides smaller independent broadcasters adequate assurance fined new policy removes fleeting expletive exception exception assured smaller independent stations fined someone swear public event place puts policy places broadcasters risk broadcast fleeting expletives including expletives uttered public events remand order says outright news exemption indecency rules fcc emphasis added best provide way assurance say may inequitable hold licensee responsible airing offensive speech live coverage public event circumstances emphasis added list circumstances including possibility human error using delay equipment says nothing station inability afford delay equipment matter individual cases prove debatable fcc consider matter either grant exemption explain grant exemption result rule may well chill coverage kind consequence law considered important decades broadcasters pointed arguments fcc fcc nowhere discusses see dombrowski pfister long statute remains available state threat prosecutions protected expression real substantial one even prospect ultimate failure prosecutions means dispels chilling effect protected expression see also ashcroft free speech coalition gibson florida legislative investigation wieman updegraff frankfurter concurring fcc used traditional administrative procedures two failures discussed clearly require vacate resulting agency decision see aclu fcc cadc notice comment rulemaking procedures obligate fcc respond significant comments opportunity comment meaningless unless agency responds significant points raised public emphasis added internal quotation marks omitted agency make new policy medium notice comment proceedings failures policy important significance issues clear failures near complete lead us conclusion agency failure discuss two important aspect problem means resulting decision capricious abuse requiring us remand matter agency state farm overton park iii three reasons fcc set forth support change policy make failures discussed consider first pointed fcc based decision part upon fact systems technology advanced already set forth reasons believing fact without provide sufficient justification policy change supra second fcc says expletives question always invoke coarse excretory sexual image hence makes sense distinguish whether one uses relevant terms expletive literal description problem answer help justify change policy fcc aware coarseness image first time around see remand order fcc asserting fcc always understood words coarse indecent explained first time around nonetheless distinguished literal use use fleeting expletives see application wgbh educ foundation discussing first amendment considerations related need avoid reduced broadcast coverage simply announce words whether used descriptively expletives call forth similar images address reasons third fcc said perhaps importan justification new policy lay fact new contextual approach fleeting expletives better onsistent agency general approach indecency previous categorica approach offered broadcasters virtual immunity broadcast fleeting expletives remand order supra justification however offers support change without understanding way fcc considered new approach better consistent agency general approach solicitor general sets forth one way new policy might consistent statutory policy indecency statute prohibits broadcast indecent language point statute says eliminate nuisance use expletives even constitute nuisance solicitor general adds statutory word indicates congress intend fleeting use language brief petitioners fatal flaw argument however lies fact solicitor general agency made must consider lawfulness agency decision basis reasons agency gave basis might given sec chenery state farm supra fcc make claim hence take account need evaluate merits fact fcc found new policy better part view new policy better protects children described first broadcast indecency results nature broadcast media wrote former policy granting automatic exemption fleeting expletives unfairly forces viewers including children take first blow remand order supra difficulty argument however explain change fcc long used theory first blow justify regulation broadcast indecency see enforcement prohibitions broadcast indecency fcc rcd yet fcc also long followed original fleeting expletives policy fcc ever unaware fact majority points namely children surroundings influence behavior see enforcement prohibitions broadcast indecency fcc rcd repeat question respect first blow changed fcc points empirical evidence demonstrate previously understated importance avoiding first blow like majority believe agency must always conduct full empirical studies matters ante fcc referred explained relevant empirical studies suggest contrary one review empirical evidence example reports doubtful children age understand sexual language innuendo therefore unlikely vulgarities negative effect kaye sapolsky watch mouth analysis profanity uttered children television mass communication vol citing two studies commission need accepted conclusion failure discuss evidence providing empirical evidence favors position must weaken logical force conclusion see state farm explaining agency failure examine relevant data factor determining whether decision arbitrary fcc also found new policy better believed prior policy matter logic permit broadcasters air expletives hours day long one time remand order fcc statement however raises obvious question happen fcc initial fleeting expletives policy effect years broadcasters years aired series