Federal law prohibits the broadcasting of any indecent language, [citation], which includes expletives referring to sexual

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Federal law prohibits the broadcasting of ‘‘any … indecent… language,’’ [citation], which includes expletives referring to sexual or excretory activity or organs, see [citation]. This case concerns the adequacy of the Federal Communications Commission’s explanation of its decision that this sometimes forbids the broadcasting of indecent expletives even when the offensive words are not repeated.

* * *

   * * * Congress has given the Commission various means of enforcing the indecency ban, including civil fines, see § 503(b)(1), and license revocations or the denial of license renewals, [citation].

   The Commission first invoked the statutory ban on indecent broadcasts in 1975, declaring a daytime broadcast of George Carlin’s ‘‘Filthy Words’’ monologue actionably indecent. [Citation.] At that time, the Commission announced the definition 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.’’ [Citation.]

  * * *

   In the ensuing years, the Commission took a cautious, but gradually expanding, approach to enforcing the statutory prohibition against indecent broadcasts. * * *

   Although the Commission had expanded its enforcement beyond the ‘‘repetitive use of specific words or phrases,’’ it preserved a distinction between literal and nonliteral (or ‘‘expletive’’) uses of evocative language. [Citation.] The Commission explained that each literal ‘‘description or depiction of sexual or excretory functions must be examined in context to determine whether it is patently offensive,’’ but that ‘‘deliberate and repetitive use … is a requisite to a finding of indecency’’ when a complaint focuses solely on the use of nonliteral expletives. [Citation.]

 * * *

   In 2004, the Commission took one step further by declaring for the first time that a nonliteral (expletive) use of the F- and S-Words could be actionably indecent, even when the word is used only once. The first order to this effect dealt with an NBC broadcast of the Golden Globe Awards, in which the performer Bono commented, ‘‘‘This is really, really, f * * *ing brilliant.’’’ * * *

 * * *

   This case concerns utterances in two live broadcasts aired by Fox Television Stations, Inc., and its affiliates prior to the Commission’s Golden Globes Order. The first occurred during the 2002 Billboard Music Awards, when the singer Cher exclaimed, ‘‘I’ve also had critics for the last 40 years saying that I was on my way out every year. Right. So f * * * ‘em.’’ [Citation.] The second involved a segment of the 2003 Billboard Music Awards, during the presentation of an award by Nicole Richie and Paris Hilton, principals in a Fox television series called ‘‘The Simple Life.’’ Ms. Hilton began their interchange by reminding Ms. Richie to ‘‘watch the bad language,’’ but Ms. Richie proceeded to ask the audience, ‘‘Why do they even call it ‘The Simple Life?’ Have you ever tried to get cow s* * * out of a Prada purse? It’s not so f * * *ing simple.’’ [Citation.] Following each of these broadcasts, the Commission received numerous complaints from parents whose children were exposed to the language.

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

   The order first explained that both broadcasts fell comfortably within the subject-matter scope of the Commission’s indecency test because the 2003 broadcast involved a literal description of excrement and both broadcasts invoked the ‘‘F-Word,’’ which inherently has a sexual connotation. [Citation.] The order next determined that the broadcasts were patently offensive under community standards for the medium. Both broadcasts, it noted, involved entirely gratuitous uses of ‘‘one of the most vulgar, graphic, and explicit words for sexual activity in the English language.’’ * * *

* * *

   The order explained that the Commission’s prior ‘‘strict dichotomy between ‘expletives’ and ‘descriptions or depictions of sexual or excretory functions’ is artificial and does not make sense in light of the fact that an ‘expletive’s’ power to offend derives from its sexual or excretory meaning.’’ * * * Although the Commission determined that Fox encouraged the offensive language by using suggestive scripting in the 2003 broadcast, and unreasonably failed to take adequate precautions in both broadcasts, [citation], the order * * * declined to impose any forfeiture or other sanction for either of the broadcasts, [citation].

   * * * The [Second Circuit] Court of Appeals reversed the agency’s orders, finding the Commission’s reasoning inadequate under the Administrative Procedure Act. [Citation.] The majority was ‘‘skeptical that the Commission [could] provide a reasoned explanation for its ‘fleeting expletive’ regime that would pass constitutional muster,’’ but it declined to reach the constitutional question. [Citation.] We granted certiorari, [citation].

   The Administrative Procedure Act, [citation], which sets forth the full extent of judicial authority to review executive agency action for procedural correctness, [citation], permits (insofar as relevant here) the setting aside of agency action that is ‘‘arbitrary’’ or ‘‘capricious,’’ [citation]. Under what we have called this ‘‘narrow’’ standard of review, we insist that an agency ‘‘examine the relevant data and articulate a satisfactory explanation for its action.’’ Motor Vehicle Mfrs. Assn. of United States, Inc. v. State Farm Mut. Automobile Ins. Co., [citation]. We have made clear, however, that ‘‘a court is not to substitute its judgment for that of the agency,’’ [citation], and should ‘‘uphold a decision of less than ideal clarity if the agency’s path may reasonably be discerned,’’ [citation].

   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 State Farm as requiring agencies to make clear ‘‘‘why the original reasons for adopting the [displaced] rule or policy are no longer dispositive’’’ as well as ‘‘‘why the new rule effectuates the statute as well as or better than the old rule.’’’ [Citation.] * * *

   We find no basis in the Administrative Procedure Act or in our opinions for a requirement that all agency change be subjected to more searching review. The Act mentions no such heightened standard. And our opinion in State Farm neither held nor implied that every agency action representing a policy change must be justified by reasons more substantial than those required to adopt a policy in the first instance. * * *

   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 or simply disregard rules that are still on the books. [Citation.] And of course the agency must show that there are good reasons for the new policy. But it need not demonstrate to a court’s satisfaction that the reasons for the new policy are better than the reasons for the old one; it suffices that the new policy is permissible under the statute, that there are good reasons for it, and that the agency believes it to be better, which the conscious change of course adequately indicates. This means that the agency need not always provide a more detailed justification than what would suffice for a new policy created on a blank slate. Sometimes it must—when, for example, its new policy rests upon factual findings that contradict those which underlay its prior policy; or when its prior policy has engendered serious reliance interests that must be taken into account. [Citation.] It would be arbitrary or capricious to ignore such matters. In such cases it is not that further justification is demanded by the mere fact of policy change; but that a reasoned explanation is needed for disregarding facts and circumstances that underlay or were engendered by the prior policy.

   Judged under the above described standards, the Commission’s new enforcement policy and its order finding 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.’’ [Citation.] * * * 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. * * * Even isolated utterances can be made in ‘‘pander[ing,] … vulgar and shocking’’ manners, [citation], and can constitute harmful ‘‘‘first blow[s]’’’ to children, [citation]. 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.’’ [Citation.]

* * *

   The Second Circuit did not definitively rule on the constitutionality of the Commission’s orders, but respondents nonetheless ask us to decide their validity under the First Amendment. This Court, however, is one of final review, ‘‘not of first view.’’ [Citation.] * * * We see no reason to abandon our usual procedures in a rush to judgment without a lower court opinion. We decline to address the constitutional questions at this time.

   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.

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Smith and Roberson Business Law

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