The Communications Act of 1934 established a system of limited-term broadcast licenses subject to various “conditions” * * * .

* * * [These conditions include]

the indecency ban—the statutory proscription [prohibition] against

“utter[ing] any obscene, indecent, or profane language by means of radio communication”—which Congress has instructed the [Federal Communications] Commission to enforce * * * .

* * * *

The Commission fi rst invoked the statutory ban on indecent broadcasts in 1975, declaring a daytime broadcast of George Carlin’s “Filthy Words” monologue actionably indecent.

At that time, the Commission announced the defi nition of indecent speech that it uses to this day, prohibiting “language that describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory activities or organs, at times of the day when there is a reasonable risk that children may be in the audience.”

* * * *

Over a decade later, the Commission emphasized that the

“full context” in which particular materials appear is “critically important,” but that a few “principal”

factors guide the inquiry, such as the “explicitness or graphic nature” of the material, the extent to which the material “dwells on or repeats” the offensive material, and the extent to which the material was presented to “pander,” to “titillate,”

or to “shock.” * * * “Where sexual or excretory references have been made once or have been passing or fl eeting in nature, this characteristic has tended to weigh against a fi nding of indecency.”

In 2004, the Commission took one step further by declaring for the fi rst time that a nonliteral (expletive)

use of the F- and S-Words could be actionably indecent, even when the word is used only once. The fi rst order to this effect dealt with an NBC broadcast of the Golden Globe Awards, in which the performer Bono [lead singer of the rock group U-2] commented, “This is really, really, f***ing brilliant.”

* * * *

The order acknowledged that

“prior Commission and staff action have indicated that isolated or fl eeting broadcasts of the ‘F-Word’

* * * are not indecent or would not be acted upon.” It explicitly ruled that “any such interpretation is no longer good law.”

[The present case] concerns utterances in two live broadcasts aired by Fox Television Stations, Inc., * * *

prior to the Commission’s Golden Globes Order. The fi rst occurred during the 2002 Billboard Music Awards, when the singer Cher exclaimed,

“I’ve also had critics for the last 40 years saying that I was on my way out every year. Right. So f*** ‘em.”

The second involved a segment of the 2003 Billboard Music Awards,

[when Nicole Richie asked] the audience,

“Why do they even call it ‘The Simple Life?’ Have you ever tried to get cow s*** out of a Prada purse? It’s not so f***ing simple.”

On March 15, 2006, the Commission released Notices of Apparent Liability for a number of broadcasts that the Commission deemed actionably indecent, including the two described above.

* * * *

* * * In the Commission’s view,

“granting an automatic exemption for ‘isolated or fleeting’ expletives unfairly forces viewers (including children)” to take “the fi rst blow”

and would allow broadcasters “to air expletives at all hours of a day so long as they did so one at a time.”

Fox [appealed] to the Second Circuit [Court of Appeals] for review of the [order] * * * . The Court of Appeals reversed the agency’s order, fi nding the Commission’s reasoning inadequate under the Administrative Procedure Act. * * * We granted certiorari.

* * * *

The Administrative Procedure Act, which sets forth the full extent of judicial authority to review executive agency action for procedural correctness, permits (insofar as relevant here) the setting aside of agency action that is “arbitrary” or

“capricious.” Under what we have called this “narrow” standard of review, we insist that an agency “examine the relevant data and articulate a satisfactory explanation for its action.” We have made clear, however, that “a court is not to substitute its judgment for that of the agency,” and should “uphold a decision of less than ideal clarity if the agency’s path may reasonably be discerned.” [Emphasis added.]

In overturning the Commission’s judgment, the Court of Appeals here relied in part on Circuit precedent requiring a more substantial explanation for agency action that changes prior policy. The Second Circuit has interpreted the Administrative Procedure Act and our opinion in [a previous case] as requiring agencies to make clear “why the original reasons for adopting the [displaced] rule or policy are no longer dispositive

[a deciding factor]” as well as “why the new rule effectuates the statute as well as or better than the old rule.”

The Court of Appeals for the District of Columbia Circuit has similarly indicated that a court’s standard of review is “heightened somewhat”

when an agency reverses course.

We fi nd no basis in the Administrative Procedure Act or in our opinions for a requirement that all agency change be subjected to more searching review. The Act mentions no such heightened standard. [Emphasis added.]

To be sure, the requirement that an agency provide reasoned explanation for its action would ordinarily demand that it display awareness that it is changing position. An agency may not, for example, depart from a prior policy sub silentio [under silence, without any notice of the change] or simply disregard rules that are still on the books. And of course the agency must show that there are good reasons for the new policy. But it need not demonstrate to a court’s satisfaction that the reasons for the new policy are better than the reasons for the old one; it suffi ces that the new policy is permissible under the statute, that there are good reasons for it, and that the agency believes it to be better.

* * * *

Judged under the abovedescribed standards, the Commission’s new enforcement policy and its order fi nding the broadcasts actionably indecent were neither arbitrary nor capricious.

First, the Commission forthrightly acknowledged that its recent actions have broken new ground, taking account of inconsistent “prior Commission and staff action” and explicitly disavowing them as “no longer good law.” * * * There is no doubt that the Commission knew it was making a change. That is why it declined to assess penalties * * * .

Moreover, the agency’s reasons for expanding the scope of its enforcement activity were entirely rational. It was certainly reasonable to determine that it made no sense to distinguish between literal and nonliteral uses of offensive words, requiring repetitive use to render only the latter indecent. * * * It is surely rational (if not inescapable) to believe that a safe harbor for single words would “likely lead to more widespread use of the offensive language.”

* * * *

The judgment of the United States Court of Appeals for the Second Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion.

Questions:-

1. Today, children are likely exposed to indecent language in various media far more often than they were in the 1970s, when the Federal Communications Commission fi rst began to sanction indecent speech. Does this mean that we need more stringent—or less stringent—regulation of broadcasts? Explain.

2. Technological advances have made it easier for broadcasters to “bleep out” offending words in the programs that they air. Does this development support a more stringent—or less stringent—enforcement policy by the Federal Communications Commission? Explain.