expletives one time difficult find evidence fact fcc refers none indeed fcc even claim change taken place respect spoke pure logic initial policy permitting practice logic apparent anyone including fcc fcc set forth initial policy finally fcc made certain statements suggest believe changing prior policy major way referred prior policy based staff letters dicta said least one instances namely cher broadcast actionably indecent prior policy agree however fact fcc change policy major way see ante extent fcc minimized fact considering change fully focus fact change failure make decision still less supportable see national cable iv question closer one doctrine constitutional avoidance nonetheless lead remand case see jin fuey moy statute must construed fairly possible avoid conclusion unconstitutional also grave doubts upon score emphasis added doctrine seeks avoid unnecessary judicial consideration constitutional questions assumes congress less judicial branch seeks act within constitutional bounds thereby diminishes friction branches judicial holdings unconstitutionality might otherwise generate see see also solid waste agency northern cook cty army corps engineers edward debartolo florida gulf coast building constr trades council rescue army municipal los angeles ashwander tva brandeis concurring doctrine assumes congress prefer interpretation statute grave risk constitutional holding set statute entirely aside see supra construction statute avoids invalidation best reflects congressional cf booker unlike majority find convincing reason refusing apply similar doctrine often applied doctrine agency regulation relies plausible constitutionally suspect interpretation statute see solid waste agency supra nlrb catholic bishop chicago values doctrine serves apply whether agency decision rest upon constitutionally suspect interpretation statute remand ask agency reconsider policy decision light concerns raised judicial opinion cf fullilove klutznick stevens dissenting holding congressional action implicating equal protection clause adequately preceded consideration less drastic alternatives adequately explained statement legislative purpose far less intrusive final determination substance action unconstitutional foreclose majority forecloses consideration matter course nothing decision today prevents commission reconsidering current policy light potential constitutional considerations reasons sum fcc explanation change leaves two critically important matters underlying earlier policy namely pacifica local broadcasting coverage explanation rests upon three considerations previously known agency coarseness first blow running single expletives day one time one exception provides empirical information explaining considerations justify new policy justify discussion one exception technological advances systems failing take account local broadcast coverage seriously incomplete need decide whether one two features standing alone require us remand case come together taken together suggest fcc answer question change like new policy better kind answer might perfectly satisfactory given elected official given agency respect major change important policy much might said sufficient state farm reasons find fcc decision arbitrary capricious abuse discretion requiring remand case fcc affirm second circuit similar determination respect dissent footnotes statutory prohibition applicable commercial radio television stations extends terms midnight appeals district columbia circuit held however congress commission backed away consequences reasoning allowing public broadcasters air indecent speech forced hold section unconstitutional insofar bars broadcasting indecent speech hours midnight action children television fcc en banc cert denied justice breyer contention state farm anything post dissenting opinion rests upon failure observe italicized phrase upon passage quoted state farm plurality opinion atchison wichita bd trade passage referred presumption congressional policies carried best settled rule adhered opinion marshall atchison plurality made statement context requiring agency provide explanation change reviewing may understand basis agency action may judge consistency action agency mandate opinion assert authority demand explanation sufficient enable weigh lights merits agency change opinion state farm justice breyer claims often applied doctrine constitutional avoidance agency regulation relies plausible constitutionally suspect interpretation statute post cases cites however set aside agency regulation applying doctrine constitutional avoidance ambiguous statute agency acted found agency interpretation statute erroneous see solid waste agency northern cook cty army corps engineers nlrb catholic bishop chicago justice breyer urge issue holding evidently agreeing limit review appeals decided see part iv infra included adequacy commission rulemaking procedure statutory question rather justice breyer seeks remand ask agency reconsider policy decision light constitutional concerns post strange novel disposition entirely unrelated doctrine constitutional avoidance better termed doctrine judicial appellate review wagged finger subcommittee fcc house oversight committee held hearings fcc broadcast indecency enforcement january say tv examination fcc enforcement respect broadcast indecency hearing subcommittee telecommunications internet house committee energy commerce sess members subcommittee specifically called full commission reverse staff ruling golden globes case perceived feeling amongst many americans broadcasters engaged race bottom pushing decency envelope distinguish increasingly crowded entertainment field statement upton see also statement terry statement pitts repeatedly expressed disapproval fcc enforcement policies see statement upton point ask fcc much enough revoke license statement markey today hearing allow us explore fcc lackluster enforcement record respect violations two weeks later february subcommittee held hearings bill increasing fines indecency violations hearings subcommittee telecommunications internet house committee energy commerce sess five commissioners present grilled enforcement shortcomings see statement terry chairman powell seems like common sense frequent enforcement instead examples fines deterrent statement dingell see apparently enforcement regulations fcc certain statements moreover indicate political pressure applied congress desired effect see ibid think committee work gotten attention fcc chairman powell bush administration happy see fcc brought state apparent alert matters see also statement michael copps fcc commissioner noting positive change commissioners willingness step enforcement light proposed congressional action version bill ultimately became law broadcast decency enforcement act stat fcc adopted change subject litigation march three weeks second hearing see golden globes order fcc rcd justice stevens accuses us equating statements made congressional hearing intent congress post opinion intent full congress least majority house thought relevant interpretation statutes since must passed entire congress see art quite irrelevant however extrastatutory influence congress exerts agencies executive branch exerted congressional committees responsible oversight appropriations respect relevant agency major reason committee assignments important committee chairmanships powerful surely justice stevens knows administrative procedure act defines agency mean authority government specifically excludes congress appeals district columbia circuit interpreted exemption congress mean entire legislative branch washington legal foundation sentencing see also ethnic employees library congress boorstin cadc holding library congress agency act justice stevens criticizes us assuming pacifica endorsed enforcement issue post nothing sort rely fact certain aspects agency decision mirror approach pacifica approved supra goes holding administrative law says nothing constitutionality justice stevens also argues heightened deference due fcc prior policy fcc initial views reflect views congress delegated commission authority flesh details fully defined enacting statute post believe dead hand departed congressional oversight committee constrain discretion text statute confers point event irrelevant appeal concerns whether agency exceeded statutory mandate whether reasons actions adequate justice breyer posits fcc required give explanation used rulemaking lead us conclusion review agency change adjudication post even assuming premise basis incorporating administrative procedure act procedural requirements review adjudicatory decisions cf vermont yankee footnotes respect reliance fcc pacifica foundation ease children exposed indecent television programming technology provided innovative solutions assist adults screening children unsuitable programming even programming appears broadcast channels see nbc brief discussing technology allows targeted blocking television programs based content footnotes section provides whoever utters obscene indecent profane language means radio communication shall fined title imprisoned two years justice scalia erroneously concludes treating fcc rulemaking authority exercise legislative power somehow unconstitutional see ante citing bowsher synar nature rulemaking rules promulgated agencies independent carry force law precisely exercises legislative authority may offend justice scalia theory unitary executive ante offend constitution indeed framers vested legislative powers congress art article ii vested power president art ii provisions purport limit authority either recipient power delegate authority others whitman american trucking stevens concurring part concurring judgment appears justice scalia come view isolated statements members congressional oversight subcommittee sufficient evidence congress intent see ante delving details various lawmakers grilled full slate fcc commissioners justice scalia concludes quite remarkably encounter made clear congress wishes stricter enforcement seem adequate explanation fcc change position ante putting side question whether congressional outrage kind evidence sufficient explain commission decision adopt unconstitutional policy justice scalia treatment proceedings evidencing intent congress make even ardent student legislative history blush ironic say least fcc patrols airwaves words tenuous relationship sex excrement commercials broadcast hours frequently ask viewers whether battling erectile dysfunction trouble going bathroom justice thomas disagree continued wisdom pacifica see ante concurring opinion changes technology availability broadcast spectrum identifies certainly counsel restrained approach indecency regulation wildly expansive path fcc chosen footnotes second circuit presented constitutional statutory challenges vacated remand order apa grounds therefore refrain ed deciding constitutional questions quoting lyng northwest indian cemetery protective majority however stated explained skeptical commission policy pass constitutional muster